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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations for the importation of honeybees and honeybee semen and the regulations governing the importation of bees other than honeybees, certain beekeeping byproducts, and used beekeeping equipment. Among other things, we are allowing honeybees from Australia and honeybees and honeybee germ plasm from New Zealand to be imported into the continental United States under certain conditions, imposing certain conditions on the importation into the United States of bees and related articles from Canada, and prohibiting both the interstate movement and importation of honeybees into Hawaii. This action also consolidates all of our regulations concerning all bees in the superfamily
November 22, 2004.
Dr. Wayne F. Wehling, Entomologist, Pest Permit Evaluations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-8757.
Under the Honeybee Act (7 U.S.C. 281-286), the Secretary of Agriculture is authorized to prohibit or restrict the importation of honeybees and honeybee semen to prevent the introduction into the United States of diseases and parasites harmful to honeybees and of undesirable species such as the African honeybee. The Secretary has delegated responsibility for administering the Honeybee Act to the Administrator of the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA). Regulations established under the Honeybee Act are contained in the Code of Federal Regulations (CFR), Title 7, part 322 (referred to below as the “honeybee regulations”).
The honeybee regulations have allowed the unrestricted importation into the United States of honeybees and honeybee semen from Canada, but placed stringent requirements on the importation of these products from other countries. Honeybee imports from any country other than Canada have been allowed only if the bees are imported by the USDA for experimental or scientific purposes. Honeybee semen could be imported by the USDA for experimental or scientific purposes or by another person or group only if the semen was imported from Australia, Bermuda, France, Great Britain, or Sweden and met certain documentation, packaging, inspection, notification, and port of entry requirements. Honeybees and honeybee semen from New Zealand have been allowed to transit the United States en route to another destination in accordance with certain documentation, packaging, handling, notification, and port of entry requirements, but entry has not been allowed.
Under the Plant Protection Act (7 U.S.C. 7701-7772), the Secretary of Agriculture is authorized to prohibit or restrict the importation, entry, exportation, or movement in interstate commerce of plant pests and other articles to prevent the introduction of plant pests into the United States or their dissemination within the United States. The Secretary has delegated responsibility for administering the Plant Protection Act to the Administrator of APHIS. Regulations authorized by the Plant Protection Act concerning the importation of certain bees, beekeeping byproducts, and used beekeeping equipment are contained in 7 CFR part 319, §§ 319.76 through 319.76-8 (referred to below as the “pollinator regulations”).
The pollinator regulations have governed the importation of live bees other than honeybees, dead bees of the superfamily
The pollinator regulations have allowed bees other than honeybees; dead bees; used bee boards, hives, nests, and nesting material; used beekeeping equipment; beeswax; pollen for bee feed; and honey for bee feed to be imported into the United States from Canada without restriction, but have restricted the importation of these articles from other countries. Specifically, the pollinator regulations have provided for the importation of these articles from any country other than Canada only if they are imported by USDA for experimental or scientific purposes or if they are imported under permit and meet certain documentation, inspection, treatment, packaging, notification, and port of entry requirements.
On August 19, 2002, we published in the
We solicited comments concerning our proposal for 90 days ending November 18, 2002. We received 308 written comments by that date, most of which expressed opposition to our proposal. They were from beekeepers, beekeepers' associations, researchers, and representatives of State and foreign governments. These comments, as well as oral comments presented at three public hearings on the proposed rule, are discussed below by topic.
The largest group of commenters who opposed the proposed rule expressed the concern that by allowing imports of honeybees from Australia and New Zealand, APHIS risked letting in disease organisms, mites and other bee parasites, hitchhiker insects, and Africanized bees. Issues raised by these commenters included the adequacy of the surveillance programs of Australia and New Zealand, the adequacy of our proposed inspection requirements, the danger of introducing exotic pests into Hawaii, the adequacy of our proposed provisions related to packaging, and the possible precedent that the proposed changes could set for future regulation of honeybee imports.
Some commenters questioned the efficacy of the surveillance programs of Australia and New Zealand, fearing that authorities in those countries might fail to detect common pests or diseases in bees slated for export to the United States. Various commenters discussed the recent outbreak in Australia of small hive beetle, the routing by Australian companies of illegal honey to the United States, and the belated discovery of Varroa mite in New Zealand after New Zealand's Ministry of Agriculture and Forestry (MAF) had conducted a nationwide survey and pronounced New Zealand free of dangerous pests and diseases and after bees certified by the MAF as Varroa-free were shipped from that country to Canada. These episodes were cited as examples of regulatory lapses on the part of Australia and New Zealand. Commenters also expressed reservations about the ability or the willingness of the governments of Australia and New Zealand to implement the inspection regimen spelled out under § 322.6 of the proposed rule. One commenter asserted that the two countries have expressed an unwillingness to pay for or subsidize honeybee inspection programs.
APHIS has worked extensively with the Australian Quarantine and Inspection Service (AQIS) and with MAF both in the preparation of the country-specific pest risk assessments (PRAs) and these revised regulations. The PRAs did not reveal any bee pathogens, parasites, or disease strains in either Australia or New Zealand that are not already present in the continental United States. The Varroa mite found in New Zealand and the European foulbrood found in Australia were both determined to be identical to the strains already present in the continental United States. Moreover, the introduction of exotic bee species or subspecies is extremely unlikely given the importation restrictions and inspection regimes already in place in Australia and New Zealand. Both countries have strong beekeeping organizations with good government support. We are confident, therefore, that the provisions we have developed will prevent the introduction of new exotic bee diseases into the continental United States. If new maladies or problems are detected, appropriate measures will be taken. For reasons that will be discussed in greater detail further on in this document, this final rule, unlike the proposed rule, will not allow bees to be imported into Hawaii from Australia or New Zealand.
A number of commenters raised issues pertaining to the inspection requirements for imported honeybees, specified in § 322.6 of the proposed rule. Proposed § 322.6 required individual inspection of the hives from which the honeybees in each shipment were derived by an official of the appropriate regulatory agency of the exporting region no more than 10 days prior to export. Inspections were also required of individual hives from which germ plasm was derived. Inspectors were further required to identify any diseases, parasites, or undesirable species or subspecies of honeybee found in the hive during inspection and to certify that the bees in the shipment were produced in the exporting region and were the offspring of queens and drones or semen also produced in the exporting region. Additional inspection conditions specific to Hawaii in proposed § 322.6 included a requirement for certification that the pre-export inspections revealed no sign of Varroa mite, tracheal mite, or African honeybee on the day of export.
Citing various reasons, commenters argued that our proposed inspection requirements were inadequate, unworkable, or otherwise not feasible. Some commenters expressed the view that time, personnel, and methodological constraints would prevent the inspection procedures from being conducted with the rigor necessary to prevent the accidental introduction of unwanted organisms into the United States. A commenter argued that within the prescribed 10-day period preceding export, the exporting country's authorities would only have time to do visual inspections of the bees, and the necessary laboratory procedures would not be performed. Other commenters expressed skepticism that there would be sufficient numbers of inspectors available during a shipping season to conduct even visual inspections of individual hives within 10 days prior to shipment. A minimal inspection of bees for known diseases and parasites, suggested another commenter, requires a combination of field and laboratory examinations. Certain parasites and diseases (
Some commenters discussed what they saw as the need for the final rule to specify a standard detection and inspection protocol for all dangerous honeybee pests and pathogens and ensure that such specified protocols provide accurate detection and identification of each and every dangerous honeybee pathogen or pest. One commenter argued that if new inspection standards are to be adopted for imported honeybees, they should be based upon the inspection protocols of the Office International des Epizooties (OIE). The OIE protocols, according to this commenter, specify specific numbers of bees that are to be examined. The commenter asserted that, under the proposed rule, the OIE guidelines were mandated only for importation certificates for Hawaii.
Other commenters argued that the final rule should provide for port-of-entry inspections and testing of imported bees. One of these commenters also argued for quarantining bees entering the United States.
APHIS is revising the bee regulations, in part, to bring them into alignment with the international standards as set forth by the OIE guidelines for export certification (Article 3.4.2.3). The inspection requirements in the proposed rule were derived from the internationally accepted OIE standard, with some modifications tailored to address the honeybee pest concerns of the United States, Australia, and New Zealand. The requirement for inspection of hives no more than 10 days prior to export is derived directly from the stipulations set forth in the guidelines of the OIE in Appendix 3.4.2, “Hygiene and Disease Security Procedures in Apiaries.” Therefore, the inspection standards contained in the proposed rule and in this final rule are no less rigorous than any international standards. In addition, all inspection-related documentation will be examined by APHIS at the port of entry. We are confident, therefore, not only that the requirements for pre-export inspection are adequate to safeguard against the introduction of new honeybee pests, but also that we will be able to enforce these requirements. The comments concerning the requirements specific to Hawaii in § 322.6(a)(2) of the proposed rule are no longer relevant, since we will not be allowing imports of honeybees into Hawaii.
Regarding port-of-entry inspections, the proposed rule, under § 322.12, did allow for port inspections of documentation, including export certificates and notice of arrival, and packaging of shipments of honeybees, honeybee germ plasm, and other bees. The proposal also authorized inspectors to refuse entry of shipments that failed to meet the requirements of part 322.
The Government of Australia, in its comments, took a different view of the inspection requirements in our proposed § 322.6 than did most of the commenters, arguing that the requirement for individual inspection of hives no more than 10 days prior to export is unwarranted as applied to Australia. This requirement, it was said, does not constitute a risk-management measure relating to any specific disease or pest that could be of quarantine significance to the United States and is not consistent with conditions in the continental United States, as there exists no equivalent inspection requirement for hives for internal movement of bees within the continental United States. Another commenter, not affiliated with the Government of Australia, argued for loosening, rather than eliminating, the 10-day requirement, suggesting that 30 days prior to export would be a more practical timeframe for inspections.
As noted earlier, the requirement that all colonies yielding export material be inspected no more than 10 days prior to export comes directly from the OIE export standards. Loosening this 10-day requirement would result in a corresponding loss of confidence that the export certificate would have identified all of the diseases and pests present at the time of packaging. We do not regulate the interstate movement of honeybees in the continental United States, which we view as a single region for the purposes of sanitary surveillance of apiaries.
The Government of Canada argued against the inspection provisions on similar grounds. The regulations in § 322.1(b) have stated that honeybees or honeybee semen from Canada may be imported into the United States without any further restrictions under the honeybee regulations. The August 2002 proposed rule placed Canada on an equal footing with Australia and New Zealand, subjecting imports from all three countries to the same certification, inspection, and other requirements. The Canadian representative cited the lack of equivalent requirements for bees shipped within the United States in arguing that our proposed inspection requirements exceeded the provisions of international trade agreements. By enacting the proposed requirements, it was claimed, APHIS would be placing new import conditions upon Canada without having first conducted a PRA to justify such an action. Similarly, our proposed requirements for inspection and the associated certification for imported Canadian honeybee germ plasm were criticized as unwarranted and contrary to the provisions of international trade agreements. Our proposed inspection and certification requirements for bumblebees and leafcutter bees from Canada were said to be unjustified unless APHIS knew of disease agents that affect bumblebees and leafcutter bees in Canada but not in the United States.
Our decision to regulate the contiguous United States as a single sanitary surveillance unit has no bearing on import requirements as they will be applied to Canada. The requirements for Canada directly reflect the international standard as agreed upon through the OIE. APHIS' decision to require certification of honeybees, honeybee germ plasm, and bumblebees from Canada is based on our concerns over the range of countries that Canada imports these commodities from, as well as concerns over smuggling.
Packaging standards were also discussed by commenters as a risk-related issue. General packaging requirements for shipments of honeybees and other bees were contained in § 322.8 of the proposed rule. Proposed § 322.9 pertained to mailed packages of honeybees, honeybee germ plasm, or other bees, and proposed §§ 322.10 and 322.11, to hand-carried packages containing those commodities. Similarly, proposed §§ 322.18 and 322.19 contained, respectively, general requirements for packaging of restricted organisms and specific requirements for mailed packages, and §§ 322.20 and 322.21 set out conditions for hand-carried packages. Proposed § 322.35 contained requirements for mailed packages of restricted articles, and hand-carrying requirements were set out in proposed §§ 322.36 and 322.37. Certain materials, such as brood, comb, pollen, or honey, were specifically prohibited in proposed § 322.8, but shippers were allowed some latitude in packing methods, as long as the overarching objective, stated in § 322.8(a)(1), that shipments must be packaged to prevent the escape of any bees, was met. Proposed § 322.18 did specify acceptable packaging materials for shipments of restricted organisms. Commenters suggested that more detailed requirements for packaging of honeybee shipments were needed in order to prevent the escape of imported bees that may carry diseases or pests. Some commenters also argued that allowing individuals to carry live bees in their personal baggage could present undue risks of spreading disease, as not all individuals could be counted on to package their shipments with adequate care.
We chose, in this instance, to employ a performance standard rather than a list of detailed packaging requirements in order not to place an excessive regulatory burden on shippers. In response to these comments, we are amending § 322.8(a)(1) to state that imported adult honeybees must be packaged to prevent the escape of any bees or bee pests. Packages of bees will be inspected at the port of entry for integrity and security of the packaging. Packaging deemed inadequate can be refused entry by the inspector. Similarly, inadequate packaging would in all likelihood cause the shipper to refuse receipt of the packaged bees at the origin of the shipment. We have also reconsidered our proposed provisions regarding hand carrying, in response to a recent Audit Report of APHIS Permits by the Office of the Inspector General (OIG) of the USDA. This audit has brought about many recent changes to our plant pest permit review and issuance processes, practices, and policies, some of which will be discussed later in this document. In accordance with the recommendations of the audit, we will not be allowing individuals to hand carry live bees, restricted organisms, or restricted articles into the United States. Therefore, this final rule will not include proposed §§ 322.10, 322.11, 322.20, and 322.36. Proposed §§ 322.21 and 322.37 have been amended in this final rule to provide only for importation via commercial vehicles arriving at land border ports in the United States. Other sections of this final rule have been renumbered accordingly.
A number of commenters discussed what they saw as the potential risks specific to Hawaii of allowing the importation of honeybees into the State from Australia and New Zealand. One commenter, noting that Hawaii, because of its isolation, has a fragile ecosystem, suggested that the introduction into Hawaii of
After we initiated the process of revising the bee regulations, Varroa mite was found in New Zealand, and the small hive beetle (
As a result of our decision not to allow honeybees or other bees to be imported into Hawaii, any bees from Australia or New Zealand that are transiting through Hawaii will be considered restricted organisms and will be subject to the appropriate requirements. The conditions for transiting imported bees through and transloading them in Hawaii, set forth in the proposed rule in Subpart D—Transit of Restricted Organisms Through the United States, also were the subject of a number of comments. Proposed § 322.25 stated that shippers may not transload restricted organisms in Hawaii. The restricted organisms would have to remain on, and depart for another destination aboard, the same aircraft on which the shipment arrived at the Hawaiian airport. This provision represented the most significant change from the current regulations, which do allow transloading. The remaining provisions of the proposed subpart, which pertained to such matters as documentation, packaging, notice of arrival, and inspection and handling, did not deviate significantly from the existing provisions in § 322.1 of the regulations.
Some commenters, in expressing their opposition to the proposed transiting conditions, cited the same concerns about the possible introduction of diseases and pests into Hawaii that they stated could result from imports of honeybees and honeybee germ plasm from Australia and New Zealand into the State. The possibility of a Varroa mite infestation was given as a reason for not allowing offloading or transloading of bees from New Zealand in Hawaii. One commenter argued that transloading of Australian bees in Hawaii should also be banned until a comprehensive Varroa mite survey verified the absence of that pest in Australia. A commenter suggested that Hawaii's airports lack the operational and procedural safeguards needed to prevent the escape of restricted organisms. Concern was also expressed about the possibility of transiting infected bees escaping into the Hawaiian environment as a result of an accident.
The Government of New Zealand also took issue with our proposed transiting conditions. Unlike the other commenters, however, New Zealand viewed the proposed conditions as too restrictive rather than too lenient. As restricted organisms, honeybees from New Zealand would not be eligible for transloading in Hawaii. The Government of New Zealand asked that consideration be given to retaining the current transiting conditions, which do allow transloading in Hawaii. New Zealand currently ships honeybees through Honolulu to Canada under the existing regulations and expressed a desire to be allowed to ship to the continental United States under the same conditions. It was argued that, due to the distance from New Zealand to the continental United States, restrictions on freight space, and New Zealand's desire to ship honeybees with the least possible stress and to provide premium quality honeybees to the U.S. market, direct shipping of honeybees from New Zealand for import into the continental United States, as required in proposed § 322.5, would be impracticable. New Zealand argued that it needed to be able to transit honeybees through Hawaii and to retain the right to transload shipments there onto aircraft other than the ones in which the shipments arrived. Though the New Zealand Government viewed the current transiting system as having been
APHIS has taken all comments into consideration regarding the transit of bee shipments through Hawaii and decided not to make any changes to the proposed transiting conditions. As we have already noted, the proposed standards were closely based upon the existing requirements in § 322.1, which have proved effective in ensuring the safe transit through Hawaii of honeybees and honeybee semen from New Zealand. In some instances, the proposed conditions were more stringent. For example, both the existing and proposed regulations require that honeybees be packaged in enclosed containers covered with netting to ensure that no honeybees can escape, but the proposed rule, in § 322.27(a), also specified that the containers must be sufficiently secure to prevent the escape of organisms and the leakage of any contained materials. We are confident that foreign bees and bee products will be able to transit through Hawaii safely under the conditions that we proposed. Allowing shipments of bees to change planes, however, could increase the likelihood of an accidental release of bees or bee pests. Therefore, we find it necessary to retain the prohibition on transloading contained in proposed § 322.25(c).
In addition to the concerns expressed over possible risks resulting from the importation or transiting of live honeybees, some commenters also criticized the proposed conditions for importation of beeswax and honey for bee feed. Those two articles were classified as restricted articles in § 322.31 of the proposed rule. Section 322.33 specified that export certificates for beeswax must state that the beeswax has been liquified and that export certificates accompanying honey for bee feed must state that the honey has been heated to 212 °F for 30 minutes. Commenters argued that liquification of beeswax was not an effective means of preventing the spread of disease through that medium. Similarly, it was argued that heating honey to 212 °F may also fail to kill disease-carrying pathogens, such as American foulbrood spores, in the honey. Commenters also suggested that the heating process itself could make the honey toxic for bees. Some commenters also worried that contaminated honey imported as bee feed under proposed § 322.33 could find its way into the retail market for human consumption.
American foulbrood (
In addition to the other risks cited by commenters opposed to the proposed rule, there was concern expressed that it could set a dangerous precedent. Under the rules of the World Trade Organization (WTO), it was suggested, APHIS might have difficulty justifying the prohibition or restriction of imports from other countries that wanted to export honeybees to the United States. The ultimate effect of the proposal, it was feared, would be to allow the importation of bees and queens from almost any country in the world, greatly increasing the risk of spreading diseases and pests to the U.S. bee population.
Regions that are not listed in § 322.4 as approved regions for the importation of honeybees, honeybee germ plasm, or other bees will be required to submit a formal petition to the Secretary of Agriculture for consideration for such approval. Such a petition would be followed by a thorough PRA, which would then be made available to the public for comment. If the results of the PRA suggest that a regulatory change is merited, i.e., that bees and bee products could safely be imported from the region under consideration, then APHIS may propose such a change. The proposed rule would be published in the
In their discussions of the possible risks of allowing imports of honeybees and related articles from Australia and New Zealand, many commenters focused on what they perceived as the shortcomings of the PRAs that APHIS carried out for those two countries. The PRAs provided the basis for the proposed rule. Various commenters asserted that the PRAs were not conducted in accordance with OIE guidelines; that the PRAs were insufficiently comprehensive in evaluating pest risks, lacking both depth and breadth and relying on old information; that they employed imprecise or unscientific terminology; and that the standards applied to Australia and New Zealand were less rigorous than those we apply domestically.
A commenter, referring to proposed OIE standards for PRAs for honeybees, questioned why APHIS did not use these standards as a basis for conducting its assessments of Australia and New Zealand. The commenter thought APHIS had proceeded in an ad hoc manner rather than relying on specific international standards that were available for use.
The OIE standards in question are proposed standards that have not yet been implemented. It is possible that finalization of the OIE standards could serve as an impetus to future rulemaking. In drafting the August 2002 proposed rule and this final rule, we did use the international standard that was available at the time of writing.
Some commenters stated that the information on which the PRAs were based was no longer current, particularly in the case of New Zealand. Commenters noted that the New Zealand site visit was conducted by APHIS in 1984, which was the year the risk assessment was initiated, and was of relatively short duration. It was suggested that the continued use of the original New Zealand PRA as a basis for the current rulemaking was not warranted. It was also claimed that previous critiques of that risk assessment had been ignored.
As noted in the preamble of the proposed rule, APHIS made the PRAs for both Australia and New Zealand
Some commenters argued that the PRAs were lacking in depth and scope. One commenter maintained that no U.S. scientist has yet done an in-depth study on diseases, pests, and viruses of New Zealand or Australian stock. It was suggested that serious study should be given to half-moon disorder, chronic bee paralysis virus, Kashmir bee virus (KBV), melanosis, and
As noted in Appendix II of the revised New Zealand PRA, which contains public comments on the PRA and APHIS' responses to those comments, neither KBV nor half-moon disorder is considered to be a significant disease by the OIE. Therefore, we cannot impose special import requirements on New Zealand queens and package bees based on these diseases. Chronic bee paralysis virus, melanosis, and
A commenter questioned why APHIS did not assess germ plasm and honeybees as separate items in separate risk assessments. The commenter argued that beekeepers are chiefly concerned about the risks posed by importing live honeybees but would support a standard protocol for imported germ plasm that would control the handling of that commodity.
APHIS does distinguish between live honeybees and honeybee germ plasm in evaluating the risks of importing each into the United States. Like the beekeepers cited by the commenter, we view imported live bees as having a greater potential for introducing bee diseases and pests into the U.S. bee population than imported germ plasm. While germ plasm can transmit genetic maladies, it will not carry viruses, bacteria, or parasites. Section 322.4 of the proposed rule provided for the importation of germ plasm from Australia, Bermuda, Canada, France, Great Britain, New Zealand, and Sweden, while allowing imports of live bees only from Australia, Canada, and New Zealand.
Another criticism of the PRAs was that the standards we applied to New Zealand and Australia were less rigorous than those we apply domestically. It was noted that while the continental United States has pest-free zones, we treat it as a single entity. Pests found anywhere in the continental United States are regarded as existing throughout the country. On the other hand, New Zealand is divided up into regions with and without pests.
Historically, APHIS has chosen not to regulate the interstate movement of honeybees because the frequent peregrinations of American beekeepers make such regulation extremely difficult. We have allowed the State agriculture regulatory agencies to oversee the apiculture industry at the State level. APHIS' Plant Protection and Quarantine and Veterinary Services divisions have been engaged in discussions of domestic honeybee health issues and are working together, along with honeybee-related trade associations and other organizations, such as the Apiary Inspectors of America, to develop solutions to perceived regulatory gaps or inequities.
An additional criticism of the PRAs was that they employed imprecise, inappropriate, or unscientific terminology. One commenter questioned whether the term “negligible,” which was employed in the preamble of the proposed rule to describe the level of risk of introducing exotic bee diseases or pests or unwanted subspecies into the United States by means of imports from Australia and New Zealand, was being used purely as a descriptive adjective or whether the term corresponded to numerical ratings. This commenter claimed that a term such as “negligible” cannot be science-based if it is not based upon a numerical rating.
We do not agree with the commenter's assertion that descriptive terms cannot be science-based. APHIS performs both qualitative and quantitative PRAs. The two types of assessments are similar in most respects; however, in quantitative PRAs, quarantine pests are examined in greater detail, and a quantitative assessment of the likelihood of introduction is provided. Criteria for performing PRAs for regions wanting to export honeybees, honeybee germ plasm, and other bees to the United States were set out in the August 2002 proposed rule. These procedures were followed when we conducted the PRAs for Australia and New Zealand. The primary elements of a honeybee-related PRA, as delineated in the proposed rule, are as follows: Identifying bee diseases and parasites of quarantine significance to the United States, as well as undesirable species and subspecies of honeybees associated with the importation; assessing the likelihood of the introduction of these diseases, parasites, and undesirable species and subspecies of honeybees into the United States, as well as the consequences of introduction; and considering the effectiveness of the regulatory system of the exporting region to control and prevent occurrences of diseases, parasites, and undesirable species and subspecies of honeybees. We evaluated these factors for Australia and New Zealand using information obtained from the governments of the two countries, as well as reviews of the topical scientific literature and site visits. Our conclusion, therefore, that the risks of introducing various pests and diseases into the United States as a result of allowing imports from Australia and New Zealand were low (the term “negligible” was only used in the preamble of the proposed rule and not in the PRAs themselves) was scientifically based.
Finally, one commenter thought that we should have done a “risk/benefit analysis” rather than a “risk assessment,” suggesting that the former would have led us to conclude that allowing imports from Australia and New Zealand was not advisable. This commenter claimed that there would be no benefits accruing to the U.S. beekeeping industry as a result of the proposal, only risks.
Risk assessment is the internationally accepted standard for this type of evaluation and satisfies our international trade obligations. Under the international trade agreements to which it is a party, the United States is
A number of researchers took issue with the dead bee provisions in subpart E of the proposed rule. Under proposed § 322.31, dead bees of any genus were considered restricted articles. Commenters objected to this classification, arguing that dead bees do not pose a realistic threat of disease or parasite transmission because bacterial and viral diseases will not survive in dead hosts. Also, the manner in which bee specimens are killed and stored further diminishes the risk of their transmitting diseases or pests to live bees. Killing bees in cyanide or carbon tetrachloride will likely result in the death of any associated disease organisms or bee parasites as well. Dried bee specimens in museums are frozen, which would further reduce the likelihood of the survival of parasites, and housed in Schmidt boxes or museum drawers and are permanently isolated from contact with live bees. One commenter questioned the requirements in proposed § 322.32, under which dead bees entering the United States must be immersed in a solution containing at least 70 percent alcohol, immersed in liquid nitrogen, or pinned and dried in the manner of specific specimens. The commenter favored allowing additional fluids for immersion, arguing that alcohol does not always provide the best means of DNA preservation. Another commenter suggested that the paperwork burden that the requirements would place upon APHIS will inevitably lead to multi-month delays in granting permits, which will seriously impede or even stop taxonomic and ecological research collaborations that underlie bee conservation efforts.
The dead bee provision that most concerned the commenters was the requirement in § 322.32(b) of the proposed rule that such specimens be inspected at the port of entry in the United States. Some commenters suggested that this requirement could hamper scientific research. One commenter, citing an instance in which the British Museum of Natural History refused to lend to his research group samples of type and other bees because of the probability that packages would be opened and repacked inexpertly, asserted that the proposed inspection requirement would leave U.S. researchers unable to borrow bees from foreign museums. To eliminate the need for opening and repacking packages of dead bees at the port of entry, commenters advocated permitting systems that would allow packages to be shipped to
The proposed import requirements for dead bees in the superfamily
Smaller numbers of commenters raised various other issues. Representatives of the Governments of Australia and New Zealand commented on issues of concern to those countries. Other commenters discussed the proposed ban on the importation of pollen for bee feed and restrictions on the importation of used beekeeping equipment, restrictions on the interstate movement of honeybee germ plasm and bee products into Hawaii, the possible benefits of allowing imports of honeybees from additional regions and other species of bees, the terminology employed in the proposed rule, packaging for bees other than honeybees, requirements for researchers who can import restricted organisms, States' authority to regulate bees and bee pests, and our economic analysis.
The Government of Australia, while generally favoring the proposed rule, had some objections to particular provisions. In addition to the comments on the proposed inspection procedures, which we discussed earlier, Australia also took issue with certain provisions in § 322.6 of the proposed rule pertaining to the importation of adult honeybees into Hawaii. Proposed paragraph (a)(2)(ii) of § 322.6 indicated that the export certificate for bees imported into Hawaii must state that the hives from which the honeybees in the shipment were derived were inspected individually and showed no sign of Varroa mite, tracheal mite, or African honeybee. Subsequent paragraphs specified that the certification must also state that the honeybees in the shipment were (1) derived exclusively from an apiary situated in the center of a zone of 50 kilometers (31 miles) in radius, in which special diagnostic tests, as set forth by the OIE, did not reveal any sign of the presence of Varroa mite for at least the past 2 years; and (2) derived exclusively from an apiary situated in the center of a zone of 5 kilometers (3.1 miles) in radius, in which no case of tracheal mite has been reported for at least the past 8 months. Australia contended that these requirements were unwarranted because it, like Hawaii, is free of Varroa mite, tracheal mite, and African honeybee—a status confirmed by a program of targeted surveillance and routine inspections of hives by Government apiary officers. It was argued, therefore, that official certification that Australia remains free of Varroa mite, tracheal mite, and African honeybee would provide a satisfactory level of assurance that a shipment of Australian honeybees could safely be imported into Hawaii.
These comments are moot now that we have determined that we will not allow the importation of honeybees into Hawaii. It should be noted that our proposed requirements were drawn directly from the OIE security procedures recommended in Article 3.4.2.3.
The Government of New Zealand also supported most aspects of the proposed rule, arguing that imports of honeybees and honeybee germ plasm from New Zealand could offer the U.S. beekeeping industry the opportunity to introduce new genetic stock from a source that poses no disease or pest hazards, and that the resulting increase in the biodiversity of the U.S. honeybee population could reduce its vulnerability to such pests as Varroa mite. Like the Government of Australia, however, New Zealand did offer some criticisms of particular provisions in the
We will not be making any changes to the final rule as a result of these comments. The intent of our requirements is to have New Zealand and Australia demonstrate that the bees they are exporting were derived from stock that is genuinely of Australian or New Zealand origin and thereby free from bee maladies widely prevalent in Asia. If New Zealand were to allow imports of honeybees, we would not want these bees exported to the United States without an opportunity to prepare a PRA and seek public comment. We do not view our export certification requirements as excessively onerous. Finally, the New Zealand representative may have overstated the potential benefits to the U.S. honeybee population of allowing imports. It is unlikely that the genetic stock from New Zealand will help to diminish the vulnerability of U.S. honeybees to Varroa mite, as New Zealand has not had Varroa long enough to select for resistance. Similarly, useful genetic stocks that will respond to our growing problem with antibiotic-resistant foulbrood are not likely to come from New Zealand or Australia.
In addition to the Canadian Government's criticisms of our proposed certification and export requirements, two commenters from Canada, one a Government representative and the other a producer of honey and other products, took issue with our ban on the importation of bee pollen for bee feed in proposed § 322.2(b)(2) and our restrictions on the importation of used beekeeping equipment in proposed § 322.2(b)(3)(ii). The commenters viewed these proposed changes to the regulations as unjustified. It was suggested that the relative honeybee disease risk from importation of bee pollen and used beekeeping equipment was no greater than that associated with the import of Canadian honeybees, which is currently permitted under the regulations. It was also argued that the ban on pollen could hamper local U.S. companies that depend on Canadian bee pollen to rear bumblebees. One of the commenters suggested that in the final rule we might want to narrow the pollen prohibition, maintaining a ban on pollen for use in rearing honeybees but not for use in rearing bumblebees, since honeybee diseases present in bee pollen do not affect bumblebees. The commenter also suggested that APHIS may wish to consider an import requirement for the irradiation of pollen or other materials for bee feed when the disease risk so warrants.
We are not making any changes to the final rule in response to these comments. This final rule will allow the continued importation of honeybees into the United States from Canada, but such imports will now be subject to the same conditions as will apply to imports from Australia and New Zealand. As specified in § 322.6, export certificates for both honeybees and honeybee germ plasm must include certifications of origin. One reason why we view such certification as necessary for Canadian imports is our concern about the smuggling of bees through Canada into the United States. These same concerns apply to bee pollen and used beekeeping equipment from Canada. If suitable techniques for sterilizing bee pollen and used beekeeping equipment are developed and are validated by means of efficacy studies and proper documentation, the regulations could be amended to accommodate imports of bee pollen and used beekeeping equipment from Canada.
Some commenters from Hawaii questioned the ban on interstate movement of honeybee germ plasm into that State in § 322.2 of the proposed rule and also argued that Hawaiian beekeepers should be allowed to bring in pollen from the continental United States. It was suggested that semen brought in from the continental United States could be used to introduce disease-resistant traits to Hawaiian bees. It was also argued that because the tropics are known for pollen shortages, the possibility of importing pollen into Hawaii from the continental United States for supplemental bee feeding should not be foreclosed.
The commenters' concerns are duly noted, and the prohibition on the interstate movement of honeybee germ plasm into Hawaii has been removed from the final rule. Under this final rule, honeybee semen is considered a restricted organism and can be imported or moved interstate under permit into Hawaii for research by university, Federal Government, or State officials in accordance with the regulations. The final rule will not allow interstate movement of pollen into Hawaii, however, and will retain the prohibition in § 322.2 on the importation of pollen into the United States for use as bee feed. The risk of disease transmission from bee pollen to honeybees, along with plant disease risks, make the importation of bee pollen into the United States and the interstate movement of bee pollen to Hawaii inadvisable. At some point in the future, under a separate risk assessment, we could amend the regulations to allow interstate movement of bee pollen into Hawaii or importation of bee pollen into the United States if the pollen is irradiated.
Some commenters favored allowing the importation of honeybees from additional regions or allowing in additional bee species. One commenter wrote to advocate allowing the importation of honeybees from Scandinavia and northwestern Russia into Alaska. According to this commenter, it is very difficult at present to start a breeding program in Alaska because there are no local strains of feral honeybees there and because bees imported from southern locations tend not to survive the Alaskan winter. Allowing imports from Scandinavia and northwestern Russia could solve this problem faced by Alaskan beekeepers. The commenter also argued that Alaska, because of its isolation, would be a good location to carry out research on bees. Another commenter favored allowing imports of alfalfa leafcutting bees from New Zealand. The proposed rule allowed such imports only from Canada. The commenter argued that the alfalfa leafcutting bee does not carry enemies or diseases of honeybees or bumblebees and that all species of insects that can occur among leafcutting bee cells are easily eliminated by appropriate management. Allowing these bees to be imported into the United States from New Zealand would give American alfalfa seed growers an alternative to Canada as a supplier of these bees, according to the commenter.
Before APHIS could allow such imports, formal PRAs would need to be carried out for imported honeybees from Scandinavia and northwestern Russia and imported alfalfa leafcutter bees from New Zealand. PRA requirements are contained in § 322.12 of this final rule. As stated in § 322.12(a), requests for PRAs must be initiated by the national government of the region wishing to export bees or bee products to the United States.
One commenter questioned the terminology we used § 322.6(c) of the proposed rule, which stated that for bees other than honeybees, the export certificate must certify that the bees in the shipment were produced in the exporting region and are the offspring of queens and drones or semen also produced in the exporting region. Noting that alfalfa leafcutter bees and some other species do not have queens or drones, the commenter suggested substituting “reproductive females and males” for those terms.
The commenter's concerns are duly noted, and the oversight has been corrected. In this final rule, § 322.6(c) states that the export certificate must certify that the bees in the shipment were produced in the exporting region and are the offspring of bees or semen also produced in the exporting region.
The same commenter took issue with a provision in § 322.8 of the proposed rule pertaining to the packaging of shipments of bees other than honeybees. Paragraph (b)(2)(ii) stipulates that packages of bees other than honeybees may not contain any soil. Noting that
It is not our intent to prevent the importation of filled nests of
The same commenter also argued for a change to § 322.15(b) of the proposed rule, which specified that restricted organisms may only be imported into the United States by Federal, State, or university researchers. It was argued that importation of restricted organisms by independent researchers should be allowed if such researchers are able to meet the post-entry handling requirements of proposed § 322.24.
We have not made any change to the final rule in response to this comment. The conditions of proposed § 322.15, under which university and State researchers could work for the first time with certain organisms defined in that section as restricted organisms, were substantially more liberal than the regulations that have been in place up to now. For example, the existing § 322.1 has allowed only USDA personnel to import honeybees from any region other than Canada. A decision to conduct research on a restricted organism comes with considerable responsibility, liability, and regulatory oversight. We believe that any further loosening of the restrictions on the importation of restricted organisms could jeopardize APHIS’ ability to safeguard our apiculture industry by tracking disease and pest introductions, should any occur.
One commenter suggested that § 322.17 of the proposed rule, which contained procedures for review by APHIS of permit applications for importing restricted organisms and criteria for denial or cancellation of permits, could infringe upon State prerogatives. Proposed paragraph (a)(1) stated that APHIS may consult with State officials during the permit review process. Proposed paragraph (a)(2) stated, among other things, that APHIS will transmit a copy of the permit application, along with its anticipated decision on the application, to the appropriate regulatory official in the destination State for review and recommendation; that APHIS will consider the State's response before taking final action; and that if a State makes no recommendation within 20 business days, concurrence with APHIS’ decision is assumed. The commenter argued that States need to be guaranteed a “reasonable” timeframe for review and that the rule must include reference to the State's authority to regulate bees and pests brought to the State.
We will not be making any changes to the final rule as a result of this comment. In matters where APHIS is regulating importation and/or interstate transport of a plant pest (7 CFR 330.200), the authority lies with APHIS, as a Federal agency, to issue the necessary permit.
Finally, some commenters disputed our observations in the economic analysis prepared for the proposed rule that continental U.S. beekeepers experience shortages of queens in early spring and that California fruit and nut producers may experience shortages of pollinators at that time of year. We argued that, based on the high demand for pollination services and uncertainty about whether enough bees could be brought into the continental United States from Hawaii to meet that demand, the price of Hawaiian early-spring honeybees would not be likely to fall significantly as a result of allowing imports from Australia and New Zealand.
It is the observation of APHIS’ entomologists working with the bee industry that there are shortages of domestic queen bees and package bees in late winter and early spring, before production in Georgia, Texas, Florida, and other bee-producing States reaches its full capacity.
In addition to changes we have made in response to commenters' suggestions, in response to the OIG audit referred to earlier and to post-September 11 security concerns, we have also made a slight modification to the permitting process for the importation of restricted organisms. On March 1, 2003, the APHIS Permit Unit instituted a requirement that each permit condition on a PPQ Form 526 be initialed by the permit applicant prior to issuance of the permit. Accordingly, § 322.15(b)(1) of this final rule provides, among other things, that the applicant must first initial each condition of the proposed permit and then return the proposed permit to the Permit Unit before we will issue a signed, valid permit.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.
This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have prepared a final regulatory
In the initial regulatory flexibility analysis that accompanied the proposed rule, we solicited comments regarding the number and kinds of small entities that could incur benefits or costs from implementation of the proposed rule and the economic effects of those benefits or costs. We did not receive such information, although, as we have already noted, a few commenters took issue with our discussion in that initial analysis of shortages of domestic queens and pollinators in early spring. We stand by our observation that such shortages do, in fact, exist at a given price.
This final rule is intended to consolidate and amend the regulations for the importation of honeybees and honeybee semen and the regulations established to prevent the introduction of exotic bee diseases and parasites through the importation of bees other than honeybees, certain beekeeping byproducts, and used beekeeping equipment. Among other things, we are allowing, under certain conditions, the importation into the continental United States of honeybees from Australia and honeybees and honeybee germ plasm from New Zealand. These changes will make these regulations more consistent with international standards, update them to reflect current research and terminology, and simplify them and make them more useful.
The United States is the second largest honey producer in the world. In 2003, the United States had a registered stock of close to 2.6 million honeybee colonies, as shown below in table 1. These honeybee colonies were owned by beekeepers with 5 or more colonies and produced 181 million pounds of honey valued at $255 million. Largely due to bee parasite problems (
An estimated 125,000 to 150,000 beekeepers in the United States operate the 2.59 million honeybee colonies (NASS, Honey Report, 2004). Less than 2 percent of these beekeepers in the United States are full-time (commercial) operators (
According to the 1997 U.S. Census of Agriculture, there were 7,688 commercial apiaries registered in the United States in that year that sold honey and 910 commercial apiaries that offered their honeybees for pollination services (table 2). Total annual sales of honey and other bee products amounted to $138.23 million that year. California, Florida, South Dakota, North Dakota, Minnesota, and Texas accounted for more than half of both U.S. bee colonies and honey production. Hawaii, with 38 registered commercial apiaries in 1997, was responsible for 0.5 percent of U.S. domestic commercial sales. However, Hawaii is the only U.S. State that is able to export honeybees because of its disease-free status.
Honeybees, in addition to producing honey, play a vital role in the pollination of U.S. agricultural crops. In 1987, the annual value of agricultural production dependent upon pollination by honeybees in the United States was $9.6 billion; by 1999, that value had risen to $14.6 billion. More than 40 percent of fruit and nut production in the United States depends upon honeybee pollination ($4.76 billion out of $10.94 billion average annual value), as does more than 70 percent of vegetable and melon production ($2.98 billion out of $3.96 billion), and around 21 percent of field crop production ($6.82 billion out of $32.06 billion).
Other bees besides honeybees also provide important pollination services. The alfalfa leafcutter bee (
Reported data on U.S. imports of bees exist only for the alfalfa leafcutter bee, a species used only for crop pollination. The value of U.S. imports of alfalfa leafcutter bees from Canada increased from $6.5 million in 1996, to $11.4 million in 1999, and then declined to $5 million in 2001 (table 3). No imports of alfalfa leafcutter bees were recorded in 2002 or 2003. Alfalfa leafcutter bee larvae have generally been imported into the United States exclusively from Canada.
There are no data available on traded honeybees and honeybee queens, except for exports from New Zealand (table 4) and imports into Canada (tables 5 and 6). These data provide an indication of the size of trade of honeybees amongst the biggest traders. Canada's largest trading partners are the United States for honeybee queens and New Zealand for honeybee workers.
Under this rule, an import permit will be required for restricted organisms (honey brood in the comb, all bees and bee germ plasm from nonapproved regions, and species of honeybees not listed in § 322.5(d)(2)). There is no cost for an import permit.
In 1997, California honeybee producers sold $18.4 million worth of honeybee queens, package bees, and nucs (
This rule places U.S. produced queens and package bees, for the first time, in direct competition in the domestic market with imports of these types of bees from Australia and New Zealand. Imported bees are expected to arrive between early spring (end of March/early April) and the end of May. Because of seasonal differences between the United States and Australia and New Zealand, the adoption of this rule is expected to have a small, if any, negative impact on continental U.S. apiarists whose bees are ready to pollinate crops just as Australian and New Zealand bee imports cease with the beginning of winter in the southern hemisphere.
Because of the expected shipping season for honeybees from Australia and New Zealand, the greatest potential impact of this final rule will likely be on bee producers in Hawaii who produce honeybees year-round. Honeybees, particularly queen bees, from Australia and New Zealand will probably enter the U.S. market during early spring (
While Hawaiian suppliers may witness some price decline, such losses to suppliers are not expected to exceed gains to purchasers of bees, who in general will benefit by increased availability of honeybees, particularly queens, during early spring. However, despite our requests for information regarding the economic impact of this rulemaking, we were unable to obtain data on the volume of queens or package bees that may be imported into the United States from Australia and New Zealand or on the potential demand for imports of queens and package bees from Australia and New Zealand. Therefore, we cannot quantitatively assess the effects those imports may have on U.S. producers of queen and package bees.
Foreign government inspectors visit their countries' apiaries twice a year and provide their honeybee producers with health certificates for exporting these bees. The price of the export certificate is included in the sale price of these honeybees. The fees that the Australian, New Zealand, and Canadian Governments charge their bee producers for the certificates are small.
According to the North American Industry Classification System used by the Small Business Administration, honeybee farms and honey production are included under the “other animal production” category 1129, as subcategory 112910 “apiculture.” This industry comprises establishments primarily engaged in raising bees; collecting honey; and/or selling queen bees, packages of bees, royal jelly, bees' wax, propolis, venom, or other bee products. Such entities are considered small if they have annual receipts of $750,000 or less. Therefore, most of the apiaries that are affected by this rule qualify under this definition of a “small entity.” Specifically, only 20 to 50 apiaries out of 17,469 total apiaries in 1997 had more than $750,000 of annual sales. We do not expect that U.S. apiarists, or importers and distributors of bees and bee equipment, large or small, will be significantly affected by this rule.
As discussed above, the number of honeybee colonies in the United States has fallen from 3.4 million in 1994, to 2.5 million in 2001, due to Varroa mite, an exotic bee parasite. Meanwhile, the demand for honeybees and other pollinating bees continues to increase, especially during the early spring months when continental U.S. bees are not available to pollinate almonds and plums in California. Therefore, greater access to bee imports from more countries will benefit U.S. agriculture in general.
An alternative to this rulemaking was to make no changes in the regulations. After consideration, we rejected this alternative because there appears to be minimal disease or parasite risk, or risk of introduction of undesirable species of honeybees, associated with imports of bees from the regions we are designating as approved regions. Further, the changes to the regulations contained in this document will bring the regulations into accord with international standards for the trade of bees and with international trade agreements entered into by the United States.
This final rule contains various recordkeeping and reporting requirements. These requirements are described in this document under the heading “Paperwork Reduction Act.”
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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 rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Bees, Honey, Imports, Reporting and recordkeeping requirements.
7 U.S.C. 450 and 7701-7772; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
7 U.S.C. 281; 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
(a)
(2) In order to prevent the introduction of Varroa mite, tracheal mite, small hive beetle, and African honeybee into the pest-free areas listed in paragraph (a)(1) of this section, interstate movement of honeybees into those areas is prohibited.
(b)
(1) You may import bees, honeybee germ plasm, and beekeeping byproducts into the United States only in accordance with this part.
(2) You may not import pollen derived from bee colonies and intended for use as bee feed into the United States.
(3)(i) You may not import used beekeeping equipment into the United States, unless that used beekeeping equipment either:
(A) Will be used solely for indoor display purposes and will not come into contact with indigenous bees; or
(B) Consists of bee boards that contain live brood of bees, other than honeybees, from a region listed in § 322.4(c).
(ii) New, unused beekeeping equipment is eligible for importation into the United States if it complies with all applicable regulations in this chapter.
(c)
(i) Immediately exported from the United States by you at your expense; or
(ii) Destroyed by us at your expense.
(2) Pending exportation or destruction, we will immediately apply any necessary safeguards to the bees, beekeeping byproducts, or used beekeeping equipment to prevent the introduction of bee diseases and parasites, and undesirable species and subspecies of honeybees into the United States.
We will furnish, without cost, the services of an inspector during normal business hours and at the inspector's places of duty. You will be responsible for all costs and charges arising from inspection outside of normal business hours or away from the inspector's places of duty.
(a)
(b)
(c)
(d) If the name of the region from which you want to import adult honeybees, honeybee germ plasm, or bees other than honeybees into the United States does not appear in paragraphs (a), (b), or (c), respectively, of this section, refer to subpart C of this part, “Importation of Restricted Organisms,” for requirements.
(e) For information on approving other regions for the importation of adult honeybees, honeybee germ plasm, or bees other than honeybees into the United States, see § 322.12.
(a) All shipments of bees and honeybee germ plasm imported into the United States under this subpart must be shipped directly to the United States from an approved region.
(b)
(2) The honeybees must be package bees or queens with attending adult bees.
(c)
(d)
(2) The live bees or brood must belong to one of the following species:
(i) Bumblebees of the species
(ii) Bumblebees of the species
(iii) Alfalfa leafcutter bee (
(iv) Blue orchard bee (
(v) Horn-faced bee (
(3) If you want to import species of bees other than those listed in paragraph (d)(2) of this section, refer to subpart C of this part, “Importation of Restricted Organisms,” for requirements.
Each shipment of bees and honeybee germ plasm arriving in the United States from an approved region must be accompanied by an export certificate issued by the appropriate regulatory agency of the national government of the exporting region.
(a)
(i) Certify that the hives from which the honeybees in the shipment were derived were individually inspected by an official of the regulatory agency no more than 10 days prior to export;
(ii) Identify any diseases, parasites, or undesirable species or subspecies of honeybee found in the hive during that preexport inspection; and
(iii) Certify that the bees in the shipment were produced in the exporting region and are the offspring of bees or semen also produced in the exporting region.
(2) If the export certificate identifies a bee disease or parasite of concern to the United States, including, but not limited to, Thai sacbrood virus,
(b)
(i) Certify that the hives from which the germ plasm in each shipment was derived were individually inspected by an official of the regulatory agency no more than 10 days prior to export;
(ii) Identify any diseases, parasites, or undesirable species or subspecies of honeybee found in the hive during that preexport inspection; and
(iii) Certify that the bees in the hives from which the shipment was derived were produced in the exporting region and are the offspring of bees or semen also produced in the exporting region.
(2) If the export certificate identifies a bee disease or parasite of concern to the United States, including, but not limited to, Thai sacbrood virus,
(c)
(a) At least 10 business days prior to the arrival in the United States of any shipment of bees or honeybee germ plasm imported into the United States under this subpart, you must notify APHIS of the impending arrival. Your notification must include the following information:
(1) Your name, address, and telephone number;
(2) The name and address of the receiving apiary;
(3) The name, address, and telephone number of the producer;
(4) The U.S. port where you expect the shipment to arrive. The port must be staffed by an APHIS inspector (see § 322.11);
(5) The date you expect the shipment to arrive at that U.S. port;
(6) The scientific name(s) of the organisms in the shipment;
(7) A description of the shipment (
(8) The total number of organisms you expect to receive.
(b) You must provide the notification to APHIS through one of the following means:
(1) By mail to the Permit Unit, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; or
(2) By facsimile at (301) 734-8700; or
(3) By electronic mail to
(a)
(1) Must be packaged to prevent the escape of any bees or bee pests;
(2) Must not include any brood, comb, pollen, or honey; and
(3) May include sugar water or crystallized sugar (
(b)
(2)
(i) Must be securely closed;
(ii) May not include any soil, except for that which is present in nest cells that include developing, immature bees;
(iii) May include only packing materials that were grown or produced in the exporting region and that meet all other applicable requirements of this chapter, such as the regulations pertaining to unmanufactured wood in part 319 of this chapter and the plant pest regulations in part 330 of this chapter; and
(iv) May consist of brood housed in new or used bee boards, provided the bee boards meet all applicable requirements of this part.
(a) If you import a package of honeybees, honeybee germ plasm, or bees other than honeybees under this subpart through the mail or through commercial express delivery, you must mark all sides of the outside of that package with the contents of the shipment,
(b) If you import a package of honeybees, honeybee germ plasm, or bees other than honeybees under this subpart through commercial express delivery, you must provide an accurate description of the complete contents of the shipment,
(c) In addition to the export certificate required in § 322.6, a package of honeybees, honeybee germ plasm, or bees other than honeybees imported under this subpart by commercial express delivery must be accompanied at the time of arrival in the United States by an invoice or packing list accurately indicating the complete contents of the shipment.
(a) Shipments of honeybees, honeybee germ plasm, and bees other than honeybees imported into the United States under this subpart will be inspected at the port of entry in the United States for:
(1) Proper documentation (see § 322.6);
(2) Timely notice of arrival (see § 322.7); and
(3) Adequate packaging (see § 322.8).
(b) If, upon inspection, any shipment fails to meet the requirements of this part, that shipment will be refused entry into the United States. In accordance with § 322.2(c), the inspector will offer you, or in your absence the shipper, the opportunity to immediately export any refused shipments. If you, or in your absence the shipper, decline to immediately export the shipment, we will destroy the shipment at your expense.
Shipments of honeybees, honeybee germ plasm, and bees other than honeybees imported under this subpart may enter the United States only at a port of entry staffed by an APHIS inspector.
(a) The national government of the region wishing to export must request that we perform a risk assessment for the importation into the United States of honeybees, honeybee germ plasm, or bees other than honeybees from that region.
(b) When we receive a request, we will evaluate the science-based risks associated with such importation. Our risk assessment will be based on information provided by the exporting region, information from topical scientific literature, and, if applicable, information we gain from a site visit to the exporting region. The risk assessment will include:
(1) Identification of all bee diseases, including fungi, bacteria, viruses, mycoplasmas, and protozoa, that occur in the exporting region but not in the United States or that are listed as significant for international trade by the Office International des Epizooties (OIE);
(2) Identification of all bee parasites, including mites, that occur in the exporting region but not in the United States or that are listed as significant for international trade by the OIE;
(3) Identification of all species and subspecies of honeybees that occur in the exporting region but not in the United States or that are listed as significant for international trade by the OIE, if applicable;
(4) Identification of all pests of bee culture, such as the small hive beetle, that occur in the exporting region but not in the United States or that are listed as significant for international trade by the OIE;
(5) Evaluation of the probability of establishment, including pathway, entry, colonization, and spread potentials, of any diseases, parasites, undesirable species or subspecies of honeybees, or pests identified in accordance with paragraphs (b)(1), (2), (3), or (4) of this section;
(6) Evaluation of the potential consequences of establishment, including economic, environmental, and perceived social and political effects, of each disease, parasite, undesirable species or subspecies of honeybees, or pest identified in accordance with paragraphs (b)(1), (2), (3), or (4) of this section; and
(7) Consideration of the effectiveness of the regulatory system of the exporting region to control bee diseases, parasites, undesirable species and subspecies of honeybees, and pests that occur there and to prevent occurrences of new bee diseases, parasites, undesirable species and subspecies of honeybees, and pests.
(c) Based on the conclusions of the risk assessment, we will either:
(1) Publish in the
(2) Deny the request in writing, stating the specific reasons for that action.
(d) We will publish a notice of availability of all completed risk assessments for public comment.
(a) For the purposes of this part, the following are restricted organisms:
(1) Honeybee brood in the comb;
(2) Adult honeybees from any region other than those listed in § 322.4(a);
(3) Honeybee germ plasm from any region other than those listed in § 322.4(b); and
(4) Bees other than honeybees, in any life stage, from any region other than those listed in § 322.4(c) or any species of bee other than those listed in § 322.5(d)(2).
(b) Restricted organisms may be imported into the United States only by
Any restricted organism imported into the United States must be accompanied by both a permit, in accordance with paragraph (a) of this section, and an invoice or packing list accurately indicating the complete contents of the shipment, in accordance with paragraph (b) of this section.
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8) Number of shipments.
(9) Number of specimens per shipment.
(10) Is the organism established in the United States?
(11) Is the organism established in the destination State?
(12) Media or species of host material accompanying the organism (
(13)
(14)
(15) Port(s) of entry.
(16) Approximate date(s) of arrival at the port of entry.
(17)
(18)
(19) Has your facility been evaluated by APHIS? If yes, list date(s) of approval. Is your facility approved for the species of bees or bee germ plasm for which you are seeking a permit?
(20) Provide your signature and the date of your signature under the following certification: “I certify that all statements and entries I have made on this document are true and accurate to the best of my knowledge and belief. I understand that any intentional false statement or misrepresentation made on this document is a violation of law and punishable by a fine of not more than $10,000, or imprisonment of not more than 5 years, or both. (18 U.S.C. 1001).” If you are required to have a sponsor for your permit application, your sponsor must also sign and date under the same certification.
(b)
(a)
(2)
(i) The State recommends that we issue the permit;
(ii) The State recommends that we issue the permit with specified additional conditions;
(iii) The State recommends that we deny the permit application and provides scientific, risk-based reasons supporting that recommendation; or
(iv) The State makes no recommendation, thereby concurring with our decision regarding the issuance of the permit.
(b)
(1) Issue you a written permit with, if applicable, certain specific conditions listed for the importation of the restricted organisms you applied to import. You must initial each condition on the proposed permit and return the proposed permit conditions to the Permit Unit before we will issue you a signed valid permit; or
(2) Notify you that your application has been denied and provide reasons for the denial.
(c)
(1) Existing safeguards against dissemination are inadequate and no adequate safeguards can be arranged; or
(2) The potential for disseminating an exotic bee disease or parasite, or an undesirable species or subspecies of honeybee, with the restricted organism outweighs the probable benefits that could be derived from the proposed movement and use of the restricted organism; or
(3) When you, as a previous permittee, failed to maintain the safeguards or otherwise observe the
(4) The proposed movement of the restricted organism is adverse to the conduct of an eradication, suppression, control, or regulatory program of APHIS.
(d)
(i) We receive information subsequent to the issuance of the permit of circumstances that would constitute cause for the denial of an application for permit under paragraph (c) of this section; or
(ii) You, as the permittee, fail to maintain the safeguards or otherwise observe the conditions specified in the permit or in any applicable regulations.
(2) Upon cancellation of a permit, you must either:
(i) Surrender all restricted organisms to an APHIS inspector; or
(ii) Destroy all restricted organisms under the supervision of an APHIS inspector.
(e)
(a) Restricted organisms must be packed in a container or combination of containers that will prevent the escape of the organisms and the leakage of any contained materials. The container must be sufficiently strong to prevent it from rupturing or breaking during shipment.
(b) The outer container must be clearly marked with the contents of the shipment,
(c) Only approved packing materials may be used in a shipment of restricted organisms.
(1) The following materials are approved as packing materials: Absorbent cotton or processed cotton padding free of cottonseed; cages made of processed wood; cellulose materials; excelsior; felt; ground peat (peat moss); paper or paper products; phenolic resin foam; sawdust; sponge rubber; thread waste, twine, or cord; and vermiculite.
(2) Other materials, such as host material for the organism, soil, or other types of packing material, may be included in a container only if identified in the permit application and approved by APHIS on the permit.
(a) If you import a restricted organism through the mail or through commercial express delivery, you must attach a special mailing label (APHIS Form 599), which APHIS will provide with your permit, to the package or container. The mailing label indicates that APHIS has authorized the shipment.
(b) You must address the package containing the restricted organism to the containment facility or apiary identified on the permit (post office boxes are not allowed).
(c) If the restricted organism arrives in the mail without the mailing label described in paragraph (a) of this section or addressed to a containment facility or apiary other than the one listed on the permit, an inspector will refuse to allow the organism to enter the United States.
(a) If you import a restricted organism through a land border port in the United States by commercial vehicle (
(b) The restricted organisms must be surrendered at the port of entry and can continue on to the destination identified on the permit only by a bonded carrier (commercial express delivery).
(c) If you fail to present a copy of the permit and an invoice or packing list accurately indicating the complete contents of the shipment at the port of entry, an inspector will refuse the organism's entry to the United States or confiscate and destroy the refused material.
(a) APHIS may inspect any restricted organism at the time of importation to determine if the organism meets all of the requirements of this part.
(b) If, upon inspection, any shipment fails to meet the requirements of the regulations, that shipment will be refused entry into the United States. In accordance with § 322.2(c), the inspector will offer the shipper the opportunity to immediately export any refused shipments. If the shipper declines to immediately export the shipment, we will destroy the shipment at his or her expense.
A restricted organism may be imported only at a port of entry staffed by an APHIS inspector.
(a) Immediately following clearance at the port of entry, a restricted organism must move by a bonded commercial carrier directly to a containment facility or apiary that has been inspected and approved by APHIS.
(b)
(1)
(ii) Does the facility have operational and procedural safeguards in place to prevent the escape of the restricted organisms, parasites, and pathogens, and to prevent the entry of other organisms and unauthorized visitors?
(iii) Does the facility have a means of inactivating or sterilizing restricted organisms and any breeding materials, pathogens, parasites, containers, or other material?
(2)
(ii) Does the apiary have sufficient physical barriers to prevent the entry of unauthorized visitors?
(iii) Does the apiary have operational and procedural safeguards in place to prevent the escape of the restricted organisms, parasites, and pathogens, and to prevent the entry of other organisms and unauthorized visitors?
(iv) Does the apiary have a means of inactivating or sterilizing restricted organisms, and any hives, wax, pathogens, parasites, containers, or other materials?
(3) Containment apiaries for honeybees resulting from germ plasm imported from nonapproved regions.
(i) Does the apiary have sufficient physical barriers to prevent the entry of unauthorized visitors?
(ii) Are there sufficient physical barriers (
(iii) Does the apiary have operational and procedural safeguards in place to prevent the escape of all queen and drone honeybees resulting from the germ plasm?
(iv) Does the apiary have a means of destroying colonies of honeybees with undesirable characteristics that may result from imported germ plasm?
(c)
(2) You must allow us to inspect the apiary or facility and all documents associated with the importation or holding of restricted organisms at any time to determine whether safeguards are being maintained to prevent the release of the restricted organisms, their progeny and germ plasm, parasites, and pathogens.
(3) You must inform us immediately, but no later than 24 hours after detection, if restricted organisms escape from the facility
(d)
(i) Inspection protocols;
(ii) Inspection frequencies;
(iii) Names and titles of inspectors;
(iv) Complete information, including laboratory reports, on detection of diseases and parasites in the population;
(v) Complete notes and observations on behavior, such as aggressiveness and swarming; and
(vi) Any other information or data relating to bee diseases, parasites, or adverse species or subspecies.
(2) Mail your request for release to the Permit Unit, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236, or fax to (301) 734-8700.
(3) When we receive a complete request for release from containment, we will evaluate the request and determine whether the bees may be released. Our evaluation may include an environmental assessment or environmental impact statement prepared in accordance with the National Environmental Policy Act. We may conduct an additional inspection of the bees during our evaluation of the request. You will receive a written statement as soon as circumstances allow that approves or denies your request for release of the bees.
(a) You may transit restricted organisms from any region through the United States to another region only in accordance with this part. For a list of restricted organisms, see § 322.13(a).
(b) You may ship restricted organisms only aboard aircraft to the United States for transit to another country.
(c) You may transload a shipment of restricted organisms only once during the shipment's entire transit through the United States and only at an airport in the continental United States. You may not transload restricted organisms in Hawaii. In Hawaii, the restricted organisms must remain on, and depart for another destination aboard, the same aircraft on which the shipment arrived at the Hawaiian airport.
Each shipment of restricted organisms transiting the United States must be accompanied by a document issued by the appropriate regulatory authority of the national government of the region of origin stating that the shipment has been inspected and determined to meet the packaging requirements in § 322.24.
(a) Restricted organisms transiting the United States must be packaged in securely closed and completely enclosed containers that prevent the escape of organisms and the leakage of any contained materials. The container must be sufficiently strong and durable to prevent it from rupturing or breaking during shipment.
(b) In addition to the requirements in paragraph (a) of this section, each pallet of cages containing honeybees transiting the United States must be covered by an escape-proof net that is secured to the pallet so that no honeybees can escape from underneath the net.
(c) The outside of the package must be clearly marked with the contents of the transit shipment,
At least 2 business days prior to the expected date of arrival of restricted organisms at a port in the continental United States for in-transit movement, you or your shipper must contact the port to give the following information:
(a) The name of each U.S. airport where the shipment will arrive;
(b) The name of the U.S. airport where the shipment will be transloaded (if applicable);
(c) The date of the shipment's arrival at each U.S. airport;
(d) The date of the shipment's departure from each U.S. airport;
(e) The names, phone numbers, and addresses of both the shipper and receiver;
(f) The number of units in the shipment (
(g) The name of the airline carrying the shipment.
(a) All shipments of restricted organisms transiting the United States are subject to inspection at the port in the United States for compliance with this part. If, upon inspection, a transit shipment of restricted articles is found not to meet the requirements of this part, we will destroy the shipment at your expense.
(b)
(2)
You may transit restricted organisms only through a port of entry staffed by an APHIS inspector.
(a) The following articles from any region are restricted articles:
(1) Dead bees of any genus;
(2) Beeswax for beekeeping; and
(3) Honey for bee feed.
(b) Restricted articles may only be imported into or transit the United States in accordance with this part.
(a) Dead bees imported into or transiting the United States must be either:
(1) Immersed in a solution containing at least 70 percent alcohol or a suitable fixative for genetic research;
(2) Immersed in liquid nitrogen; or
(3) Pinned and dried in the manner of scientific specimens.
(b) Dead bees are subject to inspection at the port of entry in the United States to confirm that the requirements of paragraph (a) of this section have been met.
Each shipment of restricted articles, except for dead bees, imported into or transiting the United States must be accompanied by an export certificate issued by the appropriate regulatory agency of the national government of the exporting region. The export certificate must state that the articles in the shipment have been treated as follows:
(a)
(b)
(a) At least 10 business days prior to the arrival in the United States of any shipment of restricted articles, you must notify APHIS of the impending arrival. Your notification must include the following information:
(1) Your name, address, and telephone number;
(2) The name and address of the recipient of the restricted articles;
(3) The name, address, and telephone number of the producer;
(4) The date you expect to receive the shipment;
(5) A description of the contents of the shipment (
(6) The total number of restricted articles you expect to receive.
(b) You must provide the notification to APHIS through one of the following means:
(1) By mail to the Permit Unit, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; or
(2) By facsimile at (301) 734-8700; or
(3) By electronic mail to
(a) If you import a restricted article through the mail or through commercial express delivery, you must mark all sides of the outside of that package with the contents of the shipment and the name of the exporting region. The marking must be clearly visible using black letters at least 1 inch in height on a white background.
(b) If you import a restricted article through commercial express delivery, you must provide an accurate description of the complete contents of the shipment for the shipment's delivery manifest entry.
(c) In addition to the export certificate required in § 322.30 (if applicable), a restricted article that is imported by mail or commercial express delivery must be accompanied by an invoice or packing list accurately indicating the complete contents of the shipment.
If you import a restricted article through a land border port in the United States by commercial vehicle (
(a) You must present shipments of restricted articles to the inspector at the port of entry in the United States. Shipments of restricted articles must remain at the port of entry until released by the inspector.
(b) The inspector at the port will confirm that all shipments of restricted articles have proper documentation (see § 322.30) and that you provided notice of arrival for all shipments of restricted articles (see § 322.32).
(c) If, upon inspection, any shipment fails to meet the requirements of this part, that shipment will be refused entry into the United States. In accordance with § 322.2(c), the inspector will offer you, or in your absence the shipper, the opportunity to immediately export any refused shipments, or confiscate and destroy the refused shipments.
A restricted article may be imported only at a port of entry staffed by an APHIS inspector. To find out if a specific port is staffed by an APHIS inspector, or for a list of ports staffed by APHIS inspectors, contact Permit Unit, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, Maryland 20737-1236; toll-free (877) 770-5990; fax (301) 734-8700.
Agricultural Marketing Service, USDA.
Interim final rule with request for comments.
This rule revises the quantity of Class 3 (Native) spearmint oil produced in the Far West that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year by increasing the salable quantity from 773,474 pounds to 1,095,689 pounds, and the allotment percentage from 36 percent to 51 percent. The Spearmint Oil Administrative Committee (Committee), the agency responsible for local administration of the marketing order for spearmint oil produced in the Far West, unanimously recommended this rule to avoid extreme fluctuations in supplies and prices and to help maintain stability in the Far West spearmint oil market.
Effective June 1, 2004, through May 31, 2005; comments received by December 20, 2004 will be considered prior to issuance of a final rule.
Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; E-mail:
Susan M. Hiller, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW. Third Avenue, suite 385, Portland, Oregon 97204; telephone: (503) 326-2724, Fax: (503) 326-7440; or George Kelhart, Technical Advisor, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938.
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail:
This rule is issued under Marketing Order No. 985, as amended (7 CFR part 985), regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule revises the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year, which ends on May 31, 2005. Specifically, this rule increases the salable quantity from 773,474 pounds to 1,095,689 pounds, and the allotment percentage from 36 percent to 51 percent for Native spearmint oil for the 2004-2005 marketing year.
The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle for, producers during a marketing year. The total salable quantity is divided by the total industry allotment base to determine an allotment percentage. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's individual allotment base for the applicable class of spearmint oil.
The initial salable quantity and allotment percentages for Scotch and Native spearmint oils for the 2004-2005 marketing year were recommended by the Committee at its October 8, 2003, meeting. The Committee recommended salable quantities of 766,880 pounds and 773,474 pounds, and allotment percentages of 40 percent and 36 percent, respectively, for Scotch and Native spearmint oils. A proposed rule was published in the
Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, at its September 13, 2004, meeting, the Committee unanimously recommended that the allotment percentage for Native spearmint oil for the 2004-2005 marketing year be increased by 12 percent from 36 percent to 48 percent. The Committee held another meeting on October 6, 2004, where, based on an unanticipated increase in demand, they unanimously recommended that the allotment percentage for Native spearmint oil for the 2004-2005 marketing year be increased by an additional 3 percent from 48 percent to 51 percent. Taking into consideration the following discussion on adjustments to the Native
The original total industry allotment base for Native spearmint oil for the 2004-2005 marketing year was established at 2,148,539 pounds and was revised at the beginning of the 2004-2005 marketing year to 2,148,410 pounds to reflect a 2003-2004 marketing year loss of 129 pounds of base due to non-production of some producers' total annual allotments. When the revised total allotment base of 2,148,410 pounds is applied to the originally established allotment percentage of 36 percent, the 2004-2005 marketing year salable quantity of 773,474 pounds is effectively modified to 773,428 pounds.
By increasing the salable quantity and allotment percentage, this rule makes an additional amount of Native spearmint oil available by releasing oil from the reserve pool. When applied to each individual producer, the 15 percent allotment percentage increase allows each producer to take up to an amount equal to 15 percent of their allotment base from their Native spearmint oil reserve. Before November 1, 2004, a producer may also transfer excess oil to another producer to enable that producer to fill a deficiency in that producer's annual allotment. After November 1, 2004, if a producer does not have any reserve pool oil, or has less than 15 percent of their allotment base in the reserve pool, the increase in allotment percentage will actually make less than such amount available to the market.
The following table summarizes the Committee recommendation:
(A) Estimated 2004-2005 Allotment Base—2,148,539 pounds. This is the estimate that the original 2004-2005 Native spearmint oil salable quantity and allotment percentage was based on.
(B) Revised 2004-2005 Allotment Base—2,148,410 pounds. This is 129 pounds less than the estimated allotment base of 2,148,539 pounds. This is less because some producers failed to produce all of their previous year's allotment.
(C) Initial 2004-2005 Allotment Percentage—36 percent.
(D) Initial 2004-2005 Salable Quantity—773,474. This figure is 36 percent of 2,148,539 pounds.
(E) Initial Adjustment to the 2004-2005 Salable Quantity—773,428 pounds. This figure reflects the salable quantity initially available after the beginning of the 2004-2005 marketing year due to the 129 pound reduction in the industry allotment base to 2,148,410 pounds.
(F) Increase in Allotment Percentage—15 percent. The Committee recommended a 12 percent increase at its September 13, 2004, meeting and an additional 3 percent increase at its October 6, 2004, meeting, for a total increase of 15 percent.
(G) Revised 2004-2005 Allotment Percentage—51 percent. This figure is derived by adding the 15 percent increase to the initial 2004-2005 allotment percentage of 36 percent.
(H) Calculated Revised 2004-2005 Salable Quantity—1,095,689 pounds. This figure is 51 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.
(I) Computed Increase in the 2004-2005 Salable Quantity—322,262 pounds. This figure is 15 percent of the revised 2004-2005 allotment base of 2,148,410 pounds.
In making this recommendation, the Committee considered all available information on price, supply, and demand. The Committee also considered reports and other information from handlers and producers in attendance at the meetings and reports given by the Committee manager from handlers who were not in attendance. The 2004-2005 marketing year began on June 1, 2004. Handlers have reported purchases of 602,895 pounds of Native spearmint oil for the period of June 1, 2004, through September 30, 2004. This amount exceeds the five-year average of 553,067 pounds for this period by 49,828 pounds. On average, handlers indicated that the estimated total demand for the 2004-2005 marketing year could be 1,105,000 pounds. This amount exceeds the five-year average for an entire marketing year of 973,456 pounds by 131,544 pounds. Therefore, based on past history, the industry may not be able to meet market demand without this increase. When the Committee made its initial recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2004-2005 marketing year, it had anticipated that the year would end with an ample available supply.
Based on its analysis of available information, USDA has determined that the salable quantity and allotment percentage for Native spearmint oil for the 2004-2005 marketing year should be increased to 1,095,689 pounds and 51 percent, respectively.
This rule relaxes the regulation of Native spearmint oil and will allow for market needs and improve producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2004-2005 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2004-2005 salable quantities and allotment percentages, the Committee considered: (1) The estimated quantity of salable oil of each class held by producers and handlers; (2) the estimated demand for each class of oil; (3) prospective production of each class of oil; (4) total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year; (5) the quantity of reserve oil, by class, in storage; (6) producer prices of oil, including prices for each class of oil; and (7) general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.
The increase in the Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for this class of oil. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.
There are approximately 8 handlers of spearmint oil who are subject to regulation under the marketing order and approximately 98 producers of Class 3 (Native) spearmint oil in the
Based on SBA's definition of small entities, the Committee estimates that 2 of the 8 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 15 of the 98 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.
The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. A typical spearmint oil-producing operation has enough acreage for rotation such that the total acreage required to produce the crop is about one-third spearmint and two-thirds rotational crops. Thus, the typical spearmint oil producer has to have considerably more acreage than is planted to spearmint during any given season. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil-producing farms fall into the SBA category of large businesses.
Small spearmint oil producers generally are not as extensively diversified as larger ones and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because income from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation.
This rule increases the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 2004-2005 marketing year, which ends on May 31, 2005. Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, at its September 13, 2004, meeting, the Committee unanimously recommended that the allotment percentage for Native spearmint oil for the 2004-2005 marketing year be increased by 12 percent from 36 percent to 48 percent. The Committee held another meeting on October 6, 2004, where, based on an unanticipated increase in demand, they unanimously recommended that the allotment percentage for Native spearmint oil for the 2004-2005 marketing year be increased by an additional 3 percent from 48 percent to 51 percent. Therefore, the salable quantity for Native spearmint oil increases from 773,474 pounds to 1,095,689 pounds for the 2004-2005 marketing year.
An econometric model was used to assess the impact that volume control has on the prices producers receive for their commodity. Without volume control, spearmint oil markets would likely be over-supplied, resulting in low producer prices and a large volume of oil stored and carried over to the next crop year. The model estimates how much lower producer prices would likely be in the absence of volume controls.
The recommended salable percentages, upon which 2004-2005 producer allotments are based, are 40 percent for Scotch and 51 percent for Native (a 15 percentage point increase from the original salable percentage of 36 percent). Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint. The econometric model estimated a $1.45 decline in the season average producer price per pound (from both classes of spearmint oil) resulting from the higher quantities that would be produced and marketed if volume controls were not used (
Loosening the volume control restriction (by increasing the Native salable percentage from 36 percent to 51 percent) resulted in this revised price decline estimate of $1.45 per pound if volume controls were not used. A previous price decline estimate of $1.71 per pound was based on the 2004-2005 salable percentages (40 percent for Scotch and 36 percent for Native) published in the
The 2003 Far West producer price for both classes of spearmint oil was $9.50 per pound, which is below the average of $11.33 for the period of 1980 through 2002, based on National Agricultural Statistics Service data. The surplus situation for the spearmint oil market that would exist without volume controls in 2004-2005 also would likely dampen prospects for improved producer prices in future years because of the buildup in stocks.
The use of volume controls allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume controls is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products.
Based on projections available at the meetings, the Committee considered alternatives to the 15 percent increase. The Committee not only considered leaving the salable quantity and allotment percentage unchanged, but also looked at various increases ranging from 10 percent to 20 percent. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information, and believes that the level recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to meet market needs.
This rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.
Further, the Committee meetings were widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meetings and participate in Committee deliberations. Like all Committee meetings, the September 13, 2004, meeting and the October 6, 2004, meeting were public meetings and all entities, both large and small, were able to express their views on this issue.
Finally, interested persons are invited to submit information on the regulatory
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This rule invites comments on a revision to the salable quantity and allotment percentage for Native spearmint oil for the 2004-2005 marketing year. A 60-day comment period is provided. Any comments received will be considered prior to finalization of this rule.
After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that this interim final rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the
Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil.
7 U.S.C. 601-674.
This section will not appear in the annual Code of Federal Regulations.
(b) Class 3 (Native) oil—a salable quantity of 1,095,689 pounds and an allotment percentage of 51 percent.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA adopts a new airworthiness directive (AD) for all deHavilland Inc. Models DHC-2 Mk. I and DHC-2 Mk. II airplanes and for all Bombardier Inc. Model (Otter) DHC-3 airplanes powered by radial engines. This AD requires you to visually inspect the firewall connector plugs for proper lockwire security and replace or modify as appropriate. This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Canada. We are issuing this AD to prevent loss of ignition systems during flight caused by improper lockwire security, which could result in engine failure. This failure could lead to a forced landing of the airplane.
This AD becomes effective on December 6, 2004.
As of December 6, 2004, 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 Bombardier Commercial Service Center, Plant 9, C.P. 6087 Succurale Centre-ville, Montreal QC H3C 3G9, Canada.
You may view the AD docket at FAA, Central Region, Office of the Regional Counsel, Attention: Rules Docket No. 2004-CE-02-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.
Mazdak Hobbi, Aerospace Engineer, New York Aircraft Certification Office (ACO), FAA, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7330; facsimile: (516) 794-5531.
The lockwire hole in the connector plug on the firewall broke and the plug vibrated loose. Both magnetos then grounded through a spring-loaded center pin in the plug (a maintenance safety feature).
The DHC-2 Mk. I and DHC-2 Mk. II airplanes have a similar ignition system.
The revisions delete the requirement to remove the upholstery in order to perform the visual inspections and delete the requirement to inspect the receptacle. The receptacle is attached with four self-locking nuts. Lockwire is not used to secure these nuts.
The manufacturer wants the revised service bulletins incorporated into the final rule AD action.
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We estimate the following costs to accomplish any necessary replacements that will be required based on the results of the inspection(s). We have no way of determining the number of airplanes that may need these replacements:
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 6, 2004.
(b) None.
(c) This AD affects the following airplane models and serial numbers that are certificated in any category:
(d) This AD is the result of mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Canada. We are issuing this AD to prevent loss of ignition systems during flight caused by improper lockwire security, which could result in engine failure. This failure could lead to a forced landing of the airplane.
(e) To address this problem, you must do the following:
We recommend you insert de Havilland Inc. Temporary Revision No. 2-24, dated August 24, 2001, and Temporary Revision No. 14, dated August 24, 2001, into the applicable maintenance manual.
(f) You may request a different method of compliance or a different compliance time for this AD by following the procedures in 14 CFR 39.19. Unless FAA authorizes otherwise, send your request to your principal inspector. The principal inspector may add comments and will send your request to the Manager, New York Aircraft Certification Office (ACO), FAA. For information on any already approved alternative methods of compliance, contact Mazdak Hobbi, Aerospace Engineer, New York ACO, FAA, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7330; facsimile: (516) 794-5531.
(g) You must do the actions required by this AD following the instructions in deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; and deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004. 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 Bombardier Commercial Service Center, Plant 9, C.P. 6087 Succurale Centre-ville, Montreal QC H3C 3G9, Canada. You may review copies at FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes a Class D surface area at Riverside March Field, CA, within a 5-mile radius of the airport from the surface up to and including 4,000 feet mean sea level (MSL). The continuous hours of operation of March Airport Traffic Control Tower (ATCT), combined with a part-time Class C airspace area for Riverside March Field, has made this action necessary.
0901 UTC, November 25, 2004.
Debra Trindle, Airspace Specialist, Airspace Branch, Air Traffic Division, Federal Aviation Administration, 15000 Aviation Boulevard, Lawndale, California; telephone (310) 725-6613.
On Monday, August 2, 2004, the FAA proposed to amend 14 CFR part 71 to establish Class D airspace at Riverside March Field, CA (69 FR 46116). The proposal was to establish a Class D surface area within a 5-mile radius of the airport from the surface up to and including 4,000 feet mean sea level (MSL). Riverside March Field currently has Class C airspace that is effective only when the March Ground Control Approach (GCA) is open, usually 2300 local to 0700 local; however the March ATCT is open continuously. Class D airspace is necessary when the ATCT is open, and the GCA is closed, to contain and protect Standard Instrument Approach Procedures (SIAPs) and other Instrument Flight Rules (IFR) operations at the airport. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently in the Order.
This amendment to 14 CFR part 71 establishes Class D airspace at Riverside
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 95665, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 4,000 feet MSL within a 5-mile radius of the Riverside March Field. This Class D airspace area is effective during the specific days and times established in advance by a Notice to Airmen. The effective days and times will thereafter be continuously published in the Airport/Facility Directory.
In Title 21 of the Code of Federal Regulations, parts 500 to 599, revised as of April 1, 2004, on page 331, in § 529.1940, paragraph (e)(2)(ii) is corrected beginning in the fourth line, by removing (1) and (2).
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to final regulations that were published in the
These corrections are effective July 20, 2004.
Bethany A. Ingwalson at (202) 622-3850 (not a toll-free number).
The final regulations that are the subject of these corrections are under section 904(d) of the Internal Revenue Code.
As published, TD 9141 contains errors that may prove to be misleading and are in need of clarification.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Environmental Protection Agency (EPA).
Final rule and delegation of authority.
EPA is approving certain revisions to the State Implementation Plan submitted by the Governor of North Dakota with a letter dated April 11, 2003. The revisions affect portions of air pollution control rules regarding general provisions and emissions of particulate matter and sulfur compounds. This action is being taken under section 110 of the Clean Air Act.
In addition, EPA is providing notice that on November 6, 2003, North Dakota was delegated authority to implement and enforce certain New Source Performance Standards, as of January 31, 2002.
This final rule is effective November 22, 2004.
EPA has established a docket for this action under Docket ID No. ND-001-0011. Some information in the docket is not publicly available,
Amy Platt, Environmental Protection Agency, Region 8, (303) 312-6449,
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The word or initials
(ii) The words
(iii) The initials
(iv) The initials
(v) The word or initials
On July 7, 2004, EPA published a notice of proposed rulemaking for the State of North Dakota (
As we discussed in our July 7, 2004, notice of proposed rulemaking, we will handle separately the revisions in the April 11, 2003, submittal addressing North Dakota Air Pollution Control Rules Section 33-15-01-13, regarding shutdown and malfunction of an installation, Chapter 33-15-14, regarding construction and minor source permitting, and Chapter 33-15-15, regarding prevention of significant deterioration. In addition, we will handle separately the direct delegation requests for Chapter 33-15-13, regarding emission standards for hazardous air pollutants, Chapter 33-15-21, regarding the State's Acid Rain Program, and Chapter 33-15-22, regarding emission standards for hazardous air pollutants for source categories. The submittal also included a direct delegation request for standards of performance for new stationary sources (
The revisions in the April 11, 2003, submittal to be addressed in this document pertain to portions of the general provisions and the restriction of emissions of particulate matter and sulfur compounds, which involve sections of the following chapters of the North Dakota Administrative Code (N.D.A.C.): 33-15-01 General Provisions; 33-15-05 Emissions of Particulate Matter Restricted; and 33-15-06 Emissions of Sulfur Compounds Restricted. For a discussion of how the State met the necessary procedural requirements in the development of these revisions, please refer to our July 7, 2004 notice of proposed rulemaking (69 FR 40824).
Revisions to Section 33-15-01-04, regarding definitions, included the addition of a definition for “pipeline quality natural gas” and an update to the baseline date for incorporating by reference the definition of volatile organic compounds to August 1, 2001. In addition, Sections 33-15-01-17 and 33-15-01-18, regarding enforcement and compliance certifications, were modified to indicate that information from compliance assurance monitoring protocols, which are in accordance with the requirements of the State's permitting chapter, is credible evidence of whether compliance is achieved. Because these revisions are consistent with Federal requirements, they are approvable.
Section 33-15-05-02, regarding emissions from fuel burning equipment used for indirect heating, was revised to exempt fuel burning equipment that burns gaseous fuels from the emissions limitation requirements of the chapter. Burning gaseous fuels results in very low particulate matter emissions. Using AP-42 emission factors for natural gas and propane, the State calculated emission rates of 0.01 lb/10
In Subsection 33-15-05-03.3, Other Waste Incinerators, requirements for salvage waste incinerators and crematoriums were revised. Requirements were added for construction, operational, and recordkeeping standards for salvage incinerators. Requirements for installation and operation of a temperature recorder for the secondary chamber, as well as requirements for charging and operation, were added for crematoriums. Although there are no Federal requirements for crematoriums, the State believes that these revisions ensure that units are operating properly to protect human health and the environment. In addition, any new units will still be subject to the Ambient Air Quality Standards under Chapter 33-15-02, a visible emissions standard under Chapter 33-15-03, and prevention of significant deterioration increments under Chapter 33-15-15. Therefore, these revisions are approvable.
Finally, 33-15-05-04, Methods of Measurement, was revised to allow various alternative test methods for determining percent oxygen or carbon dioxide, and the reference for fuel factors (F factors) was updated. Since these revisions simply incorporated reference information from Federal rules, they are approvable.
Section 33-15-06-01, Restriction of Emissions of Sulfur Dioxide (SO
With the April 11, 2003, submittal, North Dakota requested delegation of authority for revisions to the New Source Performance Standards (NSPS), promulgated in Chapter 33-15-12, N.D.A.C. On November 6, 2003, delegation was given with the following letter:
Dear Governor Hoeven: In an April 11, 2003, letter from you and an April 17, 2003, letter from David Glatt, North Dakota Department of Health (NDDH), the State of North Dakota submitted revisions to its Air Pollution Control Rules and requested direct delegation to implement and enforce the Federal New Source Performance Standards (NSPS). Specifically, North Dakota Administrative Code Chapter 33-15-12, Standards of Performance for New Stationary Sources, was revised to update the citation for the incorporated Federal NSPS in 40 CFR Part 60 as those in effect on January 31, 2002, with the exception of subpart Eb, which the State has not adopted.
Subsequent to States adopting NSPS regulations, EPA delegates the authority for the implementation and enforcement of those NSPS, so long as the State's regulations are equivalent to the Federal regulations. EPA reviewed the pertinent statutes and regulations of the State of North Dakota and determined that they provide an adequate and effective procedure for the implementation and enforcement of the NSPS by the State. Therefore, pursuant to Section 111(c) of the Clean Air Act (Act), as amended, and 40 CFR Part 60, EPA hereby delegates its authority for the implementation and enforcement of the NSPS to the State of North Dakota as follows:
(A) Responsibility for all sources located, or to be located, in the State of North Dakota subject to the standards of performance for new stationary sources promulgated in 40 CFR Part 60. The categories of new stationary sources covered by this delegation are all NSPS subparts in 40 CFR Part 60, as in effect on January 31, 2002, with the exception of subpart Eb, which the State has not adopted. Note this delegation does not include the emission guidelines in subparts Cb, Cc, Cd, Ce, BBBB, and DDDD. These subparts require state plans which are approved under a separate process pursuant to Section 111(d) of the Act.
(B) Not all authorities of NSPS can be delegated to States under Section 111(c) of the Act, as amended. The EPA Administrator retains authority to implement those sections of the NSPS that require: (1) approving equivalency determinations and alternative test methods, (2) decision making to ensure national consistency, and (3) EPA rulemaking to implement. Therefore, of the NSPS of 40 CFR Part 60 being delegated in this letter, the enclosure lists examples of sections in 40 CFR Part 60 that cannot be delegated to the State of North Dakota.
(C) The North Dakota Department of Health (NDDH) and EPA will continue a system of communication sufficient to guarantee that each office is always fully informed and current regarding compliance status of the subject sources and interpretation of the regulations.
(D) Enforcement of the NSPS in the State will be the primary responsibility of the NDDH. If the NDDH determines that such enforcement is not feasible and so notifies EPA, or where the NDDH acts in a manner inconsistent with the terms of this delegation, EPA may exercise its concurrent enforcement authority pursuant to section 113 of the Act, as amended, with respect to sources within the State of North Dakota subject to NSPS.
(E) The State of North Dakota will at no time grant a variance or waiver from compliance with NSPS regulations. Should the NDDH grant such a variance or waiver, EPA will consider the source receiving such relief to be in violation of the applicable Federal regulation and initiate enforcement action against the source pursuant to section 113 of the Act. The granting of such relief by the NDDH shall also constitute grounds for revocation of delegation by EPA.
(F) If at anytime there is a conflict between a State regulation and a Federal regulation (40 CFR Part 60), the Federal regulation must be applied if it is more stringent than that of the State. If the State does not have the authority to enforce the more stringent Federal regulation, this portion of the delegation may be revoked.
(G) If the Regional Administrator determines that a State procedure for enforcing or implementing the NSPS is inadequate, or is not being effectively carried out, this delegation may be revoked in whole or part. Any such revocation shall be effective as of the date specified in a Notice of Revocation to the NDDH.
(H) Acceptance of this delegation of presently promulgated NSPS does not commit the State of North Dakota to accept delegation of future standards and requirements. A new request for delegation will be required for any standards not included in the State's requests of April 11, and 17, 2003.
(I) Upon approval of the Regional Administrator of EPA Region 8, the Director of the NDDH may subdelegate his authority to implement and enforce the NSPS to local air pollution control authorities in the State when such authorities have demonstrated that they have equivalent or more stringent programs in force.
(J) The State of North Dakota must require reporting of all excess emissions from any
(K) Performance tests shall be scheduled and conducted in accordance with the procedures set forth in 40 CFR Part 60 unless alternate methods or procedures are approved by the EPA Administrator. Although the Administrator retains the exclusive right to approve equivalent and alternate test methods as specified in 40 CFR 60.8(b)(2) and (3), the State may approve minor changes in methodology provided these changes are reported to EPA Region 8. The Administrator also retains the right to change the opacity standard as specified in 40 CFR 60.11(e).
(L) Determinations of applicability such as those specified in 40 CFR 60.5 and 60.6 shall be consistent with those which have already been made by the EPA.
(M) Alternatives to continuous monitoring procedures or reporting requirements, as outlined in 40 CFR 60.13(i), may be approved by the State with the prior concurrence of the Regional Administrator.
(N) If a source proposes to modify its operation or facility which may cause the source to be subject to NSPS requirements, the State shall notify EPA Region 8 and obtain a determination on the applicability of the NSPS regulations.
(O) Information shall be made available to the public in accordance with 40 CFR 60.9. Any records, reports, or information provided to, or otherwise obtained by, the State in accordance with the provisions of these regulations shall be made available to the designated representatives of EPA upon request.
(P) All reports required pursuant to the delegated NSPS should not be submitted to the EPA Region 8 office, but rather to the NDDH.
(Q) As 40 CFR Part 60 is updated, North Dakota should revise its regulations accordingly and in a timely manner and submit to EPA requests for updates to its delegation of authority.
EPA is approving North Dakota's request for NSPS delegation for all areas within the State except for the following: lands within the exterior boundaries of the Fort Berthold, Fort Totten, Standing Rock and Turtle Mountain Indian Reservations; and any other areas which are “Indian Country” within the meaning of 18 U.S.C. 1151.
Since this delegation is effective immediately, there is no need for the State to notify the EPA of its acceptance. Unless we receive written notice of objections from you within ten days of the date on which you receive this letter, the State of North Dakota will be deemed to accept all the terms of this delegation. EPA will publish an information notice in the
If you have any questions on this matter, please contact me or have your staff contact Richard Long, Director of our Air and Radiation Program, at (303) 312-6005.
Enclosure to Letter Delegating NSPS in 40 CFR Part 60, Effective Through January 31, 2002, to the State of North Dakota.
Note that as a result of this latest NSPS delegation of authority to North Dakota, we are now revising the table entitled “Delegation Status of New Source Performance Standards [(NSPS) for Region VIII” that is located in 40 CFR 60.4 to update the State's delegation status. In addition, since all the Region VIII states are delegated authority to implement and enforce the Federal NSPS (as opposed to having SIP approved programs), we are also revising the table to delete an old footnote that denoted SIP approved programs.
Please note that in the November 6, 2003, delegation of authority to the State of North Dakota, we made an error. We inadvertently omitted one of the authorities in 40 CFR Part 60 which cannot be delegated to the State. Specifically, in the enclosure to the delegation letter, the table entitled “Examples of Authorities in 40 CFR Part 60 Which Cannot Be Delegated” should have included the following entry: 40 CFR Subpart CCCC Section 60.2030(c).
Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the Act. The North Dakota SIP revisions that are the subject of this document do not interfere with the attainment or maintenance of the NAAQS or any other applicable requirements of the Act. The SIP revisions to portions of N.D.A.C. Chapter 33-15-01, regarding the State's general provisions, simply added a definition, updated the baseline date for incorporating by reference the definition of volatile organic compounds, and added and/or clarified several administrative and reporting requirements. These changes are consistent with Federal requirements and rules. The SIP revisions to N.D.A.C. Chapter 33-15-05, regarding the control of particulate matter emissions, address sources that emit far lower emissions than the limitations of the chapter (because they burn gaseous fuels), provide requirements where there are no existing Federal requirements, and simply incorporate reference information from Federal rules. Finally, the SIP revisions to N.D.A.C. Chapter 33-15-06, regarding the control of sulfur compound emissions, address installations that are expected to emit far less SO
EPA is approving certain rule revisions to the North Dakota SIP, as discussed in this document and submitted by the Governor with a letter dated April 11, 2003. The revisions in the April 11, 2003, submittal which we are approving in this document involve portions of the following chapters of the North Dakota Administrative Code: 33-15-01 General Provisions; 33-15-05 Emissions of Particulate Matter Restricted; and 33-15-06 Emissions of Sulfur Compounds Restricted. We are not acting at this time on revisions to the shutdown and malfunction provisions, the construction and minor source permitting rules nor the prevention of significant deterioration rules. In addition, the requests for direct delegation of Chapter 33-15-13, Emission Standards for Hazardous Air Pollutants, Chapter 33-15-21, Acid Rain Program and Chapter 33-15-22, Emission Standards for Hazardous Air Pollutants for Source Categories, are being handled separately.
Finally, as requested by the State with its April 11, 2003, submittal, we are providing notice that we granted delegation of authority to North Dakota on November 6, 2003, to implement and enforce the NSPS promulgated in 40 CFR part 60, promulgated as of January 31, 2002 (except subpart Eb, which the State has not adopted). However, the State's NSPS authorities do not include those authorities which cannot be delegated to the states, as defined in 40 CFR part 60.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20,
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Air pollution control, Aluminum, Ammonium sulfate plants, Beverages, Carbon monoxide, Cement industry, Coal, Copper, Dry cleaners, Electric power plants, Fertilizers, Fluoride, Gasoline, Glass and glass products, Grains, Graphic arts industry, Household appliances, Insulation, Intergovernmental relations, Iron, Lead, Lime, Metallic and nonmetallic mineral processing plants, Metals, Motor vehicles, Natural gas, Nitric acid plants, Nitrogen dioxide, Paper and paper products industry, Particulate matter, Paving and roofing materials, Petroleum, Phosphate, Plastics materials and synthetics, Reporting and recordkeeping requirements, Sewage disposal, Steel, Sulfur oxides, Tires, Urethane, Vinyl, Waste treatment and disposal, Wool, Zinc.
42 U.S.C. 7401
(c) * * *
(33) Certain revisions to the North Dakota State Implementation Plan and Air Pollution Control Rules as submitted by the Governor with a letter dated April 11, 2003. The revisions affect portions of North Dakota Administrative Code (N.D.A.C.) regarding general provisions and emissions of particulate matter and sulfur compounds.
(i) Incorporation by reference.
(A) Revisions to the North Dakota Air Pollution Control Rules as follows:
(
(
(
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a redesignation request and a State Implementation Plan (SIP) submitted by the State of Maryland. The SIP revision establishes a maintenance plan for Kent and Queen Anne's Counties that provides requirements for continued attainment of the one-hour ozone National Ambient Air Quality Standard (NAAQS) for the next 10 years. EPA is approving the revision to the Maryland SIP in accordance with the requirements of the Clean Air Act (CAA).
This final rule is effective on November 22, 2004.
Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket and
Rose Quinto, (215) 814-2182, or by e-mail at
On August 2, 2004 (69 FR 46124), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of Maryland's redesignation request and a SIP revision that establishes a maintenance plan for the Kent and Queen Anne's Counties that provides requirements for continued attainment for the one-hour ozone NAAQS for the next 10 years. The formal SIP revision was submitted by the Maryland Department of the Environment (MDE) on February 9, 2004. Other specific requirements of Maryland's redesignation request, SIP revision for the maintenance plan, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. However, an erratum was found on page 46127 of the NPR, where the motor vehicle emissions budget (MVEB) for NO
EPA is approving the ozone maintenance plan for Kent and Queen Anne's Counties in Maryland submitted on February 9, 2004, because it meets the requirements of section 175A. In addition, EPA is redesignating Kent and Queen Anne's Counties to ozone attainment because EPA has determined that the provisions of section 107(d)(3)(E) of the CAA for redesignation have been met. Kent and Queen Anne's Counties nonattainment area is subject to the CAA's requirements for marginal ozone nonattainment areas until and unless it is redesignated to attainment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 20, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.
This action pertaining to Maryland's redesignation request and maintenance plan for Kent and Queen Anne's counties, may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(c) * * *
(187) The Ozone Redesignation and Maintenance Plan for Kent and Queen Anne's Counties nonattainment area submitted on February 4, 2004 by the Maryland Department of the Environment:
(i) Incorporation by reference.
(A) A letter dated February 9, 2004 from the Maryland Department of the Environment transmitting Maryland's State Implementation Plan pertaining to the redesignation request for the Kent and Queen Anne's Counties Ozone Nonattainment Area.
(B) SIP Revision 03-15, Redesignation Request for Kent and Queen Anne's Counties Ozone Nonattainment Area, February 4, 2004.
(ii) Additional Material—Remainder of the State submittals pertaining to the revisions listed in paragraph (c)(187)(i) of this section.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to implement the annual harvest guideline for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the Pacific coast. The Coastal Pelagic Species (CPS) Fishery Management Plan (FMP) and its implementing regulations require NMFS to set an annual harvest guideline for Pacific mackerel based on the formula in the FMP. This action adopts allowable harvest levels for Pacific mackerel off the U.S. Pacific coast.
This action becomes effective November 22, 2004.
The report
Tonya L. Wick, Southwest Region, NMFS, (562) 980-4036.
The CPS FMP, which was implemented by a final rule published in the
At a public meeting each year, the biomass for each actively managed species is reviewed by the Pacific Fishery Management Council's (Council) CPS Management Team (Team). The biomass, harvest guideline, and status of the fisheries are then reviewed at a public meeting of the Council's CPS Advisory Subpanel (Subpanel). This information is also reviewed by the Council's Scientific and Statistical Committee (SSC). The Council reviews reports from the Team, Subpanel, and SSC, then, after providing time for public comment, makes its recommendation to NMFS. The annual harvest guideline and season structure is published by NMFS in the
The Team and Subpanel meetings took place at the Long Beach, CA, office of the NMFS, Southwest Region, on May 18 and 19, 2004 (69 FR 23730, April 20, 2004, and 69 FR 24585, May 4, 2004). The SSC meeting took place in
A modified virtual population analysis stock assessment model is used by stock assessment scientists to estimate the biomass of Pacific mackerel. The model employs both fishery dependent and fishery independent indices to estimate abundance. The biomass was calculated through the end of 2003, then estimated for the fishing season that began July 1, 2004, based on: (1) the number of Pacific mackerel estimated to comprise each year class at the beginning of 2004, (2) modeled estimates of fishing mortality during 2003, (3) assumptions for natural and fishing mortality through the first half of 2004, and (4) estimates of age-specific growth. Based on this approach the biomass for July 1, 2004, would be 81,383 metric tons (mt). Applying the formula in the FMP to this biomass estimate results in a harvest guideline of 13,268 mt, which is higher than last year but similar to low harvest guidelines of recent years.
The formula in the FMP uses the following factors to determine the harvest guideline:
1.
2.
3.
4.
Information on the fishery and the stock assessment are found in the report
Following recommendations of the fishing industry and Subpanel for the 2003-2004 fishing season, a directed fishery for Pacific mackerel of 7,500 mt was set beginning July 1, 2003, followed by an incidental allowance of 40 percent of Pacific mackerel in landings of any CPS, if the 7,500 mt was harvested. A 1 mt landing of Pacific mackerel per trip would have been allowed if no other species were landed during a trip. NMFS implemented a directed and incidental fishery last season in response to concerns about how a low harvest guideline for mackerel might interfere with the sardine fishery. Pacific mackerel is often caught with sardine; therefore, mackerel might have to be discarded, which would increase bycatch. As of June 30, 2004, the end of the season, approximately 5,961 mt of Pacific mackerel had been landed; therefore, an incidental fishery was not necessary.
At its meeting on May 19, 2004, the Subpanel recommended for the 2004-2005 fishing season that a directed fishery of 9,100 mt and an incidental fishery of 4,168 mt be implemented. An incidental allowance of 40 percent of Pacific mackerel in landings of any CPS would become effective when 9,100 mt of Pacific mackerel is estimated to be harvested. The Subpanel also recommended to allow 1 mt of mackerel to be landed per trip during the incidental fishery without landing any other CPS. The Subpanel recommended that an inseason review of the mackerel season be completed for the March 2005 Council meeting, with the possibility of reopening the directed fishery as an automatic action if sufficient amount of the harvest guideline reserved for the incidental fishery remains unharvested. At its June 2004 meeting, the Council made these recommendations to NMFS. A proposed rule containing the Council's recommendations was published July 20, 2004 (69 FR 43383). The public comment period ended on August 4, 2004.
One public comment was received.
Comment: One commenter generally criticized commercial fishing rules and recommended that the quota should be cut by 10 percent per year until the fishery is closed.
After a review of the information available and the one public comment, NMFS approved the Council's recommendation and hereby implements the following measures for the July 1, 2004, through June 30, 2005, fishing season:
Based on the estimated biomass of 81,383 mt and the formula in the FMP, a harvest guideline of 13,268 mt will be in effect for the fishery beginning on July 1, 2004. This harvest guideline applies to Pacific mackerel harvested in the U.S. EEZ off the Pacific coast beginning at 12:01 a.m. on July 1, 2004, and remains in effect through June 30, 2005, unless the harvest guideline is attained and the fishery is closed before June 30, 2005. All landings made after July 1, 2004, will be counted toward the 2004-2005 harvest guideline of 13,268 mt. There shall be a directed fishery, followed by an incidental fishery of 4,168 mt. An incidental allowance of 40 percent of Pacific mackerel in landings of any CPS will become effective after the date when 9,100 mt of Pacific mackerel is estimated to have been harvested. A landing of 1 mt of Pacific mackerel per trip will be permitted during the incidental fishery for trips in which no other CPS is landed.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. No comments were received regarding the economic impacts of this action. As a result, a regulatory flexibility analysis was not prepared.
16 U.S.C. 1801
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to change the regulation governing the Rock Island Railroad & Highway Drawbridge, across the Upper Mississippi River at Mile 482.9, at Rock Island, Illinois. The drawbridge need not open for river traffic and may remain in the closed-to-navigation position from 7 a.m., December 15, 2004, until 8 a.m., March 15, 2005. This proposed rule would allow time for making upgrades to critical mechanical components and perform scheduled annual maintenance/repairs.
Comments and related material must reach the Coast Guard on or before November 22, 2004.
You may mail comments and related material to Commander, Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, St. Louis, MO 63103-2832. Commander (obr) maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room 2.107f in the Robert A. Young Federal Building, Eighth Coast Guard District, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Mr. Roger K. Wiebusch, Bridge Administrator, (314) 539-3900, extension 2378.
We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD08-04-033), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Eighth Coast Guard District, Bridge Branch, at the address under
On August 12, 2004, the Department of the Army Rock Island Arsenal requested a temporary change to the operation of the Rock Island Railroad & Highway Drawbridge across the Upper Mississippi River, Mile 482.9 at Rock Island, Illinois to allow the drawbridge to remain in the closed-to-navigation position for 89 consecutive days for critical repairs and annual maintenance. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted due to the reduced navigation in winter months. Presently, the draw opens on signal for passage of river traffic. The Rock Island Arsenal requested the drawbridge be permitted to remain closed-to-navigation from 7 a.m., December 15, 2004, until 8 a.m., March 15, 2005.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
The Coast Guard expects that this temporary change to operation of the Rock Island Railroad & Highway Drawbridge will have minimal economic impact on commercial traffic operating on the Upper Mississippi River. This temporary change has been written in such a manner as to allow for minimal interruption of the drawbridge's regular operation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This proposed rule will have a negligible impact on vessel traffic. The primary users of the Upper Mississippi River in Rock Island, Illinois are commercial towboat operators. With the onset of winter conditions most activity on the Upper Mississippi River is curtailed and there are few, if any, significant navigation demands for opening the drawspan.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Paragraph 32(e) excludes the promulgation of operating regulations or procedures for drawbridges from the environmental documentation requirements of the National Environmental Policy Act (NEPA). Since this proposed regulation would alter the normal operating conditions of the drawbridge, it falls within this exclusion. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
1. The authority citation for part 117 continues to read as follows:
33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.
2. From 7 a.m., December 15, 2004 until 8 a.m. March 15, 2005, temporarily add new § 117.T394 to read as follows:
The Rock Island Railroad and Highway Drawbridge, mile 482.9, at Rock Island, Illinois, need not open for river traffic and may be maintained in the closed-to-navigation position.
Research and Special Programs Administration (RSPA), DOT.
Notice of proposed rulemaking.
This document proposes regulations that would require pipeline operators to meet certain standards if they use direct assessment to evaluate the threat of corrosion on regulated onshore gas, hazardous liquid, and carbon dioxide pipelines. The standards, which are already in effect for gas transmission lines in high-consequence areas, involve processes of data collection, indirect inspection, direct examination, and evaluation. Congress has directed DOT to prescribe standards for inspection of pipelines by direct assessment. The proposed regulations should advance the use of direct assessment as a method of
Persons interested in submitting written comments on the rules proposed in this document must do so by December 6, 2004. Late filed comments will be considered so far as practicable.
You may submit written comments to the docket by any of the following methods:
• Mail: Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., 20590-0001. Anyone wanting confirmation of mailed comments must include a self-addressed stamped postcard.
• Hand delivery or courier: Room PL-401, 400 Seventh Street, SW., Washington, DC. The Dockets Facility is open from 10 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
• Web site: Go to
All written comments should identify the docket number and notice number stated in the heading of this notice.
Anyone can search the electronic form of all comments filed in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the April 11, 2000 issue of the
L. M. Furrow by phone at 202-366-4559, by fax at 202-366-4566, by mail at U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC, 20590, or by e-mail at
Many operators of gas, hazardous liquid, and carbon dioxide pipelines do more to assure the integrity of their systems than RSPA's pipeline safety regulations in 49 CFR Parts 192 and 195 require. For example, §§ 192.465 and 195.573 require operators to use electrical tests to identify places where buried pipe may not be protected adequately from external corrosion. But, in addition to electrical tests, many operators have historically used internal inspection devices or hydrostatic testing to find external corrosion. They have also used these methods to look for other pipeline defects.
RSPA has long recognized the safety and environmental advantages of these additional inspection and test methods. In recent years, it became apparent that they are particularly beneficial when used as part of a comprehensive risk-based program to assure system integrity.
In 2000, RSPA issued regulations requiring hazardous liquid and carbon dioxide pipeline operators to conduct integrity management programs using internal inspection, pressure testing, or other equally effective assessment means (§ 195.452).
Congress also saw the need for operators to do more to assure the integrity of their pipelines. In 2002, Congress directed DOT to issue regulations on managing gas pipeline integrity in high-density population areas with a program involving internal inspection, pressure testing, and direct assessment.
In the pipeline transportation industry, “direct assessment” is a process of data gathering, inspection, examination, and evaluation used to determine if external corrosion, internal corrosion, or stress-corrosion cracking is adversely affecting the physical integrity of ferrous pipelines. The process serves not only to locate and repair corrosion defects but also to prevent future corrosion problems.
In response to Congress' first directive, RSPA published regulations in Subpart O of Part 192 that require operators to follow detailed programs in managing the integrity of onshore gas transmission lines in high-consequence areas (69 FR 69816; Dec. 15, 2003). The definition of “high-consequence area” in § 192.903 describes places where transmission lines pose an increased risk because of their size and operating pressure and the nature or density of the nearby population.
The newly published Subpart O regulations include standards for using direct assessment to evaluate the threats of external corrosion, internal corrosion, and stress-corrosion cracking. The standards are stated in §§ 192.925, 192.927, and 192.929. The standard on external corrosion direct assessment (§ 192.925) requires operators to integrate data on physical characteristics and operating history, conduct indirect aboveground inspections, directly examine pipe surfaces, and evaluate the effectiveness of the assessment process. Under the standard for direct assessment of internal corrosion (§ 192.927), operators must predict locations where electrolytes may accumulate in normally dry-gas pipelines, examine those locations, and validate the assessment process. The standard for direct assessment of stress-corrosion cracking (§ 192.929) involves collecting data relevant to stress-corrosion cracking, assessing the risk of pipeline segments, and examining and evaluating segments at risk.
Although these standards only affect gas transmission lines included in a Subpart O integrity management program, RSPA believes they are suitable for other gas pipelines that fall under Congress' second directive. Each standard incorporates by reference relevant provisions of the American Society of Mechanical Engineers' consensus standard, ASME B31.8S-2001, “Managing System Integrity of Gas Pipelines,” which applies to any onshore gas pipeline made of ferrous material. In addition, § 192.925 incorporates by reference a consensus standard published by NACE International, NACE Standard RP0502-2002, “Pipeline External Corrosion Direct Assessment Methodology.” This NACE standard applies broadly to buried onshore ferrous pipelines. Requirements in § 192.925 apart from the ASME and NACE standards merely assure the use of appropriate decision-making criteria.
In addition, RSPA believes §§ 192.925 and 192.929 would provide suitable standards for direct assessment of external corrosion and stress-corrosion cracking on hazardous liquid pipelines that fall under the second congressional directive. Although §§ 192.925 and 192.929 cross-reference provisions of ASME B31.8S-2001, which was intended for use on gas pipelines, we think the referenced provisions are appropriate for pipelines transporting hazardous liquid.
We do not believe, however, that the standard in § 192.927 is suitable for direct assessment of internal corrosion in hazardous liquid pipelines. This standard applies specifically to pipelines that transport dry gas.
Given that RSPA's existing direct assessment standards are suitable for pipelines besides gas transmission lines in high-consequence areas, RSPA is making the following rulemaking proposals to meet the second congressional directive. For onshore ferrous pipelines subject to Part 192, proposed § 192.490 would require that if operators use direct assessment to evaluate the threat of corrosion or to meet any requirement of Subpart I—Requirements for Corrosion Control, the direct assessment must be carried out according to the applicable standards in §§ 192.925, 192.927, and 192.929. A similar regulation, proposed § 195.588, would be established for hazardous liquid pipelines covered by Part 195, except that § 192.927 would not apply. Because Congress has directed DOT to ensure the safe transportation of carbon dioxide through standards related to hazardous liquid pipelines,
RSPA prepared a draft Regulatory Evaluation of the proposed rulemaking and a copy is in the docket. The evaluation concludes operators would incur only a minimum amount of cost, if any, to comply with the proposed rulemaking. If you disagree with this conclusion, please provide information to the public docket described above.
RSPA invites comments on (1) how many operators plan to use direct assessment, other than to meet the transmission integrity management rules, and (2) the average paperwork burden of complying with the proposed rulemaking (in hours and cost per hour). In estimating the burden, note that each standard requires preparation of plans and procedures, and records are required by section 7 of NACE Standard RP0502-2002.
Natural gas, Pipeline safety, Reporting and recordkeeping requirements.
Ammonia, Carbon dioxide, Petroleum, Pipeline safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, RSPA proposes to amend 49 CFR parts 192 and 195 as follows:
1. The authority citation for Part 192 continues to read as follows:
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, and 60118; and 49 CFR 1.53.
2. Add § 192.490 to read as follows:
Each operator that uses direct assessment on an onshore ferrous pipeline to evaluate the effects of a threat in the first column or to meet any requirement of this subpart regarding that threat must carry out the direct
3. The authority citation for Part 195 continues to read as follows:
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60118; and 49 CFR 1.53.
4. Add § 195.588 to read a follows:
If you use direct assessment on an onshore pipeline to evaluate the effects of a threat in the first column or to meet any requirement of this subpart regarding that threat, you must carry out the direct assessment according to the standard listed in the second column.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), in cooperation with the States of Tennessee and Alabama and with Conservation Fisheries, Inc., a nonprofit organization, propose to reintroduce one federally listed endangered fish, the boulder darter (
The geographic boundaries of the proposed NEP would extend from the mouth of Long Branch, Lawrence County, Tennessee (Shoal Creek mile (CM) 41.7 (66.7 kilometers (km)), downstream to the backwaters of the Wilson Reservoir at Goose Shoals, Lauderdale County, Alabama (approximately CM 14 (22 km)), and would include the lower 5 CM (8 km) of all tributaries that enter this reach.
These proposed reintroductions are recovery actions and are part of a series of reintroductions and other recovery actions that the Service, Federal and State agencies, and other partners are conducting throughout the species' historical ranges. This proposed rule provides a plan for establishing the NEP and provides for limited allowable legal taking of the boulder darter and spotfin chub within the defined NEP area.
We will consider comments on this proposed rule that are received by December 20, 2004. Requests for a public hearing must be made in writing and received by December 6, 2004.
You may submit comments and other information, identified by RIN 1018-AH44, by any of the following methods:
• Federal eRulemaking Portal:
• Mail or Hand Delivery: Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Field Office, 446 Neal Street, Cookeville, Tennessee, 38501.
• Fax: (931) 528-7075.
• E-mail:
The comments and materials we receive during the comment period will be available for public inspection, by appointment, during normal business hours at our Tennessee Field Office: U.S. Fish and Wildlife Service, 446 Neal Street, Cookeville, Tennessee, 38501. If you wish to request a public hearing, you may mail or hand deliver your written request to the above address.
Timothy Merritt, U.S. Fish and Wildlife Service, 446 Neal Street, Cookeville, Tennessee 28801, telephone (931) 528-6481, Ext. 211, facsimile (931) 528-7075, or e-mail at
Congress made significant changes to the Act in 1982 with the addition of section 10(j), which provides for the designation of specific reintroduced populations of listed species as “experimental populations.” Previously, we had authority to reintroduce populations into unoccupied portions of a listed species' historical range when doing so would foster the species' conservation and recovery. However, local citizens often opposed these reintroductions because they were concerned about the placement of restrictions and prohibitions on Federal and private activities. Under section 10(j) of the Act, the Secretary of the Department of the Interior can designate reintroduced populations established outside the species' current range, but within its historical range, as “experimental.” Based on the best scientific and commercial data available, we must determine whether experimental populations are “essential,” or “nonessential,” to the continued existence of the species. Regulatory restrictions are considerably reduced under a Nonessential Experimental Population (NEP) designation.
Without the “nonessential experimental population” designation, the Act provides that species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act prohibits the take of an endangered species. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct. Service regulations (50 CFR 17.31) generally extend the prohibitions of take to threatened wildlife. Section 7 of the Act outlines the procedures for
For purposes of section 9 of the Act, a population designated as experimental is treated as threatened regardless of the species' designation elsewhere in its range. Through section 4(d) of the Act, threatened designation allows us greater discretion in devising management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt whatever regulations are necessary to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the special 4(d) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species. Regulations issued under section 4(d) for NEPs are usually more compatible with routine human activities in the reintroduction area.
For the purposes of section 7 of the Act, we treat NEPs as a threatened species when the NEP is located within a National Wildlife Refuge or National Park, and section 7(a)(1) and the consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) requires all Federal agencies to use their authorities to conserve listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park, we treat the population as proposed for listing and only two provisions of section 7 would apply—section 7(a)(1) and section 7(a)(4). In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities.
Individuals that are used to establish an experimental population may come from a donor population, provided their removal will not create adverse impacts upon the parent population, and provided appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. In the case of the boulder darter and spotfin chub, the donor population is a captive-bred population, which was propagated with the intention of re-establishing wild populations to achieve recovery goals. In addition, it is possible that wild adult stock could also be released into the NEP area.
The endangered boulder darter is an olive to gray colored fish that lacks the red spots common to most darters. It is a small fish, approximately 76 millimeters (mm) (3 inches (in)) in length. Although boulder darters were historically recorded only in the Elk River system and Shoal Creek, scientists believe, based on the historical availability of suitable habitat, that this darter once inhabited fast-water rocky habitat in the Tennessee River and its larger tributaries in Tennessee and Alabama, from the Paint Rock River in Madison County, Alabama, downstream to at least Shoal Creek in Lauderdale County, Alabama (U.S. Fish and Wildlife Service 1989). Currently, it is extirpated from Shoal Creek and exists only in the Elk River, Giles and Lincoln Counties, Tennessee, and Limestone County, Alabama, and the lower reaches of Richland Creek, an Elk River tributary, Giles County, Tennessee (U.S. Fish and Wildlife Service 1989).
The spotfin chub is also olive colored, but with sides that are largely silvery and with white lower parts. Large nuptial males have brilliant turquoise-royal blue coloring on the back, side of the head, and along the mid-lateral part of the body. It is also a small fish, approximately 92 millimeters (mm) (4 inches (in)) in length. The spotfin chub was once a widespread species and was historically known from 24 upper and middle Tennessee River system streams, including Shoal Creek. It is now extant in only four rivers/river systems—the Buffalo River at the mouth of Grinders Creek, Lewis County, Tennessee; the Little Tennessee River, Swain and Macon Counties, North Carolina; Emory River system (Obed River, Clear Creek, and Daddys Creek), Cumberland and Morgan Counties, Tennessee; the Holston River and its tributary, North Fork Holston River, Hawkins and Sullivan Counties, Tennessee, and Scott and Washington Counties, Virginia (U.S. Fish and Wildlife Service 1983; P. Shute, TVA, pers. comm. 1998).
Since the mid-1980s, Conservation Fisheries, Inc. (CFI), a nonprofit organization, with support from us, the Tennessee Wildlife Resources Agency (TWRA), U.S. Forest Service, National Park Service, Tennessee Valley Authority (TVA), and Tennessee Aquarium, has successfully translocated, propagated, and reintroduced the spotfin chub and three other federally listed fishes (smoky madtoms, yellowfin madtoms, and duskytail darters) into Abrams Creek, Great Smoky Mountains National Park, Blount County, Tennessee. These fish historically occupied Abrams Creek prior to an ichthyocide treatment in the 1950s. An NEP designation for Abrams Creek was not needed since the entire watershed occurs on National Park Service land, section 7 of the Act applies regardless of the NEP designation, and existing human activities and public use of the Creek are consistent with protection and take restrictions needed for the reintroduced populations. Natural reproduction by all four species in Abrams Creek has been documented, but the spotfin chub appears to be the least successful in this capacity (Rakes
Based on CFI's success and intimate knowledge of these two fishes and their habitat needs, we contracted with CFI to survey Shoal Creek in order to determine if suitable habitat exists in this creek for reintroductions, and if we could expand our ongoing fish recovery efforts to these waters (Rakes and Shute 1999). Rakes and Shute (1999) concluded that about 20 miles (32 km) of Shoal Creek above the backwaters of the Wilson Reservoir appeared to contain suitable reintroduction habitat
The boulder darter (
The spotfin chub (=turquoise shiner) (
The recovery criteria for both fishes generally agree that, to reach recovery, we must: (1) Restore existing populations to viable levels, (2) reestablish multiple, viable populations in historical habitats, and (3) eliminate foreseeable threats that would likely threaten the continued existence of any viable populations. The number of secure, viable populations (existing and restored) needed to achieve recovery varies by species and depends on the extent of the species' probable historical range (
In May 1999 letters to us, the Commissioner of the Alabama Department of Conservation and Natural Resources (ADCNR) and the Executive Director of the TWRA requested that we consider designating NEPs for the spotfin chub and boulder darter and reintroducing both species into Shoal Creek, where they historically occurred.
We previously established NEPs for the spotfin chub and three other federally listed fishes in the Tellico River, Tennessee, on August 12, 2002 (67 FR 52420). Reintroductions of the spotfin chub were initiated in the Tellico River in 2002 and were continued in 2003 along with the first reintroductions of the remaining three fish species. These reintroduced fish are being monitored. We believe the Tellico River is suitable for the establishment of viable populations of each of these four fish and anticipate success as this recovery project proceeds. Establishment of viable populations of the spotfin chub in both the Tellico River under the existing regulation and in Shoal Creek if this proposed regulation is finalized will help achieve an objective in the recovery of this fish. However, it will take several years of monitoring to fully evaluate if populations of this fish (and the other fishes) have become established and remain viable in these historic river reaches.
Based on the presence of suitable habitat, the positive response of native fish species to habitat improvements in Shoal Creek, the presence of similar fish species that have similar habitat requirements to both of these fishes, the recommendations mentioned above, and the evaluation of biologists familiar with Shoal Creek, we believe that Shoal Creek, from the mouth of Long Branch to the backwaters of the Wilson Reservoir, is suitable for the reintroduction of the boulder darter and spotfin chub as NEPs.
According to P. Rakes (CFI, pers. comm. 1999), the best sites to reintroduce these fishes into Shoal Creek are between CM 33 (53 km) and CM 14 (22 km). Therefore, we propose to reintroduce the boulder darter and spotfin chub into historical habitat of the free-flowing reach of Shoal Creek between CM 33 and CM 14. This reach contains the most suitable habitat for the reintroductions. Neither species currently exists in Shoal Creek or its tributaries.
The dates for these proposed reintroductions, the specific release sites, and the actual number of individuals to be released cannot be determined at this time. Individual fish that would be used for the proposed reintroductions primarily will be artificially propagated juveniles. However, it is possible that wild adult stock could also be released into the NEP area. Spotfin chub and boulder darter propagation and juvenile rearing technology are available. The parental stock of the juvenile fishes for proposed reintroduction will come from existing wild populations. In some cases, the parental stock for juvenile fish will be returned back to the same wild population. Generally, the parents are permanently held in captivity.
The permanent removal of adults from the wild for their use in reintroduction efforts may occur when one or more of the following conditions exist: (1) Sufficient adult fish are
Previous translocations, propagations, and reintroductions of spotfin chubs and boulder darters have not affected the wild populations of either species. The use of artificially propagated juveniles will reduce the potential effects on wild populations. The status of the extant populations of the boulder darter and spotfin chub is such that individuals can be removed to provide a donor source for reintroduction without creating adverse impacts upon the parent population. If any of the reintroduced populations become established and are subsequently lost, the likelihood of the species' survival in the wild would not be appreciably reduced. Therefore, we have determined that these reintroduced fish populations in Shoal Creek are not essential to the continued existence of the species. We will ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of animals from any donor population for these reintroductions is not likely to jeopardize the continued existence of the species.
Reintroductions are necessary to further the recovery of these species. The NEP designation for the reintroduction alleviates landowner concerns about possible land and water use restrictions by providing a flexible management framework for protecting and recovering the boulder darter and spotfin chub, while ensuring that the daily activities of landowners are unaffected. In addition, the anticipated success of these reintroductions will enhance the conservation and recovery potential of these species by extending their present ranges into currently unoccupied historical habitat. These species are not known to exist in Shoal Creek or its tributaries at the present time.
The NEP area, which encompasses all the sites for the proposed reintroductions, will be located in the free-flowing reach of Shoal Creek, Lauderdale County, Alabama, and Lawrence County, Tennessee, from the mouth of Long Branch downstream to the backwaters of the Wilson Reservoir. Section 10(j) of the Act requires that an experimental population be geographically separate from other wild populations of the same species. This proposed NEP area is totally isolated from existing populations of these species by large reservoirs, and neither fish species is known to occur in or move through large reservoirs. Therefore, the reservoirs will act as barriers to the species' downstream movement into the Tennessee River and its tributaries and ensure that this NEP remains geographically isolated and easily distinguishable from existing wild populations. Based on the fishes' habitat requirements, we do not expect them to become established outside the NEP. However, if any of the reintroduced boulder darters and spotfin chubs move outside the designated NEP area, then the fish would be considered to have come from the NEP area. In that case, we may propose to amend the rule and enlarge the boundaries of the NEP area to include the entire range of the expanded populations.
The designated NEP area for the spotfin chub in the Tellico River (67 FR 52420) does not overlap or interfere with this proposed NEP area for Shoal Creek in Tennessee and Alabama because they are geographically separated river reaches.
Critical habitat has been designed for the spotfin chub (42 FR 47840, September 22, 1977); however, the designation does not include the proposed NEP area. Critical habitat has not been designated for the boulder darter. Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we have already established, by regulation, a nonessential experimental population.
The aquatic resources in the proposed reintroduction area are managed by the ADCNR and TWRA. Multiple-use management of these waters will not change as a result of the experimental designation. Private landowners within the NEP area will still be allowed to continue all legal agricultural and recreational activities. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of boulder darter and spotfin chub will conflict with existing human activities or hinder public use of the area. The ADCNR and the TWRA have previously endorsed the boulder darter and spotfin chub reintroductions under NEP designations and are supportive of this effort. The NEP designation will not require the ADCNR and the TWRA to specifically manage for reintroduced boulder darter and spotfin chub.
The Service, State employees, and CFI, Inc., staff will manage the reintroduction. They will closely coordinate on reintroductions, monitoring, coordination with landowners and land managers, and public awareness, among other tasks necessary to ensure successful reintroductions of species.
(a)
(b)
(c)
(d)
(e)
(f)
The EPA supported the proposal, commended the ADCNR, TWRA, and us for the proposal and its projected beneficial results, and stated that the reintroductions would assist them in meeting one of the goals of the Clean Water Act—restoring the biological integrity of the Nation's water.
The TVA strongly supported the concept of reintroducing extirpated species, but also cautioned that past industrial discharges into Shoal Creek could potentially limit or prevent the survival of sensitive fishes in the creek.
The Tennessee Department of Environment and Conservation applauded our (TWRA, CFI, and us) efforts to restore Shoal Creek fishes. They also supported the proposed reintroductions under NEP status, because the designation will ensure that current human uses of Shoal Creek are given due consideration in recovery efforts for the species.
Dr. David Etnier, Department of Ecology and Evolutionary Biology, University of Tennessee, Knoxville, Tennessee, supported the reintroductions and concluded that he saw no compelling reason to delay them.
We will inform the general public of the importance of this reintroduction project in the overall recovery of the boulder darter and spotfin chub. The designation of the NEP for Shoal Creek and adjacent areas would provide greater flexibility in the management of the reintroduced boulder darter and spotfin chub. The NEP designation is necessary to secure needed cooperation of the States, Tribes, landowners, agencies, and other interests in the affected area.
Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), the Service finds that releasing the boulder darter and spotfin chub into the Shoal Creek Experimental Population Area under a Nonessential Experimental Population designation will further the conservation of the species.
The spotfin chub was listed with critical habitat and a special rule on September 9, 1977, under the scientific name of
Also, unlike many of the existing experimental population regulations at 50 CFR 17.84, the entry for the experimental population for the Tellico River in Tennessee at 50 CFR 17.84(m) does not include a map. We are proposing to add a map for this entry to make this section consistent with the text of the existing regulations for experimental populations (see Proposed Regulation Promulgation section below).
We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. If you wish to comment on this proposed rule, you may submit your comments and materials concerning this proposal by any one of several methods (
Comments submitted electronically should be in the body of the e-mail message itself or attached as a text file (ASCII), and should not use special characters or encryption. Please also include “Attn: Shoal Creek NEP,” your full name, and your return address in your e-mail message. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold their home address, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the Ecological Services Office in Cookeville, Tennessee (
In conformance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our NEP designation is based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule to these peer reviewers immediately following publication in the
We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final decision may differ from this proposal.
You may request a public hearing on this proposal. Requests must be made in writing at least 15 days prior to the close of the public comment period and sent to the Field Supervisor for the U.S. Fish and Wildlife Service in Tennessee (
In accordance with the criteria in Executive Order 12866, this proposed rule to designate NEP status for the boulder darter and spotfin chub in Shoal Creek, Lauderdale County, Alabama and Lawrence County, Tennessee, is not a significant regulatory action subject to Office of Management and Budget review. This rule will not have an annual economic effect of $100 million or more on the economy and will not have an adverse effect on any economic sector, productivity, competition, jobs, the environment, or other units of government. The area affected by this rule consists of a very limited and discrete geographic segment of lower Shoal Creek (about 28 CM (44 km)) in southwestern Tennessee and northern Alabama. Therefore, a cost-benefit and economic analysis will not be required.
We do not expect this rule to have significant impacts to existing human activities (
This rule will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. Federal agencies most interested in this rulemaking are primarily the EPA and TVA. Both Federal agencies support the proposal. Because of the substantial regulatory relief provided by the NEP designation, we believe the reintroduction of the boulder darter and spotfin chub in the areas described will not conflict with existing human activities or hinder public utilization of the area.
This rule will not materially affect entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. Because there are no expected impacts or restrictions to existing human uses of Shoal Creek as a result of this rule, no entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients are expected to occur.
This rule does not raise novel legal or policy issues. Since 1984, we have promulgated section 10(j) rules for many other species in various localities. Such rules are designed to reduce the regulatory burden that would otherwise exist when reintroducing listed species to the wild.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule will not have an annual effect on the economy of $100 million or more. It will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. The intent of this special rule is to facilitate and continue the existing commercial activity while providing for the conservation of the species through reintroduction into suitable habitat.
The proposed NEP designation will not place any additional requirements on any city, county, or other local municipality. The ADCNR and TWRA, which manages Shoal Creek's aquatic resources, requested that we consider these proposed reintroductions under an NEP designation. However, they will not be required to manage for any reintroduced species. Accordingly, this proposed rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required since this rulemaking does not require any action to be taken by local or State governments or private entities. We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1501
In accordance with Executive Order 12630, the rule does not have significant takings implications. When reintroduced populations of federally listed species are designated as NEPs, the Act's regulatory requirements regarding the reintroduced listed species within the NEP are significantly reduced. Section 10(j) of the Act can provide regulatory relief with regard to the taking of reintroduced species within an NEP area. For example, this rule allows for the taking of these reintroduced fishes when such take is incidental to an otherwise legal activity, such as recreation (e.g., fishing, boating, wading, trapping, swimming), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations. Because of the substantial regulatory relief provided by NEP designations, we do not believe the reintroduction of these
A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of two listed fish species) and will not present a barrier to all reasonable and expected beneficial use of private property.
In accordance with Executive Order 13132, the rule does not have significant Federalism effects to warrant the preparation of a Federalism Assessment. This rule will not have substantial direct effects on the States, in the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. The State wildlife agencies in Alabama (ADCNR) and Tennessee (TWRA) requested that we undertake this rulemaking in order to assist the States in restoring and recovering their native aquatic fauna. Achieving the recovery goals for these species will contribute to their eventual delisting and their return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. The special rule operates to maintain the existing relationship between the States and the Federal Government and is being undertaken at the request of State agencies (ADCNR and TWRA). We have cooperated with the ADCNR and TWRA in the preparation of this proposed rule. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a Federalism Assessment pursuant to the provisions of Executive Order 13132.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and that it meets the requirements of sections (3)(a) and (3)(b)(2) of the Order.
Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
We have determined that the issuance of this proposed rule is categorically excluded under our National Environmental Policy Act procedures (516 DM 6, Appendix 1.4 B (6)).
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 229511), Executive Order 13175, and the Department of the Interior Manual Chapter 512 DM 2, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects.
On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the
Send your comments concerning how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail your comments to:
The principal author of this proposed rule is Timothy Merritt (
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend § 17.11(h) by revising the existing entries in the List of Endangered and Threatened Wildlife under FISHES for “Chub, spotfin,” and “Darter, boulder,” to read as follows:
(h) * * *
3. Amend § 17.44(c) by removing the words “spotfin chub (
4. Amend § 17.84 by adding new paragraphs (m)(5) and (n), including maps, to read as follows:
(m) * * *
Map of the NEP area for spotfin chub, duskytail darter, and smoky madtom in Tennessee follows:
(n) Spotfin chub ( = turquoise shiner) (
(1)
(i) The NEP area for the boulder darter and the spotfin chub is within the species' historic ranges and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long Branch, Lawrence County, TN, downstream to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) of all tributaries that enter this reach.
(ii) None of the fishes named in paragraph (n) of this section are currently known to exist in Shoal Creek or its tributaries. Based on the habitat requirements of these fishes, we do not expect them to become established outside the NEP area. However, if any individuals of either of the species move upstream or downstream or into tributaries outside the designated NEP area, we would presume that they came from the reintroduced populations. We would then amend paragraph (n)(1)(i) of this section and enlarge the boundaries of the NEP to include the entire range of the expanded population.
(iii) We do not intend to change the NEP designations to “essential experimental,” “threatened,” or “endangered” within the NEP area. Additionally, we will not designate critical habitat for these NEPs, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2)
(3)
(i) Except as expressly allowed in paragraph (n)(2) of this section, all the provisions of § 17.31(a) and (b) apply to the fishes identified in paragraph (n)(1) of this section.
(ii) Any manner of take not described under paragraph (n)(2) of this section is prohibited in the NEP area. We may refer unauthorized take of these species to the appropriate authorities for prosecution.
(iii) You may not possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any of the identified fishes, or parts thereof, that are taken or possessed in violation of paragraph (n)(3) of this section or in violation of the applicable State fish and wildlife laws or regulations or the Act.
(iv) You may not attempt to commit, solicit another to commit, or cause to be committed any offense defined in paragraph (n)(3) of this section.
(4)
Map of the NEP area for spotfin chub and boulder darter in Tennessee and Alabama follows:
The U.S. Agency for International Development is announcing draft changes to Criterion #8 in the American Schools and Hospitals Abroad program, pursuant to section 214 of the Foreign Assistance Act of 1961, as amended. The program criteria serve as administrative guidance for considering the acceptability and relative merits of applicants.
Mr. George Like (703) 712-1766, ASHA Agency for International Development, Washington, DC 20523.
On November 26, 1979, the U.S. Agency for International Development published 11 Program Criteria for the American Schools and Hospitals Abroad program. Criterion #8 states “The institution must be open to all persons regardless of race, religion, sex, color or national origin. (The above shall not be construed to require enrollment of students of both sexes at an educational institution enrolling males or females only.) Assistance may not be used to train persons for religious pursuits or to construct buildings or other facilities intended for worship or religious instruction.”
On December 12, 2002, Executive Order 13279 “Equal Protection of the Laws for Faith-Based and Community Organizations” was signed. Accordingly, the U.S. Agency for International Development proposes to change Criterion #8 of the American Schools and Hospitals Abroad program to “The institution must be open to all persons regardless of race, religion, sex, color or national origin. (The above shall not be construed to require enrollment of students of both sexes at an educational institution enrolling males or females only.) Assistance may not be used to support any inherently religious activities, such as worship, religious instruction or proselytization.”
The sixty-day comment period will begin on the date that this announcement is published in the
Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Housing Service (RHS), the Rural Business-Cooperative Service (RBS), Rural Utilities Service (RUS), and the Farm Service Agency's (FSA) intention to request an extension for a currently approved information collection in support of compliance with Civil Rights laws.
Comments on this notice must be received by December 20, 2004, to be assured of consideration.
Jacqueline Micheli, Equal Opportunity Specialist, Rural Development, Civil Rights Staff, U.S. Department of Agriculture, STOP 0703, 1400 Independence Ave., SW., Washington, DC 20250-0703, telephone (202) 692-0099 (voice) or 692-0107 (TDD).
The RBS, RHS, RUS, and FSA, formerly the Farmers Home Administration, are required to provide Federal financial assistance through its farmer, housing, and community and business programs on an equal opportunity basis. The laws implemented in 7 CFR part 1901, subpart E (“1901-E”), require the recipients of RBS, RHS, RUS, and FSA's Federal financial assistance to collect various types of information, including information on participants in certain of these agencies' programs, by race, color, and national origin. While these agencies realize that the provisions of 1901-E are outdated as the result of statutory amendment and other processes of law, the information needed to be collected under this implementing regulation is not affected by the obsolete nature of the regulation. The RBS, RHS, RUS, and FSA use the information to monitor a recipient's compliance with the civil rights laws, and to determine whether or not service and benefits are being provided to beneficiaries on an equal opportunity basis. The agencies are in the process of revising 1901-E, and expect to publish for comment a
a. Title VI of the Civil Rights Act of 1964 (“Title VI”). The implementing regulations for this Act, issued by the U.S. Department of Justice and the U.S. Department of Agriculture (USDA), requires recipients of RBS”, RHS” RUS” and FSA's program assistance to collect information on the race/national origin
b. Title VIII of the Civil Rights Act of 1968 (as amended) (“Title VIII”). Section 808a of Title VIII (42 U.S.C. 3608a (1988)), in pertinent part, requires the Secretary of Agriculture to collect racial and ethnic data on beneficiaries and recipients of USDA's housing programs. Furthermore, the implementing regulations issued by the U.S. Department of Housing and Urban Development (HUD) and adopted by the RBS, RHS, RUS, and FSA, requires recipients and other participants in RHS's housing programs affirmatively to further fair housing by providing housing, and the opportunity to acquire housing in a non-discriminatory fashion. One way to demonstrate compliance with Title VIII is to prepare Affirmative Fair Housing Marketing Plans, and to collect and maintain data to reflect compliance with the requirements of that plan. Furthermore, under the Memorandum of Understanding between HUD and USDA, many complaints of fair housing violations by USDA recipients will be processed by HUD. The collection and maintenance of this data will assist in the enforcement effort.
c. Executive Order 11246. The implementing regulations issued by the U.S. Department of Labor (DOL), and adopted by the RBS, RHS, RUS, and FSA, require recipients of federally assisted construction contracts of $10,000 or more to maintain goals for hiring minorities and females, and to submit employment utilization reports to the DOL's Office of Federal Contract Compliance Programs.
The information collected and maintained by the recipients of certain programs from RBS, RHS, RUS, and FSA is used internally by these agencies for monitoring compliance with the civil rights laws and regulations. This information is made available to USDA officials, officials of other Federal agencies, and to Congress for reporting purposes. Without the required information, RBS, RHS, RUS, FSA and its recipients will lack the necessary documentation to demonstrate that their programs are being administered in a nondiscriminatory manner, and in full compliance with the civil rights laws. In addition, the RBS, RHS, RUS, FSA, and their recipients would be vulnerable in lawsuits alleging discrimination in the affected programs of these agencies, and would be without appropriate data and documentation to defend themselves by demonstrating that services and benefits are being provided to beneficiaries on an equal opportunity basis.
Copies of this information collection can be obtained from Tracy Givelekian, Regulations and Paperwork Management Branch, Support Services Division, at (202) 692-0039.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service proposes a number of project actions within the Moose-Gypsum Project Area. These actions are designed to move these areas closer to the desired Future Conditions as described in the Bridger-Teton National Forest's Land and Resource Management Plan. The Pinedale Ranger District is proposing a 1,500-acre timber harvest in conifer stands; 1,100 acres of mechanical aspen stand improvement treatments; 600 acres of Wildland/Urban Interface fuels treatments; 29,000 acres of sage/grass/aspen treatments to be accomplished primarily with prescribed burning and possibly with the use of an herbicide sage-reduction treatment on approximately 8,000 acres. Watershed restoration projects, such as the replacement of storm damaged culverts and rehabilitation of damaged stream banks on the Green River are also projects included in this proposal. Recreation project improvements included as a part of this analysis are a rerouting of the district's snowmobile trail around the elk winter feed ground, the development of a dispersed campsite management plan, and new trailhead design and reconstruction. Road management improvements, including the refinement of the existing travel plan to consider All Terrain Vehicle routes and wilderness trespass issues, the obliteration and rehabilitation of a roadbed within the Wilderness, and an upgrade of the Green River Lakes Road to a higher standard are also proposed for analysis in this environmental impact statement.
Comments concerning the scope of the analysis must be received by November 12, 2004. The draft environmental impact statement is expected May 2005, and the final environmental impact statement is expected October 2005.
Send written comments to Craig Trulock, District Ranger, Pinedale Ranger District, P.O. Box 220, Pinedale, Wyoming 82941. Electronic comments may be sent to;
Craig Trulock, District Ranger, Pinedale
The Upper Green River Watershed is approximately 25 miles north of Pinedale, Wyoming, in the Green River drainage, on the west slope of the Wind River mountain range. The smaller project area within the boundaries of the Upper Green River Watershed is approximately 110,397 acres of National Forest System lands administered by the Pinedale Ranger District of the Bridger-Teton National Forest. The Upper Green River Watershed is comprised of the tributary creeks of the Green River and these include Moose Creek, Gypsum Creek, Roaring Fork, Boulder Creek and Wagon Creek. The subwatershed of two of these creeks, Moose Creek and Gypsum Creek and portion of the Green River watershed itself, are defined as the project area to be analyzed in this environmental impact statement. The legal description of the project area under consideration includes portions of T37N, R109W; T38N, R109/110W; T39N, R108/109/110W; T40N, R108/109/110W.
The Moose-Gypsum EIS is being analyzed for the purpose of responding to the goals and objectives of the Bridger-Teton Forest Plan, in order to move the project area toward the Desired Future Conditions described in that plan. The 1999 Upper Green Landscape Assessment (LSA) analyzed integrated resource conditions in the project area. The LSA more specifically identified and described Desired Future Conditions for a variety of resources. In 2004, the Gypsum Watershed Analysis was completed, further clarifying the Desired Future Conditions for some resources. The Purpose and Need for this project is to consider actions that attain, or take the initial steps toward attaining, these resources' Desired Future Conditions. There are a number of com[ponents related to current resource conditions that are in need of improvement, and these include:
• Reintroduction of fire into the area as a natural disturbance tool. Fire will be used to achieve a number of objectives ranging from habitat improvement, rangeland improvement, fuels reduction, and treatment of Aspen stands that are predominantly old age classes, are being encroached on by conifers, and are declining in growth and health.
• Attention to the overall health of the watersheds of Moose and Gypsum Creeks through road surface improvement, culvert replacement and other watershed restoration activities.
• Modification of the compositions of some of the vegetative species within the project area in order to move them toward historic vegetation compositions, which is the Desired Future Conditions for these vegetation species. A majority of the conifer stands in the project area are in older age classes that are declining in growth and health, accumulating heavy fuels loads and higher tree densities than are healthy for their site conditions. The Desired Future Condition would be to maintain a healthy variety: a percentage of stands in seedling/sapling stages, for example, with preservation of the forest structure in snags, down logs, tree clumps, lower tree densities and promotion of natural regeneration.
• Reduction of the risk of catastrophic wildfire by reduction of the hazardous fuels loads around private land through vegetation management.
• Management of the timber resource for production of saw timber and other wood products from suitable timberlands available for timber harvest on an even-flow, long term, sustained yield basis, and in an economically-efficient manner.
• Provision of a diversity of opportunities for resource uses that contribute to the local and regional economies of northwestern Wyoming.
• Improvement of recreation opportunities and the quality of recreational experiences through the development of a dispersed camping plan for the project area to protect sensitive areas such as streams and river banks, updating the 1996 Pinedale Ranger District's Travel Management Plan in order to address Off-Highway Vehicle issues such as wilderness trespass, closure violations, and to ensure that choices for open and closed roads are appropriate.
A Proposed Action is defined early in the project-level planning process. It serves as a starting point for the Interdisciplinary Team and gives the public and agencies information on which to focus comments. The Proposed action presented here will be updated using the comments received, preliminary analysis and additional field information obtained prior to the Draft EIS. The Proposed Action of this project is to complete a variety of projects within the area under analysis to meet Desired Future Conditions, goals and objectives identified for the various resources under consideration in this EIS. Vegetation treatments within the project are designed to move the vegetation to more historic species and age class compositions. These vegetation treatments will take place over an extended time period of up to ten years.
Following are general descriptions of the type of projects being proposed and analyzed:
1.
2.
3.
4.
5.
6.
7.
The Environmental Impact Statement will analyze at least three alternatives: The “No Action” alternative, which will detail the consequences of doing nothing in all the project categories included in the variety of projects of the Proposed Action; the effects of the “Proposed Action” will be analyzed; and an “Alternative Action” may be formulated from acceptable portions of the Proposed Action. The scoping process and environmental analysis will evaluate the feasibility of alternatives to the proposed action.
Craig Trulock, District Ranger, Pinedale Ranger District, P.O. Box 220, Pinedale, Wyoming 82941.
The decision, which will be based upon the analyses described above, will be whether or not the Proposed Project, or portions of the Proposed Project, will further the Pinedale District's attainment of the Desired Future Conditions described in the Bridger-Teton National Forest's Land and Resource Management Plan. The decision will also identify needed mitigation measures during the analysis process, in addition to the any prescribed in the Land and Resource Management Plan.
The Forest Service is seeking information, comments, and assistance from individuals, organizations and Federal, State, and local agencies that may be interested in or affected by the proposed action (36 CFR 219.6).
Public comments will be used and disclosed in the environmental analysis documented in the Moose-Gypsum EIS. Public participation will be solicited by notifying in person, and/or by mail, known interested and affected parties. A legal notice and news releases will be used to give the public general notice. Open houses will be held from 4 p.m. to 7 p.m. on Wednesday, November 3, 2004. Forest Service and Bionomics, Inc., (environmental consultants) will be available to explain the project, answer questions and record public input.
A reasonable range of alternatives will be evaluated and reasons will be given for eliminating alternatives from detailed study. A “no-action alternative” is required by law, which means that the consequences of not doing the Proposed Action will be evaluated. Alternatives will be formulated in response to public issues, management concerns, existing condition reports and resource opportunities identified during the scoping process.
This Notice of Intent initiates the scoping process which guides the development of the Moose-Gypsum Environmental Impact Statement.
A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement 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 draft environmental impact statements 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 Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement 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 environmental impact statement 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.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
U.S. Commission on Civil Rights.
Notice of membership of the USCCR Performance Review Board.
This notice announces the appointment of the Performance Review Board (PRB) of the United States Commission on Civil Rights. Publication of PRB membership is required by 5 U.S.C. 4314(c)(4).
The PRB provides fair and impartial review of the U.S. Commission on Civil Rights' Senior Executive Service performance appraisals and makes recommendations regarding performance ratings and performance awards to the Staff Director, U.S. Commission on Civil Rights for the FY2003 rating year.
Janice Minor, Human Resources Assistant, U.S. Commission on Civil Rights, 624 9th Street, NW., Washington, DC 20425, (202) 376-8364.
Members: Gloria Gutierrez, Deputy Administrator for Management, Food and Nutrition Service, USDA; Jill M. Crumpacker, Director, Policy & Performance Management, Chief, Human Capitol Officer, Federal Labor Relations Authority; Joseph Mancias, Senior Management Counsel, Department Homeland Security.
Import Administration, International Trade Administration, Department of Commerce.
Notice of revocation of the antidumping duty order on anhydrous sodium metasilicate from France.
On September 1, 2004, the Department of Commerce (“the Department”) initiated a second sunset review of the antidumping duty order on anhydrous sodium metasilicate from France.
October 21, 2004.
Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5050.
Imports covered by this order covers anhydrous sodium metasilicate from France, a crystallized silicate which is alkaline and readily soluble in water. Applications include waste paper de-inking, ore-flotation, bleach stabilization, clay processing, medium or heavy duty cleaning, and compounding into other detergent formulations. This merchandise is classified under Harmonized Tariff Schedules of the United States (“HTSUS”) item numbers 2839.11.00 and 2839.19.00. The HTSUS item numbers are provided for convenience and customs purposes. The written description remains dispositive.
On January 7, 1981, the Department issued an antidumping duty order on anhydrous sodium metasilicate from France.
Pursuant to section 751(c)(3)(A) of the Act and 19 CFR 351.218(d)(1)(iii)(B)(3), if no domestic interested party responds to the notice of initiation, the Department shall issue a final determination, within 90 days after the initiation of the review, revoking the order. Because no domestic interested party filed a notice of intent to participate or a substantive response, the Department finds that no domestic interested party is participating in this review. Therefore, we are revoking this antidumping duty order effective October 21, 2004, the fifth anniversary of the date of the determination to continue the order, consistent with 19 CFR 351.222(i)(2)(i) and section 751(c)(6)(A)(iii) of the Act.
Pursuant to sections 751(c)(3)(A) and 751(c)(6)(A)(iii) of the Act, and 19 CFR 351.222(i)(2)(i), the Department will instruct U.S. Customs and Border Protection to terminate the suspension of liquidation of the merchandise subject to this order entered, or withdrawn from warehouse, on or after October 21, 2004. Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and antidumping duty deposit requirements. The Department will complete any pending administrative reviews of this order and will conduct administrative reviews of subject merchandise entered prior to the effective date of revocation in response to appropriately filed requests for review.
This five-year (“sunset”) review and notice are in accordance with sections 751(c) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of the first administrative review of automotive replacement glass windshields from the People's Republic of China.
The Department of Commerce (“the Department”) published its preliminary results of administrative review of the antidumping duty order on automotive replacement glass windshields (“ARG”) from the People's Republic of China (“PRC”) on May 7, 2004.
Based on our analysis of the comments we received, we have made changes from the preliminary results of review. Therefore, the final results differ from the
Effective October 21, 2004.
Will Dickerson or Jon Freed, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1778 and (202) 482-3818, respectively.
On May 21, 2003, the Department published in the
On September 8, 2003, the Department published a notice in the
In the Department's original investigation, Shenzhen Benxun AutoGlass Co., Ltd. (“Benxun”) received a rate separate from the PRC-wide entity. When Shenzhen CSG requested an administrative review, it indicated it was the company known formerly as Benxun, but that it had undergone a name change since the Department's orginal investigation. On July 8, 2003, Shenzhen CSG withdrew its request for an administrative review. Because Shenzhen CSG withdrew its request for administrative review, the Department did not have the information necessary to make a successor-in-interest determination. Therefore, the Department did not determine that Shenzhen CSG was entitled to receive the same antidumping rate accorded Benxun within the context of this administrative review. In a changed-circumstance review subsequent to the September 8, 2003, Notice of Rescission, the Department determined that entries of merchandise from Shenzhen CSG are eligible for Benxun's cash-deposit rate.
We invited parties to comment on our preliminary results of review.
The products covered by this order are ARG windshields, and parts thereof, whether clear or tinted, whether coated or not, and whether or not they include antennas, ceramics, mirror buttons or VIN notches, and whether or not they are encapsulated. ARG windshields are laminated safety glass (
ARG windshields subject to this order are currently classifiable under subheading 7007.21.10.10 of the Harmonized Tariff Schedules of the United States (HTSUS). Specifically excluded from the scope of the order are laminated automotive windshields sold for use in original assembly of vehicles. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
In the instant review, for the preliminary results, the Department applied the petition rate as adverse facts available, in accordance with section 776(a) of the Act, to Peaceful City because Peaceful City withheld certain information that had been requested by the Department, it failed to provide certain information by the Department's statutory deadlines, it significantly impeded the Department's investigation, and it failed to provide certain information that could be verified pursuant to sections 776(a)(2)/(A), (B), (C) and (D) of the Act.
We corroborated the adverse facts-available rate we have applied to Peaceful City in the investigation and in the preliminary results of this administrative review.
To assess the relevancy of the total adverse facts-available rate it has chosen, the Department compared the final margin calculations of other respondents in this administrative review with the rate of 124.5 percent from the original petition. We find the rate is within the range of the highest margins we have determined in this administrative review.
As the petition rate is both reliable and relevant, we determine that it has probative value. As a result, the Department determines that the petition rate is corroborated for the purposes of this administrative review and may reasonably be applied to Peaceful City as a total adverse facts-available rate. Accordingly, we determine that the highest rate from any segment of this administrative proceeding (
Consequently, we are applying a single antidumping rate, the highest rate from any segment of this administrative proceeding, to Peaceful City's exports based on Peaceful City's failure to be reasonably prepared during the verification and its resulting failure to substantiate the majority of its factors of production, which were reported in its questionnaire responses.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (“
Based on our analysis of comments received, we have made changes in the margin calculations for PNA. The specific calculation changes can be found in our
• For the calculation of imputed credit, inventory-carrying cost, and marine insurance, the Department used the net price (
• In the preliminary results, the Department inadvertently overstated the marine insurance value. For the final results, the Department reduced the marine insurance value by two decimal places.
• In the preliminary results, the Department inadvertently valued metal clips with the surrogate value for labels. For the final results, the Department valued metal clips with the value listed on page 5 of the
• The Department double-counted two elements of the packing labor calculation of normal value in the preliminary results of review. For the final results, the Department corrected this inadvertent error.
We determine that the following percentage margins exist on exports of ARG windshields from the PRC for the period September 19, 2001, through March 31, 2003:
In accordance with 19 CFR 351.212(b)(1), we have calculated exporter/importer (or customer)-specific assessment rates for merchandise subject to this review. The Department will issue appraisement instructions directly to U.S. Customs and Border Protection (“CBP”) within 15 days of publication of these final results of administrative review. We will direct CBP to assess the resulting assessment rates against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period.
To determine whether the duty assessment rates were
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of ARG windshields from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above except that the Department shall require no deposit of estimated antidumping duties for firms whose weighted-average margins are less than 0.5% and therefore
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumpting duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(I)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of expedited sunset review of antidumping duty order on certain hot-rolled flat-rolled carbon-quality steel products from Japan; Final results.
On May 3, 2004, the Department of Commerce (“the Department”) initiated a sunset review of the antidumping duty order of certain hot-rolled flat-rolled carbon-quality steel products (“hot-rolled steel”) from Japan.
October 21, 2004.
Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5050.
On May 3, 2004, the Department initiated a sunset review of the antidumping duty order on hot-rolled steel products from Japan in accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
The Department received Notices of Intent to Participate within the applicable deadline specified in section 351.218(d)(1)(i) of the Department's regulations on behalf of Nucor Corporation (“Nucor”), United States Steel Corporation (“U.S. Steel”), International Steel Group, Inc. (“ISG”), Gallatin Steel Company (“Gallatin”), IPSCO Steel Inc. (“IPSCO”), Steel Dynamics, Inc. (“SDI”), and Ispat Inland Inc. (“Ispat”), a division of Ispat Inland Flat Products, (collectively “domestic interested parties”).
The Department received complete substantive responses from the domestic interested parties within the 30-day deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, the Department did not receive any responses from respondent interested parties to this proceeding. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(c)(2), the Department conducted an expedited sunset review of this antidumping duty order.
All issues raised in this sunset review are addressed in the “Issues and Decision Memorandum” (”Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Jeffrey A. May, Acting Assistant Secretary, or Import Administration, dated October 15, 2004, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the antidumping duty order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memo, which is on file in the Central Records Unit, room B-099 of the main Department Building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
The Department determines that revocation of the antidumping duty investigation on hot-rolled steel from Japan would be likely to lead to continuation or recurrence of dumping at the following weighted-average margins:
This notice also serves as the only reminder to parties subject to administrative protective orders (“APOs”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751 (c), 752, and 777(i)(1) of the Act.
For purposes of this order, the products covered are certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (
Specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (“IF”) steels, high strength low alloy (“HSLA”) steels, and the substrate for motor lamination steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products to be included in the scope of this order, regardless of Harmonized Tariff Schedule of the United States (“HTSUS”) definitions, are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.012 percent of boron, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent of zirconium. All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of this investigation:
Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including
SAE/AISI grades of series 2300 and higher.
Ball bearing steels, as defined in the HTSUS.
Tool steels, as defined in the HTSUS.
Silico-manganese (as defined in the HTSUS) or silicon electrical steel with a silicon level exceeding 1.50 percent.
ASTM specifications A710 and A736.
USS abrasion-resistant steels (USS AR 400, USS AR 500).
Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
Width = 44.80 inches maximum;
Thickness = 0.063-0.198 inches;
Yield Strength = 50,000 ksi minimum;
Tensile Strength = 70,000-88,000 psi.
Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
Width = 44.80 inches maximum;
Thickness = 0.350 inches maximum;
Yield Strength = 80,000 ksi minimum;
Tensile Strength = 105,000 psi.
Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
Width = 44.80 inches maximum;
Thickness = 0.350 inches maximum;
Yield Strength = 80,000 ksi minimum;
Tensile Strength = 105,000 psi Aim.
Hot-rolled steel coil which meets the following chemical, physical and mechanical specifications:
Width = 39.37 inches;
Thickness = 0.181 inches maximum;
Yield Strength = 70,000 psi minimum for thicknesses less than or equal to 0.148 inches and 65,000 psi minimum for thicknesses > 0.148 inches;
Tensile Strength = 80,000 psi minimum.
Hot-rolled dual phase steel, phase-hardened, primarily with a ferritic-martensitic microstructure, contains 0.9 percent up to and including 1.5 percent silicon by weight, further characterized by either (i) tensile strength between 540 N/mm
Hot-rolled bearing quality steel, SAE grade 1050, in coils, with an inclusion rating of 1.0 maximum per ASTM E 45, Method A, with excellent surface quality and chemistry restrictions as follows: 0.012 percent maximum phosphorus, 0.015 percent maximum sulfur, and 0.20 percent maximum residuals including 0.15 percent maximum chromium.
Grade ASTM A570-50 hot-rolled steel sheet in coils or cut lengths, width of 74 inches (nominal, within ASTM tolerances), thickness of 11 gauge (0.119 inch nominal), mill edge and skin passed, with a minimum copper content of 0.20 percent.
The merchandise subject to this order is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00. Certain hot-rolled flat-rolled carbon-quality steel covered by this order, including: vacuum degassed, fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under order is dispositive.
Import Administration, International Trade Administration, Department of Commerce.
Notice of revocation of the antidumping duty finding on melamine in crystal form from Japan.
On August 2, 2004, the Department of Commerce (“the Department”) initiated a sunset review of the antidumping duty finding on melamine in crystal form from Japan.
September 1, 2004.
Martha V. Douthit, Office of Policy, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-5050.
On February 2, 1977, the Treasury Department published in the
This Treasury Finding covers melamine in crystal form, which is a fine white crystalline powder used to manufacture melamine formaldehyde resins, and is currently classifiable under item 2933.61.00 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description remains dispositive.
Pursuant to section 751(c)(3)(A) of the Act and 19 CFR 351.218(d)(1)(iii)(B)(3), if no domestic interested party responds to the notice of initiation, the Department shall issue a final determination, within 90 days after the initiation of the review, revoking the finding. Because no domestic interested party filed a notice of intent to participate or a substantive response, the Department finds that no domestic interested party is participating in this review. Therefore, we are revoking this antidumping duty finding effective September 1, 2004, the fifth anniversary of the date of the determination to continue the finding, consistent with 19 CFR 351.222(i)(2)(i) and section 751(c)(6)(A)(iii) of the Act.
Pursuant to sections 751(c)(3)(A) and 751(c)(6)(A)(iii) of the Act, and 19 CFR 351.222(i)(2)(i), the Department will instruct U.S. Customs and Border Protection to terminate the suspension of liquidation of the merchandise subject to this finding entered, or withdrawn from warehouse, on or after September 1, 2004. Entries of subject merchandise prior to the effective date of revocation will continue to be subject to suspension of liquidation and antidumping duty deposit requirements. The Department will complete any pending administrative reviews of this finding and will conduct administrative reviews of subject merchandise entered prior to the effective date of revocation in response to appropriately filed requests for review.
This five-year (“sunset”) review and notice are in accordance with sections 751(c) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of expedited sunset review of the antidumping duty order on natural bristle paint brushes and brush heads from the People's Republic of China.
On May 3, 2004, the Department of Commerce (“the Department”) initiated a sunset review of the antidumping duty order on natural bristle paint brushes and brush heads (“natural paint brushes”) from the People's Republic of China (“PRC”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). On the basis of a notice of intent to participate and an adequate substantive response filed on behalf of domestic interested parties and inadequate response from respondent interested parties, the Department conducted an expedited (120-day) sunset review. As a result of this sunset review, the Department finds that revocation of the antidumping duty order would be likely to lead to continuation or recurrence of dumping. The dumping margins are identified in the
October 21, 2004.
Hilary E. Sadler, Esq., Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4340.
On May 3, 2004, the Department published the notice of initiation of the second sunset review of the antidumping duty order on natural paint brushes from the PRC pursuant to section 751(c) of the Act.
The products covered by the order are natural bristle paintbrushes and brush heads from the PRC. Excluded from the order are paintbrushes and brush heads with a blend of 40 percent natural bristles and 60 percent synthetic filaments. The merchandise under review is currently classifiable under item 9603.40.40.40 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the Department's written description of the merchandise is dispositive.
All issues raised in these reviews are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Jeffrey A. May, Acting Assistant Secretary for Import Administration, dated October 15, 2004, which is hereby adopted by this notice.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
We determine that revocation of the antidumping duty order on natural paint brushes from the PRC would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average percentage margins:
We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of antidumping duty changed circumstances review.
On March 1, 2004, the Department of Commerce (the Department) published a notice of initiation of changed circumstances review of the antidumping duty finding on polychloroprene rubber (PR) from Japan to determine whether Showa Denko K.K. (SDK) is the successor-in-interest company to the joint venture of Showa DDE Manufacturing K.K. (SDEM) and DDE Japan Kabushiki Kaisha (DDE Japan) (collectively, SDEM/DDE Japan joint venture).
October 21, 2004.
Zev Primor, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4114.
On December 6, 1973, the Department of Treasury published in the
In response to the Department's supplemental questionnaire, on March 10 and 19, 2004, SDK provided the Department with supplemental questionnaire responses. Additionally, on February 4 and May 3, 2004, DuPont, a U.S. producer of PR and the petitioner in this proceeding, notified the Department that it opposes SDK's request to be considered the successor-in-interest to the SDEM/DDE Japan joint venture. In particular, DuPont argued that differences between the corporate structures, distribution channels, price structure, and customer base preclude SDK from being considered the successor-in-interest to the SDEM/DDE Japan joint venture.
From August 25 through August 27, 2004, the Department conducted a verification of information in connection with this changed circumstances review at SDK's offices in Kawasaki, Japan. On September 20, 2004, the Department issued its Verification Report.
Imports covered by this review are shipments of PR, an oil resistant synthetic rubber also known as polymerized chlorobutadiene or neoprene, currently classifiable under items 4002.42.00, 4002.49.00, 4003.00.00, 4462.15.21, and 4462.00.00 of the
In submissions to the Department dated January 14, 2004, and March 10 and March 19, 2004, SDK advised the Department that on November 1, 2002, the SDEM/DDE Japan joint venture was dissolved. SDEM was the manufacturing arm of the joint venture, while DDE Japan was its marketing and selling arm. When the joint venture was dissolved, DuPont sold its interest in SDEM to SDK. SDK, in turn, sold its interest in DDE Japan to DuPont. As a result of those interest transfers, SDK became the sole owner of SDEM and DuPont became the sole owner of DDE Japan. On the same date, November 1, 2002,
In making a successor-in-interest determination, the Department examines a number of factors, including, but not limited to, changes in: (1) Management; (2) customer base; (3) production facilities; and (4) supplier relationships.
Based on our review of the evidence provided by SDK and DuPont, we preliminarily determine that SDK is not the successor-in-interest to the SDEM/DDE Japan joint venture. While record evidence indicates that SDK retained the same production facility and suppliers as the joint venture entity (
Under the joint venture arrangement, DDE Japan was solely responsible for developing and maintaining the customer base, planning future sales and marketing PR to customers in Japan and the United States. In contrast, SDEM's role in the joint venture was to manufacture PR and supply it to DDE Japan once DDE Japan secured an order. For example, SDK's officials stated at verification that SDEM “did not maintain contact with the U.S. customers.”
With regard to the price structure, DDE Japan negotiated all prices with the unaffiliated customers. Under the terms of the joint venture arrangement, SDEM was guaranteed a fixed transfer price regardless of the price obtained by DDE Japan in the relevant market. In the post-dissolution period, SDK has to negotiate its own prices in the relevant markets and is no longer guaranteed a profit on each transaction. The Department considers this to be a significant change in the competitive environment for SDK.
As mentioned above, upon the loss of its joint venture marketing arm, DDE Japan, SDK had to develop its own customer base in both the United States and in Japan. At verification, we determined that a significant number of the joint venture's former customers were no longer customers of SDK.
The parent companies, SDK and DuPont, initially formed the SDEM/DDE Japan joint venture through a stock exchange, whereby each parent company purchased shares in the other company's subsidiary. As noted above, SDK and DuPont shared ownership of the joint venture equally (
The record evidence also shows that the management structure of the SDEM/DDE Japan joint venture resulted was significantly different from SDK's management structure. None of the senior managers employed by the DDE Japan office accepted positions with SDK after the dissolution of the joint venture. Only a very small number of former supervisors employed by DDE Japan are now employed by SDK. Further, the composition of the board of directors governing the SDEM/DDE Japan joint venture differed significantly from that of SDK. Prior to the creation of the joint venture, each of the underlying companies, SDEM and DDE Japan, had its own board of directors governing its operations. This management arrangement continued throughout the course of the joint venture arrangement. Upon dissolution of the joint venture, with one exception, the board of directors remained with their respective joint venture partner. Therefore, the Department considers the SDK board of directors to be significantly different from the joint venture board structure.
In sum, we preliminarily find that SDK has not presented evidence to establish a
The cash deposit determination from this changed circumstances review will apply to all entries of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this changed circumstances review.
Any interested party may request a hearing within 14 days of publication of this notice.
This notice is in accordance with sections 751(b) and 777(I)(1) of the Act, and 19 CFR 351.221(c)(3)(I) of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
Notice of expedited sunset reviews of the antidumping duty orders of stainless steel plate in coils from Belgium, Italy, and Korea; final results.
On April 1, 2004, the Department of Commerce (“the Department”) initiated sunset reviews of the antidumping duty orders on stainless steel plate in coils (“SSPC”) from Belgium, Italy, and the Republic of Korea (“Korea”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). On the basis of a Notice of Intent to Participate and an adequate substantive response filed on behalf of domestic interested parties and inadequate response from respondent interested parties, the Department conducted an expedited (120-day) sunset review. As a result of these sunset reviews, the Department finds that revocation of the antidumping duty orders would be likely to lead to continuation or recurrence of dumping. The dumping margins are identified in the
October 21, 2004.
Hilary E. Sadler, Esq., Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4340.
On April 1, 2004, the Department published the notice of initiation of the sunset reviews of the antidumping duty orders on SSPC from Belgium, Italy, and Korea.
The merchandise subject to these orders is stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (
All issues raised in these reviews are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to James J. Jochum, Assistant Secretary for Import Administration, dated October 8, 2004, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the orders were revoked. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum which is on file in room B-099 of the main Commerce Building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
We determine that revocation of the antidumping duty orders on SSPC from Belgium, Italy, and Korea would likely lead to continuation or recurrence of dumping at the following percentage weighted-average percentage margins:
This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305 of the Department's regulations. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of countervailing duty expedited review.
The Department of Commerce is conducting an expedited review of the countervailing duty order on hard red spring wheat from Canada for the period August 1, 2001, through July 31, 2002. The Department preliminarily determines that countervailable subsidies were not provided to Richelain Farms. Interested parties are invited to comment on these preliminary results.
October 21, 2004.
Daniel J. Alexy or Stephen Cho, AD/CVD Operations Office I, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1540 or (202) 482-3798.
The petitioner is the North Dakota Wheat Commission, one of the participating petitioners in the investigation.
The period of review for this expedited review is the same period as the investigation: August 1, 2001, to July 31, 2002, which coincides with the fiscal year of the Canadian Wheat Board (“CWB”).
On September 5, 2003, the Department of Commerce (“the Department”) published the
On December 31, 2003, the Department initiated the expedited review.
For purposes of this expedited review, the products covered are all varieties of hard red spring (“HRSW”) wheat from
In accordance with 19 CFR 351.214(k)(3)(iv), we verified information submitted by respondent Richelain.
The Canadian Wheat Board (“CWB”) represents Western Canadian wheat producers who want to sell their wheat in the global wheat market. The CWB enjoys certain powers and rights similar to those of government agencies; under the Canadian Wheat Board Act, the CWB is a single-desk seller of all “Western Division” grain. According to the Canada Transportation Act, “Western Division” means the part of Canada lying west of the meridian passing through the eastern boundary of the City of Thunder Bay, including the whole of the Province of Manitoba.
In the investigation, we determined that the CWB benefitted from two countervailable subsidies programs: “Provision of Government-Owned and Leased Railcars” and “Comprehensive Financial Risk Coverage: The Borrowing, Lending, and Initial Payment Guarantees.” In its questionnaire response, Richelain, which is located in Quebec, reported that it never benefitted from the subsidies programs found countervailable in the investigation. Furthermore, Richelain reported that it has never purchased or exported CWB wheat, and that it has no business relationship with the CWB.
At verification, the Department did not find any evidence that Richelain received subsidies from the programs found countervailable in the investigation. The Department also found no indication of any relationship between Richelain and the CWB, or that Richelain exported CWB-sourced wheat to the United States.
In accordance with 19 CFR 351.221(b)(4)(i), the calculated individual subsidy rate for Richelain, the only respondent subject to this expedited review, is zero. Accordingly, pursuant to 19 CFR 351.214(k)(3)(iv), we preliminarily determine that Richelain should be excluded from the countervailing duty order.
Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Case briefs must be received by the Department within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, must be received no later than five days after the time limit for filing case briefs. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the date of publication of this notice.
Interested parties that seek access to business proprietary information must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. The Department will include the results of its analysis of issues raised in any case or rebuttal briefs in the final results of this expedited review.
This expedited review and notice is issued and published in accordance with section 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677(f)(i)).
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results of full sunset review: stainless steel plate in coils from Italy.
On April 1, 2004, the Department initiated a sunset review of the countervailing duty (“CVD”) order on stainless steel plate in coils (“SSPC”) from Italy pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
October 21, 2004.
Hilary Sadler, Esq., Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4340.
The Department's procedures for the conduct of sunset reviews are set forth in 19 CFR 351.218. Guidance on methodological or analytical issues relevant to the Department's conduct of sunset reviews is set forth in the Department's Policy Bulletin 98.3—
On April 1, 2004, the Department initiated a sunset review of the countervailing duty (“CVD”) order on SSPC from Italy pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
The Department received a complete substantive response to the notice of initiation on behalf of three respondent interested parties: the Government of Italy (“GOI”), the Delegation of the European Commission (“EC”), and TKAST. On May 3, 2004, we received substantive responses from all three respondent interested parties expressing their willingness to participate in this review as the authority responsible for defending the interest of the Member States of the European Union.
On May 3, 2004, we received a complete substantive response from the domestic interested parties within the 30-day deadline specified in the Department's Regulations under section 351.218(d)(3)(i).
We received rebuttal comments from the domestic interested parties on May 10, 2004. On June 10, 2004, pursuant to section 351.309(e)(ii), TKAST filed comments on the Department's adequacy determination stating that the Department's determination of respondents' inadequacy was incorrect and should be reconsidered.
In a sunset review, the Department normally will conclude that there is adequate response to conduct a full sunset review where respondent interested parties account for more than 50 percent, by volume, of total exports of subject merchandise to the United States.
The product covered by this order is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (
All issues raised in the substantive responses and rebuttals by parties to this sunset review are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Jeffrey A. May, Acting Assistant Secretary for Import Administration, dated October 15, 2004, which is hereby adopted by this notice. The issues discussed in the accompanying Decision Memo include the likelihood of continuation or recurrence of countervailable subsidies and the net subsidy likely to prevail were the order revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Commerce building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
The Department notes that on November 7, 2003, the U.S. Trade Representative requested the Department, pursuant to section 129(b)(4) of the Uruguay Round Agreements Act, to implement the determination in the Section 129 Memo.
We preliminarily determine that revocation of the countervailing duty order on SSPC from Italy would be likely to lead to continuation or recurrence of countervailable subsidies at the rate listed below:
Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(d)(i). Any hearing, if requested, will be held on December 22, 2004. Interested parties may submit case briefs no later than December 13, 2004, in accordance with 19 CFR 351.309(c)(1)(i). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than December 20, 2004, in accordance with 19 CFR 351.309(d)(I). The Department will issue a notice of final results of this sunset review, which will include the results of its analysis of issues raised in any such briefs, not later than February 25, 2005.
This five-year (“sunset”) review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act.
Notice of issuance of an amended Export Trade Certificate of Review, Application No. 84-15A12.
On October 14, 2004, the U.S. Department of Commerce issued an amended Export Trade Certificate of Review to Northwest Fruit Exporters (“NFE”).
Jeffrey C. Anspacher, Director, Export Trading Company Affairs, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or e-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2003).
Export Trading Company Affairs (“ETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the U.S. Department of Commerce to publish a summary of the certification in the
Export Trade Certificate of Review No. 84-00012, was issued to NFE on June 11, 1984 (49 FR 24581, June 14, 1984) and previously amended on May 2, 1988 (53 FR 16306, May 6, 1988); September 21, 1988 (53 FR 37628, September 27, 1988); September 20, 1989 (54 FR 39454, September 26, 1989); November 19, 1992 (57 FR 55510, November 25, 1992); August 16, 1994 (59 FR 43093, August 22, 1994); November 4, 1996 (61 FR 57850, November 8, 1996); October 22, 1997 (62 FR 55783, October 28, 1997); November 2, 1998 (63 FR 60304, November 9, 1998); October 20, 1999 (64 FR 57438, October 25, 1999); October 16, 2000 (65 FR 63567, October 24, 2000); October 5, 2001 (66 FR 52111, October 12, 2001); October 3, 2002 (67 FR 62957, October 9, 2002); and September 16, 2003 (68 FR 54893, September 19, 2003).
NFE's Export Trade Certificate of Review has been amended to:
1. Add each of the following companies as a new “Member” of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)): John's Farm LLC, Brewster, Washington; Pride Packing Company, Wapato, Washington; and Sage Processing LLC, Wapato & Zillah, Washington;
2. Delete the following companies as “Members” of the Certificate: Apple Country, Inc., Wapato, Washington; Carlson Orchards, Inc., Yakima, Washington; Jenks Bros. Cold Storage & Packing, Royal City, Washington; J.C. Watson Co., Parma, Idaho; and Roy Farms, Moxee, Washington; and
3. Change the listing of the following Members: “Brewster Heights Packing, Brewster, Washington” to the new listing “Brewster Heights Packing & Orchards, LP, Brewster, Washington”; and “Chelan Fruit Company, Chelan, Washington” to the new listing “Chelan Fruit Cooperative, Chelan, Washington”.
The effective date of the amended certificate is July 14, 2004. A copy of the amended certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4100, U.S.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Oversight Committee in November 2004. Recommendations from the committee will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will held on Thursday, November 4, 2004, at 9:30 a.m.
The meeting will be held at the Comfort Inn, 1940 Post Road, Warwick, RI 02886; telephone: (401) 732-0470.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Oversight Committee will consider options and recommend alternatives for Framework Adjustment (FW) 17 that would require some or all vessels with general category scallop permits to operate vessel monitoring system (VMS) equipment. The recommendations would be approved by the Council at its November 16-18, 2004 meeting, followed by a final framework meeting on February 1-3, 2005.
In addition, the Plan Development Team and Advisory Panel will brief the committee about preliminary work on the 2005 Stock Assessment and Fishery Evaluation Report. The final report is scheduled for presentation to the Council in September 2005. Planning issues related to FW 17 (general category VMS) or FW 18 (biennial specifications and adjustments) may also be discussed. The committee meeting will conclude with a closed-door session to review Advisory Panel applications and discuss appointment recommendations. These recommendations will be presented to the Council's Executive Committee at its next meeting.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notification of a request for EFPs to conduct experimental fishing; request for comments.
The Director, State, Federal and Constituent Programs Office, Northeast Region, NMFS (Office Director) has made a preliminary determination that the subject EFP application contains all the required information and warrants further consideration. The Office Director has also made a preliminary determination that the activities authorized under the EFPs would be consistent with the goals and objectives of Federal management of the American lobster resource. However, further review and consultation may be necessary before a final determination is made to issue EFPs. Therefore, NMFS announces that the Office Director proposes to issue EFPs that would allow a maximum of six Federally permitted commercial fishing vessels to participate in a project designed to monitor the movement of berried female American lobsters (berried lobsters) in two inshore locations in the vicinity of Portsmouth, New Hampshire, and Friendship, Maine, and in two offshore locations along the northern edge of Georges Bank and in Corsair and Lydonia Canyons to the southeast of Georges Bank.
This EFP is a collaborative project involving the University of New Hampshire (UNH), Durham, New Hampshire (NH); the Lobster Conservancy, Friendship, Maine; the New England Aquarium, Boston, Massachusetts; and the Atlantic Offshore Lobstermen's Association, Candia, NH. The EFP proposes to monitor a total of 120 legal sized berried lobsters carrying early-stage eggs until the eggs mature and are released. Each berried lobster will be tagged and fitted with a small ambient temperature recording device (Tidbit temperature-loggers) and then the movement and egg-development stages of these tagged berried lobsters will be documented. The objective of the project will be to test the hypothesis that berried lobsters speed up or slow down egg growth and development by moving to warmer or colder water in order to expose their eggs to water temperatures that result in hatching at an optimal time for larval growth and survival. To test this hypothesis, when a tagged berried lobster is recaptured in commercial lobster gear, participating lobstermen will download thermal data from the attached Tidbit temperature-logger, and also preserve a maximum of 6 eggs from each tagged berried lobster to allow researchers to estimate the egg developmental stage and time to maturity. The tagged berried lobsters will then be released unharmed. The EFP would waive the prohibition on removal of eggs specified at 50 CFR 697.7(c)(iv) for the six participating vessels and is limited to the 120 pre-tagged berried lobsters in this project.
This project would not involve the authorization of any additional trap gear, and all trap gear would conform to existing Federal lobster regulations. There would be no anticipated adverse effects on protected resources or habitat as a result of this research. Therefore,
Comments on this lobster EFP notification for berried lobster monitoring and data collection must be received on or before November 5, 2004.
Written comments should be sent to Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside of the envelope “Comments - Lobster EFP Proposal”. Comments also may be sent via facsimile (fax) to 978-281-9117. Comments on the Lobster EFP Proposal may be submitted by e-mail. The mailbox address for providing e-mail comments is
Bob Ross, Fishery Management Specialist, (978) 281-9234, fax (978)-281-9117.
The regulations that govern exempted fishing, at 50 CFR 600.745(b) and 697.22 allow the Regional Administrator to authorize for limited testing, public display, data collection, exploration, health and safety, environmental clean-up, and/or hazardous removal purposes, and the targeting or incidental harvest of managed species that would otherwise be prohibited. An EFP to authorize such activity may be issued, provided there is adequate opportunity for the public to comment on the EFP application, the conservation goals and objectives of Federal management of the American lobster resource are not compromised, and issuance of the EFP is beneficial to the management of the species.
The American lobster fishery is the most valuable fishery in the northeastern United States. In 2002, approximately 82 million pounds (37,324 metric tons (mt)) of American lobster were landed with an ex-vessel value of approximately 293 million dollars. Operating under the Atlantic States Marine Fisheries Commission's interstate management process, American lobster are managed in state waters under Amendment 3 to the American Lobster Interstate Fishery Management Plan (Amendment 3). In Federal waters of the Exclusive Economic Zone (EEZ), lobster is managed under Federal regulations at 50 CFR part 697. Amendment 3, and compatible Federal regulations established a framework for area management, which includes industry participation in the development of a management program which suits the needs of each lobster management area while meeting targets established in the Interstate Fisheries Management Program. The industry, through area management teams, with the support of state agencies, have played a vital role in advancing the area management program.
American lobster experience very high fishing mortality rates and are overfished throughout their range, from Canada to Cape Hatteras. Although harvest and population abundance are near record levels due to high recent recruitment and favorable environmental conditions, there is significant risk of a sharp drop in abundance, and such a decline would have serious implications. To facilitate the development of effective management tools, extensive monitoring and detailed abundance and size frequency data on the composition of lobsters throughout the range of the resource are necessary. This proposed EFP would monitor tagged berried lobsters in four study areas using traditional lobster trap gear.
The EFP proposes to collect statistical and scientific information as part of a project designed to monitor the movement of tagged berried lobsters to collect data that will assist in the assessment of the lobster resource and in the development of management practices appropriate to the fishery. Participants in this project are funded by, and under the direction of the Northeast Consortium, a group of four research institutions (University of New Hampshire, University of Maine, Massachusetts Institute of Technology, and Woods Hole Oceanographic Institution) which are working together to foster this initiative.
Each of the six commercial fishing vessels in possession of Federal lobster permits involved in this monitoring and data collection program would collect temperature data and a maximum of six eggs from each tagged berried lobster harvested using traditional lobster trap gear. Participating vessels would collect data from each of the four general study areas in the vicinity of Portsmouth, New Hampshire, and Friendship, Maine, the northern edge of Georges Bank and in the vicinity of Corsair and Lydonia Canyons. This EFP would not involve the authorization of any additional lobster trap gear in the study areas. The participating vessels may retain on deck tagged egg bearing female lobsters, in addition to legal lobsters, for the purpose of collecting temperature data from the attached Tidbit temperature-loggers, and for the purpose of collecting a maximum of six eggs from each tagged berried lobster to allow researchers to estimate the egg developmental stage and time to maturity. All sub-legal lobsters, berried females, and v-notched females would be returned to the sea as quickly as possible after data collection. Pursuant to 50 CFR 600.745(3)(v), the Regional Administrator may attach terms and conditions to the EFP consistent with the purpose of the exempted fishing.
This project would not involve the authorization of any additional lobster trap gear. All traps fished by the participating vessels would comply with all applicable lobster regulations specified at 50 CFR 697. To allow for the collection of temperature data and the removal of a maximum of six of eggs from each tagged berried lobster, the EFP would waive the American lobster prohibition on removal of eggs specified at 50 CFR 697.7(c)(iv). All sample collections would be conducted by six federally permitted commercial fishing vessels, during the course of regular commercial fishing operations. There would not be observers or researchers onboard every participating vessel.
This project, including the lobster handling protocols, was initially developed in consultation with University of New Hampshire scientists. To the greatest extent practicable, these handling protocols are designed to avoid unnecessary adverse environmental impact on lobsters involved in this project, while achieving the data collection objectives of this project.
16 U.S.C. 1801
Technology Administration, Department of Commerce.
Notice, request for comments.
The Technology Administration (TA) publishes this notice to solicit comments on the following specific issues regarding electronics recycling: (1) Definition of covered products; (2) collection and the role of government in collection; (3) financing collection, transportation and recycling, financing for orphan products, financing historical products versus future products, and the role of government, the electronics industry, and intermediaries in financing; and (4) the role of the federal government in creating a national recycling plan. This solicitation is intended to give those who were unable to comment at the September 21, 2004, roundtable on electronics recycling, entitled Technology Recycling: Achieving Consensus for Stakeholders, an opportunity to submit a statement regarding these issues.
Comments and statements should be received by the Technology Administration no later than October 27, 2004, in order to receive consideration.
Electronic statements are preferred, but written comments will be accepted. Please submit your comments electronically to
Paper submissions should include an electronic copy of the comments on a diskette in one of the formats specified above. Mail to Laureen Daly, Office of Technology Policy, Technology Administration HCHB 4817, 1401 Constitution Avenue, NW, Washington, DC 20230.
Direct questions to
The Technology Administration, Office of Technology Policy held a roundtable on September 21, 2004, entitled Technology Recycling: Achieving Consensus for Stakeholders, that included representatives of electronics manufacturers, retailers, recyclers, and environmental organizations. At the roundtable, participants discussed that: (1) A list of products for recycling should be limited to a small number of items to start with, such as cathode ray tubes and flat panel monitors over a certain size, and have a timetable for expansion of the list; (2) a collection process may include but should not mandate participation from retailers, local governments, manufacturers and third parties; (3) there exists several different financing models including extended producer responsibility and an advanced recovery fee, as well as financing the recycling of orphan products and transportation from collection to recyclers; and (4) there exists a need for a national approach as opposed to a state-by-state approach. The purpose of the roundtable was to obtain information for a report on electronics recycling that will be released in 2005.
The Office of Technology Policy of TA is soliciting comments on the following specific issues regarding electronics recycling: (1) Definition of covered products; (2) collection and the role of government in collection; (3) financing collection, transportation and recycling, financing for orphan products, financing historical products versus future products, and the role of government, the electronics industry, and intermediaries in financing; and (4) the role of the federal government in creating a national recycling plan. This solicitation is intended to give those who were unable to comment at the roundtable an opportunity to submit a statement regarding these issues. Statements may propose a specific scenario or model for electronics recycling; give examples of existing programs in similar or unrelated areas that could serve as a model for an electronics recycling program; or comment on the pros and cons of existing or proposed models. TA is interested in specific scenarios that would enhance the competitiveness of U.S. industry and encourage conservation of resources.
We request, but do not require, that commentors provide their name, affiliation, and contact information and whether the comments represent the views of an individual or an organization. The Department reserves the right to use comments received, either partially or wholly, in subsequent reports or publications. Any comments become the property of the U.S. Department of Commerce.
For further information on the roundtable and the report, check the
Under Secretary of Defense for Personnel and Readiness, Federal Voting Assistance Program.
Notice.
The Department of Defense, Under Secretary of Defense for Personnel and Readiness, Federal Voting Assistance Program is establishing a new form, Standard Form 186A, Federal Write-In Absentee Ballot (Electronic). This form is an alternative to the current Standard Form 186, Federal Write-In Absentee Ballot.
Since this form is only electronic, users can get it from the following Federal Voting Assistance Program Web site:
Effective upon publication in the
Ms. Glynda Hughes, Department of Defense (703) 604-4578.
The following is a list of differences between the hard copy SF 186 and the electronic SF 186A.
Paragraphs 2b. and 2c. of the Instructions are not on the hard copy SF 186. These paragraphs are added to provide the citizen instructions on how to package the ballot since no envelopes are provided with the electronic version.
Paragraph 3. of the electronic version does not include the instruction, “Remove tape from the Security Envelope and seal.”
Paragraph 4. of the electronic version contains additional instructions for the citizens to prepare the voter supplied envelopes for mailing.
Department of Defense; Notice of Meeting.
Notice.
This notice is hereby given for a forthcoming meeting of the Defense Department Advisory Committee on Women in the Services (DACOWITS). The purpose of the Committee meeting is to discuss the 2004 DACOWITS Report. The meeting is open to the public, subject to the availability of space.
Interested persons may submit a written statement for consideration by the Committee and make an oral presentation of such. Persons desiring to make an oral presentation or submit a written statement to the Committee must notify the point of contact listed below no later than 5 p.m., November 1, 2004. Oral presentations by members of the public will be permitted only on Tuesday, November 9, 2004, from 4:30 p.m. to 4:45 p.m. before the full Committee. Presentations will be limited to two minutes. Number of oral presentations to be made will depend on the number of requests received from members of the public. Each person desiring to make an oral presentation must provide the point of contact listed below with one (1) copy of the presentation by 5 p.m., November 1, 2004, and bring 35 copies of any material that is intended for distribution at the meeting. Persons submitting a written statement must submit 35 copies of the statement to the DACOWITS staff by 5 p.m. on November 1, 2004.
November 8, 2004, 8:30 a.m.-5 p.m., November 9, 2004, 8:30 a.m.-5 p.m.
Embassy Suites Hotel, Crystal City—National Airport, 1300 Jefferson Davis Highway, Arlington, VA 22202.
MSgt Gerald T. Posey, USAF, DACOWITS, 4000 Defense Pentagon, Room 2C548A, Washington, DC 20301-4000. Telephone (703) 697-2122. Fax (703) 614-6233.
Meeting Agenda.
2004 Committee Report.
2004 Committee Report.
4:30 p.m.-4:45 p.m. (Public Forum)
Exact order may vary.
Department of Education.
The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 20, 2004.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kathy Axt at
Department of Education.
The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 22, 2004.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Carolyn Lovett, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10235, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the submission for OMB review; comment request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at his e-mail address
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the American Statistical Association Committee on Energy Statistics, a utilized Federal Advisory Committee. The Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, October 28, 2004, 8:30 a.m.-4:55 p.m.; Friday, October 29, 2004, 8:30 a.m.-12:15 p.m.
U.S. Department of Energy, Room 8E-089, 1000 Independence Ave., SW., Washington, DC 20585.
Mr. William I. Weinig, EI-70, Committee Liaison, Energy Information Administration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, Telephone: (202) 287-1709. Alternately, Mr. Weinig may be contacted by e-mail at
The Chair of the Committee is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Written statements may be filed with the committee either before or after the meeting. If there are any questions, please contact Mr. William I. Weinig, EIA Committee Liaison, at the address or telephone number listed above. This notice is being published less than 15 days before the date of the meeting due to programmatic issues that had to be resolved prior to publication.
A Meeting Summary and Transcript will subsequently be available through Mr. Weinig who may be contacted at (202) 287-1709 or by e-mail at
Take notice that on October 6, 2004, CenterPoint Energy Gas Transmission Company (CenterPoint), 1111 Louisiana Street, Houston, Texas 77002-5231, filed in the above referenced docket pursuant to section 7(c) of the Natural Gas Act (NGA), and part 157 of the Commission's regulations for an order granting a certificate of public convenience to construct, own and operate mainline compression facilities and appurtenances located in Oklahoma, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Specifically, CenterPoint proposes to construct, own, and operate 28,265 horsepower of new mainline compression by installing one compressor units and appurtenant facilities at each of its new Hinton and Allen Compressor Stations located on CenterPoint's Line AD in Caddo and Hughes counties, respectively, Oklahoma and one additional compressor unit and appurtenant facilities at its Amber Compressor Station located on CenterPoint's Line AD in Grady County, Oklahoma. CenterPoint states that this additional compression will serve to increase Line AD capacity by 112,900 Dth per day to receive Rocky Mountain gas supplies for transportation west to east across CenterPoint's system. Total construction costs are estimated to be approximately $31.9 million.
Any questions regarding this application should be directed to Lawrence O. Thomas, Director, Rates & Regulatory, CenterPoint Energy Gas Transmission Company, P.O. Box 21734, Shreveport, Louisiana 71151, or call (318) 429-2804.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
Persons who wish to comment only on the environmental review of this project, or in support of or in opposition to this project, should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the applicant. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper.
Take notice that on September 29, 2004, 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 October 1, 2004:
CEGT states that the purpose of this filing is to reflect the termination of negotiated rates with respect to two transactions.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 23, 2004, Cheyenne Plains Gas Pipeline Company, L.L.C. (Cheyenne Plains) submitted a compliance filing pursuant to the Commission's Order Issuing Certificates issued on March 24, 2004, at Docket No. CP03-302-000,
Cheyenne Plains states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 4, 2004, Colorado Interstate Gas Company (CIG) submitted a compliance filing pursuant to the Commission's Order issued October 22, 2003, at Docket No. CP03-301-000,
CIG states that the tariff sheets implement the pro forma Cheyenne Firm Compression tariff provisions filed in this proceeding. The tariff sheets are proposed to become effective December 4, 2004.
CIG states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, Columbia Gas Transmission Corporation (Columbia) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Seventh Revised Sheet No. 500B, with a proposed effective date of November 1, 2004.
Columbia submitted five discount letter agreements that may have non-conforming provisions, as well as two new service agreements containing a non-conforming provision that was previously approved by the Commission.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, Columbia Gulf Transmission Company (Columbia Gulf) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Thirteenth Revised Sheet No. 316, with a proposed effective date of November 1, 2004.
Columbia Gulf submitted four discount letter agreements that may have non-conforming provisions.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 12, 2004, Dauphin Island Gathering Partners (Dauphin Island) tendered for filing additional information in compliance with an order (108 FERC ¶ 61,320) issued by the Commission on September 29, 2004, which relates to Dauphin Island's August 30, 2004, Negotiated Rate and Nonconforming Tariff Filing.
Dauphin Island states it is providing additional information explaining the specific changes made to each contract. Dauphin Island further states that it tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Substitute Third Revised Sheet No. 359 to make a correction to the original filing.
Dauphin Island states that copies of the filing are being served contemporaneously on all participants listed on the service list in this proceeding.
Any person desiring to intervene or to protest this filing must file 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 notice of
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 7, 2004, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, with a proposed effective date of October 1, 2004.
ESNG states that the purpose of this filing is to track rate changes attributable to storage services purchased from Transcontinental Gas Pipe Line Corporation (Transco) under their Rate Schedules GSS and LSS. ESNG further states that the costs of the above referenced storage services comprise the rates and charges payable under ESNG's Rate Schedules GSS and LSS. This tracking filing is being made pursuant to Section 3 of ESNG's Rate Schedules GSS and LSS.
ESNG states that copies of the filing have been served upon its jurisdictional customers and interested State Commissions.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 12, 2004, Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with a proposed effective date of November 1, 2004:
ESNG states that copies of the filing have been served upon its jurisdictional customers and interested State Commissions.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 5, 2004, El Paso Natural Gas Company (El Paso), Post Office Box 1087, Colorado Springs, Colorado 80944, filed in Docket No. CP05-2-000 an application pursuant to section 7(c) of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations for an order granting a certificate of public convenience and necessity authorizing El Paso to acquire and convert a crude oil pipeline to a natural gas pipeline, the construction and operation of certain connection, extension, and miscellaneous appurtenant facilities, and the operation of the converted pipeline as a part of El Paso's existing interstate transmission system all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Specifically, El Paso seeks authority to: (1) Acquire, convert and operate approximately 88 miles of 30-inch diameter crude oil pipeline which will extend from an interconnection with El Paso's system near Ehrenberg in La Paz County, Arizona through Riverside County, California to Cadiz in San Bernardino County, California; (2) construct and operate a 6.4 mile, 30-inch diameter pipeline from Cadiz to an interconnection with Mojave Pipeline Company in San Bernadino County; and (3) construct and operate various appurtenant facilities. El Paso estimates that the project will cost $73,557,000.
Any questions regarding the application should be directed to Robert T. Tomlinson, Director, El Paso Natural Company, Post Office Box 1087, Colorado Springs, Colorado 80944, at (719) 520-3788 or fax at (719) 667-7534 or Craig V. Richardson, Vice President and General Counsel, El Paso Natural Gas Company; Post Office Box 1087, Colorado Springs, Colorado, 80944 at (719) 520-4829 or fax at (719) 520-4898.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
Persons who wish to comment only on the environmental review of this project, or in support of or in opposition to this project, should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the applicant. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper.
Take notice that on September 14, 2004, the New England Power Pool, through its Participants Committee, ISO New England Inc., and the New England Transmission Owners (Filing Parties) submitted for Commission approval a compliance filing in response to the March 24, 2004 order issued in this proceeding.
The Filing Parties state that copies of these materials were sent to the NEPOOL Participants and the New England state governors and regulatory commissions, as well as to all parties on the official service lists of this proceeding.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicants and all parties to these proceedings.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 5, 2004, Kern River Gas Transmission Company (Kern River) tendered Ninth Revised Sheet No. 495 for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, to be effective November 1, 2004.
Kern River states that the purpose of this filing is to submit a corrected tariff sheet to replace the sheet filed in this proceeding on October 1, 2004.
Kern River states that it has served a copy of this filing upon each person designated on the official service list compiled by the Secretary in this proceeding.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, KO Transmission Company (KOT) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Sixteenth Revised Sheet No. 10, with a proposed effective date of November 15, 2004.
KOT states that the purpose of the filing is to eliminate the Gas Research Institute (GRI) surcharge, which is currently reflected on the rate sheet of KOT's Tariff, and to modify the Title Sheet consistent to Commission regulations.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 5, 2004, Natural Gas Pipeline Company of America (Natural), filed an abbreviated application under section 7 of the NGA, as amended, and sections 157.7 and 157.14 of the Commission's Regulations to amend the certificate authority that was previously granted in Docket No. CP03-51-000. By order issued July 29, 2003, Natural was authorized to drill six new injection/ withdrawal (I/W) wells and convert three observation wells to I/W wells at the Sayre Storage Field (Sayre) in Beckham County, Oklahoma.
Natural seeks amended certificate authority to convert a fourth observation well, in place of one of the original three observation wells authorized to be converted. Natural states that the well will be converted to I/W status, and the replaced well will continue to be used as an observation well. Natural believes this minor change in its existing certificate authority is in the public interest and urges prompt consideration
Any questions regarding this application should be directed to Bruce H. Newsome, Vice President, Natural Gas Pipeline of America, 747 East 22nd Street, Lombard, Illinois 60148 at (630) 691-3526.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, Natural Gas Pipeline Company of America (Natural) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, Fourth Revised Sheet No. 26C, to become effective November 1, 2004.
Natural states that the purpose of this filing is to reflect an amendment to an existing negotiated rate agreement between Natural and North Shore Gas Company under Natural's Rate Schedule FTS pursuant to section 49 of the General Terms and Conditions of its Tariff.
Natural states that copies of the filing are being mailed to all parties set out on the Commission's official service list in Docket No. RP99-176.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 12, 2004, Northern Natural Gas Company (Northern) filed the information requested by the Commission in compliance with the Commission's September 24, 2004 Order Accepting and Suspending Tariff Sheets Subject To Refund, Conditions and Further Review (Order). Northern states that it also tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Substitute Seventeenth Revised Sheet No. 62, with an effective date of September 1, 2004.
Northern states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 7, 2004, Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Second Substitute First Revised Sheet No. 142B, with an effective date of January 1, 2004.
Northern states that the above-referenced tariff sheet was filed in compliance with the Commission's September 22, 2004, Order Conditionally Accepting Tariff Sheets requiring clarification that the PDD Rollover Charge must be applied to each PDD shipper's storage balance on March 31 of each year unless the contract provides otherwise.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, Northern Natural Gas Company, tendered for a motion to place the suspended tariff sheets listed in Appendix A to the filing, into effect on November 1, 2004.
Northern states that it has also deleted references to the Gas Research Institute (GRI) surcharge in its Gas Tariff as well as incorporated a Field Area Segmentation filing.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that Northern Natural Gas Company (Northern), on October 7, 2004, tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets, with an effective date of November 7, 2004:
Northern states that it is filing the above-referenced tariff sheets to clarify components of the
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to intervene or to protest this filing must file 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 encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that an informal settlement conference will be convened in this proceeding commencing at 10 a.m. (e.s.t.) on Thursday, November 18, 2004, and continuing Friday, November 19, 2004, in a room to be designated at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, for the purpose of exploring the possible settlement of the above-referenced docket.
Any party, as defined by 18 CFR 385.102(c), or any participant as defined by 18 CFR 385.102(b), is invited to attend. Persons wishing to become a party must move to intervene and receive intervenor status pursuant to the Commission's regulations (18 CFR 385.214).
For additional information, please contact Bob Keegan at (202) 502-8158,
Take notice that on October 8, 2004, Texas Eastern Transmission, LP (Texas Eastern) tendered for filing as part of its FERC Gas Tariff, Seventh Revised Volume No. 1, the following tariff sheets proposed to become effective November 1, 2004:
Texas Eastern states that the purpose of this filing is to correct certain typographical errors in Texas Eastern's October 4, 2004, submission of negotiated rate agreements for service on the M-1 Expansion Project facilities pursuant to Rate Schedule FT-1. Texas Eastern further states that it is submitting a revised page from one of the negotiated rate service agreements to correct the reference to the termination year.
Texas Eastern states that copies of the filing were served upon all affected customers of Texas Eastern and interested state commissions.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 8, 2004, Trailblazer Pipeline Company (Trailblazer) tendered for filing its Refund Report. Trailblazer states that the Refund Report sets out the refund calculations for Trailblazer's shippers for the period May 1, 2004, through July 31, 2004.
Trailblazer explains that the refund is filed pursuant to the Commission's July 9, 2004, order on its fuel tracking states that the purpose of this filing is to inform the Commission of its refund made to shipper on September 8, 2004, mechanism.
Trailblazer states that copies of the filing are being mailed to its affected customers, interested state commissions and all parties set out on the official service list.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on October 4, 2004, Trans-Elect NTD Path 15, LLC (NTD Path 15) filed an application requesting that the Commission issue an order disclaiming jurisdiction over certain security issuances, or, in the alternative, granting authorization, pursuant to section 204 of the Federal Power Act, to issue $95.5 million in long-term secured debt and borrow under a $19.5 million credit facility.
NTD Path 15 also requests a waiver from the Commission's competitive bidding and negotiated placement requirements at 18 CFR 34.2.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that Transwestern Pipeline Company (Transwestern), 1331 Lamar Street, Houston, Texas 77010, filed in Docket No. CP05-4-000 on October 8, 2004, an application pursuant to section 7(c) of the Natural Gas Act (NGA) for authorization to replace the compressor wheels at its P-1 and P-2 Compressor Stations located in Roosevelt County, New Mexico, and Deaf Smith County, Texas, respectively, in order to increase the capacity on its Panhandle Lateral by 10,000 Dth of natural gas per day, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
Any questions regarding this application should be directed to Stephen T. Veatch, Senior Director, Certificates and Regulatory Reporting, Transwestern Pipeline Company at (713) 853-6549.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. Unless filing electronically, a party must submit 14 copies of any paper filing made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper.
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
On October 8, 2004, Dominion Energy Brayton Point, LLC, (Dominion Energy), 120 Tredegar Street, Richmond, Virginia 23219, 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.
Dominion Energy states that it is a Virginia company and, upon closing of a purchase and sale transaction with USGen New England, Inc., will own the Brayton Point Station in Somerset, Massachusetts. Dominion Energy states that the Brayton Point Station consists of three coal-fired units, one oil/gas-fired unit, and a 10-MW diesel/oil unit with a total net capacity of 1594 MW. Dominion Energy further states that in connection with a prior sale of these facilities to USGenNE in 1998, in accordance with section 32(c) of PUHCA and section 365.3 of the Commission's Regulations, Massachusetts, New Hampshire, Rhode Island, and Vermont made specific determinations that allowing the facilities to be eligible facilities: (1) Will benefit customers, (2) is in the public interest; and (3) does not violate state laws.
On October 8, 2004, Dominion Energy Manchester States, Inc., (Dominion Energy Manchester), 120 Tredegar Street, Richmond, Virginia 23219, 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.
Dominion Energy Manchester states that it is a Virginia company and, upon closing of a purchase and sale transaction with USGen New England, Inc., will own the Manchester Street Station in Providence, Rhode Island. Dominion Energy Manchester states that Manchester Street Station is a combined cycle natural-gas fired generating facility consisting of three combustion turbines and three heat recovery steam generators with a net capacity of 495 MW. Dominion Energy Manchester further states that in connection with a prior sale of these facilities to USGenNE in 1998, in accordance with section 32(c) of PUHCA and section 365.3 of the Commission's Regulations, Massachusetts, New Hampshire, Rhode Island, and Vermont made specific determinations that allowing the facilities to be eligible facilities: (1) Will benefit customers, (2) is in the public interest; and (3) does not violate state laws.
On October 8, 2004, Dominion Energy New England, Inc., (Dominion Energy New England), 120 Tredegar Street, Richmond, Virginia 23219, 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.
Dominion Energy New England states that it is a Massachusetts corporation formed to acquire the Brayton Point Station in Somerset, Massachusetts, the Manchester Street Station in Providence, Rhode Island, and the Salem Harbor Station in Salem, Massachusetts (collectively, the Facilities) from USGen New England, Inc. Dominion Energy New England states that upon closing of this purchase and sale transaction, the Applicant will operate the Facilities. Dominion Energy New England further states that the Brayton Point Station consists of three coal-fired units, one oil/gas-fired unit, and a 10-MW diesel/oil unit with a total net capacity of 1594 MW. The Manchester Street Station is a combined cycle natural-gas fired generating facility consisting of three combustion turbines and three heat recovery steam generators with a net capacity of 495 MW.
The Salem Harbor Station consists of three coal-fired units and one oil-fired unit with a total net capacity of 745 MW. In connection with a prior sale of these Facilities to USGenNE in 1998, in accordance with section 32(c) of PUHCA and section 365.3 of the Commission's Regulations, Massachusetts, New Hampshire, Rhode Island, and Vermont made specific determinations that allowing the facilities to be eligible facilities: (1) Will benefit customers, (2) is in the public interest; and (3) does not violate state laws.
On October 8, 2004, Dominion Energy Salem Harbor, LLC, (Dominion Energy Salem), 120 Tredegar Street, Richmond, Virginia 23219, 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.
Dominion Energy Salem states that it is a Virginia company and, upon closing of a purchase and sale transaction with USGen New England, Inc., will own the Salem Harbor Station in Salem, Massachusetts (the Facilities). Dominion Energy Salem states that the Salem Harbor Station consists of three coal-fired units and one oil-fired unit with a total net capacity of 745 MW. Dominion Energy Salem further states that in connection with a prior sale of these facilities to USGenNE in 1998, in accordance with section 32(c) of PUHCA and section 365.3 of the Commission's Regulations,
Take notice that on October 8, 2004, Idaho Power Company (Idaho Power) submitted an amendment to its September 27, 2004 filing in Docket No. ER97-1481-004 of a revised market-based rate tariff three-year update filing.
Take notice that on September 22, 2004, Dynegy Power Marketing, Inc. (Dynegy) pursuant to section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d, and part 35 of the Commission's regulations, 18 CFR part 35, submitted for filing amended rate schedules implementing provisions for sales of market-based ancillary services (Market-Based Ancillary Services Tariff). Dynegy states that this amended Rate Schedule was originally submitted September 10, 2004, in compliance with the Commission's order issued July 29, 2004, in
Take notice that on October 8, 2004, PPL Wallingford Energy LLC (PPL Wallingford) submitted a supplement to the updated market power analysis that was filed with the Commission on July 12, 2004 in Docket No. ER01-1559-002.
PPL Wallingford states that copies of the filing were served on parties on the official service list in the above-captioned proceeding.
Take notice that on October 8, 2004, the New England Power Pool (NEPOOL) Participants Committee submitted changes to section 2.9 of Market Rule 1 in response to the requirements of the Commission's orders issued September 10, 2004, in Docket No. ER04-1005-000 and July 15, 2004, in Docket No. ER04-798-000.
NEPOOL Participants Committee and ISO-NE state that copies of these materials were sent to all persons identified on the service lists in the captioned proceedings, the NEPOOL Participants and the New England state governors and regulatory commissions.
Take notice that on October 6, 2004, MeadWestvaco Energy Services, LLC, (MWES) filed a supplement to its petition for market-based rates as power marketer filed August 18, 2004, in Docket No. Er04-1137-000. MWES states that the supplemental information pertains to additional analysis of generation market power and supplemental information regarding generation owned or controlled by MWES affiliates.
Take notice that, on October 8, 2004, the California Independent System Operator Corporation (ISO) submitted an errata to its informational filing of September 15, 2004, regarding the ISO's revised transmission Access Charge rates for the period of August 13, 2003, through December 31, 2003, to implement the settled rate for Pacific Gas and Electric Company TO6. ISO states that the purpose of the errata filing is to correct the information provided in the September 15 Filing regarding the Access Charge rate for the period from October 1, 2003, through December 31, 2003.
The ISO states that this filing has been served upon the Public Utilities Commission of the State of California, the California Energy Commission, the California Electricity Oversight Board, the Participating Transmission Owners, and upon all parties with effective Scheduling Coordinator Service Agreements under the ISO Tariff. In addition, the ISO is posting the filing on the ISO Home Page.
Take notice that on October 8, 2004, Sierra Pacific Power Company (Sierra) filed a Notification of Rate Decease under Bonneville Power Administration General Transfer Agreement, designated Rate Schedule FERC No. 27.
Sierra states that copies of the filing were served upon the Bonneville Power Administration, Public Utilities Commission of Nevada, California Public Utilities Commission and Nevada Bureau of Consumer Protection.
Take notice that on October 8, 2004, Pacific Gas and Electric Company (PG&E) tendered for filing the 2002 true-up of rates pursuant to Contract No. 14-06-200-2948A (Contract 2948A), PG&E First Revised Rate Schedule FERC No. 79, between PG&E and the Western Area Power Administration (Western).
PG&E states that copies of this filing have been served upon Western and the California Public Utilities Commission.
Take notice that on October 8, 2004, New England Power Company (NEP) submitted for filing an Original Service Agreement No. 216 between the Water and Light Department of the Town of Littleton, New Hampshire for Network Integration Transmission Service under NEP's FERC Electric Tariff, Second Revised Volume No. 9 and a Notice of Cancellation of Service Agreement No. 13. NEP requests an effective date of November 1, 2004.
Take notice that on October 8, 2004, Central Hudson Gas & Electric Corporation (Central Hudson) submitted a Notice of Cancellation of Service Agreement No. 8 approved by the Commission in Docket No. ER97-1879, under Central Hudson's FERC Electric
Central Hudson states that copies of the filing were served upon Mirant and the State of New York Public Service Commission.
Take notice that on October 8, 2004, Dominion Energy New England, Inc., Dominion Energy Salem Harbor, LLC, Dominion Energy Brayton Point, LLC, and Dominion Energy Manchester Street, Inc. submitted for filing Market-Based Rate Tariffs (FERC Electric Tariff, Original Volume No. 1) providing for sales of capacity, energy and/or ancillary services at negotiated rates and terms and for the resale of transmission rights.
Any person desiring to intervene or to protest this filing must file 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 notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all parties to this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will discuss the environmental impacts of Dominion Cove Point LNG, LP's and Dominion Transmission, Inc.'s (DTI) (collectively referred to as Dominion) proposed Cove Point LNG Expansion Project. This notice explains the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help us determine which issues need to be evaluated in the EIS. Please note that the scoping period for the project will close on November 23, 2004.
Comments may be submitted by electronic submission, in written form, or verbally. Further details on how to submit comments are provided in the public participation section of this notice. In lieu of sending comments, you are invited to attend the public scoping meetings scheduled as follows:
In addition, on Thursday, November 4 and Wednesday, November 17, 2004 starting at 9 a.m. (EST), we
Anyone interested in participating in the site visit on November 17th for the TL-532 pipeline loop in Maryland should meet at the parking lot at the Safeway Shopping Center, 80 West Dares Beach Road, Prince Frederick, Maryland at 9 a.m. We will depart at 9:15 a.m.
Participants must provide their own transportation. For additional information, please contact the Commission's Office of External Affairs at (866) 208-FERC (3372).
This notice is being sent to affected landowners; Federal, State, and local government agencies; elected officials; environmental and public interest groups; Native American tribes; other interested parties; and local libraries and newspapers. We encourage government representatives to notify their constituents of this planned project and encourage them to comment on their areas of concern.
Dominion states that (1) the expansion at the terminal and the additional pipeline projects are key to delivering new gas supplies to where they are needed in the Mid-Atlantic and Northeast; and (2) the project facilities in Maryland would bring more winter supplies to the Mid-Atlantic region, and the project facilities in Pennsylvania would allow supplies to be stored in the summer and moved to the Northeast for use during the winter.
Dominion proposes to expand its existing liquefied natural gas (LNG) terminal by adding two new 160,000 cubic meter LNG storage tanks at its site in Calvert County, Maryland. The terminal expansion would increase the send-out capability by 800 million standard cubic feet per day and increase the storage capacity by about 14.6 billion cubic feet.
In addition, Dominion plans to construct five new natural gas pipelines totaling about 161 miles in length to deliver additional capacity to pipeline connections in Virginia and Pennsylvania. These pipelines include:
• About 47 miles of 36-inch-diameter loop
• About 81 miles of 24-inch-diameter pipeline lateral in Juniata, Mifflin, Huntingdon, Centre, and Clinton Counties, Pennsylvania (PL-1 EXT2).
As part of the new Pennsylvania lateral system, Dominion plans to construct two new compressor stations in Juniata and Centre Counties, Pennsylvania.
Dominion also plans to construct three pipelines in Pennsylvania to support the storage and transportation of natural gas at the Leidy Hub. These would include:
• 11 miles of 24-inch diameter pipeline loop in Greene County;
• 12 miles of 24-inch-diameter pipeline loop in Potter County; and
• 10 miles of 20-inch-diameter pipeline loop in Potter County, Pennsylvania.
The expansion would also include pipeline upgrades, modifications at existing above-ground facilities, and other minor facility modifications, including metering facilities at the existing Leesburg Compressor Station in Loudoun County, Virginia; and pipeline pressure restoration on Dominion's existing pipeline system in Franklin County, Pennsylvania.
The general location of facilities is shown in appendix 1
Dominion indicates that the expansion of facilities at its existing Racket Newberne storage facility in Gilmer County, West Virginia would include the addition of new wells, well gathering lines, compression and related piping and equipment necessary to more effectively utilize the already certificated pool capacity. Certain of these modifications may be performed pursuant to DTI's blanket certificate authority, as permitted by 18 Code of Federal Regulations 157 subpart F.
Dominion expects to file a formal application with the Commission in the first quarter 2005. Pending Commission approval, Dominion would begin the expansion at the Cove Point LNG facility as soon as authorization is received; and would construct the pipeline facilities in the spring of 2008. Dominion plans on placing all of the facilities into service in the fall of 2008.
The FERC will use the EIS to consider the environmental impact that could result if it issues Cove Point LNG Expansion project authorization under Sections 3 and 7 of the Natural Gas Act.
This notice formally announces our preparation of the EIS and invites your input into the process referred to as “scoping.” We are soliciting input from the public and interested agencies to help us focus the analysis on the potentially significant environmental issues related to the proposed actions.
Our independent analysis of the issues for the project will be included in the draft EIS. The draft EIS will be mailed to Federal, State, and local government agencies; elected officials; environmental and public interest groups; Native American tribes; affected landowners; other interested parties; local libraries and newspapers; and the FERC's official service lists for these proceedings. A 45-day comment period will be allotted for review of the draft EIS. We will consider all comments on the draft EIS and revise the documents, as necessary, before issuing final EIS.
Although no formal application has been filed, the FERC staff has already initiated its National Environmental Policy Act (NEPA) review at this time. The purpose of the Pre-filing Process is to encourage the early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. We previously mailed an information fact sheet, called “Pre-filing Review for the Cove Point LNG Expansion Project” to our preliminary environmental mailing list in late September. You may also view this sheet in FERC's eLibrary system (see the “Availability of Additional Information” to access this and other documents that are filed in this proceeding).
The FERC will be the lead federal agency in the preparation of the EIS. The document will satisfy the FERC's requirements of the NEPA. We are currently involved in discussions with other jurisdictional agencies in Maryland and Pennsylvania to identify their issues and concerns.
With this notice, we are asking Federal, State, and local agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EIS. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating status should follow the instructions for filing comments provided under the Public Participation section of this Notice.
The U.S. Army Corps of Engineers (USACE) has already agreed to cooperate in the preparation of the EIS. In order to meet both the FERC's and the USACE's regulatory requirements for fulfilling NEPA, we have prepared this Notice with the cooperation of the USACE staff. This joint notice eliminates the redundancy and costs of duplicate mailings. In addition, staff of the USACE will participate with the FERC staff at the scoping meetings listed above to provide convenience to interested parties and agencies.
The EIS will discuss impacts that could occur as a result of the construction and operation of the proposed project. We have already identified several issues that we think deserve attention based on a preliminary review of the project site and the information provided by Dominion. This preliminary list of issues may be changed based on your comments and our analysis. The following issues will be addressed in the EIS:
• Impacts on waterbodies crossed by the pipelines, particularly St. Leonard's Creek, the Patuxent River, and the West Branch of the Susquehanna River.
• Impacts on tidal and non-tidal wetlands crossed by the pipelines, particularly in Calvert, Prince Georges and Charles Counties, Maryland.
• Impacts on State and/or federally-listed threatened and endangered species, including bald eagle, timber rattlesnake, and Indiana bat.
• Impacts on residential areas located along the pipeline routes, particularly those subdivisions located along TL-532 pipeline loop route and alternatives.
• Impacts on State-managed lands crossed by the pipelines, particularly the Sproul, Rothrock, Bald Eagle, and Tuscarora State Forests in Pennsylvania.
• Visual impacts associated with LNG terminal expansion.
• Impact and potential benefits of construction workforce on local housing, infrastructure, public services, and economy.
• Impacts on local air quality and noise, particularly with the addition of two new compressor stations in Pennsylvania.
• Hazards associated with the transport, unloading, storage, and vaporization of LNG.
• Pipeline route alternatives and variations, including the no action alternative.
• Impacts on any Section 4(f) Lands in Pennsylvania.
You can make a difference by providing us with your specific comments or concerns about the proposal. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. To expedite our receipt and consideration of your comments, the Commission strongly encourages electronic submission of any comments on this project.
If you wish to mail comments, please mail your comments so that they will be received in Washington, DC on or before November 23, 2004, and carefully follow these instructions:
Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Label one copy of your comments for the attention of Gas Branch 1;
• Reference Docket No. PF04-15-000 (Dominion) on the original and both copies.
The public scoping meetings to be held next month are designed to provide another opportunity to offer comments on the proposed project. Interested groups and individuals are encouraged to attend one of the meetings and to present comments on the environmental issues they believe should be addressed in the EIS. A transcript of the meetings will be generated so that your comments will be accurately recorded.
We will include all comments that we receive within a reasonable time frame in our environmental analysis of the project.
A docket number (PF04-15-000) has been established to place information filed by Dominion and related documents issued by the Commission, into the public record. To view information in the docket, follow the instructions for using the eLibrary link (see below). Once a formal application is filed, the Commission will:
• Publish a Notice of Application in the
• Establish a new docket number; and
• Set a deadline for interested persons to intervene in the proceeding.
Because the Commission's Pre-Filing Process occurs before an application to begin a proceeding is officially filed, petitions to intervene during this process are premature and will not be accepted by the Commission.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Finally, Dominion has established an Internet Web site for its project at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Edna Horsepower Replacement Project involving abandonment, construction, and operation of facilities by Trunkline Gas Company, LLC (Trunkline) in Jackson County, Texas.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice Trunkline provided to landowners. This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
Trunkline proposes to deactivate and abandon in place an existing 6,350-hp compressor unit and related auxiliary equipment at the Edna Compressor Station in Jackson County, Texas. Trunkline proposes to use parts from this compressor unit to repair, when needed, an existing 6,350-hp compressor at the Kountze Compressor Station. The applicant also proposes to replace the original unit at the Edna Compressor Station by installing a new 1,675-hp natural gas fired engine with a 4-throw single stage compressor package. The compressor would be skid-mounted and would be inside the existing compressor station yard west of the existing compressor unit. It would
The location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would require about 2.0 acres of land at Trunkline's existing Edna Compressor Station. Following construction, about 0.1 acres would be maintained as aboveground facility sites that are already currently owned by Trunkline. The remaining 1.9 acres of land would be restored to its current state (grass).
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
In the EA we
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission(s official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal (including alternative locations), and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 1.
• Reference Docket No. CP04-420-000.
• Mail your comments so that they will be received in Washington, DC on or before November 15, 2004.
Please note that the commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must send one electronic copy (using the Commission's eFiling system) or 14 paper copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission(s Rules of Practice and Procedure (18 CFR 385.214, see appendix 2)
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project. This includes all landowners, whose property may be used temporarily for project purposes, or who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to
Take notice that the following application has been filed with the Commission and is available for public inspection:
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i. FERC Contact: Any questions on this notice should be addressed to Henry Ecton (202) 502-8768, or e-mail address:
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All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper.
k.
When a Declaration of Intention is filed with the Federal Energy Regulatory Commission, the Federal Power Act requires the Commission to investigate and determine if the interests of interstate or foreign commerce would be affected by the project. The Commission also determines whether or not the project: (1) Would be located on a navigable waterway; (2) would occupy or affect public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) if applicable, has involved or would involve any construction subsequent to 1935 that may have increased or would increase the project's head or generating capacity, or have otherwise significantly modified the project's pre-1935 design or operation.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
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The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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b.
c.
d.
e.
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i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
s.
t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
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t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
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t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
r.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
s.
t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
r.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
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t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the
k.
The project would have an annual generation of 168 to 336 gigawatt-hours that would be sold to a local utility.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
s.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The existing Franklin Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Little Tennessee River. The Franklin Project consists of the following features: (1) A 462.5-foot-long, 35.5-foot-high concrete masonry dam, consisting of, from left to right facing downstream, (a) a 15-foot-long non-overflow section, (b) a 54-foot-long ungated Ogee spillway, (c) a 181.5-foot-long gated spillway section, having six gated, ogee spillway bays, (d) a 54-foot-long ungated Ogee spillway, (e) a 25-foot-long non-overflow section, and (f) a 70-foot-long non-overflow section; (2) a 4.6-mile-long, 174-acre impoundment at elevation 2000.22 msl; (3) three intake bays, each consisting of a flume and grated trashracks having a clear bar spacing of 3 inches; (4) a powerhouse having a reinforced concrete substructure and a brick superstructure, containing two turbine/generating units, having a total installed capacity of 1.040 kW; (5) a switchyard, with a single three-phase transformer; and (6) appurtenant facilities.
Duke Power estimates that the average annual generation is 5.313.065 kWh. Duke Power uses the Franklin Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Public notice of the filing of the initial development application, which has already been given, established the due date for filing competing applications or notices of intent. Under the Commission's regulations, any competing development application must be filed in response to and in compliance with public notice of the initial development application. No competing applications or notices of intent may be filed in response to this notice.
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The existing Mission Hydroelectric Project operates in a run-of-river mode, within a 6-inch tolerance band. Project operation is dependent on available flow in the Hiwassee River, which is regulated by TVA's Chatuge dam located approximately 15 miles upstream. The Mission Project consists of the following features: (1) A 397-foot-long, 50-foot-high concrete gravity dam, consisting of, from left to right facing downstream, (a) three bulkhead sections, (b) seven ogee spillway sections, surmounted by 14-foot-high by 16-foot-wide gates, (c) four bulkhead sections, (d) a powerhouse intake structure, and (e) four bulkhead sections; (2) a 47-acre impoundment at elevation 1658.17 msl; (3) three intake bays, each consisting of an 8-foot-diameter steel-cased penstock and a grated trashrack having a clear bar spacing of between 2.25 to 2.5 inches; (4) a powerhouse consisting of a reinforced concrete substructure and a brick superstructure, containing three turbine/generating units, having a total installed capacity of 1,800 kW; (5) a switchyard, with a single three-phase transformer; and (6) appurtenant facilities.
Duke Power estimates that the average annual generation is 8,134,370 kWh. Duke Power uses the Mission Project facilities to generate electricity for use by retail customers living in the Duke Power-Nantahala Area.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n. Public notice of the filing of the initial development application, which has already been given, established the due date for filing competing applications or notices of intent. Under the Commission's regulations, any competing development application must be filed in response to and in compliance with public notice of the initial development application. No competing applications or notices of intent may be filed in response to this notice.
All filings must (1) bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
As announced in the Notice of Conference issued September 30, 2004, the Federal Energy Regulatory Commission will convene a public conference on October 21, 2004, at 9 a.m., at the Commission's Offices in Washington, DC to engage industry members and the public in a dialogue about policy issues facing the natural gas industry today and the Commission's regulation of the industry for the future, as stated in the previous notice. All interested persons are invited to attend.
The conference will be held in the Commission Meeting Room (Room 2-C). Observers will be accommodated on a space available basis, but seating will also be available in an overflow room, which will have a broadcast of the discussion. All visitors must check-in at the First Street entrance. All visitors should have picture identification readily available to ensure a quick check-in.
The conference will consist of keynote opening remarks, three panel sessions and an open forum. Each panelist will give a short oral presentation lasting no more than ten minutes on their views of the panel topic and then the Commission Staff and the panelist will exchange views and questions, followed by comments or questions from the audience. If panelists are going to refer to any detailed charts or figures, they should bring 25 copies for Commission Staff and 100 copies for the audience.
The first panel session will be for comments on findings and ideas presented in the FERC Staff Report, “Current State of and Issues Concerning Underground Natural Gas Storage” and also focus on how the decisions to develop natural gas pipeline or storage projects have been impacted by existing Commission policies. The second session will consider whether a program for creating more uncommitted reserve storage and pipeline capacity could be feasible and useful for the gas industry and customers. The third session will explore the changing roles of industry segments and how that affects commodity price volatility.
Following the panel session presentations, the Commission will provide an open forum for interested persons to raise issues and make policy recommendations for Commission consideration not discussed by the panels. All open forum statements should be limited to five minutes. A sign-up sheet for the open forum will be available the morning of the conference.
If the panel participants shown in the Conference Agenda below want to submit background information, position statements or power point presentations concerning their topics, they are encouraged to file such items with the Commission by October 18, 2004 using the procedures below. However, live power point presentations are not going to be
After the conference, panel participants and all other interested persons may file additional comments on the issues discussed at the conference, or other matters relevant to this proceeding, by November 15, 2004. Comments should include a one-page, single spaced, position summary.
Comments may be filed in paper format or electronically. Those filing electronically do not need to make a paper filing. For paper filings, the original and 14 copies of such comments should be submitted to the Office of the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, and should refer to Docket Nos. PL04-17-000 and AD04-11-000.
Documents filed electronically via the Internet can be prepared in a variety of formats, including MS Word, Portable Document Format, Real Text Format, or ASCII format, as listed on the Commission's at
All comments will be placed in the Commission's public files and will be available for inspection in the Commission's Public Reference Room at 888 First Street, NE., Washington, DC 20426, during regular business hours. In addition, all comments may be viewed, printed, or downloaded remotely via the Internet through FERC's home page using the eLibrary link.
The purpose of this conference is to discuss generic issues and not contested cases pending before the Commission. If any comments raise specific issues concerning pending contested cases, those comments will be subject to the Commission's Off-the-Record Communications rules located in subpart V of part 385 of the Commission's regulations, including the public notice requirements and sanctions listed in sections 385.2201(h) and (i).
Transcripts of the conference will be available from Ace Reporting Company (202-347-3700) for a fee. The transcript also will be available on the Commission's FERRIS system two weeks after the conference. Additionally, Capitol Connection offers the opportunity for remote listening and viewing of the conference. It is available for a fee, live or over the Internet, via C-Band Satellite. Persons interested in receiving the broadcast, or who need information on making arrangements should contact David Reininger or Julia Morelli at Capitol Connection (703-993-3100) as soon as possible or visit the Capitol Connection Web site at
For additional information, please contact Richard Foley at 202 502-8955 or by e-mail at
The United States Environmental Protection Agency (EPA) is now soliciting applications for the FY 2005 Environmental Information Exchange Network Grant Program. The Exchange Network is a nationwide information systems network that facilitates the electronic reporting and exchange of environmental data among EPA and its state, tribal, and territorial partners. The Exchange Network will make it easier for EPA and its partners to obtain the timely and accurate information they need when making decisions concerning the natural environment and related human health issues.
Subject to the availability of funding, the FY 2005 Exchange Network Grant Program will provide funding to states, territories, tribes, and tribal consortia to develop the information management and technology (IM/IT) capabilities they need to participate in the Exchange Network. This financial assistance program supports the development of Exchange Network infrastructure; common data standards and formats; and various data flows, including exchanges of geospatial data.
The FY 2005 Exchange Network Grant Program will provide the following categories of assistance:
• Readiness Category—supports the development of IM/IT capabilities needed to participate in the Exchange Network; provides up to $75,000 per tribal entity and up to $150,000 per state/territorial entity;
• Implementation Category—supports the development of Exchange Network data flows, data standards, eXtensible
• Challenge Category—supports the planning and development of collaborative, innovative projects that demonstrate the value of the Exchange Network; provides up to $300,000 per tribal entity and up to $750,000 per state/territorial entity.
Applications must be submitted to EPA by January 15, 2005. Provided funding is available, EPA expects to notify applicants of its funding recommendations in May 2005 and issue the awards in August/September 2005.
Applications must be submitted to EPA in hard copy by January 15, 2005.
For a copy of the full solicitation notice and application instructions, see the Exchange Network Grant Program Web site at
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public teleconference of the Advisory Council on Clean Air Compliance Analysis (Council) to finalize a draft advisory letter prepared by its Health Effects Subcommittee (HES) on the cessation lag issue,
The public teleconference of the Council will be held on November 1, 2004, from 1 p.m. to 2 p.m. (eastern time).
Members of the public who wish to obtain the call-in number and access code or who wish to obtain further information regarding the Council and its subcommittees may contact Dr. Holly Stallworth, Designated Federal Officer, at telephone/voice mail: (202) 343-9867 or via e-mail at:
In its March 2004 Advisory report, posted at
Environmental Protection Agency.
Notice of availability of external review draft and public comment period.
This notice announces the availability of the External Review Draft entitled, Draft Proposed Sampling Program to Determine Extent of World Trade Center Impacts to the Indoor Environment (EPA/600/R-04/169A), and a 30-day public comment period. The document was prepared by the U.S. Environmental Protection Agency's Office of Research and Development and EPA's Region 2 office in New York City. EPA will consider the public
The 30-day public comment period begins October 21, 2004, and ends November 19, 2004. Technical comments should be in writing and must be postmarked by November 19, 2004.
The External Review Draft, Draft Proposed Sampling Program to Determine Extent of World Trade Center Impacts to the Indoor Environment, is available via the Internet on the Web page of the World Trade Center (WTC) Expert Technical Review Panel,
For further information on the draft sampling proposal, please contact Matthew Lorber at (202) 564-3243 or
Immediately following the September 11, 2001, terrorist attack on New York City's World Trade Center, many Federal agencies, including the EPA, were called upon to focus their technical and scientific expertise on the national emergency. EPA, other Federal agencies, New York City and New York State public health and environmental authorities focused on numerous cleanup, dust collection and ambient air monitoring activities to ameliorate and better understand the human health impacts of the disaster. Detailed information concerning the environmental monitoring activities that were conducted as part of this response is available at the EPA Response to 9-11 Web site at
In addition to environmental monitoring, EPA efforts also included toxicity testing of the dust on laboratory mice, as well as the development of a human exposure and health risk assessment. This risk assessment document, Exposure and Human Health Evaluation of Airborne Pollution from the World Trade Center Disaster (
While these monitoring and assessment activities were ongoing and the cleanup at Ground Zero itself was occurring, EPA began planning for a program to clean and monitor residential apartments. From June until December 2002, residents impacted by WTC dust and debris in an area of about 1 mile by 1 mile south of Canal Street were eligible to request federally funded cleaning and monitoring for airborne asbestos or only monitoring of their residences. The cleanup continued into the summer of 2003, by which time EPA had cleaned and monitored 3,400 apartments and monitored an additional 800 apartments. Detailed information on this portion of the EPA response is also available at
A critical component of understanding long-term human health impacts is the establishment of health registries. The WTC Health Registry is a comprehensive and confidential health survey of those most directly exposed to the contamination resulting from the collapse of the WTC towers. It is intended to give health professionals a better picture of the health consequences of 9/11. It was established by the Agency for Toxic Substances and Disease Registry (ATSDR) and the New York City Department of Health and Mental Hygiene (NYCDHMH), in cooperation with a number of academic institutions, public agencies and community groups. Detailed information about the registry can be obtained from the registry Web site at:
In order to obtain individual advice on the effectiveness of these programs, unmet needs and data gaps, EPA has convened a technical panel of experts who have been involved with WTC assessment activities. Dr. Paul Gilman, EPA Science Advisor, serves as Chair of the panel, and Dr. Paul Lioy, Professor of Environmental and Community Medicine at the Environmental and Occupational Health Sciences Institute of the Robert Wood Johnson Medical School—UMDNJ and Rutgers University, serves as Vice Chair. A full list of the panel members and a charge statement and operating principles for the panel are available from the panel Web site listed above. Panel members will provide individual advice on issues the panel addresses. Panel meetings will occur in New York City and nearby locations. All of the meetings will be announced on the Web site and by a
The WTC Expert Panel has met seven times as of the date of this notice. Mostly, panel members have addressed the development of a design for a sampling program to determine the geographic extent of WTC impacts to the indoor environment. For the last two meetings, there have also been presentations and discussions on studies, either underway or completed, which have addressed human health impacts resulting from the collapse of the WTC towers.
Changes will be made to the Draft Proposed Sampling Program to Determine Extent of World Trade Center Impacts to the Indoor Environment based on comments received as a result of this notice. A final sampling program document will then be posted on the WTC Expert Panel's Web site.
EPA has established an official public docket for information pertaining to this action, Docket ID No. ORD-2004-0003. The official public docket is the collection of materials, excluding Confidential Business Information (CBI) or other information whose disclosure is restricted by statute, that is available for public viewing at the Office of Environmental Information (OEI) Docket in the Headquarters EPA Docket Center (EPA/DC), EPA West Building, 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 Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752; facsimile: (202) 566-1753; or e-mail:
An electronic version of the official public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in EPA Dockets. As indicated above, information claimed as CBI and other information whose disclosure is restricted by statute is not included in the official public docket; the same
Persons submitting information should note that EPA's policy makes the information available as received and at no charge for public viewing in EPA Dockets. This policy applies to information submitted electronically or in paper, except where restricted by copyright, CBI or statute.
Unless restricted as above, information submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA Dockets. Physical objects will be photographed, where practical, and the photograph will be placed in EPA Dockets along with a brief description written by the docket staff.
You may submit information electronically, by mail, by facsimile or by hand delivery/courier. To ensure proper receipt by EPA, include the appropriate docket identification number with your submission. Please adhere to the specified submitting period. Information received or submitted past the close date will be marked “late” and will only be considered if time permits.
If you submit information electronically, EPA recommends that you include your name, mailing address, and an e-mail address or other details for contacting you. Also include these contact details on the outside of any disk or CD ROM you submit and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the person submitting the information and allows EPA to contact you in case the Agency cannot read what you submit due to technical difficulties or needs to clarify issues raised by what you submit. If EPA cannot read what you submit due to technical difficulties and cannot contact you for clarification, this situation may delay or prevent the Agency's consideration of the information.
To access EPA's electronic public docket from the EPA Internet Home Page, select “Information Sources,” “Dockets,” and “EPA Dockets.” Once in the system, select “search,” and then key in Docket ID No. ORD-2004-0003. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address or other contact details unless you provide it with the information you submit.
Information may be sent by electronic mail (e-mail) to
You may submit information on a disk or CD ROM that you mail to the OEI Docket mailing address. Files will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.
If you provide information in writing, please submit one unbound original, with pages numbered consecutively, and three copies. For attachments, provide an index, number pages consecutively with the main text, and submit an unbound original and three copies.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 4, 2004.
In connection with this application, the Badgett Control Group, which consists of Russell Badgett, Jr., Madisonville, Kentucky; Russell Badgett, Jr. Irrevocable Trust, Madisonville, Kentucky; Bentley F. Badgett, individually and as trustee, Madisonville, Kentucky; Dr. C. B. Badgett, Lewisport, Kentucky; Russell Badgett III, Owensboro, Kentucky; Joseph Rockney Badgett, Madisonville, Kentucky; Nita Anne Smaldone, Nashville, Tennessee; and Claudia Badgett Riner, Louisville, Kentucky, also have applied to retain voting shares of Hancock Bancorp, Inc., Hawesville, Kentucky, and thereby indirectly retain voting shares of Hancock Bank & Trust Company, Hawesville, Kentucky.
Board of Governors of the Federal Reserve System, October 15, 2004.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than November 5, 2004.
Board of Governors of the Federal Reserve System, October 18, 2004.
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 November 15, 2004.
Board of Governors of the Federal Reserve System, October 15, 2004.
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 November 15, 2004.
Board of Governors of the Federal Reserve System, October 18, 2004.
Federal Trade Commission (FTC or Commission).
Notice announcing public workshop and requesting public comment and participation.
The FTC is planning to host a public workshop, “Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues,” to explore consumer protection and competition issues associated with the distribution and use of peer-to-peer file-sharing technology.
The workshop will be held on December 15 and 16, 2004, at the Federal Trade Commission's Satellite Building located at 601 New Jersey Avenue, NW., Washington, DC. The event is open to the public and there is no fee for attendance. Pre-registration is not required. Additional information about the workshop will be posted on the FTC's Web site at
Comments and requests to participate as a panelist in the workshop filed in paper form should be mailed or delivered, as prescribed in the “Form and Availability of Comments” sections below, to the following address: Federal Trade Commission/Office of the Secretary, Room 159-H (Annex B), 600 Pennsylvania Avenue, NW., Washington, DC 20580. Because paper mail in the Washington area and at the Agency is subject to delay, please consider submitting your comments via electronic mail. Comments and requests to participate filed in electronic form (except comments and requests containing any confidential material) should be sent, as prescribed in the “Form and Availability of Comments” section below.
Elizabeth Delaney, (202) 326-2903, Bureau of Consumer Protection; Theodore Gebhard, (202) 326-3699, Bureau of Competition; or Hajime Hadeishi, (202) 326-2320, Bureau of Economics. The above staff can be reached by mail at: Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. A detailed agenda and additional information on the workshop will be posted on the FTC's Web site at
The FTC's workshop, “Peer-to-Peer File-Sharing Technology: Consumer Protection and Competition Issues,” will continue the Commission's long-standing efforts to assess the impact on consumers and businesses of new and significant technologies, such as peer-to-peer (P2P) file-sharing technology. P2P file-sharing technology provides individuals with the ability to share files, including music, video, or software files, with other users. The files do not reside in a central location, but rather are stored on the hard drives of the users of the software.
There appear to be many current and potential business and consumer applications for P2P file-sharing technology. However, some commentators have pointed out that perhaps the most common use has been the exchange of copyrighted materials, including music, movies, video games and software.
Downloading and using current P2P file-sharing software programs can create risks for users.
The FTC's workshop is intended to provide an opportunity to learn how P2P file-sharing works and to discuss current and future applications of the technology. It will discuss the risks to consumers related to file-sharing activities. The workshop also will address self-regulatory initiatives, technological efforts, and legislative proposals. It will discuss competition issues such as the models for distributing music and the impact of file-sharing on copyright holders.
Questions to be addressed at the workshop may include:
1. What are the differences between P2P file-sharing technologies and technologies that use central server or other models?
2. What are the different models of P2P file-sharing technology? Please describe the differences between the models and the applications that use each model.
3. Who uses P2P file-sharing technology or programs? What proportion of users are children, teenagers or college students? Are these proportions likely to change with the development of future uses of P2P file-sharing technology?
4. What must consumers do to uninstall P2P file-sharing software programs? Are there P2P file-sharing programs that are more difficult to uninstall than others?
1. What are the current commercial, scientific, and/or industrial uses for P2P file-sharing technology?
2. Can current P2P file-sharing technology enhance business and industrial efficiency? If so, how? How are the benefits different from those available under a central server model?
3. What are the future commercial, scientific, and/or industrial uses for P2P file-sharing technology?
4. How will these future uses of P2P file-sharing technology enhance business and industrial efficiency? How are these benefits different from those that would be available under a central server model?
5. If P2P file-sharing technology will enhance business and industrial efficiency, what effect will that have on the nature and extent of competition in the economy?
6. What are the current business models for P2P file-sharing software companies? What are the anticipated business models for the future?
7. What is the likely future competitive and/or economic impact of P2P file-sharing technology across the economy as the technology improves (speed, amount of data that can be cost-effectively transmitted, etc.) and as the number and variety of P2P file-sharing applications expand over time? Which industries will be most likely affected? How will they be affected? How will P2P file-sharing technology change competition in affected industries in the future?
8. To what extent does P2P file-sharing technology have the promise to impact the manufacture, inventorying, and delivery of goods and services?
1. What are the risks to consumers caused by the downloading and use of P2P file-sharing software?
2. Does the use of P2P file-sharing software pose a security risk to the personal information of consumers? If so, what is the nature and extent of this risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
3. Does the use of P2P file-sharing software inadvertently expose consumers, particularly children, to pornographic or other inappropriate materials? If so, what is the nature and extent of this risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
4. Does the distribution and use of P2P file-sharing software pose a risk to consumers for installing spyware? If so, what is the nature and extent of the risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
5. Does the distribution and use of P2P file-sharing software cause consumers to install adware? Does adware pose a risk to consumers? If so, what is the nature and extent of the risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
6. Does the use of P2P file-sharing software expose consumers to viruses or other malicious code? If so, what is the nature and extent of this risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
7. Does the installation and use of P2P file-sharing software impair computer functionality, such as processing speed? If so, what is the nature and extent of this risk? Can consumers avoid this risk? Is this risk different from the risk that a central server model or other models pose? If so, how?
1. What do studies, surveys, or other empirical research reveal about the extent to which users of P2P file-sharing software programs are aware of the risks associated with these programs? Are there differences in awareness between children and adults? Are there differences in awareness between teenagers and parents?
2. To the extent that users are unaware of the risks associated with P2P file-sharing software programs, would disclosure requirements be an effective method of educating consumers about these risks? If disclosures would not be effective, is there a more effective means of communicating such information? To whom (
3. Do P2P file-sharing software programs currently disclose risks adequately to users? If not, how could these disclosures be modified to make them more effective? What are the costs associated with making disclosures more frequent or prominent?
4. What methods, other than risk disclosures, can be used to educate consumers about potential risks associated with P2P file-sharing software?
1. What types of blocking and filtering technology exist to protect users from the risks associated with P2P file-sharing software programs? How do they compare with blocking and filtering available with a central server model?
2. Are existing blocking and filtering programs effective? If not, what steps can the P2P file-sharing software industry take to improve blocking and filtering technology included with its programs?
3. What future changes to blocking and filtering technologies might enhance the protection of users from the
4. What changes to the architecture of P2P file-sharing software programs (
1. What are the economic models of music distribution that use P2P file-sharing technology? How is music likely to be distributed in the future using P2P file-sharing technology?
2. How is P2P file-sharing technology different from single server downloading sources such as Walmart.com?
3. To what extent do P2P file-sharing software programs currently compete with pay-per-download services such as iTunes? Would existing or future technology enable copyright holders to be compensated when users of P2P file-sharing software programs transfer copyrighted files? If so, what would be the effect on competition?
4. Does P2P file-sharing technology lower the cost of music dissemination? If so, how much? What do the data show?
5. Are record labels willing to distribute music through P2P file-sharing? Why or why not?
6. Is there empricial support for P2P file-sharing technology increasing music sales through sampling or greater awareness of artists? What do the data show?
7. Are music files on P2P file-sharing networks being intentionally “polluted” or “corrupted”? What effect does the intentional pollution or corruption of files have on P2P file-sharing software as an evolving technology?
1. What is the impact of P2P file-sharing on copyright holders?
2. Is it possible to measure downloading of copyrighted materials by users of P2P file-sharing programs? If so, how would such a study be designed?
3. Can P2P file-sharing program providers effectively protect against copying in violation of copyright laws? Can P2P file-sharing program providers protect against content degradation? What effect would such protective measures have on consumers and competition?
4. Is there technological capability for the P2P file-sharing technology industry to implement a system that either prevents the unauthorized sharing of content or only permits the sharing of content when there is compensation to the copyright holder?
5. Will technological changes allow content providers to protect their copyrighted materials from infringement by P2P file-sharing software program users? If so, what effects would these changes have on competition and consumers?
6. Would consumers and competition benefit from or be harmed by industry-wide standards for the protection of copyrighted materials,
7. Are licensing proposals available that would address the impact of P2P file-sharing on copyright holders?
Parties seeking to participate as panelists in the workshop must notify the FTC in writing of their interest in participating on or before Monday, November 15, 2004. Request to participate as a panelist should be submitted electronically by e-mail to
Using the following criteria, FTC staff will select a limited number of panelists to participate in the workshop:
1. The party has expertise in or knowledge of the issues that are the focus of the workshop.
2. The party's participation would promote a balance of interests being represented at the workshop.
3. The party has been designated by one or more interested parties (who timely file requests to participate) as a party who shares group interests with the designator(s).
In addition, there will be time during the workshop for those not serving as panelists to ask questions.
The FTC requests that interested parties submit written comments on the above questions and other related issues to foster greater understanding of these topics. Especially useful are any studies, surveys, research, and empirical data. Comments should be captioned “P2P File-Sharing Workshop—Comment, PO34517”; must be received on or before Monday, November 15, 2004; and may be filed with the Commission in either paper or electronic form.
1. A public comment filed in paper form should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission/Office of the Secretary, Room 159-H (Annex B), 600 Pennsylvania Avenue, NW., Washington, DC 20580. Both the comment itself and its envelope should be captioned “P2P File-Sharing Workshop—Comment, PO34517.” If the comment contains any material for which confidential treatment is requested, it must be filed in paper (rather than electronic) form, and the first page of the document must be clearly labeled “Confidential.”
2. A public comment that does not contain any material for which confidential treatment is requested may instead be filed in electronic form by clicking on the following weblink:
3. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. Regardless of the form in which they are filed, all timely and responsive public comments will be considered by the Commission, and will be available to the public on the FTC Web site, to the extent practicable, at
By direction of the Commission, Commissioner Leibowitz not participating.
Office of the Secretary.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access the HHS Web site address at
Agency for Healthcare Research and Quality (AHRQ).
Notice of public meeting.
In accordance with section 10(a) of the Federal Advisory Committee Act, this notice announces a meeting of the National Advisory Council for Healthcare Research and Quality.
The meeting will be held on Friday, November 5, 2004, from 9 a.m. to 4 p.m. and is open to the public.
The meeting will be held at the Agency for Healthcare Research and Quality, John M. Eisenberg Building Conference Center, 540 Gaither Road, Rockville, Maryland 20850.
Deborah Queenan, Coordinator of the Advisory Council, at the Agency for Healthcare Research and Quality, 540 Gaither Road, Rockville, Maryland 20850, (301) 427-1330. For press-related information, please contact Karen Migdail at (301) 427-1855.
If sign language interpretation or other reasonable accommodation for a disability is needed, please contact Mr. Donald L. Inniss, Director, Office of Equal Employment Opportunity Program, Program Support Center, on (301) 443-1144 no later than October 22, 2004. Agenda, roster, and minutes are available from Ms. Bonnie Campbell, Committee Management Officer, Agency for Healthcare Quality and Research, 540 Gaither Road, Rockville, Maryland 20850. Her phone number is (301) 427-1554.
Section 921 of the Public Health Service Act (42 U.S.C. 299c) established the National Advisory Council for Healthcare Research and Quality. In accordance with its statutory mandate, the Council is to advise the Secretary of the Department of Health and Human Services and the Director, Agency for Healthcare Research and Quality (AHRQ), on matters related to actions of the Agency to enhance the quality, improve the outcomes, reduce the costs of health care services, improve access to such services through scientific research, and to promote improvements in clinical practice and in the organization, financing, and delivery of health care services.
The Council is composed of members of the public appointed by the Secretary and Federal ex-officio members.
On Friday, November 5, 2004, the meeting will begin at 9 a.m., with the call to order by the Council Chair. The Director, AHRQ, will present the status of the Agency's current research, programs, and initiatives. The official agenda will be available on AHRQ's Web site at
Administration on Aging, HHS.
Notice.
The Administration on Aging (AoA) is announcing that the proposed collection of information listed below has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments on the collection of information by November 22, 2004.
Submit written comments on the collection of information by fax 202.395.6974 or by mail to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn: Brenda Aguilar, Desk Officer for AoA.
Cynthia Bauer at 202-357-0145.
In compliance with 44 U.S.C. 3507, AoA has submitted the following proposed collection of information to OMB for review and clearance.
The Third National Study of Older Americans Act Title III Service Recipients—NEW—This information collection, which builds on earlier national pilot studies and performance measurement tools developed by grantees in the Performance Outcomes Measures Project (POMP) will include consumer assessment surveys for the Home-delivered Nutrition Program, Transportation Services and the National Family Caregiver Support Program. Copies of the POMP instruments can be located at
AoA estimates the burden of this collection of information as follows: Recipient Surveys—Respondents: individuals; Number of Respondents: 6,000; Number of Responses per Respondent: one; Average Burden per Response: 17.5 minutes; Total Burden for Recipient Surveys: 1,750 hours—Administrative Assistance form Area Agencies on Aging (AAA)—Number of AAAs: 250; Average Burden per Respondent: 2 hours; Total Burden for AAAs: 500 hours—Total Burden for Study: 2,250 hours.
This announcement covers:
1. Food Safety (
2. Water Safety (
Guiding principles for the EHS-Net can be found in Appendix B, as posted on the CDC Web site.
This program addresses “Healthy People 2010” focus areas of Environmental Health, Food Safety, and Public Health Infrastructure. The program also addresses all goals of CDC's “Strategy To Revitalize Environmental Public Health Services in the United States”, located at
Measurable outcomes of the program will align with the following performance goal for the National Center for Environmental Health (NCEH): Increase the capacity of State and local health departments to deliver environmental health services in the community.
Research objectives of the network are to: (1) Monitor risk factors and prevention policies in foodborne and/or waterborne outbreaks and during routine (non-outbreak) environmental evaluations (
Awardee activities for this program are as follows:
• Staffing
1. Establish and maintain a full-time senior staff position in the agency's food safety and/or drinking water safety program (
2. Identify an existing staff position in the health agency's program with responsibilities and organizational authority for foodborne and/or
3. Existing staff position(s) in State and/or local agencies with responsibility for carrying out specific EHS-Net activities also may be identified. These persons should have the technical program experience needed to implement proposed activities; an understanding of the State food and/or drinking water program; and the communication skills necessary to effectively implement proposed activities.
• State Agency Collaboration and Planning
1. Strengthen the partnership between the health agency and other State agencies responsible for food safety and/or drinking water safety (
2. Establish the EHS-Net in a defined area, which could include either an entire State or a geographically defined area (or areas) within a State that represents both rural and urban communities. Geographically defined areas may be represented as cities, counties, townships, parishes, or districts as defined by the public health agency or other partnering agency. Within this geographically defined area, local health agencies and/or other local agencies with regulatory responsibility for food safety and/or drinking water safety must be identified as partners.
3. Within the geographically defined area, develop partnerships with local agencies and others to provide in-kind assistance or other cost-sharing support to complement the basic assistance obtained from CDC to support network activities.
4. Establish and/or sustain effective partnerships with other public or private organizations interested in addressing environmental health services issues related to their effectiveness in preventing disease (
• Organize the network to:
1. Maintain the ability to accommodate changes in specific activities and priorities as the public health system's need for information changes, or as new and/or reemerging health problems or environmental issues emerge.
2. Include both rural and urban populations.
3. Have the capacity to conduct multiple, concurrent projects.
4. Enlist participation of local public health departments and other public or private organizations with a role in protecting the public's health.
• Operate the network to function effectively as part of a national network of EHSs. Collaborate with CDC and other EHS sites, through the EHS-Net steering committee and EHS working groups, to establish priorities, coordinate and monitor projects, and ensure that projects address existing and emerging infections issues.
• Propose and conduct activities in collaboration with CDC and appropriate partner agencies or organizations. Collaborate with CDC and other network sites to finalize protocols for network activities. Collaborate with CDC and other network sites to develop mutually agreed upon standardized protocols.
1. Categories of food safety activities:
(a) Monitoring of risk factors and prevention policies for foodborne disease in outbreak investigations and during routine (non-outbreak) environmental evaluations (
(b) Applied behavioral, environmental epidemiologic, and laboratory research. Examples of potential behavioral projects include development of projects to evaluate barriers and facilitators for implementation of intervention strategies by food workers or managers; barriers and facilitators for EHSs as risk communicators and risk managers; barriers and facilitators for food safety programs in enforcing regulatory requirements; and development and evaluation of training materials or prevention messages for EHSs, industry, or the public. Examples of potential environmental epidemiologic projects include descriptive epidemiology projects to determine the level of control of risk factors and status of food safety policies, and other studies to determine what factors and policies or combination prevent outbreaks of foodborne disease. Examples of potential laboratory research may include development or evaluation of environmental sampling techniques for norovirus or other pathogens of interest; development or evaluation of pathogen-specific environmental sampling techniques or policies for investigations of foodborne outbreaks, or for use during routine evaluations to establish baseline levels of pathogen-specific contamination; or projects to assess the route of pathogen-specific cross-contamination.
(c) Evaluation of food safety programs and their activities. Potential projects would attempt to assess the effectiveness of food safety programs and/or specific activities in reducing disease in the population served. Implementation and evaluation of pilot prevention and intervention projects (
2. Propose and conduct these specific network activities for food safety:
(a) Ongoing EHS-Net data collection activity in restaurants, and propose implementation of a similar activity in institutional foodservice settings (
(b) Ongoing activity to establish a denominator number of restaurants, day care centers, nursing homes, hospitals, State or local prisons, jails, schools, retail grocery stores, and other food service establishments in the State or designated geographic area.
(c) Improved reporting of contributing factors to foodborne outbreaks through CDC's Electronic Foodborne Outbreak Reporting System.
3. Categories of drinking water safety activities:
(a) Monitoring risk factors and prevention policies for waterborne disease in outbreak investigations and during routine (non-outbreak) environmental evaluations (
(b) Applied behavioral, environmental epidemiologic, and laboratory research. Examples of potential behavioral projects may include evaluation of the barriers and facilitators to private well testing programs, either by owners or through other means, or evaluation of programs designed to introduce private well testing during property transfers. Examples of potential environmental epidemiologic projects include defining the actual public health impacts of drinking water from largely unregulated sources by linking water quality to levels of exposure or illness or by linking other factors (such as extreme storm events) to health outcomes. Examples of potential laboratory research may include development or evaluation of sampling techniques for norovirus or other pathogens of interest in drinking water.
(c) Evaluation of drinking water programs and their activities, especially as related to small systems not regulated under the SDWA. Potential projects could include evaluation of barriers or facilitators to improving drinking water from non-SDWA sources (such as lack of laboratory capacity to evaluate drinking water quality; lack of standards and guidelines for construction, maintenance, and monitoring of small systems, especially private wells; and fragmented responsibility and insufficient resources for oversight of small systems). Potential projects could include evaluation of existing or new programs to improve drinking water quality from small systems through testing or other monitoring; public awareness campaigns; implementation of standards and guidelines related to small systems; or development and implementation of targeted training and education for private well owners and operators of small drinking water systems.
• As part of network activities, collect and submit samples (
• Manage, analyze, and interpret data from network activities; and publish and disseminate results.
In a cooperative agreement, CDC staff is substantially involved in the program activities, above and beyond routine grant monitoring. CDC Activities for this program are as follows:
• Provide general coordination for the EHS-Net.
• Serve as the primary contact for and seek input from the U.S. Food and Drug Administration (FDA), the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA) and other Federal agencies with expertise in food safety and drinking water safety program areas and interest in EHS-Net activities.
• Seek input from participating food and drinking water programs to determine training needs of EHSs. Identify existing training resources. Develop unique training opportunities through partnerships within CDC, with other Federal agencies, and within the EHS-Net. Work with participating environmental health service programs to develop methods for effectively communicating the role of the EHS in protecting the health of their communities.
• Provide technical assistance by participating in outbreak evaluations as requested by participating States.
• Provide consultation, and scientific and technical assistance in the operation of the EHS-Net, and in designing, implementing, and evaluating individual EHS-Net projects.
• Assist with analysis and interpretation of data from EHS-Net projects.
• Participate in the dissemination of findings and information stemming from EHS-Net projects.
• Assist in monitoring and evaluation of scientific and operational accomplishments of the EHS-Net and progress in achieving the purpose and overall goals of this program by conducting conference calls, site visits, hosting meetings of participants and conducting a process evaluation of the EHS-Net.
• If needed, perform laboratory evaluation of samples collected in conjunction with EHS-Net projects and integrate results with data from other EHS-Net projects.
• Assist in the development of research protocols for Institutional Review Board (IRB) review by all institutions participating in any research project involving human subjects and CDC scientists as co-investigators. CDC project managers will ensure that all relevant organizational IRBs have given their written approval. The CDC IRB will review and approve the protocol initially and at least annually until the research project is completed.
This award is a Cooperative Agreement. CDC involvement in this program is listed in the Activities Section above.
Food Safety will involve a total number of 10 awards, eight of which will be targeted to existing awardees and two to new applicants. A total of four awards for Drinking Water Safety will be targeted exclusively for existing awardees.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the Federal Government.
Existing EHS-Net awardees may apply for both food safety and drinking water safety awards; new applicants may apply only for food safety awards.
Existing EHS-Net awardees are State infectious disease programs currently funded by CDC through the Emerging Infection Program (EIP), program announcement number 00011, and participating in the existing EHS-Net project under the EIP's FoodNet program with a current EHS-Net project period that expires December 31, 2004. Those states are California, Connecticut, Colorado, Georgia, Minnesota, New York, Oregon, and Tennessee.
New applicants are State infectious disease programs located in public health agencies in the 50 States.
Matching funds are not required. Applicants must demonstrate in-kind or other cost-sharing arrangements with partnering State and local agencies and with other partnering agencies or organizations as a demonstration of the capacity to carry out program activities. See V.1. Criteria.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive, and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
If your application is incomplete or non-responsive to the requirements listed in this section, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
• Late applications will be considered non-responsive. See section “IV.3. Submission Dates and Times” for more information on deadlines.
• CDC requires that you submit a LOI if you intend to apply for this program. The LOI will be used to gauge the level of interest in this program, and allow CDC to plan the application review. Although the LOI will not be evaluated, and does not enter into review of your subsequent application, failure to submit a timely LOI will preclude you from submitting an application.
• Funding preferences for existing EHS-Net awardees will be for those sites that: demonstrate, through their application, success in implementing EHS-Net activities related to food safety while part of the EHS-Net project under CDC's FoodNet project; demonstrate future in-kind or other cost-sharing arrangements with local agencies identified as partners; demonstrate leveraging of existing funding received from CDC or other Federal agencies for food safety and/or drinking water safety-related projects; and apply to expand their activities to include drinking water safety.
• For drinking water safety, funding preference will be given to applicants who have the capacity to address water safety issues related to small water systems (including private wells) that are not regulated under the SDWA.
• Funding preferences for new applicants will be given to applicants who: demonstrate leveraging of existing funding received from CDC or other Federal agencies for food-related projects; demonstrate in-kind or other cost-sharing arrangements with local agencies or organizations to support this project; and demonstrate existing successful working relationships between the infectious disease program and the environmental health service program (food safety).
Title 2 of the United States Code Section 1611 states that an organization described in Section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive Federal funds constituting an award, grant, or loan.
To apply for this funding opportunity, use application form PHS 398 (OMB number 0925-0001 rev. 5/2001). Forms and instructions are available in an interactive format on the CDC Web site, at the following Internet address:
Forms and instructions also are available in an interactive format on the National Institutes of Health (NIH) Web site at the following Internet address:
If you do not have access to the Internet or if you have difficulty accessing the forms on-line, you may contact the CDC Procurement and Grants Office, Technical Information Management Section (PGO-TIM) staff at: 770-488-2700. Application forms can be mailed to you.
• Maximum number of pages: Five pages.
• Font size: 12-point unreduced.
• Double-spaced.
• Paper size: 8.5 by 11 inches.
• Page margin size: One inch.
• Printed only on one side of page.
• Written in plain language; avoid jargon.
Your LOI must contain the following information:
• Descriptive title of the proposed research
• Name, address, e-mail address, and telephone number of the Principal Investigator.
• Names of other key personnel.
• Participating institutions.
• Number and title of this announcement.
Your research plan should address activities to be conducted over the entire project period.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the Federal government. The DUNS number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
This announcement uses the modular budgeting as well as non-modular budgeting formats. See:
You must submit a project narrative with your application forms. Each narrative must be submitted in the following format:
• Maximum number of pages:
36—If applying for both food and water safety. If your narrative exceeds the page limit, only the first 36 pages which are within the page limit will be reviewed.
18—If applying for only food safety. If your narrative exceeds the page limit,
• Font size: 12 point unreduced
• Paper size: 8.5 by 11 inches
• Page margin size: One inch
• Printed only on one side of page
• Held together only by rubber bands or metal clips, not bound in any other way
The application should include only one section for each item listed below. If applying for both food and drinking water safety, provide separate staffing plans and budgets. The application must include the following items in the order listed:
(1) Background (not more than 6 pages if applying for food and water safety; not more than 3 pages if applying for food safety):
Describe the background and objectives of this cooperative agreement. Describe the responsibilities, problems, constraints, and complexities that may be encountered in establishing and operating the EHS-Net. Describe the roles and responsibilities of participants in the EHS-Net. Describe the designated geographic area for this cooperative agreement and its population.
(2) Capacity (not more than 10 pages if applying for food and water safety; not more than 5 pages if applying for food safety):
(1) Describe your agency's authority to conduct food and/or waterborne disease surveillance activities. Describe your agency's authority, and the authority of other partners, to conduct outbreak investigations and routine environmental evaluations (
(2) Describe the organizational structure of the health agency's disease surveillance programs (foodborne and/or waterborne disease), and how that structure supports environmental health service programs (food safety and/or drinking water safety). Describe the organizational structure of the food and/or water safety program.
(3) For food safety programs, identify the State or local agency with responsibility for restaurants, retail grocery stores, schools, day care centers, nursing homes, hospitals, mobile food units, State and local prisons, and other food service establishments, and the way they will participate in this cooperative agreement.
(4) For drinking water safety programs, identify the State or local agency or organization(s) with responsibility for private and small drinking water systems and describe how these various agencies or organizations will participate in this cooperative agreement.
(5) Characterize your agency's and your significant partner's relationship with local environmental health service programs (food safety and/or drinking water safety).
(6) Characterize the role of the specific local environmental health services programs (food and/or drinking water), or other public health-related programs or agencies, that will be participating as active partners in this cooperative agreement.
(7) Describe how the health agency's disease surveillance program uses existing CDC or other Federal, State, or local funds to support foodborne or waterborne disease surveillance, and how this program announcement can be synergistically linked to existing activities.
(8) Describe any current or past activities of the health agency's disease surveillance program to assist an environmental health service program(s) to improve or assess prevention efforts.
(3) Operational Plan (not more than 10 pages if applying for food and water safety; not more than 5 pages if applying for food safety):
Using the examples of activities described above as a guide, describe the operational plan for the EHS-Net in the State.
(1) For food safety, propose the three specific activities identified under the previously listed awardee activities.
(2) Propose optional activities on the basis of local interest, concern, or expertise, and in keeping with the guiding principles of the EHS-Net.
• Project Management and Staffing Plan (not more than 10 pages if applying for food and water safety; not more than 5 if applying for food safety):
Provide a separate, clearly labeled project management and staffing plan for food safety and/or drinking water safety. Indicate staff credentials, training, and skills to ensure staff can carry out recipient activities.
Coordination between all participating programs should be fully described in the project management and staffing plans. All applicants should describe communication with staff working in related programs in other agencies. Each project management and staffing plan should include the following supporting documents in an application appendix:
(1) For organizational structure provide:
(a) A description of the proposed program management and control systems. Include an organizational chart that indicates placement of the proposed full-time senior staff position in the agency and show lines of authority, communication, accountability, and reporting.
(b) A description of proposed staffing for network activities and job descriptions for existing and proposed positions that illustrate the staff's level of responsibility for implementing activities.
(c) A description of the business office responsible for monitoring Federal funds and how the office will work with proposed program management and staff. Identify the business staff person who will carry out these responsibilities.
(2) Include curriculum vitae (limited to two pages per person) for existing staff.
(3) Provide letters from all outside agencies or partners identified in the operational plan that describe their expertise, capacity, and commitment to fulfill their proposed responsibilities.
• Budget and Budget Justification (not included in narrative page limit):
Provide a separate, detailed budget and budget justification for food safety and/or drinking water safety. Each budget and justification should immediately follow its corresponding staffing plan described under Project Management and Staffing Plan above. All applicants applying for both food safety and drinking water safety should provide a budget summary page that displays each separate program budget, as well as a total budget by object class category. Each budget and budget justification should include the following:
(1) A detailed line-item budget for food safety and/or drinking water safety. The budget justification should describe and justify individual budget items that make up the total amount of funds requested in each object class category for the first 12-month budget period (January 1, 2005 through December 31, 2005).
(2) Travel: Participation is essential in the EHS-Net steering committee and CDC-sponsored training workshops for the EHS-Net. Travel for network implementation should be justified and related to implementation of activities. The annual travel budget should include travel funds for appropriate EHS-Net participants (including, at least, the senior EHS from the food and/or drinking water program and one appropriate infectious disease program representative) to participate in a one-week CDC-sponsored orientation meeting for FY2005 and one two-three day CDC-sponsored EHS-Net steering
(3) Indirect Costs: If indirect costs are requested, include a copy of your agency's current negotiated Federal Indirect Cost Rate Agreement.
(4) Any cost sharing or in-kind support must be presented as a percentage of total requested costs and an amount.
• Evaluation Plan (not included in narrative page limit): Include in the evaluation plan a process evaluation of the network to determine the effectiveness of participation by outside agencies and other partners.
Additional information may be included in the application appendices. The appendices will not count toward the narrative page limit. This additional information includes:
• Curricula Vitaes.
• Resumes.
• Organizational Charts.
• Letters of Support.
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
CDC requires that you submit a LOI if you intend to apply for this program. The LOI will be used to gauge the level of interest in this program, and allow CDC to plan the application review. Although the LOI will not be evaluated, and does not enter into review of your subsequent application, failure to submit a timely LOI will preclude you from submitting an application.
This announcement is the definitive guide on LOI and application submission address and deadline. It supersedes information provided in the application instructions. If your application does not meet the deadline above, it will not be eligible for review, and will be discarded. You will be notified that your application did not meet the submission requirements.
CDC will not notify you upon receipt of your application. If you have a question about receipt of your application, first contact your courier. If you still have a question, contact the PGO-TIM staff at: 770-488-2700. Before calling, please wait two to three days after the application deadline to allow time for applications to be processed and logged.
Your application is subject to Intergovernmental Review of Federal Programs, as governed by Executive Order (EO) 12372. This order sets up a system for state and local governmental review of proposed federal assistance applications. You should contact your state single point of contact (SPOC) as early as possible to alert the SPOC to prospective applications, and to receive instructions on your state's process. Click on the following link to get the current SPOC list:
Restrictions, which must be taken into account while writing your budget, are as follows:
• CDC will assist applicants in the development of research protocols for Institutional Review Board (IRB) review by all institutions participating in any research project involving human subjects and CDC scientists as co-investigators. CDC project managers will ensure that all relevant organizational IRBs have given their written approval. The CDC IRB will review and approve the protocol initially and at least annually until the research project is completed.
• Funds may not be used for data entry personnel because data collection activities are to be carried out by State and/or local EHSs and entered into the CDC EHS-Net Web-based information system.
• Federal funds awarded under this program announcement may not be used to supplant State or local funds.
• Awards will not allow reimbursement of preaward costs.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should be less than 12 months old.
Guidance for completing your budget can be found on the CDC web site, at the following Internet address:
LOIs may not be submitted electronically at this time.
At the time of submission, four additional copies of the application, and all appendices must be sent to: Mildred Williams-Johnson, CDC, National Center for Environmental Health, Centers for Disease Control and Prevention, NCEH/ATSDR, MS E-28, 1600 Clifton Road, NE, Atlanta, Georgia 30333.
Applications may not be submitted electronically at this time.
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
The goals of CDC-supported research are to advance the understanding of biological systems, improve the control
Each application will be individually reviewed and scored. Each application will be allocated a total of 100 points, according to the following criteria:
• Staffing (25 points)
1. Has the applicant identified key professional personnel for assignment to the EHS-Net and network projects? Has the applicant identified key professional personnel from other participating or collaborating institutions, agencies, and organizations outside the applicant's agency that will be assigned to EHS-Net activities? Is a curriculum vitae provided for each in the appendix? Does the applicant clearly state participants' roles in the management and operation of the EHS-Net? Does the applicant provide descriptions of participants' experience in conducting work similar to that proposed in this announcement?
2. Does the applicant describe all support staff and services to be assigned to the EHS-Net?
• Capacity (25 points)
1. Does the applicant succeed in describing how they will implement multisite EHS-Net activities?
2. Does the applicant describe the agency's structure, and support from partnering programs and/or agencies?
3. Is the level of commitment from, and capacity of, the local agencies identified as partners demonstrated by: (a) In-kind or other cost-sharing arrangements described in the application to assist in supporting network activities; (b) technical knowledge and experience of local EHSs identified as potential sources of support for EHS-Net activities; and (c) capacity to electronically submit data to CDC through a Web-based information system?
4. Does the applicant describe the ability to develop and maintain cooperative relationships with public and private, local and regional, public health, laboratory, academic or other organizations that protect public health?
5. Is support from partnering agencies, institutions, organizations, laboratories, and individuals included in the operational plan? Does the applicant provide (in an appendix) letters of support indicating collaborators' commitments to participate in the EHS-Net, and describing their anticipated role?
6. Does the applicant describe the ability to participate in a multi-state collaborative network?
• Operational plan (20 points)
1. Does the applicant describe their plan for establishing and operating the EHS-Net? Does the applicant clearly identify the proposed organizational and operating structure and procedures? Does the applicant describe the roles and responsibilities of all participating agencies, organizations, institutions, and individuals?
2. Does the applicant describe plans to collaborate with CDC and other EHS-Net sites in the establishment and operation of the EHS-Net and individual EHS-Net projects, including project design and development (
3. Does the applicant describe partnerships with necessary and appropriate organizations to establish and operate the proposed EHS-Net?
4. Does the applicant describe plans to provide training opportunities for one or more of the following individuals, groups, or agencies: (a) Persons in professional training, such as environmental health specialists, infectious disease fellows, laboratory fellows, public health students; or (b) partner organizations within the EHS-Net, such as EHSs, infection-control practitioners or local health department personnel? Does the applicant propose to act as a resource for States that are not participating in the EHS-Net, for example, by providing information, training, or recommendations about emerging public health issues and evolving public health practices?
5. Does the applicant describe proposed projects consistent with the guiding principles of the network and the public health needs?
6. Does the applicant describe how the EHS-Net organizational structure in the State will facilitate a swift response to new public health challenges in infectious diseases? Does the applicant describe how the proposed structure can facilitate the preparation of EHSs to recognize or respond to acts of terror?
• Leveraging of resources and in-kind support (20 points)
1. Does the applicant describe existing funds from CDC or other Federal agencies that are used to support foodborne and/or waterborne disease surveillance and food safety and/or drinking water safety programs? Does the applicant describe how these existing projects will be synergistically linked to this proposal?
2. Does the applicant describe in-kind or other forms of support from local agencies or organizations that will be used to supplement CDC funding to carry out network activities?
3. Does the applicant describe a plan to solicit and secure financial and/or technical assistance from other public and private organizations (
• Understanding the objectives of the EHS-Net (10 points)
Does the applicant:
1. Understand the objectives of this cooperative agreement program?
2. Describe the requirements, responsibilities, problems, constraints, and complexities that may be encountered in establishing and operating the EHS-Net?
3. Understand the roles and responsibilities of participation in the EHS-Net?
Recipient performance will be measured by:
• Quality of collaboration between the appropriate environmental health service program (food safety and/or drinking water safety), and the appropriate disease surveillance program (foodborne or waterborne) as evidenced by their ability to identify projects that provide environmental health service programs with information assisting them with control of risk factors to illness and outbreaks.
• Establishment of an interagency plan between State health and food safety and/or drinking water programs, and, when appropriate, their active participation in EHS-Net projects as evidenced by collection and submission of data or specimens, or evidence of other specific contributions to EHS-Net projects.
• Collection and submission to agreed-upon recipients (
• Active participation of local environmental health service programs as evidenced by data or specimen collection or evidence of other specific contributions to EHS-Net projects.
• Publication of articles and at least one formal presentation at a national conference during this cooperative agreement, as lead or supporting author.
Applications will be reviewed for completeness by the Procurement and Grants Office (PGO) staff, and for responsiveness by NCEH. Incomplete applications and applications that are nonresponsive to the eligibility criteria
A Special Emphasis Panel will evaluate complete and responsive applications according to the criteria listed in the “V.1. Criteria” section above.
Awards anticipated to be effective March 30, 2005.
Successful applicants will receive a Notice of Grant Award (NGA) from the CDC Procurement and Grants Office. The NGA shall be the only binding, authorizing document between the recipient and CDC. The NGA will be signed by an authorized Grants Management Officer, and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
For more information about the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
The following additional requirements apply to this project:
• AR-1 Human Subjects Requirements
• AR-9 Paperwork Reduction Act Requirements
• AR-10 Smoke-Free Workplace Requirements
• AR-11 Healthy People 2010
• AR-12 Lobbying Restrictions
• AR-14 Accounting System Requirements
Additional information on these requirements can be found on the CDC Web site at the following Internet address:
You must provide CDC with an original, plus two hard copies, of the following reports:
1. Interim progress report no less than 90 days before the end of the budget period. The progress report will serve as your non-competing continuation application, and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period Program Proposed Activity Objectives.
d. Budget.
e. Additional Requested Information.
f. Measures of Effectiveness.
2. Financial status report no more than 90 days after the end of the budget period.
3. Final financial and performance reports, no more than 90 days after the end of the project period.
These reports must be mailed to the Grants Management Specialist listed in the “Agency Contacts” section of this announcement.
For general questions about this announcement, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Rd., Atlanta, GA 30341, Telephone: 770-488-2700.
For scientific/research issues, contact: Extramural Project Officer, Carol A. Selman, 4770 Buford Hwy, NE, (F28), Chamblee, GA 30341, Telephone: 770-488-4352, E-mail:
For financial, grants management or budget assistance, contact: Vivian F. Walker, Contract Specialist, CDC Procurement and Grants Office, 2920 Brandywine Rd., Atlanta, GA 30341, Telephone: 770-488-2724, E-mail:
Background information concerning EHS-Net can be found on the CDC web site at the following Internet address:
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute of Environmental Health Sciences (NIEHS), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Leslie Elliott, Laboratory of Respiratory Biology, NIEHS, Building 101, A2-05, P.O. Box 12233, Research Triangle Park, NC 27709 or call non-toll-free number (919) 541-1161 or e-mail your request, including your address to:
This notice announces the availability of video casting and a public telephone call-in line for the October 20, 2004 meeting of the Scientific Advisory Committee on Alternative Toxicological Methods (SACATM). The meeting will be held at the U.S. Environmental Protection Agency (EPA), 109 T.W. Alexander Drive, Research Triangle Park, NC (Building C, Room C111, Auditorium sections A. and B). Additional information about this SACATM meeting was published in a previous
The National Toxicology Program (NTP) is making plans to video cast the SACATM meeting through the Internet at
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• Press *6 to mute and unmute.
The NTP has reserved 50 telephone lines for this call and access availability will be on a first come first served basis. Comments from the phone will be solicited during public comment periods identified on the agenda (see below for revised draft agenda). Telephone comments should not exceed two minutes in length and each organization is allowed only one oral slot (in person or by the telephone) per agenda topic. Calls will be taken as time permits and at the discretion of the SACATM chairperson. Every effort will be made to accommodate callers, but the total time allotted for comments received via the telephone will be 30 minutes for the entire meeting. Priority will be given to callers who register to make public comments in advance of the meeting. Registration to present oral public comments or to submit written comments can be completed online at the SACATM meeting site (
U.S. Environmental Protection Agency, Building C, Room C111 (Auditorium sections A. and B), 109 T.W. Alexander Drive, Research Triangle Park, NC 27709. (A photo ID is required to access the EPA campus.)
• Call to Order and Introductions
• Welcome and Remarks from the National Institute of Environmental Health Sciences (NIEHS) and the National Toxicology Program (NTP)
• Welcome and Remarks from the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) Chair
• Update on Activities of the National Toxicology Program (NTP) Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM) and ICCVAM
• Update on the European Center for the Validation of Alternative Methods (ECVAM) Workshop Recommendations and Validation Studies
• Evaluation of the Under-Prediction Rate for the
○ Public Comment
• Preliminary Evaluation of the Under-Prediction Rate for the
○ Public Comment
• ICCVAM Nominations
○ Public Comment
• NTP Roadmap
○ Public Comment
• ICCVAM Perspectives on Proposed OECD Draft guidance Document on the Validation and International Acceptance of New or Updated Test methods for Hazard Assessment (Guidance Document 34)
• General Discussion
National Institutes of Health, Public Health Service, DHHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of a worldwide exclusive license to practice the inventions embodied in PCT/US89/04948 filed November 14, 1989, and National Stage filed in Australia (patent no. 631159), Canada (patent no. 1284268), Israel (patent no. 92298) and Japan (patent no. 2755817), entitled “Parvovirus Capsids”; U.S. patent no. 5,508,186, U.S. patent no. 6,132,732, U.S. patent no. 6,001,371, U.S. patent no. 5,827,647, entitled “B19 Parvovirus Capsids” ; U.S. patent no. 5,916,563, U.S. patent no. 6,558,676 entitled “Parvovirus Capsids”; and PCT/NL90/00130 filed September 11, 1990, and National Stage filed in Europe (patent no. 0491824), Austria (patent no. 122395), Denmark (patent no. 0491824), Germany (patent no. 69019359), Netherlands (patent no. 8902301), Spain (patent no. 2073036) and United States (patent nos. 6,204,044, 6,287,815 and 6,379,885), entitled “Human Parvovirus B19 Proteins and Virus-like Particles, Their Production and Their Use in Diagnostic Assays and Vaccines” to Viral Antigens, Inc., having a place of business in Memphis, Tennessee. The patent rights in these inventions have been assigned or exclusively licensed to the United States of America.
Only written comments and/or application for a license which are received by the NIH Office of Technology Transfer on or before January 19, 2005, will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Susan Ano, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; e-mail:
This technology describes a method of producing non-infectious recombinant human parvovirus B-19 capsids composed of viral proteins VP1 and VP2 or VP2. The technology further relates to diagnostic assays utilizing the recombinantly produced parvovirus capsid proteins, or antibodies to such proteins. The technology also describes a vaccine effective against parvovirus B19 infection, consisting of the recombinant capsid proteins. Data from the inventors show that the configuration of the vaccine optimal for eliciting neutralizing antibodies comprises approximately twenty five percent (25%) VP1 and seventy five percent (75%) VP2. In another embodiment, the technology describes the use of parvovirus B19 viral capsids as a gene delivery system for proteins.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 90 days from the date of this published notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
The field of use may be limited to development of vaccines for parvovirus B19.
The licensed territory will be worldwide exclusive.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Office of the Under Secretary for Science and Technology, DHS.
Notice.
The Homeland Security Science and Technology Advisory
The HSSTAC will meet in closed session on November 15, 2004, from 8:30 a.m. to 4:30 p.m. and on November 16, 2004, from 8:30 a.m. to 10 a.m. The Committee will meet in open session on November 16, 2004, from 10 a.m. to 12 p.m.
The meeting location for the open session is Booz Allen Hamilton, Virginia Square Plaza, 3811 Fairfax Drive, Arlington, VA 22203.
Brenda Leckey, Homeland Security Science and Technology Advisory Committee, Department of Homeland Security, Directorate of Science and Technology, Washington, DC 20528; telephone (202) 254-5041; e-mail
Notice of this meeting is given under the Federal Advisory Committee Act (FACA), Pub. L. 92-463, as amended (5 U.S.C. app. 2). The HSSTAC will meet for purposes of receiving briefings from its subcommittees on recent activities and findings in support of the annual report to Congress, deliberating subcommittee findings and providing recommendations to the Under Secretary, and determining future subcommittee and committee activities. In accordance with section 10(d) of the Federal Advisory Committee Act, Pub. L. 92-463, as amended (5 U.S.C. app. 2), the Under Secretary for Science and Technology has determined that this HSSTAC meeting will concern unclassified but sensitive matters to homeland security within the meaning of 5 U.S.C. 552b(c)(9)(B) and that, accordingly, the meeting will be partially closed to the public.
• EPA Federal Partner EDOCKET Web site:
• Federal eRulemaking Portal:
• E-mail:
• Fax: (202) 254-6177.
• Mail: Homeland Security Science and Technology Advisory Committee, Department of Homeland Security, Washington, DC 20528.
Coast Guard, DHS.
Notice of appointments.
The Coast Guard is providing notice of the appointment of 11 individuals to serve on its Performance Review Board.
Ronald Kogut, Chief, Office of Civilian Personnel, (202) 267-0921.
Under 5 U.S.C. 4314(c)(4), the Coast Guard is required to publish the names of individuals appointed to serve on the Coast Guard Performance Review Board (CGPRB). The following 11 persons have been selected to serve on the CGPRB:
Rear Admiral K.T. Venuto, Assistant Commandant for Human Resources, United States Coast Guard;
Rear Admiral D.G. Gabel, Assistant Commandant for Acquisition, United States Coast Guard;
Rear Admiral L.L. Hereth, Director of Port Security, United States Coast Guard;
Rear Admiral R.D. Sirois, Assistant Commandant for Operations, United States Coast Guard;
Rear Admiral J.C. Van Sice, Director of Reserve and Training, United States Coast Guard;
Rear Admiral D.W. Kunkel, Director of Operations Capability, United States Coast Guard;
Rear Admiral J.W. Underwood, Director of Operations Policy, United States Coast Guard;
Rear Admiral E.M. Brown, Assistant Commandant for Systems, United States Coast Guard;
Mr. John Matticks, Senior Planning Advisor, Federal Emergency Management Agency;
Ms. Sheila Lumsden, Deputy Assistant Director for Human Resources and Training, U.S. Secret Service; and
Mr. Sam Russ, Executive Director for Tactical Communications, U.S. Customs and Border Protection.
Bureau of Land Management, Interior.
Notice of realty action, direct sale.
The following public lands have been found suitable for a direct sale under the authority of section (203)
This land will be offered to Sam Robinson the adjacent private landowner that had his house built on public land, and must be for not less than the appraised value specified above.
The private landowner will make an application for conveyance of those mineral interests offered under the authority of section 209(b) of the Federal Land Policy and Management Act of 1976 (90 Stat. 2757; 43 U.S.C. 1719). A nonrefundable fee of $50 will be required from the private landowner for purchase of the mineral interests. Those mineral interests to be conveyed simultaneously with the sale of the land have been determined to have no known mineral value.
The conveyance document, when issued, will contain certain reservations to the United States and will be subject to any existing rights-of-way and any other valid existing rights.
On March 6, 2001, a notice was published in the
Our office did not receive any comments and/or objections; therefore, a direct sale to resolve the trespass will proceed.
Minerals Management Service, Interior.
Notice of meeting postponement.
The OCS Policy Committee meeting scheduled for October 20-21, 2004, at the Holiday Inn Capitol in Washington, DC has been postponed until November.
Wednesday, November 17, 2004, from 8:30 a.m. to 5 p.m. and Thursday, November 18, 2004, from 8:30 a.m. to 12 p.m.
The Holiday Inn Capitol Hotel, 550 C Street, SW., Washington, DC 20024, telephone (202) 479-4000.
Ms. Jeryne Bryant at Minerals Management Service, 381 Elden Street, Mail Stop 4001, Herndon, Virginia 20170-4187. She can be reached by telephone at (703) 787-1211 or by electronic mail at
The OCS Policy Committee represents the collective viewpoint of coastal states, local government, environmental community, industry and other parties involved with the OCS Program. It provides policy advice to the Secretary of the Interior through the Director of the MMS on all aspects of leasing, exploration, development, and protection of OCS resources.
The agenda for Wednesday, November 17 will cover the following principal subjects:
The agenda for Thursday, November 18 will cover the following principal subjects:
The meeting is open to the public. Approximately 100 visitors can be accommodated on a first-come-first-served basis.
Upon request, interested parties may make oral or written presentations to the OCS Policy Committee. Such requests should be made no later than November 10, 2004, to Jeryne Bryant. Requests to make oral statements should be accompanied by a summary of the statement to be made. Please see
Minutes of the OCS Policy Committee meeting will be available for public inspection and copying at the MMS in Herndon, Virginia.
Federal Advisory Committee Act, Pub. L. 92-463, 5 U.S.C. appendix 1, and the Office of Management and Budget's Circular No. A-63, Revised.
National Park Service.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App. 1, Section 10), notice is hereby given that the Concessions Management Advisory Board (the Board) will hold its twelfth meeting on Thursday, November 4 and Friday, November 5, 2004. The meeting will be held at the Sheraton Denver West Hotel located at 360 Union Boulevard, Lakewood, CO 80228. The meeting will convene at 8:30 a.m. and will conclude at 4:30 p.m. each day.
The Board was established by Title IV, Section 409 of the National Park Omnibus Management Act of 1998, November 13,
The Board will meet at 8:30 a.m. for the regular business meeting for continued discussion on the following subjects:
• Discussion proposed work group solutions regarding Leasehold Surrender Interest (LSI)
• Report from the SERA Workgroup
• Update on CUA Regulations
• General Update of Concession Contracting
• Other Business (
The meeting will be open to the public. However, facilities and space for accommodating members of the public are limited, and persons will be accommodated on a first-come first-served basis.
The meeting site is accessible to individuals with disabilities. If you plan to attend and will require an auxiliary aid or service to participate in the meeting (
Anyone may file with the Board a written statement concerning matters to be discussed. The Board may also permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time. Such requests should be made to the Director, National Park Service, attention: Manager, Concession Program at least 7 days prior to the meeting.
Further information concerning the meeting may be obtained from National Park Service, Concession Program, 1849 C Street, NW., (2410), Washington, DC 20240, Telephone: (202) 513-7144. Draft minutes of the meeting will be available for public inspection approximately 6 weeks after the meeting, at the Concession Program Office located at 1201 Eye Street, NW., 11th Floor, Washington, DC.
United States International Trade Commission.
The United States International Trade Commission (USITC) has submitted a request for emergency processing to the Office of Management and Budget for review and clearance of a questionnaire, in accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The USITC has requested OMB approval of this submission by COB November 1, 2004.
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(8) Information obtained from the form that qualifies as confidential business information will be so treated by the Commission and not disclosed in a manner that would reveal the individual operations of a firm.
Hearing impaired individuals are advised that information on this matter can be obtained by contacting our TDD terminal (telephone no. (202) 205-1810). General information concerning the Commission may also be obtained by accessing its Internet server (
By order of the Commission.
United States International Trade Commission.
Scheduling of the final phase of antidumping investigations.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigations Nos. 731-TA-1073-1075 (Final) under section 735(b) of the Act (19 U.S.C. § 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of less-than-fair-value imports from China, Korea, and Mexico of certain circular welded carbon quality line pipe,
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Fred Ruggles (202-205-3187) or Douglas Corkran (202-205-3057), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. 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 (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Scheduling of the final phase of antidumping investigations.
The Commission hereby gives notice of the scheduling of the final phase of antidumping investigations Nos. 731-TA-1071-1072 (Final) under section 735(b) of the Tariff Act of 1930 (19 U.S.C. 201673d(b)) (the Act) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of less-than-fair-value imports of alloy magnesium from China and of pure and alloy magnesium from Russia, provided for in subheadings 8104.11.00, 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of these investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Effective Date: October 4, 2004.
Christopher J. Cassise (202-708-5408), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. 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 (
The final phase of these investigations is being scheduled as a result of affirmative preliminary determinations by the Department of Commerce that imports of alloy magnesium from China and pure and alloy magnesium from Russia are being sold in the United States at less than fair value within the meaning of section 733 of the Act (19 U.S.C. 1673b). The investigations were requested in a petition filed on February 27, 2004, by U.S. Magnesium Corp., Salt Lake City, UT; the United Steelworkers of America, Local 8319, Salt Lake City, UT; and the Glass, Molders, Pottery, Plastics & Allied Workers International, Local 374, Long Beach, CA.
Persons, including industrial users of the subject merchandise and, if the merchandise is sold at the retail level, representative consumer organizations, wishing to participate in the final phase of these investigations as parties must file an entry of appearance with the Secretary to the Commission, as provided in section 201.11 of the Commission's rules, no later than 21 days prior to the hearing date specified in this notice. A party that filed a notice of appearance during the preliminary phase of the investigations need not file an additional notice of appearance during this final phase. The Secretary will maintain a public service list containing the names and addresses of all persons, or their representatives, who are parties to the investigations.
Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI gathered in the final phase of these investigations available to authorized applicants under the APO issued in the investigations, provided that the application is made no later than 21 days prior to the hearing date specified in this notice. Authorized applicants must represent interested parties, as defined by 19 U.S.C. 1677(9), who are parties to the investigations. A party granted access to BPI in the preliminary phase of these investigations need not reapply for such access. A separate service list will be maintained by the Secretary for those parties authorized to receive BPI under the APO.
The prehearing staff report in the final phase of these investigations will be placed in the nonpublic record on February 8, 2005, and a public version will be issued thereafter, pursuant to section 207.22 of the Commission's rules.
The Commission will hold a hearing in connection with the final phase of these investigations beginning at 9:30 a.m. on February 23, 2005, at the U.S. International Trade Commission Building. Requests to appear at the hearing should be filed in writing with the Secretary to the Commission on or before February 16, 2005. A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference to be held at 9:30 a.m. on February 18, 2005, at the U.S. International Trade Commission Building. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony
Each party who is an interested party shall submit a prehearing brief to the Commission. Prehearing briefs must conform with the provisions of section 207.23 of the Commission's rules; the deadline for filing is February 15, 2005.
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
Notice is hereby given that on October 6, 2004, a proposed Consent Decree in United States and the
In this action, the United States and the State of Colorado sought injunctive relief to require defendant to perform certain remedial actions at the Vasquez Boulevard/Interstate 70 Superfund Site, located in Denver, Colorado, and to reimburse the United States and the State of Colorado for response costs incurred at the Site. Pursuant to the proposed Consent Decree, Asarco will remove and dispose of contaminated soils from 100 residential properties within the Site, and reimburse the United States and the State of Colorado for future response costs incurred at the Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to United States and the
The Consent Decree may be examined at U.S. EPA Region 8, 999 18th Street, Suite 500, Denver, Colorado, 80202. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on September 29, 2004, a proposed Consent Decree in
In this action the United States, on behalf of the United States Department of the Interior, the United States Fish and Wildlife Service (“DOI”), and the Attorney General of the State of New Mexico, on its own behalf and on behalf of The State of New Mexico and The New Mexico Office of Natural Resources Trustee (“NMONRT”), sought damages from The Burlington Northern and Santa Fe Railway Company (“BNSF”) for injury to, destruction and loss of natural resources, under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9607(a), resulting from the release of hazardous substances from the AT & SF Albuquerque Superfund Site, located in Albuquerque, Bernalillo County, New Mexico. The Complaint alleges that hazardous substances, including PCP, zinc chloride, creosote and its constituents, were released from a wood treatment plant owned and operated by Defendant BNSF's predecessor to the environment, resulting in injury to wildlife habitat and groundwater resources. The Consent Decree provides for BNSF to pay a total of $1.09 million to resolve the claims alleged in the Complaint. The Consent Decree also resolves BNSF's claim that the Federal government is partially responsible for
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, District of New Mexico, 201 Third St. NW., Ste. 900, Albuquerque, NM 87102. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on September 29, 2004, a proposed Consent Decree in
In this action the United States, on behalf of the United States Environmental Protection Agency (“EPA”), and the State of New Mexico, on behalf of the New Mexico Environment Department, sought abatement of an imminent and substantial endangerment resulting from, and recovery of response costs incurred and to be incurred in response to releases of hazardous substances from the AT & SF Albuquerque Superfund Site, located in Albuquerque, Bernalillo County, New Mexico, under Sections 106(a) and 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9606(a) and 9607(a). The Complaint alleges that hazardous substances, including PCP, zinc chloride, creosote and its constituents, were released from a wood treatment plant owned and operated by Defendant The Burlington Northern and Santa Fe Railway Company's (“BNSF”) predecessor, resulting in contamination of soil and groundwater, including a plume of dense non-aqueous phase liquid (“DNAPL”) in the upper zone of the Santa Fe formation aquifer. The Consent Decree requires BNSF to remediate soil and groundwater contamination, including the DNAPL plume, by implementing the remedial action for the Site selected by EPA in its June 2002 Record of Decision. The Consent Decree also requires BNSF to reimburse EPA for past response costs of $324,980.74 and to pay response costs incurred in the future by EPA and New Mexico in connection with the Site. The Consent Decree also resolves BNSF's claim that the federal government is partially responsible for Site remediation due to alleged federal control of the facility during World War I, by requiring the United States to pay BNSF $590,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, District of New Mexico, 201 Third Street NW., Ste. 900, Albuquerque, NM 87102, and at U.S. EPA Region 6, 1445 Ross Avenue, Ste. 1200, Dallas TX 75202. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
Under the proposed consent decree, Defendant will pay a civil penalty of $610,000 and will perform a Supplemental Environmental Project which consists of the donation of 128 acres to the Austin Woods Unit of the San Bernard National Wildlife Refuge. Additionally, Defendant is required to take the necessary measures to comply with the CWA and its permit.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
Notice is hereby given that, on August 23, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Architectural Manufacturers Association, Schaumburg, IL. The nature and scope of AAMA's standards development activities are: The development of standards and other technical specifications for fenestration, door, and related products.
Notice is hereby given that, on September 15, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Association of Motor Vehicle Administrators, Arlington, VA. The nature and scope of AAMVA's standards development activities are: common names, abbreviations, definitions, uses, sources, synonyms and representations of data elements transmitted and communicated by state and local traffic records systems. AAMVA is also responsible for specifications of contents and layouts for machine readable technologies such as smart cards, magnetic strips, 1D bar codes, 2D bar codes, in particular PDF 417 on state motor vehicle administration documentation such as titles, registrations, identification cards and driver licenses.
Notice is hererby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Camping Association, Inc., Martinsville, IN. The nature and scope of ACA's standards development activities are: To develop, promulgate, revise, amend, reissue, interpret, or otherwise maintain voluntary consensus standards related to youth camps, camp programs, and camp services, and use such standards in conformity assessment activities.
Notice is hereby given that, on September 21, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Society of Agricultural Engineers, St. Joseph, MI. The nature and scope of ASAE's standards development activities are: ASAE serves as the primary U.S. developer of standards, engineering practices and data (collectively referred to as standards) for engineering applicable to agricultural, food, and biological systems. The scope of these documents encompasses, but is not limited to, the following subject areas: agricultural equipment; biological and biological systems engineering; natural resources management; irrigation and drainage; agricultural structures and environment; livestock production; food and bioprocess engineering; information and electrical technologies; forest engineering; energy production and distribution for agricultural locales and operations; renewable fuels and biomass; aquacultural engineering; nursery and greenhouse operations; and agricultural safety and rural health.
Notice is hereby given that, on September 15, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Society of Safety Engineers, Des Plaines, IL. The nature and scope of ASSE's standards development activities are: To advance the technical, scientific, managerial and ethical knowledge and skills of occupational safety, health and environmental professionals.
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Society of Heating, Refrigerating and Air-Conditioning Engineers, Atlanta, GA. The nature and scope of ASHRAE's standards development activities are: advancing the arts and sciences of heating, refrigeration, air conditioning and ventilation and the allied arts and sciences, and related human factors.
Notice is hereby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Society of Civil Engineers, Reston, VA. The nature and scope of ASCE's standards development activities are: to develop and publish standards covering a wide range of civil engineering areas, such as structural, geotechnical, transportation, construction, environmental, water and wastewater, coastal and waterway, fire
Notice is hereby given that, on September 20, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: American Veterinary Medical Association, Schaumburg, IL. The nature and scope of AVMA's standards development activities are: to develop, plan, establish, and coordinate voluntary consensus standards applicable to the advancement of the science and art of veterinary medicine, including its relationship to public health, biological science, and agriculture. AVMA conducts its standards development activities through the following committees: AVMA Council on Education; AVMA Educational Commission for Foreign Veterinary Graduates; AVMA Committee on Veterinary Technician Education and Activities; and AVMA American Board of Veterinary Specialties. These committees conduct standard setting activities relating to the certification of foreign veterinarians in the United States, the accreditation of foreign veterinarians in the United States, the accreditation of veterinary medical and technology programs, and the establishment of criteria for recognition of veterinary specialty organizations. Through its standard development activities, AVMA seeks to advance the science and art of veterinary medicine, including its relationship to public health, biological science, and agriculture.
Notice is hereby given that, on September 7, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Appraisal Institute, Chicago, IL. The nature and scope of AI's standards development activities are: to establish, maintain and publicize minimum requirements for AI membership and confer appropriate designations to properly qualified appraisers; to formulate and maintain a Code of Professional Ethics and Standards of Professional Practice for the real estate profession; to identify the body of knowledge in which the appraisal profession operates; and to establish, maintain and publicize educational standards for members.
Notice is hereby given that, on September 15, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Association of Records Managers and Administrators, Lenexa, KS. The nature and scope of ARMA International's standards development activities are: standards and best practices for the implementation of policies, systems and procedures that manage recorded information in a variety of formats throughout the life cycle. These standards promote efficiency and cost savings by reducing wasted effort, ensuring consistency of procedures over time and reducing risk exposure.
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: ASTM International, West Conshohocken, PA. The nature and scope of ASTM's standards development activities are: ASTM International's Interlaboratory Crosscheck Programs provide participating laboratories with a statistical quality assurance (SQA) tool, enabling them to compare their performance in the use of ASTM methods against other laboratories worldwide. ASTM Committee D02 on Petroleum Products and Lubricants sponsors the programs and more than 600 published standards.
For additional information, please contact Thomas B. O'Brien, Jr., General Counsel, at the above address, telephone # (610) 832-9597, e-mail address
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: ASTM International—The Cement and Concrete Reference Laboratory, Gaithersburg, MD. The nature and scope of CCRL's standards development activities are: CCRL provides conformity assessment activities. CCRL is a National Institute of Standards and Technology (NIST) Research Associate Program sponsored by ASTM International. ASTM Committees C-1 on Cement and C-9 on Concrete and Concrete Aggregates provide programmatic oversight to CCRL. CCRL operates two programs that promote the quality of testing in construction materials laboratories. These are the (1) Laboratory Inspection and (2) Proficiency Sample programs which provide laboratories with a mechanism for determining the quality of their testing of hydraulic cement, Portland cement concrete and aggregates, steel reinforcing bars, pozzolans and masonry materials using ASTM International standards.
The Laboratory Inspection Program provides a laboratory with a comprehensive account of how its procedures, practices, equipment and facilities compare with ASTM standards requirements. The CCRL laboratory inspector checks critical equipment dimensions and operating characteristics; watches a technician demonstrate test procedures; and reviews the quality system when covered by appropriate ASTM standards.
The Proficiency Sample Programs are a means for a laboratory to monitor the quality of its testing between CCRL on-site assessments. The test procedures to be performed are taken from current ASTM specifications. The specified tests are performed and the results reported to the CCRL for review and evaluation.
For additional information, please contact Thomas B. O'Brien, Jr., General Counsel, ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 10428-2959, telephone no. (610) 832-9597, e-mail address
Notice is hereby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: ASTM International—Intellectual Property Policy, west Conshohocken, PA. The nature and scope of ASTM-IPP's standards development activities are: ASTM International develops standrds in over 130 areas covering subjects including consumer products, medical services and devices, electronics, metals, paints, plastics, textiles, petroleum, construction, energy and the environment. ASTM International, as part of its standards development activities, has promulgated and adopted an Intellectual Property Policy as described in the Act (publicly available at
For additional information, please contact: Thomas B. O'Brien, Jr., General Counsel, ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA, telephone no. (610) 832-9597, e-mail address
Notice is hereby given that, on August 12, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the identities of the parties to the venture are: Caterpillar Inc., Mossville, IL; and Applanix Corporation, Richmond Hill, Ontario, CANADA. The general areas of CAT's planned activities are to investigate methods to compensate for satellite shading that cause Caterpillar's information-based products such as CAES to cease giving useful positioning data. The activities of this Consortium will be partially funded by an award from the Department of Energy/National Energy Technology Laboratory.
Notice is hereby given that, on September 8, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Consumer Specialty Products Association Inc., Washington, DC. The nature and scope of CSPA's standards development activities are: consumer-specialty product safety; product description, size and rating; product evaluation test procedures; definitions of terms; labeling and other product information; and recommended levels of performance, among others.
Notice is hereby given that, on September 15, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Conveyor Equipment Manufacturers Association, Naples, FL. The nature and scope of CEMA's standards development activities are: voluntary industry and ANSI standards, written for the mutual benefit of manufacturer, user, and distributor, associated with the proper identification, engineering, and application of conveyors and auxiliary equipment used in the material handling sector of the economy.
Notice is hereby given that, on August 31, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: EIFS Industry Members Association, Morrow, GA. The nature and scope of EIMA's standards development activities are: as a standards development institution accredited by the American National Standards Institute (“ANSI”), EIMA developed, maintains and updates the ANSI/EIMA 99-A-2001 standards which provides the requirements for specifying and installing Exterior Insulation and Finish Systems.
Notice is hereby given that, on September 15, 2004, pursuant to section
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Hydraulic Institute, Inc., Parsippany, NJ. The nature and scope of HI's standards development activities are: more than twenty pump standards for pumps prepared and updated in accordance with the canvass approval process of the American National Standards Institute (“ANSI”). The HI standards define a product, material, process or procedure relating to,
Notice is hereby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Interactive Advertising Bureau, New York, NY. The nature and scope of IAB's standards development activities are: to develop, promulgate and publish voluntary consensus standards for the Internet Advertising industry, using procedures that incorporate the attributes of openness, balance of interests, due process, and appeals process, and consensus. The IAB sets out to organize the industry to set standards and guidelines that make Interactive an easier medium for agencies and marketers to buy and capture value from advertising.
Notice is hereby given that, on September 16, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: International Code Council, Falls Church, VA. The nature and scope of ICC's standards development activities are: to develop, promulgate and publish voluntary consensus codes and standards and to provide related services and products regarding construction regulation and the built environment.
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: IPC—Association Connecting Electronics Industries, Bannockburn, IL. The nature and scope of IPC's standards development activities are: design and performance standards for all types of interconnections, including printed wiring boards, flexible circuits, flat cable and discrete wiring devices. In addition, IPC develops standards for materials used in these products. Also, IPC is involved in standards for computer-aided technology, used to define electronic description. IPC is therefore also involved not only in the development of product standards, but in standardization and in guidelines
Notice is hereby given that, on September 13, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Laser Institute of America (LIA)/ASC Z136, Orlando, FL. LIA serves as secretariat for Accredited Standards Committee (ASC) Z136, Orlando, FL. The nature and scope of LIA/ASC Z136's standards development activities are: to provide protection against hazards which are created by the use of lasers and optically radiating diodes.
Additional information concerning LIA/ASC Z136 may be obtained from Barbara Sams, Standards Administrator, at (407) 380-1553.
Notice is hereby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: NAHB Research Center, Inc., Upper Marlboro, MD. The nature and scope of NAHB's standards development activities are: To develop and publish consensus standards—including products, construction materials and systems, technology, and methodologies that facilitate commerce—in response to needs for performance and prescriptive standards for use in single-family and multi-family housing.
Notice is hereby given that, on September 17, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: The National Board of Boiler and Pressure Vessel Inspectors, Columbus, OH. The nature and scope of the National Board's standards development activities are: securing concerted action and maintaining uniformity in the construction, installation, inspection, operation, repair and alteration of boilers, pressure vessels or other pressure retaining items and their appurtenances, thereby assuring acceptance and interchangeability among jurisdictional authorities.
Notice is hereby given that, on September 20, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: National Fire Protection Association, Quincy, MA. The nature and scope of NFPA's standards development activities are: NFPA develops close to 300 standards (variously denominated as Codes, Standards, Guides, and Recommended Practices) in a broad
NFPA standards are developed by approximately 240 different Technical Committees (including committees known as Technical Correlating Committees that head multi-committee projects), and these Committees are the principal consensus-developed bodies within the NFPA standards development process. The full scope of NFPA's standards activities are reflected in the scope statements of NFPA Technical Committees and in NFPA standards that have been issued or are under development. This information together with other information showing the nature and scope of NFPA's standards development activities are available directly from NFPA, to the attention of Casey C. Grant, Assistant Vice President, Codes and Standards Administration, at the above address, telephone (617) 984-7241, e-mail
Notice is hereby given that, on September 20, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: National Marine Manufacturers Association, Chicago, IL. The nature and scope of NMMA's standards development activities are: to develop, promulgate and make available voluntary lubricant performance standards for the marine industry. NMMA establishes performance standards and testing procedures for marine engine oils to assist boaters and manufacturers in identifying engine oils which have been specially formulated to withstand the rigors of use in marine engines. NMMA's voluntary consensus standards are developed by NMMA members with comments from the public. NMMA members include original equipment manufacturers, test laboratories, oil marketers and oil additive companies.
Additional information concerning NMMA can be obtained from Tom Marhevko at NMMA at (312) 946-6213.
Notice is hereby given that, on September 10, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: National Roofing Contractors Association, Rosemont, IL. The nature and scope of NRCA's standards development activities are: To develop, plan, establish, and coordinate voluntary consensus standards applicable to a variety of constructed roof systems. In particular, NRCA is in the process of facilitating a long-term roofing industry initiative to develop and maintain suitable performance criteria for constructed roof systems. In order to achieve this initiative, NRCA has established a committee (referred to as PCCRS) made up of representatives from the roofing industry that will be responsible for developing voluntary consensus standards applicable to constructed roof systems. Through its standards development activities, NRCA seeks to enhance and build upon existing roofing-related standards by developing and maintaining suitable performance criteria applicable to a wide range of complete roof systems. Such performance criteria are intended to provide roofing industry professionals and building owners with a consensus opinion defining the attributes of a wide variety of successful, long-term roof systems.
Additional information concerning NRCA's standards development activities may be obtained from Mark Graham, Associate Executive Director for Technical Services, National Roofing
Notice is hereby given that, on September 15, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: National Spa and Pool Institute, Alexandria, VA. The nature and scope of NSPI's standards development activities are: to provide recommended minimum guidelines to builders, manufactures, installers and pool operators for the design, equipment, operation and installation of new construction and renovation of pools and spas.
Notice is hereby given that, on September 8, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: NSF International, Ann Arbor, MI. The nature and scope of NSF's standards development activities are: public health safety and environmental standards including, but not limited to: food additives and contaminants (chemical and microbiological), commercial and household food service equipment (powered, preparation, storage, and service products), food processing equipment; water quality and treatment, drinking water additives, drinking water treatment systems, commercial bottled water, home treatment devices, beverage treatment technologies; plumbing products, plastic pipe; recreational water standards, swimming pool, spa, and hot tubs and related equipment; waste water treatment systems (small, commercial, and home treatment systems and technologies), biosolids quality and treatment, waste water additives; air quality, product emissions and filtration equipment; and related management system standards.
Additional information concerning NSF may be obtained from Jane Wilson, Manager, Standards, NSF International at (734) 827-6835.
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and SRC intends to file additional written notification disclosing all changes in membership.
On January 7, 1985, SRC filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 6, 2001. A notice was published in the
Notice is hereby given that, ,on September 20, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Society of Cable Telecommunications Engineers, Exton, PA. The nature and scope of SCTE's standards development activities are: the development of standards, specifications, and technical reports in the field of cable telecommunications. Standardization topics include, but are not limited to, definitions and terminology; methods of measurement and test; products; systems, technology rating structures; thermal limits and applications guides; recommended practices; materials; and safety.
Notice is hereby given that, on August 12, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: The Telecommunications Industry Association, Arlington, VA. The nature and scope of TIA's standards development activities are: TIA is accredited by the American National Standards Institute (“ANSI”) to develop voluntary industry standards for a wide variety of telecommunications products. TIA's Standards and Technology Department is composed of five divisions which sponsor more than 70 standards-setting formulating groups in Fiber Optics, User Premises Equipment, Network Equipment, Wireless Communications and Satellite Communications.
Notice is hereby given that, on September 9, 2004, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Theatrical Dealers Association d/b/a Entertainment Services and Technology Association, New York, NY. The nature and scope of ESTA's standards development activities are: The development of technical standards used in the entertainment industry, principally in the live entertainment industry, that promote compatibility among equipment, products, and systems of competing manufacturers or that are designed to prevent unreasonable risks of injury to either persons or property through equipment or products or the manner in which they are to be used.
Notice is hereby given that, on September 14, 2004, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Third Generation Partnership Project 2, Arlington, VA. The nature and scope of 3GPP2's standards development activities are: for the purposes of preparing, approving, and maintaining globally applicable Technical Specifications and Technical Reports for a 3rd Generation Mobile System based on the evolving ANSI-41 Core Network and the relevant radio access technologies to be transposed by the relevant standardization bodies (Organizational Partners) into
Notice is hereby given that, on September 15, 2004, pursuant to section 6(b) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to section 6(b) of the Act, the name and principal place of business of the standards development organization is: Water Quality Association, Lisle, IL. The nature and scope of WQA's standards development activities are: planning, developing, establishing and coordinating voluntary harmonized consensus standards in the water treatment industry, either itself or through cooperative standards making activities with other not for profit standards development organizations.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
The National Aeronautics and Space Administration announces a forthcoming meeting of the NASA Advisory Council (NAC), Space Science Advisory Committee (SScAC), Sun-Earth Connection Advisory Subcommittee (SECAS).
Wednesday, November 3, 2004, 8:30 a.m. to 5:30 p.m., Thursday, November 4, 2004, 8:30 a.m. to 5:30 p.m., and Friday, November 5, 2004, 8:30 a.m. to 3 p.m.
NASA Headquarters, Rooms 6H46 (November 3) and 9H46 (November 4 and 5), 300 E Street, SW., Washington, DC 20546.
Dr. Barbara Giles, Science Mission Directorate, National Aeronautics and Space Administration, Washington, DC 20546, (202) 358-1762,
The meeting will be open to the public up to the capacity of the room. The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Foreign nationals attending this meeting will be required to provide the following information no less than 3 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa/green card information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, phone); title/position of attendee. To expedite admittance, attendees with U.S. citizenship can provide identifying information in advance by contacting Marian Norris via e-mail at
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463 as amended) notice is hereby given that a meeting of the Arts and Artifacts Indemnity Panel of the Federal Council on the Arts and the Humanities will be held at 1100 Pennsylvania Avenue, NW., Washington, DC 20506, in Room 315, from 9 a.m. to 5 p.m., on Monday, November 8, 2004.
The purpose of the meeting is to review applications for Certificates of Indemnity submitted to the Federal Council on the Arts and the Humanities for exhibitions beginning after January 1, 2005.
Because the proposed meeting will consider financial and commercial data and because it is important to keep values of objects, methods of transportation and security measures confidential, pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings, dated July 19, 1993, I have determined that the meeting would fall within exemption (4) of 5 U.S.C. 552(b) and that it is essential to close the meeting to protect the free exchange of views and to avoid interference with the operations of the Committee.
It is suggested that those desiring more specific information contact Acting Advisory Committee Management Officer, Michael P. McDonald, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, or call (202) 606-8322.
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Public Law 92-463, as amended), notice is hereby given that the following meetings of the Humanities Panel will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Michael McDonald, Acting Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c) (4), and (6) of section 552b of Title 5, United States Code.
Nuclear Regulatory Commission.
Notice of availability.
Donna M. Janda, Nuclear Materials Safety Branch 2, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, Pennsylvania, 19406, telephone (610) 337-5371, fax (610) 337-5269; or by E-mail:
The Nuclear Regulatory Commission (NRC) is issuing a license amendment to Seiko Corporation of America (Seiko) for Materials License No. 29-19080-01, to authorize release of its facility in Mt. Olive, New Jersey for unrestricted use. NRC has prepared an Environmental Assessment (EA) in support of this action in accordance with the requirements of 10 CFR Part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate. The amendment will be issued following the publication of this Notice.
The purpose of the action is to authorize the release of the licensee's Mt. Olive, New Jersey facility for unrestricted use. Seiko was authorized by NRC from 1985 for possession and storage of timepieces, hands, and dials containing radioactive material at the site prior to distribution. On June 9, 2004, Seiko requested that NRC release the facility for unrestricted use. Seiko has conducted surveys of the facility and provided information to the NRC to demonstrate that the site meets the license termination criteria in Subpart E of 10 CFR Part 20 for unrestricted release. Seiko will continue licensed activities at another location.
The NRC staff has prepared an EA in support of the license amendment. The facility was remediated and surveyed prior to the licensee requesting the license amendment. Therefore, the staff considered the impact of the residual radioactivity at the facility and concluded that since the residual radioactivity meets the requirements in Subpart E of 10 CFR Part 20, a Finding of No Significant Impact is appropriate.
The staff has prepared the EA (summarized above) in support of the license amendment to release the facility for unrestricted use. The NRC staff has evaluated Seiko's request and the results of the surveys and has concluded that the completed action complies with the criteria in Subpart E of 10 CFR Part 20. The staff has found that the environmental impacts from the action are bounded by the impacts evaluated by NUREG-1496, Volumes 1-3, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Facilities” (ML042310492, ML042320379, and ML042330385). On the basis of the EA, the NRC has concluded that the environmental impacts from the action are expected to be insignificant and has determined not to prepare an environmental impact statement for the action.
Documents related to this action, including the application and supporting documentation, are available electronically at NRC's Electronic Reading Room at
These documents may be viewed electronically at the NRC Public Document Room (PDR), O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD, 20852. The PDR reproduction contractor will copy documents for a fee. The PDR is open from 7:45 a.m. to 4:15 p.m., Monday through Friday, except on Federal holidays.
For the Nuclear Regulatory Commission.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Pub. L. 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of October 25, 2004:
An Open Meeting will be held on Tuesday, October 26, 2004, at 10 a.m., in Room 1C30, the William O. Douglas Room.
The subject matter of the Open Meeting scheduled for Tuesday, October 26, 2004 will be:
1. The Commission will consider whether to propose new and amended rules and form changes to modify the registration, communications, and offering processes under the Securities Act of 1933 (“Securities Act”). In addition, the proposals would seek to ensure more timely investment information to investors without mandating delays in the offering process and would further integrate disclosure processes under the Securities Act and the Securities Exchange Act of 1934. The proposals would address communications related to registered securities offerings, delivery of information to investors, and procedural restrictions in the offering and capital formation process.
For further information, please contact Amy M. Starr, Consuelo Hitchcock, Andrew Thorpe, Daniel Horwood, or Anne Nguyen, in the Division of Corporation Finance, at (202) 824-5300.
2. The Commission will consider whether to adopt rule 203(b)(3)-2 under the Investment Advisers Act of 1940 to require hedge fund advisers to register with the Commission. The Commission also will consider whether to adopt certain conforming and transitional amendments to rules 203(b)(3)-1, 203A-3, 204-2, 205-3, 206(4)-2, 222-2 and Form ADV.
For further information, please contact Vivien Liu, Senior Counsel, in the Division of Investment Management, at (202) 942-0719.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 942-7070.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Amex Rule 950, “Rules of General Applicability,” and Amex Rule 950-ANTE, “Rules of General Applicability” to allow ratio orders with certain permissible ratio limits, as defined below, to be executed through the Amex. In addition, the Amex proposes to amend Commentary .01 to Amex Rule 950(d) and Commentary .01 to Amex Rule 950-ANTE(d) to include these types of permissible ratio orders in the same exception to the priority rules that Amex Rule 950(d), Commentary .01, and Amex Rule 950-ANTE(d), Commentary .01, currently provide for spread, straddle, and combination orders.
The text of the proposed rule change appears below. Additions are
.01 When a member holding a spread order, a straddle order,
.01 When a member holding a spread order, a straddle order,
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Amex Rules 950(e) and 950-ANTE(e) list and define several types of orders that are executed through the Amex including, among others, three types of complex orders: Spread orders, combination orders, and straddle orders. The Amex proposes to add certain ratio orders within permissible established limits to the list of orders included in Amex Rules 950(e) and 950-ANTE(e). Proposed Amex Rules 950(e)(v) and 950-ANTE(e)(v) would define a ratio order as either a spread, straddle, or combination order in which the stated number of option contracts to buy (sell) is not equal to the stated number of option contracts to sell (buy), provided that the number of contracts differs by a permissible ratio. Under Amex Rules 950(e)(v) and 950-ANTE(e)(v), a permissible ratio would be any ratio that is equal to or greater than one-to-three (.333) or less than or equal to three-to-one (3.0).
Additionally, the Amex proposes to revise paragraph .01 of the Commentary to both Amex Rules 950(d) and 950-ANTE(d) to include these types of permissible ratio orders so that they may be afforded the same exception to the priority rules that Amex Rules 950(d), Commentary .01, and 950-ANTE(d), Commentary .01, currently provide for spread, straddle, and combination orders.
Furthermore, the Amex believes that ratio orders within certain permissible ratios may provide market participants with greater flexibility and precision in effectuating trading and hedging strategies. According to the Amex, including ratio orders in the exception to the priority rules provided in Amex Rules 950(d), Commentary .01, and 950-ANTE(d), Commentary .01, serves to reduce the risk of incomplete or inadequate executions while increasing efficiency and competitive pricing by requiring price improvement before an order can receive priority over other orders.
The Amex believes it is important to include the definition of ratio orders within the ANTE rules because, while spreads cannot currently be executed through the ANTE system, the Amex anticipates that such transactions will be executed through the ANTE system in the future. The ANTE rules currently include definitions of spread, straddle, and combination orders and provide for the priority of these orders in certain circumstances. As discussed above, ratio orders are a form of a spread, straddle or combination order, and the Amex believes that in the interest of consistency it is important to update all of the effected rules, which encompass the ANTE rules. The Amex notes that the Commission recently has approved similar rule amendments and revisions for other options exchanges, including permitting ratio orders to have ratios equal to or greater than one-to-three (.333) or less than or equal to three-to-one (3.0).
The Amex believes that the proposed rule change is consistent with section 6(b) of the Act,
The Amex does not believe that the proposed rule change will impose any
No written comments were solicited or received with respect to the proposed rule change.
The Amex has filed the proposed rule change pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-Amex-2004-77. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to adopt the Exchange's automated limit order display facility (“Autobook”) on a permanent basis. The text of the proposed rule change is set forth below. Deletions are in brackets.
(a) No change
(b)(i)-(vi) No Change.
(vii)
To the extent that there is any inconsistency between the specific obligations of a DPM set forth in subparagraph (b)(i) through (b)(vii) of this Rule and the general obligations of a Floor Broker or of an Order Book Official under the Rules, subparagraph (b)(i) through (b)(vii) of this Rule shall govern.
(c)-(e) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Autobook is an enhancement to the Designated Primary Market-Maker's (“DPM's”) PAR workstation that automatically facilitates the entry of eligible customer limit orders into the limit order book at the end of a configurable period of time provided such limit orders have not previously been addressed manually by the DPM. As such, CBOE believes that Autobook assists and facilitates DPMs' compliance with their regulatory obligation relating to the display of eligible customer limit orders that improve the price or increase the size of the best disseminated CBOE quote as required by CBOE Rule 8.85(b).
On April 18, 2003, the Commission approved the implementation of Autobook on a one-year pilot basis.
The Exchange believes that Autobook has been an effective tool for DPMs in that it has assisted DPMs to comply with their regulatory obligations relating to the display of eligible customer limit orders as required by CBOE rules. Accordingly, CBOE seeks permanent approval of Autobook.
As was previously described in CBOE's rule filing that initiated the Autobook pilot, Autobook does not relieve DPMs of their obligations to book eligible customer limit orders on their PAR workstations immediately per CBOE Rule 8.85.
Autobook is an exchange-mandated facility that operates only on DPM PAR workstations. The appropriate Exchange Committee is responsible for establishing the Autobook timer in all classes under that Committee's jurisdiction, and the timer may not exceed the customer limit order display requirement then in effect on the Exchange. The appropriate Exchange Committee also has the authority to determine whether to utilize Autobook to automatically display any other types of orders that are not subject to CBOE's limit order display requirements.
A DPM may deactivate Autobook as to a class or classes only upon approval by a floor official. The DPM must obtain floor official approval as soon as practicable but in no event later than three minutes from the time of deactivation. If the DPM does not receive approval within three minutes after deactivation, the Exchange will review the matter as a regulatory issue.
The Exchange would continue to conduct surveillance to ensure that DPMs comply with their obligation to execute or book all eligible limit orders as required by CBOE rules. CBOE also commits to conducting surveillance designed to detect whether DPMs as a matter of course rely on Autobook to display eligible limit orders. A practice of excessive reliance upon Autobook would be reviewed by CBOE's Regulatory Division as a possible due diligence violation.
Because Autobook assists and facilitates DPMs' compliance with their regulatory obligations concerning the display of eligible customer limit orders as required by CBOE rules, the Exchange believes that the proposed rule change, as amended, is consistent with section 6(b) of the Act
CBOE does not believe that the proposed rule change, as amended, will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-CBOE-2004-57. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission believes that the proposed rule change is consistent with the requirements of sections 6(b)(5) of the Act
Specifically, the Commission believes that the proposed rule change should help to ensure the availability of information with respect to quotations by assisting DPMs in displaying limit orders in a timely fashion. The Commission notes that Autobook is a tool designed to ensure that all customer limit orders are displayed no later than 30 seconds after receipt. Nonetheless, the Commission emphasizes that its approval of Autobook on a permanent basis does not relieve DPMs of their obligations to immediately display customer limit orders. To that end, the Commission expects the Exchange to actively surveil and appropriately discipline its members for excessive reliance on this tool.
The Commission finds good cause for accelerating approval of the proposed rule change, as amended, prior to the thirtieth day after publication in the
It is therefore ordered, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CBOE proposes to amend its rules regarding limitations on Designated Primary Market-Makers (“DPMs”) putting into effect stop and stop-limit orders. New text is in italics.
(a) Dealer Transactions. Each DPM shall fulfill all of the obligations of a Market-Maker under the Rules, and shall satisfy each of the following requirements in respect of each of the securities allocated to the DPM. To the extent that there is any inconsistency between the specific obligations of a DPM set forth in subparagraphs (a)(i) through (a)(x) of this Rule and the general obligations of a Market Maker under the Rules, subparagraphs (a)(i) through (a)(x) of this Rule shall govern. Each DPM shall:
(i)-(vii) No change.
(viii) Not initiate a transaction for the DPM's own account that would result in putting into effect any stop or stop limit order which may be in the book or which the DPM represents as Floor Broker except with the approval of a Floor Official and when the DPM guarantees that the stop or stop limit order will be executed at the same price as the electing transaction.
(ix)-(xi) No change.
(b)-(e) No change.
* * * Interpretations and Policies:
.01-.04 No change.
In its filing with the Commission, 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. CBOE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CBOE Rule 6.53 defines a stop order as a contingency order to buy (sell) that becomes a market order to buy (sell) when the option contract trades or is bid (offered) at or above (below) the stop price on CBOE. The sender of the stop order determines the stop price. Similarly, a stop-limit order becomes a limit order when the stop price is triggered.
CBOE Rule 8.85(a)(viii) currently prohibits DPMs from initiating a transaction for the DPM's own account that would result in putting into effect any stop or stop-limit order which may be in the book or which the DPM represents as Floor Broker except with the approval of a Floor Official and when the DPM guarantees that the stop or stop-limit will be executed at the same price as the electing transaction.
Currently, stop and stop-limit orders route to PAR terminals in the trading station for representation by the DPM as Floor Broker. This is the case for classes on CBOE's Hybrid trading system and for classes that are not on Hybrid. Thus, DPMs need to monitor for quotes and/or trades at the stop price to ensure that stop orders are properly elected when the stop price is triggered.
CBOE proposes to automate the handling of stop and stop-limit orders as an enhancement to CBOE's Hybrid trading system. According to CBOE, this will involve routing any electronic (non-paper) stop order to the Hybrid system (not to a PAR terminal) which will, in turn, elect the stop or stop-limit order when the stop price is triggered and automatically convert the order to a market order or limit order, as applicable. CBOE states that the purpose of this filing is to provide that the stop and stop-limit order DPM restrictions in CBOE Rule 8.85(a)(viii) should not apply to orders in classes that are on the Hybrid system that are routed to CBOE electronically, and not visible to or handled by the DPM.
CBOE, in general, believes that the restrictions in CBOE Rule 8.85(a)(viii) are overly cumbersome and unnecessary. CBOE believes that the proposed Hybrid stop and stop-limit order handling enhancement will obviate the need for the restrictions in Hybrid classes. The stop and stop-limit orders will reside on the Hybrid system invisibly so that no DPM would know that it is triggering a stop or stop-limit order when with a trade or quote. Since according to the CBOE, the handling of the stop and stop-limit orders will be entirely automated, the DPM will no longer handle the stop order at any point or have any influence to purposefully affect triggering the stop or the ultimate execution price of the order.
CBOE believes that the proposed rule change is consistent with section 6(b) of the Act,
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing,
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. All submissions should refer to File Number SR-CBOE-2004-50. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to amend its rules to clarify that CBOE Designated Primary Market-Makers (“DPMs”) are required to make competitive markets on the Exchange and to otherwise promote the Exchange in a manner that is likely to enhance the ability of the Exchange to compete successfully for order flow in the classes they trade.
Below is the text of the proposed rule change, as amended. Proposed new language is
Market-Makers, Trading Crowds and Modified Trading Systems (Rules 8.1-8.95)
Rule 8.85 (a)-(b) No Change.
(c) Other Obligations. In addition to the obligations described in paragraphs (a) and (b) of this Rule, a DPM shall fulfill each of the following obligations:
(i) Resolve disputes relating to transactions in the securities allocated to the DPM, subject to Floor Official review, upon the request of any party to the dispute;
(ii)
(iii) Promptly inform the MTS Committee of any desired change in the DPM Designees who represent the DPM in its capacity as a DPM and of any material change in the financial or operational condition of the DPM;
(iv) Supervise all persons associated with the DPM to assure compliance with the Rules;
(v) Segregate in a manner prescribed by the MTS Committee the DPM's business and activities as a DPM from the DPM's other businesses and activities; and
(vi) Continue to act as a DPM and to fulfill all of the DPM's obligations as a DPM or the MTS Committee terminates the DPM's approval to act as a DPM pursuant to Rule 8.90.
(d)-(e) No Change.
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 Exchange proposes to amend its rules governing DPMs in order to create an obligation that would require a DPM to make competitive markets on the Exchange and otherwise to promote the Exchange in a manner that is likely to enhance the ability of the Exchange to compete successfully for order flow in the classes it trades. This is identical to an obligation that is currently imposed
This proposed rule language would replace an existing DPM obligation under CBOE Rule 8.85(c)(ii), that is more of a generalized statement of the e-DPM obligation. CBOE Rule 8.85(c)(ii) currently requires a DPM to commit to “provid[ing] high quality markets and services and promot[ing] the Exchange as a marketplace to customers and other market participants * * *.” The Exchange believes that the proposed new language would provide a more specific statement of what is currently expected of a DPM.
Additionally, the CBOE represents that this proposed new language is consistent with the standards of measurement used by the Exchange in determining whether a DPM is meeting its overall market performance standards. CBOE Rule 8.88 (Review of DPM Operations and Performance) requires the Exchange's Modified Trading System Appointments Committee (“MTS Committee”) to conduct an annual review of a DPM's operations and performance. Under CBOE Rule 8.88, the review shall include an evaluation of how a DPM has acted to make the Exchange competitive with other markets trading the same securities as those allocated to the DPM, taking into account the Exchange's market share in those allocated securities. In addition to making the DPM and e-DPM obligations more uniform, this proposal amends CBOE Rule 8.85(c) (Other Obligations) to expressly state that a DPM has the obligation to act to meet the levels of market performance that are currently expected of a DPM and that the MTS Committee currently considers when reviewing a DPM's market performance.
By clarifying a DPM's obligations and making them more consistent with the obligations required of e-DPMs, the Exchange believes that this proposed rule change, as amended, is consistent with section 6(b) of the Act,
The CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-CBOE-2004-25. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its membership dues and fees schedule (the “Fee Schedule”), to bill its floor brokers for certain network and connectivity charges.
The text of the proposed rule change is available upon request at the CHX or the Commission.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CHX floor brokers and their institutional customers use the NYFIX networks to route orders and process trade-related data. These types of networks are becoming an increasingly important tool for floor brokers as the institutional brokerage community continues to increase its use of technology.
Although the Exchange currently pays the network and connectivity charges associated with NYFIX, the Exchange believes that it is appropriate for its floor brokers who use these services to begin paying for a significant percentage of these costs.
At the same time, the Exchange would establish a separate connectivity charge credit, which would provide each floor broker firm that uses the networks with a credit of the firm's share of $15,000.
These fee changes are designed to take effect on October 1, 2004.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received written comments with respect to the proposed rule change.
The Exchange asserts that the foregoing proposed rule change has become effective upon filing pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-CHX-2004-33. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Act of 1934 (“Act”)
NASD is proposed to amend NASD Rule 2860 to provide an exemption from stock options position limits for OTC Derivatives Dealers provided that certain conditions have been satisfied. Below is the text of the proposed rule change. Proposed new language is in
(a) No Change.
(A) through (Q) No Change.
Current (R) through (FF) Renumbered as (S) through (GG).
Current (GG) through (BBB) Renumbered as (II) through (DDD).
(A) Stock Options—Except in highly unusual circumstances, and with the prior written approval of NASD pursuant to the Rule 9600 Series for good cause shown in each instance, no member shall effect for any account in which such member has an interest, or for the account of any partner, officer, director or employee thereof, or for the account of any customer, non-member broker, or non-member dealer, an opening transaction through Nasdaq, the over-the-counter market or on any exchange in a stock option contract of any class of stock options if the member has reason to believe that as a result of such transaction the member or partner, officer, director or employee thereof, or customer, non-member broker, or non-member dealer, would, acting along or in concert with others, directly or indirectly, hold or control or be obligated in respect of an aggregate equity options position in excess of:
(i) through (vi) No Change.
(vii) Equity Options Hedge Exemptions
a. No Change.
(viii) No change.
(B) through (D) No Change.
(4) through (24) No Change.
In its filing with the Commission, NASD included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it had received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASD has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Over the past several years, NASD has increased in absolute terms the size of the options position and exercise limits as well as the size and scope of available exemptions for “hedged” positions.
In 1998, the Commission approved rules allowing U.S. securities firms to establish a separately capitalized entity to engage in dealer activities in eligible over-the-counter (“OTC”) derivative instruments.
In June 2003, NASD received a request on behalf of several member firms affiliated with OTC Derivatives Dealers to amend its rule imposing stock options position and exercise limits so that it applied only to a stock options position's net delta.
NASD believes that the rigor of the OTC Derivatives Dealer approval process and the ongoing oversight by the Commission staff provides an appropriate basis for exempting delta neutral positions in stock options at such entities from position limits. The proposed rule change would exempt from NASD Rule 2860 delta neutral stock options positions of an OTC Derivatives Dealer and would provide that only the option contract equivalent of the net delta of a stock options position is subject to position limits provided that the member satisfies three conditions.
The first condition would require a member to receive a written representation from its affiliated OTC Derivatives Dealer stating that the OTC Derivatives Dealer is hedging its stock options positions in accordance with risk management and pricing models approved by the Commission. This written representation would enable NASD to identify those firms that will be relying on the delta hedging exemption on behalf of their OTC Derivatives Dealer affiliates and would be required to be maintained in accordance with the recordkeeping provisions of NASD Rule 3110.
The second condition would require that the member must report stock options positions of the OTC Derivatives Dealer, including those that are delta neutral, in accordance with NASD Rule 2860(b)(5). These reports would inform NASD of the OTC Derivatives Dealer's aggregate stock options positions and permit NASD to conduct surveillance for market manipulation, insider trading, and other trading abuses.
The third condition would provide that any stock options position that is not delta neutral must remain subject to position and, by extension, exercise limits (subject, however, to the availability of other exemptions). An OTC Derivatives Dealer generally employs delta hedging as part of its risk management program, but it is nevertheless possible that an OTC Derivatives Dealer may maintain some positions that are not fully hedged, so long as the entity as a whole meets the conditions imposed by the Commission. In such cases, only the option contract equivalent of the “net delta” of any such stock options positions, which is the net delta divided by 100, would be subject to position limits. This calculation of an options contract equivalent conforms to existing NASD Rule 2860(b)(2)(JJ), which provides that, for purposes of subparagraphs (3) through (12) of NASD Rule 2860(b), a stock option overlying more or less than 100 shares “shall be deemed to constitute as many option contracts as that other number of shares divided by 100 (
It is important to note that, for purposes of the proposed rule change, only financial instruments relating to the stock underlying a stock options position could be included in any determination of a stock options position's net delta or whether the stock options position is delta neutral. For example, warrants granting the right to purchase Microsoft stock might be used to offset the risk associated with a position in Microsoft puts granting the holder the right to sell Microsoft stock. However, for purposes of the proposed rule change, a position in Microsoft calls granting the holder the right to purchase Microsoft stock may not be hedged by puts (or any other financial instrument) overlying any security other than Microsoft stock.
NASD will announce the effective date of the proposed rule change in a
NASD believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change could result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2004-153. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is filing a proposed rule change with the Commission to provide Order Delivery electronic communication networks (“ECNs”) in the Nasdaq Market Center the ability to enter attributable Summary Orders—an order type that rejects back to the entering party if the order would lock or cross the best bid or best offer displayed in the Nasdaq Market Center.
Unless stated otherwise, the terms described below shall have the following meaning:
(a)—(nn) No Change.
(oo) The term “Summary” shall mean, for priced limit orders so designated, that if an order is marketable upon receipt by the Nasdaq Market Center, it shall be rejected and returned to the entering party. Summary Orders may only be entered by Order-Delivery ECNs. [Summary Orders may only be designated as Non-Attributable Orders.]
(pp)-(uu) No Change.
(a) Non-Directed Orders—
(1) General. The following requirements shall apply to Non-Directed Orders Entered by Nasdaq Market Center Participants:
(A) No Change.
(B) A Non-Directed Order must be a market or limit order, must indicate whether it is a buy, short sale, short-sale exempt, or long sale, and may be designated as “Immediate or Cancel,” “Day,” “Good-till-Cancelled,” “Auto-Ex,” “Fill or Return,” “Pegged,” “Discretionary,” “Sweep,” “Total Day,” “Total Good till Cancelled,” “Total Immediate or Cancel,” or “Summary.”
(i) through (xii) No Change.
(xiii) An order may be designated as “Summary,” in which case the order shall be designated either as Day or GTC. A Summary Order that is marketable upon receipt by the Nasdaq Market Center shall be rejected and returned to the entering party. If not marketable upon receipt by the Nasdaq Market Center, it will be retained by the system. Summary Day and GTC orders shall be executed prior to the market open if required under Rule 4710(b)(3)(B). Summary Orders may only be entered by Order-Delivery ECNs. [Summary Orders may only be designated as Non-Attributable Orders.]
(C)-(F) No Change.
(2) No Change.
(A) through (B) No Change.
(b)-(e) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to allow Order Delivery ECNs participating in the Nasdaq Market Center to enter attributable Summary Orders. Summary Orders, in essence, provide a warning that the price of the order would lock or cross the best prices then displayed in the Nasdaq Market Center by rejecting such an order back to the entering party. If the Summary Order does not lock or cross the best price, it is retained by the system for normal processing. Today, the use of Summary Orders is restricted to Nasdaq Order Delivery ECNs and such orders may only be used to enter Non-Attributable Orders into SIZE.
Under current Nasdaq Market Center processing, quotes already provide the lock/cross warning via rejection attributes of the Summary Order. Orders that are not designated as Summary, however, do not provide similar lock/cross warning capabilities and are considered immediately executable indications of trading interest that would be executed by the system if they locked or crossed the Nasdaq inside market. As such, Order Delivery ECNs generally refrain from using orders when displaying trading interest in the Nasdaq Market Center and instead aggregate multiple orders at their best price level and submit them to Nasdaq using a single aggregated quote. In turn, this aggregation increases internal processing complexity for ECNs that must convert and combine individual orders residing in their systems into a single quote and then appropriately parcel out subsequent order deliveries against that quote back to individual subscribers.
The ability to receive a warning via order rejection when entering a locking or crossing order is an important component in providing Nasdaq Order Delivery ECNs control over how their orders are processed in the Nasdaq Market Center so as to manage executions taking place in their own systems as well in the Nasdaq Market Center. This control is particularly important to ECNs that act exclusively as agents and seek to avoid dual liability for multiple executions against the same single share amount displayed simultaneously, and potentially accessible, in the Nasdaq Market Center as well as the ECNs own internal book. As noted above, lock or cross warnings are available today to ECNs when they represent trading interest in Nasdaq using quotes. Nasdaq believes that the current limitation on using Summary Orders only to place Non-Attributable Orders in SIZE restricts the ability of Nasdaq Order Delivery ECNs that, in lieu of quotes, may desire to provide multiple orders at the same price level to Nasdaq and have such orders attributed to them through a displayed MPID. Expansion of the Summary Order to allow the entry of attributable orders by ECNs that desire to enter multiple orders at multiple price levels into the Nasdaq Market Center ensures that such orders behave in a manner similar to quotes by providing for the rejection of locking or crossing trading interest as well as having that trading interest associated with the identity of the entering ECN via an attributable MPID. For ECNs that currently aggregate their customers' trading interest and submit it combined in a single quote, Summary Orders can provide a simplified, and less technologically burdensome, method to pass such orders individually to the Nasdaq Market Center and thereafter track and reconcile any resulting transactions with their own internal execution and order management systems while continuing to have such orders publicly associated with the entering ECN via attribution similar to quotes.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
The proposed rule change has been designated by Nasdaq as a “non-controversial” rule change pursuant to section 19(b)(3)(A) of the Act
The foregoing rule change: (1) Does not significantly affect the protection of investors or the public interest, (2) does not impose any significant burden on competition, and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, and the NASD gave the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change. Consequently, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act,
Pursuant to Rule 19b-4(f)(6)(iii),
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form Please include File Numb
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File No. SR-NASD-2004-143. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All submissions should refer to File Number SR-NASD-2004-143 and should be submitted on or before November 12, 2004.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to modify the bid price compliance periods on the Nasdaq
Nasdaq will implement the proposed rule change relating to compliance periods effective January 1, 2005, upon expiration of the existing pilot rules. Nasdaq will implement the proposed rule change relating to continued listing requirements for bid price and market value of listed securities for non-U.S. issuers effective 18 months after approval by the Commission.
The text of the proposed rule change is below. Proposed new language is in italics; proposed deletions are in brackets.
To qualify for inclusion in Nasdaq, a security of a domestic or Canadian issuer will satisfy all applicable requirements contained in paragraphs (a) or (b), and (c) hereof.
(a) No change.
(b) No change.
(c) In addition to the requirements contained in paragraph (a) or (b) above, and unless otherwise indicated, a security will satisfy the following criteria for inclusion in Nasdaq:
(1)-(7) No change.
(8)(A)-(C) No change.
(D) A failure to meet the continued inclusion requirement for minimum bid price on The Nasdaq SmallCap Market shall be determined to exist only if the deficiency continues for a period of 30 consecutive business days. Upon such failure, the issuer shall be notified promptly and shall have a period of 180 calendar days from such notification to achieve compliance. If the issuer has not been deemed in compliance prior to the expiration of the 180 day compliance period, it shall be afforded an additional 180 day compliance period, provided that on the 180th day of the first compliance period, the issuer demonstrates that it meets the criteria for initial inclusion set forth in Rule 4310(c) (except for the bid price requirement set forth in Rule 4310(c)(4)) based on the issuer's most recent public filings and market information. If the issuer has publicly announced information (
[If on the 180th day of the second compliance period, the issuer has not been deemed in compliance during such compliance period but it satisfies the criteria for initial inclusion set forth in Rule 4310(c) (except for the bid price requirement set forth in Rule 4310(c)(4)), the issuer shall be provided with an additional compliance period up to its next shareholder meeting scheduled to occur no later than two years from the original notification of the bid price deficiency, provided the issuer commits to seek shareholder approval at that meeting for a reverse stock split to address the bid price deficiency. If the issuer fails to timely propose, or obtain approval for, or promptly execute the reverse stock split, Nasdaq shall immediately institute delisting proceedings upon such failure. Compliance can be achieved during any compliance period by meeting the applicable standard for a minimum of 10 consecutive business days.] Compliance can be achieved during any compliance period by meeting the applicable standard for a minimum of 10 consecutive business days.
(E) No change.
(9)-(29) No change.
(d) No change.
To qualify for inclusion in Nasdaq, a security of a non-Canadian foreign issuer, an American Depositary Receipt (ADR) or similar security issued in respect of a security of a foreign issuer shall satisfy the requirements of paragraphs (a), (b) or (c), and (d) and (e) of this Rule.
(a)-(d) No change.
(e) In addition to the requirements contained in paragraphs (a), (b) or (c), and (d), the security shall satisfy the criteria set out in this subsection for inclusion in Nasdaq. In the case of ADRs, the underlying security will be considered when determining the ADR's qualification for initial or continued inclusion on Nasdaq.
(1) No change.
(2)(A) For initial inclusion, [the issue shall have a minimum bid price of $4 and]the issuer shall have:
(i)-(iii) No change.
(B)-(D) No change.
(3)-(4) No change.
(5) There shall be at least 1,000,000 publicly held shares for initial inclusion and 500,000 publicly held shares for continued inclusion. For initial inclusion, such shares shall have a market value of at least $5 million.
(6)-(25) No change.
(f) No change.
After designation as a Nasdaq National Market security, a security must substantially meet the criteria set forth in paragraphs (a) or (b), and (c), (d), (e), (f), (g), (h) or (i) below to continue to be designated as a national market system security. A security maintaining its designation under paragraph (b) need not also be in compliance with the quantitative maintenance criteria in the Rule 4300 series.
(a)-(d) No change.
(e) Compliance Periods
(1) No change.
(2) A failure to meet the continued inclusion requirement for minimum bid price shall be determined to exist only if the deficiency continues for a period of 30 consecutive business days. Upon such failure, the issuer shall be notified promptly and shall have a period of 180 calendar days from such notification to achieve compliance. [If the issuer has not been deemed in compliance prior to the expiration of the 180 day compliance period, it shall be afforded an additional 180 day compliance period, provided, that on the 180th day following the notification of the deficiency, the issuer demonstrates that it meets the criteria for initial inclusion set forth in Rule 4420 (except for the bid price requirement set forth in Rule 4420(a)(4), (b)(4) or (c)(3)) based on the issuer's most recent public filings and market information. If the issuer has publicly announced information (
If the issuer has not been deemed in compliance 45 calendar days before the expiration of the second 180 day compliance period, the Listing Qualifications Department shall issue a letter (the “Staff Warning Letter”), notifying the issuer of its non-compliance, the pending expiration of the compliance period, and its right to request a hearing. The issuer must request a hearing within seven calendar days of the date of the Staff Warning Letter in order to preserve its right to review pursuant to Rule 4820. If the issuer requests a hearing, the hearing shall be scheduled for a date promptly following the expiration of the compliance period. If the issuer fails to request a hearing and does not regain compliance prior to the expiration of the compliance period, it shall be delisted immediately following the compliance period with no further opportunity for a hearing.] Compliance can be achieved during any compliance period by meeting the applicable standard for a minimum of 10 consecutive business days [during the applicable compliance period].
Nasdaq may, in its discretion, require an issuer to maintain a bid price of at least $1.00 per share for a period in excess of ten consecutive business days, but generally no more than 20 consecutive business days, before determining that the issuer has demonstrated an ability to maintain long-term compliance. In determining whether to monitor bid price beyond ten business days, Nasdaq shall consider the following four factors: (i) Margin of compliance (the amount by which the price is above the $1.00 minimum standard); (ii) trading volume (a lack of trading volume may indicate a lack of bona fide market interest in the security at the posted bid price); (iii) the market maker montage (the number of market makers quoting at or above $1.00 and the size of their quotes); and, (iv) the trend of the stock price (is it up or down).
(3)-(4) No change.
(f)-(h) No change.
(i) Transfers between The Nasdaq National and SmallCap Markets For Bid Price Deficient Issuers
(1) If a National Market issuer has not been deemed in compliance prior to the expiration of [a]
(2) Following a transfer to The Nasdaq SmallCap Market pursuant to paragraph (1), a [domestic or Canadian] Nasdaq National Market issuer will be afforded the remainder of any compliance period set forth in Rule 4310(c)(8)(D)
(a) An issuer may, within seven calendar days of [the earlier of] the date of the Staff Determination [or the Staff Warning Letter referenced in Rule 4450(e)], request either a written or oral hearing to review the Staff Determination. Requests for hearings should be filed with The Nasdaq Office of Listing Qualifications Hearings (the “Hearings Department”). A request for a hearing shall stay the delisting action pending the issuance of a written determination by a Listing Qualifications Panel. If no hearing is requested within the seven calendar day period, the right to request review is waived, and the Staff Determination shall take immediate effect. All hearings shall be held before a Listing Qualifications Panel as described in Rule 4830. All hearings shall be scheduled, to the extent practicable, within 45 days of the date that the request for hearing is filed, at a location determined by the Hearings Department. The Hearings Department shall make an acknowledgment of the issuer's hearing request stating the date, time and location of the hearing, and the deadline for written submissions to the Listing Qualifications Panel. The issuer shall be provided at least 10 calendar days notice of the hearing unless the issuer waives such notice.
(b)-(c) No change.
No change.
No change.
No change.
[In addition, Rule 4450(b)(4), which applies only to issues qualifying for the Nasdaq National Market under maintenance standard 2, provides that for an issue to remain eligible for continued inclusion in the Nasdaq National Market, the minimum bid price shall be $5.]
[The bid price requirement establishes a minimum bid price for issues trading on Nasdaq. An issue is subject to delisting from Nasdaq if its bid price falls below $1. In addition, certain issues are subject to delisting from the Nasdaq National Market if their bid price falls below $5.]
The bid price rules must be thoroughly considered because the characteristics of Future Priced Securities often exert downward pressure on the bid price of the issuer's common stock. Specifically, dilution from the discounted conversion of the Future Priced Security may result in a significant decline in the price of the common stock. Furthermore, there appear to be instances where short selling has contributed to a substantial price decline, which, in turn, could lead to a failure to comply with the bid price requirement. * * *
No change.
No change.
No change.
Footnote to IM-4350-1: * * * If used to manipulate the price of the stock, short selling by the holders of the Future Priced Security is prohibited by the antifraud provisions of the securities laws and by NASD Rules and may be prohibited by the terms of the placement.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq rules relating to the minimum bid price requirement were approved on a pilot basis by the Commission in February 2002 and modified in March and December 2003.
Similarly, the current pilot provides 180 calendar days for a SmallCap Market issuer to regain compliance. Upon the expiration of the first 180-day grace period, an issuer satisfying all initial listing criteria is eligible for an additional grace period of 180 days. Thereafter, an issuer can receive a third grace period, up to the time of its next shareholders meeting (but not more than two years from the original notice of deficiency), if the issuer agrees to seek shareholder approval for a reverse stock split at that meeting and to implement the reverse stock split promptly afterward.
Having reviewed its experiences under the pilot program, Nasdaq now proposes to modify the pilot rules and seek permanent approval of the revised rules. Nasdaq believes the time frames contained in the proposed rule, while shorter than those of the pilot rule, would allow sufficient time for issuers to execute a plan to regain compliance with the bid price rules. Nasdaq further believes that the proposed rule will simplify the administration of bid price deficiencies.
The proposed rules would provide a SmallCap Market issuer with an initial 180-calendar-day period to regain compliance. Thereafter, the issuer could receive an additional 180-day grace period if it complied with all initial inclusion requirements except bid price. A National Market issuer would be provided 180 days to regain compliance on the National Market, after which it could transfer to the SmallCap Market if it complied with all SmallCap initial inclusion requirements except for bid price.
An issuer in a compliance period under the pilot rules at the time the proposed rules are effective would get to finish that period, but must thereafter satisfy the proposed rules. Thus, for example, on January 1, 2005, when the proposed rules would be effective, a Nasdaq National Market issuer that is on day 120 of its second 180-day compliance period under the pilot program would be entitled to remain on the National Market for an additional 60 days to complete that compliance period; however, at the end of that period, the issuer would not be entitled to any additional time to regain compliance, nor would it be eligible to transfer to the Nasdaq SmallCap Market because the issuer would have been below the bid price requirement for a longer period than permitted under the proposed rules. The following chart provides further examples of what would happen to issuers in compliance periods under the pilot rules on January 1, 2005:
Finally, Nasdaq
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act
Nasdaq does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609.
All submissions should refer to File Number SR-NASD-2004-147. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Department of State.
Notice.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, (202) 619-5997, and the address is United States Department of State, SA-44, Room 700, 301 4th Street, SW., Washington, DC 20547-0001.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459),Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, Department of State (telephone: (202) 619-6981). The address is Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
The program, which should be six weeks in length, will be conducted during the Summer of 2005 and must include an academic residency segment of at least four weeks duration at a U.S. college or university campus (or other appropriate location) and a study tour segment of not more than two weeks that should not only directly complement but also extend the learning process undertaken during the academic residency segment.
This Study of the U.S. Institute should provide a multinational group of up to 30 experienced foreign secondary school educators (including teacher trainers, curriculum developers and education ministry officials) with a deeper understanding of U.S. society and culture, past and present. The institute should be organized around a central theme or themes in U.S. civilization and should have a strong contemporary component. Through a combination of traditional, multi-disciplinary and interdisciplinary approaches, program content should be imaginatively integrated in order to elucidate the history and evolution of U.S. institutions and values, broadly defined. The program should also serve to illuminate contemporary political, social, and economic debates in American society.
Institutes are intended to offer foreign scholars, ministry officials, curricula designers and teachers whose professional work focuses in whole or in substantial part on the United States the opportunity to deepen their understanding of American society, culture and institutions. Their ultimate goal is to strengthen curricula and to improve the quality of teaching about the U.S. in institutions of higher learning and secondary school systems abroad.
Programs should be six weeks in length and must include an academic residency segment of at least four weeks duration at a U.S. college or university campus (or other appropriate location). A study tour segment of not more than two weeks should also be planned and should not only directly complement but should also extend the learning gained during the academic residency segment; the study tour should include visits to one or two additional regions of the United States.
The project director or one of the key program staff responsible for the academic program must have an advanced degree in one of the fields listed above. Staff escorts traveling under the cooperative agreement must have demonstrated qualifications for this service. Programs must conform with Bureau requirements and guidelines outlined in the Solicitation Package. Bureau programs are subject to the availability of funds.
All institutes should be designed as intensive, academically rigorous seminars intended for an experienced group of fellow scholars from outside the United States. The institutes should be organized through an integrated series of lectures, readings, seminar discussions, regional travel and site visits, and they should also include some opportunity for limited but well-directed independent research. Applicants are encouraged to design thematically coherent programs in ways that draw upon the particular strengths, faculty and resources of their institutions as well as upon the nationally recognized expertise of scholars and other experts throughout the United States. All Study of the United States Institute programs, regardless of their particular thematic focus, should seek to:
1. Bring an interdisciplinary or multi-disciplinary focus to bear on the program content;
2. Provide participants with a variety of scholarly viewpoints on any given topic or focus. This includes providing participants with an understanding of how prevailing academic practice in the various disciplines used in the institute represent both a continuation of and a departure from past scholarly trends and practices. It is expected that presenters from other institutions will be brought in, as appropriate. Please note that the ways these alternative schools of thought will be presented should be clearly described in the proposal;
3. Give participants a multi-dimensional examination of U.S. society and institutions that reflects a broad and balanced range of perspectives and responsible views. Programs should include the views not only of scholars, cultural critics and public intellectuals, but also those of other professionals such as government officials, journalists and others who can substantively contribute to the topics at issue; and,
4. Ensure access to library and material resources that will enable grantees to continue their research, study and curriculum development upon returning to their home institutions.
Participants will be diverse in terms of age, professional position, and travel experience abroad. Participants can be expected to come from educational institutions where the study of the U.S. is relatively well-developed as well as from institutions that are just beginning to introduce courses and programs focusing on the United States. While participants may not have in-depth knowledge of the particular institute program theme, they will likely have had exposure to the relevant discipline and some experience teaching about the United States.
Participants will be drawn from all regions of the world and will be fluent in the English language.
Participants will be nominated by Fulbright Commissions and by U.S. Embassies abroad. A final list of participants will be sent to the host institution. Host institutions do not participate in the selection of participants.
In a cooperative agreement, ECA/A/E/USS is substantially involved in program activities above and beyond routine grant monitoring. ECA/A/E/USS activities and responsibilities for this program are as follows: ECA/A/E/USS will participate in the selection of participants, will exercise oversight through one or more site visits and will debrief participants. ECA/A/E/USS may also require changes in the content of the program as well as the activities proposed either before or after the grant is awarded.
Applications may be submitted by public and private non-profit organizations meeting the provisions described in Internal Revenue Code section 26 U.S.C. 501(c)(3).
There is no minimum or maximum percentage required for this competition. However, the Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
When cost sharing is offered, it is understood and agreed that the applicant must provide the amount of cost sharing as stipulated in its proposal and later included in an approved grant agreement. Cost sharing may be in the form of allowable direct or indirect costs. For accountability, you must maintain written records to support all costs which are claimed as your contribution, as well as costs to be paid by the Federal government. Such records are subject to audit. The basis for determining the value of cash and in-kind contributions must be in accordance with OMB Circular A-110, (Revised), Subpart C.23—Cost Sharing and Matching. In the event you do not provide the minimum amount of cost sharing as stipulated in the approved budget, ECA's contribution will be reduced in like proportion.
(a) Bureau grant guidelines require that organizations with less than four years experience in conducting international exchanges be limited to $60,000 in Bureau funding. ECA anticipates awarding one grant, in an amount up to $325,000 to support program and administrative costs required to implement this exchange program. Therefore, organizations with less than four years experience in conducting international exchanges are ineligible to apply under this competition. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
(b) Technical Eligibility: All proposals must comply with the following: The project director or one of the key program staff responsible for the academic program must have an advanced degree in one of the following fields: political science, international relations, law, history, sociology, literature, American studies, and/or other disciplines or sub-disciplines related to the program themes.
Please read the complete
Please contact the Branch for the Study of the U.S., ECA/A/E/USS, Room Number 252, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone number (202) 619-4557 and fax number (202) 619-6790, e-mail
The Solicitation Package contains the Proposal Submission Instruction (PSI) document which consists of required application forms, and standard guidelines for proposal preparation.
It also contains the Project Objectives, Goals and Implementation (POGI) document, which provides specific information, award criteria and budget instructions tailored to this competition.
Please specify Program Officer Nancy L. Meyers and refer to the Funding Opportunity Number ECA/A/E/USS-05-02-SE2 located at the top of this announcement on all other inquiries and correspondence.
The entire Solicitation Package may be downloaded from the Bureau's Web site at
Applicants must follow all instructions in the Solicitation Package. The original and thirteen (13) copies of the application should be sent per the instructions under IV.3e. “Submission Dates and Times section” below.
You are required to have a Dun and Bradstreet Data Universal Numbering System (DUNS) number to apply for a grant or cooperative agreement from the U.S. Government. This number is a nine-digit identification number, which uniquely identifies business entities. Obtaining a DUNS number is easy and there is no charge. To obtain a DUNS number, access
All proposals must contain an executive summary, proposal narrative and budget.
Please Refer to the Solicitation Package. It contains the mandatory Proposal Submission Instructions (PSI) document and the Project Objectives, Goals and Implementation (POGI) document for additional formatting and technical requirements.
You must have nonprofit status with the IRS at the time of application. If your organization is a private nonprofit which has not received a grant or cooperative agreement from ECA in the past three years, or if your organization received nonprofit status from the IRS within the past four years, you must submit the necessary documentation to verify nonprofit status as directed in the PSI document. Failure to do so will cause your proposal to be declared technically ineligible.
Please take into consideration the following information when preparing your proposal narrative:
The Bureau of Educational and Cultural Affairs is placing renewed
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
Please refer to Solicitation Package for further information.
Pursuant to the Bureau's authorizing legislation, programs must maintain a non-political character and should be balanced and representative of the diversity of American political, social, and cultural life. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Please refer to the review criteria under the ‘Support for Diversity' section for specific suggestions on incorporating diversity into your proposal. Public Law 104-319 provides that “in carrying out programs of educational and cultural exchange in countries whose people do not fully enjoy freedom and democracy,” the Bureau “shall take appropriate steps to provide opportunities for participation in such programs to human rights and democracy leaders of such countries.” Public Law 106—113 requires that the governments of the countries described above do not have inappropriate influence in the selection process. Proposals should reflect advancement of these goals in their program contents, to the full extent deemed feasible.
Proposals must include a plan to monitor and evaluate the project's success, both as the activities unfold and at the end of the program. The Bureau recommends that your proposal include a draft survey questionnaire or other technique plus a description of a methodology to use to link outcomes to original project objectives. The Bureau expects that the grantee will track participants or partners and be able to respond to key evaluation questions, including satisfaction with the program, learning as a result of the program, changes in behavior as a result of the program, and effects of the program on institutions (institutions in which participants work or partner institutions). The evaluation plan should include indicators that measure gains in mutual understanding as well as substantive knowledge.
Successful monitoring and evaluation depend heavily on setting clear goals and outcomes at the outset of a program. Your evaluation plan should include a description of your project's objectives, your anticipated project outcomes, and how and when you intend to measure these outcomes (performance indicators). The more that outcomes are “smart” (specific, measurable, attainable, results-oriented, and placed in a reasonable time frame), the easier it will be to conduct the evaluation. You should also show how your project objectives link to the goals of the program described in this RFGP.
Your monitoring and evaluation plan should clearly distinguish between program
We encourage you to assess the following four levels of outcomes, as they relate to the program goals set out in the RFGP (listed here in increasing order of importance):
1.
2.
3.
4.
Consideration should be given to the appropriate timing of data collection for each level of outcome. For example, satisfaction is usually captured as a short-term outcome, whereas behavior and institutional changes are normally considered longer-term outcomes.
Overall, the quality of your monitoring and evaluation plan will be judged on how well it (1) specifies intended outcomes; (2) gives clear descriptions of how each outcome will be measured; (3) identifies when particular outcomes will be measured; and (4) provides a clear description of the data collection strategies for each outcome (
Because the cooperative agreement prospectively to be awarded under the terms of the present RFGP is likely to be of less than one year's duration, host institutions will not be expected to be able to demonstrate significant specific results in terms of participant behavior or institutional changes during the agreement period. Applicant institutions' monitoring and evaluation plans should, therefore, focus primarily on the first and more particularly the second level of outcomes (learning). ECA/A/E/USS will assume principal responsibility for developing performance indicators and conducting post-institute evaluations to measure changes in participant behavior as a result of the program(s), and effect of the program(s) on institutions, over time.
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
ECA/A/E/USS considers program management, staffing and coordination
IV.3e.1.
Applicants must submit a comprehensive budget for the entire program. Awards may not exceed $325,000. There must be a summary budget as well as breakdowns reflecting both administrative and program budgets. Applicants may provide separate sub-budgets for each program component, phase, location, or activity to provide clarification.
Based on a group of 30 participants, the total Bureau-funded budget (program and administrative) for this program should be up to approximately $325,000, and Bureau-funded administrative costs as defined in the budget details section of the solicitation package should be up to approximately $100,000.
Justifications for any costs above these amounts must be clearly indicated in the proposal submission. Proposals should try to maximize cost-sharing in all facets of the program and to stimulate U.S. private sector, including foundation and corporate, support. Applicants must submit a comprehensive budget for the entire program. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program, and availability of U.S. government funding.
Please refer to the “POGI” in the Solicitation Package for complete institute budget guidelines and formatting instructions.
(1) Institute staff salary and benefits.
(2) Honoraria for Guest speakers.
(3) Participant per diem.
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
Applicants must follow all instructions in the Solicitation Package.
When preparing your submission please make sure to include one extra copy of the completed SF-424 form and place it in an envelope addressed to “ECA/EX/PM”.
The original and thirteen(13) copies of the application should be sent to: U.S. Department of State, SA-44, Bureau of Educational and Cultural Affairs, Ref.: ECA/A/E/USS-05-02-SE2, Program Management, ECA/EX/PM, Room 534, 301 4th Street, SW., Washington, DC 20547.
Along with the Project Title, all applicants must enter the above Reference Number in Box 11 on the SF-424 contained in the mandatory Proposal Submission Instructions (PSI) of the solicitation document.
Executive Order 12372 does not apply to this program.
Applicants are also requested to submit the “Executive Summary” and “Proposal Narrative” sections of the proposal in text (.txt) format on a PC-formatted disk.
The Bureau will review all proposals for technical eligibility. Proposals will be deemed ineligible if they do not fully adhere to the guidelines stated herein and in the Solicitation Package. All eligible proposals will be reviewed by the program office, as well as the Public Diplomacy section overseas, where appropriate. Eligible proposals will be subject to compliance with Federal and Bureau regulations and guidelines and forwarded to Bureau grant panels for advisory review. Proposals may also be reviewed by the Office of the Legal Adviser or by other Department elements. Final funding decisions are at the discretion of the Department of State's Assistant Secretary for Educational and Cultural Affairs. Final technical authority for assistance awards (cooperative agreements) resides with the Bureau's Grants Officer.
The proposal narrative and appendices should demonstrate the complete integration of the two program modules (academic and experiential) into a single program. Applicants should clearly explain how/why site visits, consultations, reading lists etc. were chosen and how they compliment the academic module and the program as a whole. The program should offer a balanced presentation of the subjects/issues covered, reflecting both the continuity of the American experience as well its diversity and dynamism inherent in it.
As a general proposition, proposals should demonstrate careful planning. The organization and structure of the academic residency component should be clearly delineated. A program syllabus, noting specific sessions and topical readings supporting each academic unit, should be included. The expectation is that these institutes be conducted as intensive graduate-level seminars. Plans for the academic residency segment should, therefore, avoid undue reliance on the “lecture followed by question-and-answer session” format, and incorporate panel presentations, working group assignments, group debates and other modalities designed to foster and encourage active learning and participation by all institute participants.
The study tour travel component should not simply be a tour, but rather an integral and substantive part of the program, reinforcing and complementing the academic component. The proposal should explain how the site visits and
Due to the academic nature of this program, overall objectives can only be met if proposals exhibit originality and substance consonant with the highest standards of American teaching and scholarship. Program design should reflect the main currents as well as the debates within the subject disciplines of each institute. A variety of presenters reflecting diverse backgrounds and viewpoints should be invited to discuss their specific areas of expertise with the participants. Assigned readings likewise should provide opportunities for participants to be exposed to diverse responsible perspectives on the topics and issues to be explored.
Proposals should demonstrate substantive support of the Bureau's policy on diversity. “Diversity” should be interpreted in the broadest sense and encompass differences including, but not limited to ethnicity, race, gender, religion, geographic location, socio-economic status, and disabilities. Applicants are strongly encouraged to adhere to the advancement of this principle both in program administration and in program content. Applicant should highlight instances of diversity in their proposal.
Proposals should include a plan to evaluate the activity's success, both as the activities unfold and at the end of the program. A draft survey questionnaire or other technique plus description of a methodology to use to link outcomes to original project objectives is recommended. Proposals should discuss provisions made for follow-up with returned grantees as a means of establishing longer-term individual and institutional linkages.
The overhead and administrative components of the proposal, including salaries and honoraria, should be kept as low as possible. All other items should be necessary and appropriate.
Proposals should provide evidence of continuous administrative and managerial capacity as well as the means by which program activities and logistical matters will be implemented. Proposed personnel, including faculty and administrative staff as well as outside presenters, should be fully qualified to achieve the project's goals. Library and meeting facilities, housing, meals, transportation and other logistical arrangements should fully meet the needs of participants.
Proposals should demonstrate an institutional record of successful exchange program activities, indicating the experience that the organization and its professional staff have had working with foreign educators. The Bureau will consider the past performance of prior recipients and the demonstrated potential of new applicants.
Final awards cannot be made until funds have been appropriated by Congress, allocated and committed through internal Bureau procedures. Successful applicants will receive an Assistance Award Document (AAD) from the Bureau's Grants Office. The AAD and the original grant proposal with subsequent modifications (if applicable) shall be the only binding authorizing document between the recipient and the U.S. Government. The AAD will be signed by an authorized Grants Officer, and mailed to the recipient's responsible officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review from the ECA program office coordinating this competition.
Terms and Conditions for the Administration of ECA agreements include the following:
Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations.”
Office of Management and Budget Circular A-21, “Cost Principles for Educational Institutions.”
OMB Circular A-87, “Cost Principles for State, Local and Indian Governments.”
OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations.
OMB Circular No. A-102, Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.
OMB Circular No. A-133, Audits of States, Local Government, and Non-profit Organizations
Please reference the following Web sites for additional information:
You must provide ECA with a hard copy original plus two copies of the following reports:
(1) A final program and financial report no more than 90 days after the expiration of the award.
Grantees will be required to provide reports analyzing their evaluation findings to the Bureau in their regular program reports. (Please refer to IV. Application and Submission Instructions (IV.3.d.3) above for Program Monitoring and Evaluation information.)
All data collected, including survey responses and contact information, must be maintained for a minimum of three years and provided to the Bureau upon request.
All reports must be sent to the ECA Grants Officer and ECA Program Officer listed in the final assistance award document.
For questions about this announcement, contact: Branch for the Study of the U.S., ECA/A/E/USS, Room Number 252, ECA/A/E/USS-05-02-SE2, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone number (202) 619-4557 and fax number (202) 619-6790,
All correspondence with the Bureau concerning this RFGP should reference the above title and number ECA/A/E/USS-05-02-SE2.
Please read the complete
The terms and conditions published in this RFGP are binding and may not be modified by any Bureau representative. Explanatory information provided by the Bureau that contradicts published language will not be binding. Issuance of the RFGP does not constitute an award commitment on the part of the Government. The Bureau reserves the right to reduce, revise, or increase proposal budgets in accordance with the needs of the program and the availability of funds. Awards made will be subject to periodic reporting and evaluation requirements per section VI.3 above.
The following Agreements were filed with the Department of Transportation under the provisions of 49 U.S.C. 412 and 414. Answers may be filed within 21 days after the filing of the application.
Department of Transportation.
Notice of order to show cause (2004-10-6).
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Omega Air Holdings, LLC d/b/a Focus Air fit, willing, and able, and awarding it certificates of public convenience and necessity authorizing it to engage in interstate and foreign charter air transportation of property and mail.
Persons wishing to file objections should do so no later than October 28, 2004.
Objections and answers to objections should be filed in Dockets OST-2004-17311 and OST-2004-17312 and addressed to Docket Operations (M-30, Room PL-401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Mr. William M. Bertram, Air Carrier Fitness Division (X-56, Room 6401), U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590, (202) 366-1062.
Federal Aviation Administration, DOT.
Notice of issuance of advisory circular.
This notice announces the issuance of Advisory Circular (AC) 23-21. This advisory circular provides guidance material for the creation and use of airworthiness compliance checklists that can be used when making major alteration to small airplanes. These checklists may be used by Airframe and Powerplant (A&P) mechanics with Inspection Authorization (IA) and by Federal Aviation Administration (FAA) Airworthiness Safety Inspectors (ASIs). The checklists identify the data requirements and their approval methods for several common major
Advisory Circular (AC) 23-21 was issued by the Manager, Small Airplane Directorate on September 30, 2004.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption, part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before November 10, 2004.
You may submit comments identified by DOT DMS Docket Number FAA-2004-18751 by any of the following methods:
• Web site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
Docket: For access to the docket to read background documents or comments received, go to
John Linsenmeyer (202) 267-5174 or Susan Lender (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval of a new information collection, which is summarized below under Supplementary Information. We are required to publish this notice in the
Comments must be submitted on or before December 20, 2004.
You may submit comments identified by DOT DMS Docket Number FHWA-2004-18982 by any of the following methods:
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building,
Docket: For access to the docket to read background documents or comments received, go to
Mamie Smith, (202) 366-2529, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under Supplementary Information. We are required to publish this notice in the
Please submit comments by December 20, 2004.
You may submit comments identified by DOT DMS Docket Number FHWA-2004-18785 by any of the following methods:
• Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Reginald Bessmer, 202-366-2037, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Office of Pipeline Safety, Research and Special Programs Administration, DOT.
Notice; Meetings of the Technical Pipeline Safety Standards Committee and the Technical Hazardous Liquid Pipeline Safety Standards Committee.
Meetings of the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC) will be held on December 14 and 15, 2004, at the Marriott Washington, 1221 22nd Street, NW., Washington, DC. The Office of Pipeline Safety (OPS) will provide briefings on pending rulemakings and regulatory initiatives. The advisory committees will discuss and vote on proposed rulemakings.
Members of the public may attend the meetings at the Marriott Washington, 1221 22nd Street, NW., Washington, DC. The phone number for Marriott reservations is 1-800-228-9290. Reservations by attendees must be received on or before November 22. Priority is given to advisory committee members and State pipeline safety representatives for a limited block of rooms. Any additional information or changes will be posted on the OPS Web page approximately 15 days before the meeting date at
An opportunity will be provided for the public to make short statements on the topics under discussion. Anyone wishing to make an oral statement should notify Jean Milam, (202) 493-0967, not later than November 16, 2004, on the topic of the statement and the length of the presentation. The presiding officer at each meeting may deny any request to present an oral statement and may limit the time of any presentation.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Jean Milam at (202) 493-0967.
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
Cheryl Whetsel, OPS, (202) 366-4431 or Richard Huriaux, OPS, (202) 366-4565, regarding the subject matter of this notice.
The TPSSC and THLPSSC are statutorily mandated advisory committees that advise OPS on proposed safety standards for gas and hazardous liquid pipelines. These advisory committees are constituted in accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. app. 1). The committees consist of 15 members—five each representing government, industry, and the public. The TPSSC and THLPSSC are tasked with determining reasonableness, cost-effectiveness, and practicability of proposed pipeline regulations.
Federal law requires that OPS submit cost-benefit analyses and risk
In addition to the advisory committee meetings, OPS will soon publish a separate notice to announce four public meetings to be held during the week of December 13-17, 2004. These public meetings will include sessions on gas distribution system integrity management, the pipeline operator drug and alcohol program, updates to the operator personnel qualification program, and pipeline safety communications. These public meetings are being scheduled during the same week as the advisory committee meetings to afford members of the advisory committees, state pipeline safety representatives, and the general public the maximum opportunity to attend both the advisory committee meetings and the issue-specific public meetings.
On Tuesday, December 14, 2004, from 8:30 a.m. to 12 p.m. e.s.t., a meeting of the THLPSSC will be held. The agenda includes briefings on the following:
1. American Petroleum Institute (API) Petition—Changes to Liquid Integrity Management Program (IMP).
2. Response Plans for Onshore Oil Pipelines.
3. Direct Assessment for Hazardous Liquid Pipelines (scheduled for VOTE).
On Wednesday, December 15, 2004, from 8:30 p.m. to 12 p.m. e.s.t., the THLPSSC and the TPSSC will meet in joint session. OPS will provide the committees with briefings on the following:
1. Common Ground Alliance.
2. Community and Technical Assistance State Damage Prevention Assessment Briefing.
3. Pipeline Industry Implementation of Public Awareness Programs (scheduled for VOTE).
4. Annual Update of Standards Incorporated by Reference (scheduled for VOTE).
5. Transportation Research Board Report.
6. Passage of Internal Inspection Devices.
On Wednesday, December 15, from 1 p.m. to 5 p.m. e.s.t., a meeting of the TPSSC will be held. The following topics will be discussed:
1. Gas Gathering Line Definition.
2. Direct Assessment for Gas Pipelines.
3. Protocols for Gas Integrity Management Program.
4. Technical Studies by Federal Energy Regulatory Commission and Department of Energy.
49 U.S.C. 60102, 60115.
Pursuant to a trackage rights agreement dated September 30, 2004, between Norfolk Southern Railway Company (NSR) and Delaware and Hudson Railway Company, Inc. (D&H),
The transaction was scheduled to be consummated on or after the anticipated October 8, 2004, effective date of this exemption.
The purpose of the trackage rights is to allow for: (1) The overhead movement between Saratoga Springs and Binghamton of trains by NSR, which are currently handled by D&H for NSR's account between Saratoga Springs and Rouses Point, NY, pursuant to a haulage agreement between NSR and D&H, and (2) movements over D&H's terminal trackage, including within D&H's East Binghamton Yard. Additionally, traffic moved by the trackage rights will be blocked and switched in D&H's East Binghamton Yard pursuant to a switching agreement between NSR and D&H.
As a condition of this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34562, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Richard A. Allen, Zuckert, Scoutt & Rasenberger LLP, 888 Seventeenth Street, Suite 600, Washington, DC 20006-3939.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Pursuant to a trackage rights agreement dated September 30, 2004, between Canadian Pacific Railway Company (CPRC) and Norfolk Southern
The transaction will be consummated on a date mutually agreed in writing between CPRC and NSR, which shall not occur until the effective date of any required Board approval of the petition for exemption filed by D&H in
The purpose of the trackage rights is to allow CPRC to access customers via switching in the Buffalo terminal area, and to interchange traffic with other rail carriers along the Southern Tier Line and in the Buffalo Terminal Area.
As a condition to this exemption, any employees affected by the trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34561, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Terence M. Hynes, Sidley Austin Brown & Wood LLP, 1501 K Street, NW., Washington, DC 20005.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
On October 1, 2004, Delaware and Hudson Railway Company, Inc. (D&H) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 for D&H to discontinue overhead trackage rights over approximately 229.55 miles of railroad line owned and operated by Norfolk Southern Railway Company (NSR) between Lanesboro, PA, and Buffalo, NY. The specific lines proposed for discontinuance by D&H include: (1) NSR's line between milepost 189.8± in Lanesboro, PA, and CP Coles at milepost 210.9± in Binghamton, NY; (2) NSR's Southern Tier Line between milepost 217.0± in Binghamton, NY, and milepost 419.8± in Buffalo, NY; (3) NSR's Bison Running Track between the point of connection with the Southern Tier Line at milepost 419.8± and the point of connection with the lines of CSX Transportation, Inc. (CSXT) at milepost 423.3± in Buffalo, NY (including NSR's SK Yard, which D&H currently operates under an agreement between D&H and Consolidated Rail Corporation dated as of February 1, 1984), a distance of approximately 3.5 miles; and (4) NSR's Howard Street Running Track between the point of connection with the Bison Running Track at milepost 420.15± and the point of connection with the lines of CSXT at milepost 422.3±, a distance of approximately 2.15 miles. D&H will retain trackage rights over NSR's line between milepost 210.9± and milepost 217.0± in Binghamton, NY, because D&H requires the use of that segment for ongoing operations in the Binghamton terminal area.
The interest of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by January 19, 2005.
This proceeding is exempt from environmental reporting requirements under 49 CFR 1105.6(c) and from historic reporting requirements under 1105.8(b).
All filings in response to this notice must refer to STB Docket No. AB-156 (Sub-No. 25X) and must be sent to: (1) Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-001; and (2) Terence M. Hynes, Sidley Austin Brown & Wood LLP, 1501 K Street, NW., Washington, DC 20005. Replies to the petition are due on or before November 10, 2004.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 6406, Short Form Application for Determination for Minor Amendment of Employee Benefit Plan.
Written comments should be received on or before December 20, 2004, to be assured of consideration.
Direct all written comments to Paul Finger Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Larnice Mack at Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, REG-106177-98 (TD 8845), Adequate Disclosure of Gifts (§ 301.6501(c)-1).
Written comments should be received on or before December 20, 2004, to be assured of consideration.
Direct all written comments to Paul Finger, Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Larnice Mack at Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at
The reporting burden contained in § 301.6501(c)-1(f) is reflected in the burden for Form 709, U.S. Gift (and Generation-Skipping Transfer) Tax Return.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking and temporary regulation, REG-209626-93 (TD 8620), Notice, Consent, and Election Requirements Under Sections 411(a)(11) and 417 (§§ 1.411(a)-11T and 1.417(e)-1T).
Written comments should be received on or before December 20, 2004, to be assured of consideration.
Direct all written comments to Paul Finger, Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Larnice Mack at Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending September 30, 2003. Names follow in order of: first name, middle name or initial (if applicable), and last name.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending March 31, 2004. Names follow in order of: last name, first name, and middle name or initial (if applicable).
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending June 30, 2004. Names follow in order of: last name, first name, and middle name (or initial) if applicable.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending September 30, 2004. Names follow in order of: last name, first name, and middle name or initial (if applicable).
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending December 31, 2003.
Names are set in the following order: First name, middle name or initial (if applicable), and last name.
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 November 22, 2004.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., or e-mail
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 Health 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 Health Administration (VHA), 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 November 22, 2004.
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 to:
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. 2900-0583” 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. 3501-21), 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 November 22, 2004.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., or e-mail
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 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 December 20, 2004.
Submit written comments on the collection of information to Ann W. Bickoff, Veterans Health Administration (193E1), 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.
Under the PRA of 1995 (Public Law 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, 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.
By direction of the Secretary:
Department of Veterans Affairs.
Notice.
Notice is hereby given that the Department of Veterans Affairs (VA) intends to continue a recurring computer program matching Social Security Administration (SSA) records with VA pension and parents' dependency and indemnity compensation (DIC) records.
The goal of this match is to compare income and employment status as reported to VA with wage records maintained by SSA.
VA plans to match records of veterans, surviving spouses and children who receive pension, and parents who receive DIC, with SSA income tax return information as it relates to earned income. VA will also match records of veterans receiving disability compensation at the 100 percent rate based on unemployability with SSA income tax return information as it relates to earned income.
VA will use this information to adjust VA benefit payments as prescribed by law. The proposed matching program will enable VA to ensure accurate reporting of income and employment status.
The authority for this matching program is 38 U.S.C. 5106, which requires Federal agencies to furnish VA with information necessary to determine eligibility for or amount of benefits. In addition, 26 U.S.C. 6103(l)(7) authorizes the disclosure of tax return information to VA.
This notice is provided in accordance with the provisions of the Privacy Act of 1974 as amended by Public Law 100-503.
The match will start no sooner than 30 days after publication of this Notice in the
Written comments may be submitted by: mail or hand-delivery to Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or e-mail to
Paul Trowbridge (212B), (202) 273-7218.
This information is required by Title 5 U.S.C. subsection 552a(e)(12), the Privacy Act of 1974. A copy of this notice has been provided to both Houses of Congress and OMB.
In proposed rule document 04-21541 beginning on page 59072 in the issue of Friday, October 1, 2004, make the following correction:
On page 59091, in § 5.570, in the first column, in the section heading, ““surviving spouses” should read “—surviving spouses”.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
Pursuant to Part C of Title III of the Energy Policy and Conservation Act (EPCA), the Department of Energy (DOE or the Department) promulgates a rule prescribing test procedures to rate the energy efficiency of commercial warm air furnaces. The rule also recodifies existing commercial warm air furnace energy conservation standards so that they are located contiguous with the test procedures that DOE promulgates today. For commercial heating, air conditioning and water heating products generally, the rule prescribes definitions and procedural provisions, and incorporates from EPCA general enforcement and administrative provisions. Finally, we are placing the new requirements for this equipment in the part of our regulations that already contains existing efficiency requirements for electric motors, and we are reorganizing and republishing, without substantive change, the existing requirements for motors.
This rule is effective November 22, 2004. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of November 22, 2004.
Mohammed Khan, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, Forrestal Building, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-7892, fax (202) 586-4617, e-mail:
This final rule incorporates, by reference, into Subpart D of Part 431, two test procedures contained in industry testing standards referenced by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) and the Illuminating Engineering Society of North America (IES) Standard 90.1 (“ASHRAE/IES Standard 90.1”), for commercial warm air furnaces. Those industry testing standards are: American National Standards Institute (ANSI) Standard Z21.47-1998, “Gas-Fired Central Furnaces,” and Underwriters Laboratories (UL) Standard 727-1994, “Standard for Safety Oil-Fired Central Furnaces.” This final rule also incorporates by reference into Subpart D of Part 431, (1) sections 8.2.2, 11.1.4, 11.1.5 and 11.1.6.2 of the Hydronics Institute Division of the Gas Appliance Manufacturers Association Boiler Testing Standard BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers,” published January 2001 (HI BTS-2000) which specify a flue loss calculation procedure for oil-fired equipment, and (2) sections 7.2.2.4, 7.8, 9.2 and 11.3.7 of the ASHRAE Standard 103-1993, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” which specify a test procedure for measuring the incremental efficiency of condensing furnaces under steady state operation.
You can view copies of these standards in the resource room of the Building Technologies Program, room 1J-018 at the U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at (202) 586-2945, for additional information regarding visiting the resource room.
You can purchase copies of the ASHRAE Standard 103-1993 from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1971 Tullie Circle, NE., Atlanta, GA 30329,
Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions designed to improve energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program similar to Part B which is entitled “Certain Industrial Equipment,” and which includes commercial air conditioning equipment, furnaces, and other types of equipment.
DOE publishes today's final rule pursuant to Part C which specifically provides for definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from
With respect to some commercial equipment for which EPCA prescribes energy conservation standards, including commercial warm air furnaces, Section 343 (a)(4)(A) provides “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute or by the American Society of Heating, Refrigerating and Air Conditioning Engineers, as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry testing or rating procedure is amended, DOE must revise the test procedure to be consistent with the amendment, unless the Secretary determines, based on clear and convincing evidence, that to do so would not meet certain general requirements spelled out in EPCA Section 343 for test procedures. (42 U.S.C. 6314(a)(4)(B)) Before prescribing any test procedures for such equipment, the Secretary must publish them in the
DOE began implementation of Part C of Title III of EPCA by establishing 10 CFR Part 431. Part 431 is entitled “Energy Efficiency Program for Certain Commercial and Industrial Equipment.” It consists of test procedures, Federal energy conservation standards, labeling, and certification and enforcement procedures. Today, DOE amends Part 431 in order further to implement Part C of Title III of EPCA.
As a first step in the process that led to today's final rule, we convened public workshops on April 14 and 15, 1998, and on October 18, 1998, to solicit views and information from interested parties to aid in developing proposed rules that would address test procedures, certification and enforcement procedures, and EPCA's coverage for this equipment. The workshop discussions and comments focused on the following issues for warm air furnaces specifically:
(1) The efficiency descriptor;
(2) Calculation of flue loss for oil fired furnaces; and
(3) Adoption of a test procedure for condensing furnaces.
We also requested comment on several issues for all commercial heating, air conditioning and water heating products, relating primarily to the most cost effective and reliable methodology for sampling, certification and enforcement. Discussion and comments focused largely on the following:
(1) Whether we should require sampling procedures for compliance certification and enforcement testing that are similar to those used for consumer products;
(2) Adapting for commercial equipment other compliance and enforcement procedures that currently apply to consumer products; and
(3) The use of voluntary industry programs to help assure compliance, and the content of such programs.
We published a Notice of Proposed Rulemaking and Public Hearing (“proposed rule” or “NOPR”) after considering statements made during the public workshops and written comments. (64 FR 69598, December 13, 1999). We proposed regulations to: (1) Implement the energy efficiency standards and test procedures mandated by EPCA for commercial warm air furnaces, and (2) set forth definitions, methods of determining efficiency, compliance certification procedures, prohibited actions, enforcement procedures, and general administrative and procedural provisions for all covered commercial heating, air conditioning and water heating products. The Department requested data, comments and information regarding the proposed regulations. We held a public hearing on January 27, 2000, (the January 2000 workshop) to receive oral comments, and we accepted written comments until February 28, 2000.
In formulating today's final rule, we considered the comments received, and have incorporated recommendations where appropriate. Section II below discusses comments that questioned or disagreed with the Department's positions as presented in the NOPR.
Energy conservation standard levels are not at issue here. The NOPR merely proposed to incorporate into the Department's regulations on efficiency requirements for commercial warm air furnaces the standard levels that had been established by law in Section 342(a) of EPCA.
Subsequent to issuance of the NOPR, in a separate proceeding, we promulgated a regulation (10 CFR Part 431, Subpart Q) to adopt as Federal standards some of the efficiency levels contained in amendments to ASHRAE/IES Standard 90.1. 66 FR 3336, 3354 (January 12, 2001). For furnaces, the levels contained in these amendments, and consequently in Subpart Q (10 CFR 431.702), are the same as the levels in Section 342(a) of EPCA.
Today's final rule incorporates the following for commercial warm air furnaces: (1) Definitions for the equipment and for its efficiency descriptor, (2) energy efficiency test procedures, and (3) energy conservation standards. Pursuant to the definition of “commercial warm air furnace” in today's rule, the rule covers only those commercial furnaces for which EPCA specifies standard levels,
Today's final rule also adopts certain general provisions to implement efficiency requirements for the commercial air conditioning, heating, and water heating products, as well as boilers and furnaces, for which EPCA provides energy conservation standards (which we refer to collectively as “commercial HVAC & WH products”). Specifically, as proposed in the NOPR, the rule contains provisions for these products that: (1) Allow manufacturers to obtain a waiver of an applicable test procedure, (2) require maintenance of records concerning compliance, (3) provide for subpoenas and confidential treatment of information, and (4) incorporate from EPCA a description of prohibited actions, general enforcement procedures, and provisions as to imported and exported equipment. At this time, however, the Department is not adopting for commercial HVAC &WH products methods and procedures for manufacturers to determine and certify compliance, or procedures (including testing regimens) that DOE will use in resolving any disputed performance claims and in deciding whether to pursue enforcement action. We proposed such methods and procedures in the NOPR, and are still considering what action to take with respect to these proposals.
Finally, today's final rule combines in 10 CFR Part 431 the existing requirements for electric motors and the new requirements for commercial HVAC & WH products. Because we are reorganizing and renumbering 10 CFR Part 431 in this rule, we are republishing today the text of these provisions. The text of these provisions is substantively the same as currently exists in DOE's regulations. We have also reorganized and renumbered the proposed regulations.
Representatives from seven organizations representing stakeholders from trade associations (the Gas Appliance Manufacturers Association (GAMA) and the Air Conditioning and Refrigeration Institute (ARI)), manufacturers (A.O. Smith Water Products Co. (A.O. Smith), York International (York), and Bock Water Heaters (Bock)), and State government energy offices (the California Energy Commission (CEC) and the Oregon Office of Energy (OOE)) attended the January 2000 workshop. GAMA and ARI submitted written statements in advance of the hearing. GAMA, ARI and CEC also submitted additional written comments afterward. We provided a call-in telephone number (notifying stakeholders by telephone and e-mail on the day before) for interested stakeholders who could not attend the workshop due to adverse weather conditions along the east coast prior to the day of the workshop.
In the next portion of this
In § 431.141 of the rule language in the NOPR, we proposed to define a commercial warm air furnace as “a warm air furnace that is a commercial HVAC & WH product,” and to define “commercial HVAC & WH product” in part as a product “to which an energy conservation standard is applicable under Section 342(a)” of EPCA. 64 FR at 69610. Section 342(a) specifies standards for furnaces with capacities of 225,000 Btu per hour or more, but no standard has been adopted under that section for any smaller commercial furnace. Thus, “commercial warm air furnace” as defined in the NOPR would not include any such smaller furnace, and the proposed requirements in the NOPR would not apply to these products. Moreover, proposed §§ 431.162 and 431.171 in the NOPR explicitly state that the test procedures and efficiency standards, respectively, would apply to commercial warm air furnaces of 225,000 Btu per hour or more. 64 FR 69611-12.
At the January 2000 workshop, and in written comments following the workshop, the CEC asserted, that in the final rule, the Department should apply the efficiency standards for commercial furnaces to products less than 225,000 Btu per hour that are not consumer products, and that, in any event, it appeared from the NOPR that the certification, enforcement and compliance requirements in the proposed rule would apply to these smaller commercial furnaces. (CEC, Tr.
We have considered these comments, and have decided to adhere to the approach taken in the NOPR for the reasons set forth below. Thus, the efficiency requirements we are adopting at this point for commercial warm air furnaces will apply only to equipment with a capacity of 225,000 Btu per hour or greater.
Section 340 of EPCA, which contains definitions for certain types of commercial and industrial equipment covered by EPCA, defines a “warm air furnace” in terms of its features and its functions, specifically including or excluding certain equipment.
“Warm air furnace” means a self-contained oil-fired or gas-fired furnace designed to supply heated air through ducts to spaces that require it and includes combination warm air furnace/electric air conditioning units but does not include unit heaters
With regard to efficiency standards, the purpose of this rulemaking is to recodify standards already prescribed by statute or the Department's regulations. The only such existing standards for commercial warm air furnaces, set forth in Section 342(a)(4)(A) and (B) of EPCA and 10 CFR 431.702 (66 FR 3354), are for units with a capacity of 225,000 Btu per hour or more. In the NOPR, the Department did not propose, or even discuss, the adoption of efficiency standards for smaller furnaces; we did not invite comment on the issue or give any indication such standards might be promulgated. Therefore, we decline to adopt any such standards at this time. Similarly, we proposed test procedures in the NOPR only for furnaces with a capacity of 225,000 Btu per hour or more, and did not discuss application of these procedures to smaller furnaces. As to the certification and enforcement provisions proposed in the NOPR, by their terms they address compliance with applicable efficiency standards and do not apply to equipment for which no standards have been prescribed. The compliance provisions—the methods (other than the test procedures) for determining efficiency—are also designed to assure compliance with existing standards, as illustrated by provisions such as proposed §§ 431.481(a) and 431.484(a)(10). For all of these reasons, and as proposed in the NOPR, the test procedures in today's final rule apply only to commercial warm air furnaces of 225,000 Btu per hour or more.
Accordingly, we have revised the definition of “commercial warm air furnace” in today's final rule to make explicit that it includes only furnaces (1) with capacities of 225,000 Btu per hour or larger,
Finally, EPCA and the NOPR refer to commercial furnaces with a “capacity” of 225,000 Btu per hour or more, but do not state whether “capacity” refers to an input or output value. Because any given Btu per hour level of input and output actually represents two different values and sizes of equipment, we believe we should clarify what “capacity” means so as to make clear what equipment is covered. We note first that ASHRAE/IES Standard 90.1-1989 delineated categories of furnaces by reference to the 225,000 Btu per hour value, without mentioning input or output, whereas Standard 90.1-1999 explicitly states that such size categories are based on “input.” We believe this change was designed to clarify rather than alter the scope of the applicable efficiency requirements. Because EPCA's efficiency requirements for commercial furnaces are based on these same provisions in ASHRAE 90.1, and also use the 225,000 Btu/hr level as a cut-off for differentiating efficiency requirements, ASHRAE's categorization of commercial furnace sizes by reference to input strongly suggests that furnace “capacity” in EPCA should be interpreted to mean input capacity. Second, the Department believes that, because EPCA provides efficiency standards for furnaces that are consumer (residential) products if they have an “input rate” of less than 225,000 Btu/hr, (42 U.S.C. 6291-6292), the “capacity” of commercial furnaces to which Section 342(a)(4)(A)-(B) of EPCA refers is also the input rate. The most reasonable construction of EPCA is that the capacities of residential and commercial furnaces must be measured in a uniform manner under the statute. If the term “capacity” in EPCA were construed as providing standards for commercial furnaces with an output rate of 225,000 BTU/hr or more, there would be a gap between the capacities of the largest consumer furnace and the smallest commercial furnace for which EPCA prescribes standards. We do not believe Congress intended such a result.
For these reasons, we construe the term “capacity,” as applied to commercial warm air furnaces in Section 342(a)(4)(A)-(B) of EPCA, to mean the rated input capacity and not the output capacity. To clarify this point, we are including in our definition of “commercial warm air furnace,” in 10 CFR 431.72, the parenthetical “(rated maximum input)” to modify the term “capacity.”
EPCA specifies the energy efficiency standard levels for commercial warm air furnaces in terms of “thermal efficiency,” 42 U.S.C. 6313(a)(4)(A)-(B), but provides no definition for this term. For reasons discussed in detail in the NOPR, 64 FR 69601, we proposed to interpret this term, for purposes of commercial warm air furnaces as meaning what is commonly known as “combustion efficiency” in other contexts,
No one opposed this proposal during the January 2000 workshop, although in its subsequent written comments CEC supported our approach but advocated use of the term “combustion efficiency” rather than “thermal efficiency.” (CEC, No. 7 at 3). Given use of the latter term in EPCA, and its continued use as the efficiency descriptor for furnaces in ANSI Standard Z21.47, which we reference in today's rule, we believe it would be confusing to use the term “combustion efficiency” in the final rule. Accordingly, as proposed in the NOPR, we are defining the term “thermal efficiency” to mean 100 percent minus the percent flue loss.
EPCA requires that the testing procedures for measuring the energy efficiency of commercial warm air furnaces must be those generally accepted industry testing procedures or rating procedures that were developed or are recognized by ASHRAE, as referenced in ASHRAE/IES Standard 90.1-1989 and in effect on June 30, 1992. EPCA also specifies that if such an industry test procedure or rating procedure for commercial warm air furnaces is amended, we must adopt the revisions unless we determine that they are not reasonably designed to produce test results which reflect energy efficiency, energy use, and estimated operating costs, or that the revised procedures would be unduly burdensome to conduct.
ASHRAE/IES Standard 90.1 as in effect on June 30, 1992 referenced two industry test standards: One for gas-fired furnaces, ANSI Standard Z21.47-1987, and the other for oil-fired furnaces, UL Standard 727-1986. Both standards were subsequently revised, resulting in ANSI Standard Z21.47-1993 and UL Standard 727-1994. We proposed in the NOPR to incorporate by reference as the applicable test
During the January 2000 workshop, all attendees supported the DOE proposal to incorporate by reference revised versions of the two industry test procedures. However, GAMA pointed out that ANSI Z21.47-1993 has been revised to ANSI Z21.47-1998. (GAMA, Tr. 32, No. 3, at 3.) GAMA stated that since there is no change in the energy efficiency test sections between these two versions of the test standard, DOE should reference the latest version of that standard. York supported GAMA's recommendation and pointed out that the only change between the two versions is the thermal efficiency test Section number (Section 2.37 in the 1993 version versus Section 2.38 in the 1998 version). (York, Tr. 32.) A.O. Smith questioned whether the designation ANSI Z21.47 is still appropriate since it is also a harmonized Canadian standard with a different designation. (A.O. Smith, Tr . 33.) CEC stated that the ANSI Z21.47 designation is still valid for use in the United States. (CEC, Tr. 34.) CEC also supported referencing the 1998 version.
We compared the 1993 and 1998 versions of ANSI Z21.47 with respect to the sections that involve thermal efficiency testing. Except for the difference in the designation of the section number for the thermal efficiency test, mentioned above, there is no change in the test procedure for the thermal efficiency test. Therefore, we agree with GAMA's recommendation, and are incorporating by reference in today's final rule the latest version of the ANSI test procedure, ANSI Z21.47-1998, (incorporated by reference, see § 431.75) for the energy efficiency test of gas-fired furnaces. Also, as proposed, we are incorporating by reference in today's final rule the energy efficiency test sections of UL 727-1994 for oil-fired furnaces (incorporated by reference, see § 431.75).
The referenced test standard for oil-fired furnaces, UL Standard 727, does not provide a procedure for calculating the percent flue loss. Accordingly, in the NOPR we proposed that this calculation be made using the flue loss calculation specified for oil-fired boilers in the 1989 edition of the Hydronics Institute Testing and Rating Standard for Heating Boilers (HI-1989). We received no comments opposing our proposal. Subsequent to the January 2000 workshop, however, in January 2001, a revised test standard, BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers,” replaced HI-1989. BTS-2000 contains provisions for calculating flue loss that are identical to the provisions of HI-1989 that we proposed in the NOPR to adopt for oil-fired furnaces. Therefore, in today's final rule, we are adopting these provisions of BTS-2000 as the calculation procedure for percent flue loss for oil-fired furnaces. (We note that the forms in BTS-2000 that have replaced Forms 715 and 721 of HI-1989, which are referenced in the NOPR, are no longer integral to the flue loss calculation. Therefore, we are not incorporating the BTS-2000 forms in today's rule.)
ASHRAE/IES Standard 90.1, and the two warm air furnace test standards referenced by it, do not specifically provide test conditions or procedures for testing a condensing furnace. In the NOPR, we stated that a test procedure should be in place to test these more efficient products in the future, and to enable evaluation of this design option during any consideration of possible revisions to the efficiency standard, even if no commercial condensing furnaces are currently available in the market as asserted by some participants in earlier workshops. Therefore we proposed to adopt for commercial warm air furnaces the test procedure specified in the steady state efficiency test sections of ASHRAE Standard 103-1993 (sections 7.2.2.4, 7.8, 9.2 and 11.3.7) (incorporated by reference, see § 431.75) for determining the increment in energy efficiency due to the condensing feature of a residential furnace. In proposing to adopt this test procedure, we applied a slight modification to the equation in Section 11.3.7.2 of ASHRAE Standard 103-1993 for steady-state heat loss due to hot condensate flowing down the drain. In the aforementioned section, the assumed indoor temperature is 70°F, and the average outside temperature is 42°F. The modification replaces both of these temperatures with the actual temperature of the test area during the steady-state thermal efficiency test, consistent with Section 2.2.8 of ANSI Standard Z21.47-1993 (now ANSI Standard Z21.47-1998).
At the January 2000 workshop, York International (York, Tr. 39-41) stated that the regulation should make clear that DOE is referencing the steady-state test in ASHRAE Standard 103, not its annual fuel utilization efficiency test. CEC supported our proposal to incorporate Standard 103 as the test method for condensing furnaces. (CEC, Tr. 42, No. 7 at p. 3.)
With regard to the concern expressed by York, the specific sections of the ASHRAE Standard 103-1993 that we proposed to adopt for commercial condensing furnaces all deal with steady state testing only. The Department did not propose to adopt those sections of ASHRAE Standard 103-1993 dealing with cyclic tests and AFUE calculations.
For the reasons stated above and in the NOPR, we are incorporating by reference, in today's final rule, the test procedure specified in sections 7.2.2.4, 7.8, 9.2 and 11.3.7 of ASHRAE Standard 103-1993 (incorporated by reference, see § 431.75) for determining the increment in energy efficiency, under steady state conditions, of a condensing furnace, including modifications which replace the values of the indoor and outdoor temperatures with the actual measured test room temperature as described earlier in this section.
The NOPR proposed detailed provisions designed to provide reasonable assurance that commercial HVAC & WH products would be appropriately tested and comply with applicable energy conservation standards. These included methods for applying the DOE test procedures, as well as calculation methods, to be used by manufacturers to determine the efficiency of this equipment. We also proposed procedures for manufacturers to certify that their equipment complies with our efficiency requirements, and proposed to allow manufacturer participation in DOE-approved Voluntary Industry Certification Programs (VICPs) as a means of helping to assure such compliance. The NOPR had detailed criteria for a VICP to obtain our approval. The proposed rule set forth, in addition, procedures for DOE to use to address allegations of non-compliance. These included detailed procedures for enforcement testing of allegedly noncompliant products, criteria for determining whether the test results warranted pursuit of enforcement action, and provisions for ceasing distribution of non-compliant products, as well as provisions that largely incorporated EPCA procedures for DOE to seek injunctive relief and civil penalties. Finally, we proposed other general provisions, similar to
During the January 2000 workshop, and in subsequent written statements, we received many comments concerning (1) methods for manufacturers to determine the efficiencies of their equipment, (2) certification of such efficiencies to DOE, (3) criteria for our approval of VICPs and (4) the procedures and criteria for DOE to pursue enforcement action. These comments, as well as the Department's further review of the proposed rule, raised significant issues, concerning these subjects, on which further comment appears to be warranted. Therefore, the Department has decided to continue its review of these subjects and it is not issuing final regulations at this time concerning methods for manufacturers to determine efficiency, certification of compliance, use of VICPs, and, for the most part, procedures and criteria for pursuing enforcement action. The Department intends to seek further comment on these issues.
However, DOE received no comments on the proposed provisions, adapted from EPCA, as to prohibited actions and remedies, or on proposed general provisions such as those concerning waiver of test procedures, records maintenance, treatment of exported and imported products, subpoenas, and confidentiality of information. As a result, DOE concludes that these provisions are noncontroversial and supported by all stakeholders. Therefore, in today's final rule the Department is adopting these provisions as proposed in the NOPR, without substantive change but with some re-numbering, reorganization and editorial changes to reflect the combining of these provisions with existing requirements for electric motors in Part 431.
Subpart D of Part 431 currently contains procedures for a State to seek and obtain a rule from DOE to waive Federal preemption of a State energy conservation requirement for electric motors, and for a party to seek to have such a rule withdrawn. The NOPR did not propose such provisions for commercial HVAC & WH products. Their adoption is warranted, however, because waiver provisions are already prescribed by law,
We note also that § 431.141 of the proposed rule contained definitions for furnaces and for commercial HVAC & WH products generally. Those definitions that would apply only to methods of determining efficiency, certification, or enforcement for these products are not included in today's final rule. The remainder of the definitions in proposed § 431.141 are divided among three different sections, one applying to the revised Part 431 generally, another to furnaces only, and the third to commercial HVAC and water heating products generally.
As to rulemakings to amend test procedures, section 323(e) of EPCA, 42 U.S.C. 6293(e), provides that DOE shall determine whether the amended test procedure would alter measured energy efficiency of any covered product. “If the amendment does alter measured efficiency, the Secretary must determine the average efficiency level under the new test procedure of products that minimally complied with the applicable energy conservation standard prior to the test procedure amendment, and must set the standard at that level. (42 U.S.C. 6293(e)(2)) In addition, any existing model of a product that complied with the previously applicable standard would be deemed to comply with the new standard. “(42 U.S.C. 6293(e)(3)) These provisions prevent changes in a test procedure from indirectly altering the applicable Federal energy conservation standard. “They also prevent products that complied with standards using the previous test procedure from being forced out of compliance by the new test procedure.
For commercial furnaces, this final rule is adopting later versions of two test procedures referenced in ASHRAE 90.1-1989 and in effect on June 30, 1992: ANSI Standard Z21.47-1998 for gas-fired equipment and UL Standard 727-1994 for oil-fired equipment. These later versions do not contain amendments to the efficiency test methods for this equipment. Accordingly, section 323(e) does not apply to their adoption by DOE.
In addition, this final rule adds two provisions, first a method for testing condensing furnaces, based upon ASHRAE Standard 103-1993, and second, a method for calculating the flue loss of oil-fired furnaces, a method necessary for determining furnace efficiency that is missing from ANSI Standard Z21.47-1998 and its predecessor version. This latter requirement is in HI BTS-2000.
With respect to the first additional requirement, there is no existing DOE test procedure for condensing furnaces. Therefore, this added requirement does not represent an amended test procedure. Accordingly, section 323(e) does not apply.
With respect to the second additional requirement, in order to determine the efficiency of oil-fired furnaces, a value for the percent flue loss is needed. Today's rule adopts a method which DOE understands the industry has been using unofficially to test oil-fired furnaces. Therefore, requiring use of this method will not alter measured energy efficiency of oil-fired furnaces for purposes of section 323(e) of EPCA.
The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) has determined that today's regulatory action is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, and certified in the NOPR that the proposed rule would not impose a significant economic impact on a substantial
This rulemaking will impose no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (44 U.S.C. 3501
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, Section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in Section 3(a) and Section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. With respect to a proposed regulatory action that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation), Section 202 of the Act requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under the Act (62 FR 12820) (also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988) that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
Under Section 301 of the Department of Energy Organization Act (Pub. L. 95-91), the Department must comply with Section 32 of the Federal Energy Administration Act of 1974 (FEAA), as amended by the Federal Energy Administration Authorization Act of 1977. 15 U.S.C. 788. The Department stated in the NOPR the reasons why Section 32 does not apply to two of the commercial standards incorporated into the proposed rule, ANSI Standard Z21.47-1993 and UL Standard 727-1994. 64 FR 69608. The Department did not receive any comments on this issue. The rule published today incorporates the UL Standard, as well as an amended version of the ANSI Standard. The Department continues to adhere to the view expressed in the NOPR that Section 32 of the FEAA does not apply to these standards.
The Department also indicated in the NOPR that Section 32 does apply to the other two commercial standards it is incorporating in this rule, ASHRAE Standard 103-1993 and HI BTS-2000. 64 FR 69608. As required by Section 32(c) of the FEAA, the Department has consulted with the Attorney General and the Chairman of the Federal Trade Commission concerning the impact of these two standards on competition, and neither recommended against incorporation of these standards.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of today's rule.
Administrative practice and procedure, Energy conservation, Incorporation by reference.
42 U.S.C. 6311-6316.
The following definitions apply for purposes of this part. Any words or terms not defined in this Section or elsewhere in this Part shall be defined as provided in Section 340 of the Act.
This subpart contains energy conservation requirements for electric motors. It contains test procedures that EPCA requires DOE to prescribe, related requirements, energy conservation standards prescribed by EPCA, labeling rules, and compliance procedures. It also identifies materials incorporated by reference in this part.
The following definitions apply for purposes of this subpart, and of subparts K through M of this part. Any words or terms not defined in this Section or elsewhere in this Part shall be defined as provided in Section 340 of the Act.
(1) “Electric motor” means a machine which converts electrical power into rotational mechanical power and which:
(i) Is a general purpose motor, including but not limited to motors with explosion-proof construction;
(ii) Is a single speed, induction motor (MG1);
(iii) Is rated for continuous duty (MG1) operation, or is rated duty type S1 (International Electrotechnical Commission (IEC));
(iv) Contains a squirrel-cage (MG1) or cage (IEC) rotor, and has foot-mounting, including foot-mounting with flanges or detachable feet;
(v) Is built in accordance with NEMA T-frame dimensions (MG1), or IEC metric equivalents (IEC);
(vi) Has performance in accordance with NEMA Design A (MG1) or B (MG1) characteristics, or equivalent designs such as IEC Design N (IEC); and
(vii) Operates on polyphase alternating current 60-Hertz sinusoidal power, and:
(A) Is rated 230 volts or 460 volts, or both, including any motor that is rated at multi-voltages that include 230 volts or 460 volts, or
(B) Can be operated on 230 volts or 460 volts, or both.
(2) Terms in this definition followed by the parenthetical “MG1” must be construed with reference to provisions in NEMA Standards Publication MG1-1993,
(i) Section I,
(ii) Section I,
(iii) Section II,
(iv) Section II,
(3) Terms in this definition followed by the parenthetical “IEC” must be construed with reference to provisions in IEC Standards as follows:
(i) IEC Standard 60034-1 (1996),
(ii) IEC Standard 60050-411 (1996),
(iii) IEC Standard 60072-1 (1991),
(iv) IEC Standard 60034-12 (1980),
(1) Standard operating characteristics and standard mechanical construction for use under usual service conditions, such as those specified NEMA Standards Publication MG1-1993, paragraph 14.02, “Usual Service Conditions,” (Incorporated by reference, see § 431.15) and without restriction to a particular application or type of application; or
(2) Standard operating characteristics or standard mechanical construction for use under unusual service conditions, such as those specified in NEMA Standards Publication MG1-1993, paragraph 14.03, “Unusual Service Conditions,” (Incorporated by reference, see § 431.15) or for a particular type of application, and which can be used in most general purpose applications.
(a)
(b)
(i) Section I,
(ii) Section I,
(iii) Section II,
(iv) Section II,
(v) Section II,
(2) Institute of Electrical and Electronics Engineers, Inc., Standard 112-1996,
(3) CSA International Standard C390-93,
(4) International Electrotechnical Commission Standard 60034-1 (1996),
(5) International Electrotechnical Commission Standard 60050-411 (1996),
(6) International Electrotechnical Commission Standard 60072-1 (1991),
(7) International Electrotechnical Commission Standard 60034-12 (1980),
(c)
(1) National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(2) U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Hearings and Dockets, “Test Procedures, Labeling, and Certification Requirements for Electric Motors,” Docket No. EE-RM-96-400, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC.
(d)
(1) Copies of IEEE Standard 112-1996 can be obtained from the Institute of Electrical and Electronics Engineers, Inc., 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331, 1-800-678-IEEE (4333);
(2) Copies of NEMA Standards Publication MG1-1993 with Revisions 1, 2, 3, and 4, and copies of International Electrotechnical Commission standards can be obtained from Global Engineering Documents, 15 Inverness Way East, Englewood, Colorado 80112-5776, 1-800-854-7179 (within the U.S.) or (303) 397-7956 (international).
(3) Copies of CSA International Standard C390-93 can be obtained from CSA International, 5060 Spectrum Way, Mississauga, Ontario, Canada L4W5N6, (416) 747-4044;
(e)
(2)
(ii) ISO/IEC Guide 25, “General requirements for the competence of calibration and testing laboratories.”
(iii) ISO Guide 27, “Guidelines for corrective action to be taken by a certification body in the event of either misapplication of its mark of conformity to a product, or products which bear the mark of the certification body being found to subject persons or property to risk.”
(iv) ISO/IEC Guide 28, “General rules for a model third-party certification system for products.”
(v) ISO/IEC Guide 58, “Calibration and testing laboratory accreditation systems—General requirements for operation and recognition.”
(vi) ISO/IEC Guide 65, “General requirements for bodies operating product certification systems.”
For purposes of 10 CFR Part 431 and EPCA, the test procedures for measuring the energy efficiency of an electric motor shall be the test procedures specified in appendix B to this subpart B.
When a party determines the energy efficiency of an electric motor in order to comply with an obligation imposed on it by or pursuant to Part C of Title III of EPCA, 42 U.S.C. 6311-6316, this Section applies. This section does not apply to enforcement testing conducted pursuant to § 431.192.
(a)
(2)
(i) Derived from a mathematical model that represents the mechanical and electrical characteristics of that basic model, and
(ii) Based on engineering or statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data.
(3)
(i) The AEDM must be applied to at least five basic models that have been tested in accordance with § 431.16, and
(ii) The predicted total power loss for each such basic model, calculated by applying the AEDM, must be within plus or minus ten percent of the mean total power loss determined from the testing of that basic model.
(4)
(A) Subject a sample of units to testing in accordance with § § 431.16 and 431.17(b)(2) by an accredited laboratory that meets the requirements of § 431.18;
(B) Have a certification body recognized under § 431.20 certify its nominal full load efficiency; or
(C) Have an independent state-registered professional engineer, who is qualified to perform an evaluation of electric motor efficiency in a highly competent manner and who is not an employee of the manufacturer, review the manufacturer's representations and certify that the results of the AEDM accurately represent the total power loss and nominal full load efficiency of the basic model.
(ii) Each manufacturer that has used an AEDM under this section shall have available for inspection by the Department of Energy records showing: the method or methods used; the mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based; complete test data, product information, and related information that the manufacturer has generated or acquired pursuant to paragraphs (a)(3) and (a)(4)(i) of this section; and the calculations used to determine the average full load efficiency and total power losses of each basic model to which the AEDM was applied.
(iii) If requested by the Department, the manufacturer shall conduct simulations to predict the performance of particular basic models of electric motors specified by the Department, analyses of previous simulations conducted by the manufacturer, sample
(5)
(ii) For each basic model for which a certification program is not used as described in paragraph (a)(5)(i) of this section, any testing of the motor pursuant to paragraphs (a)(1) through (3) of this section to determine its energy efficiency must be carried out in accordance with paragraph (b) of this section, in an accredited laboratory that meets the requirements of § 431.18. (This includes testing of the basic model, pursuant to paragraph (a)(3)(i) of this section, to substantiate an AEDM.)
(b)
(A) Two of the basic models must be among the five basic models with the highest unit volumes of production by the manufacturer in the prior year, or during the prior 12 calendar month period beginning in 1997,
(B) The basic models should be of different horsepowers without duplication;
(C) The basic models should be of different frame number series without duplication; and
(D) Each basic model should be expected to have the lowest nominal full load efficiency among the basic models with the same rating (“rating” as used here has the same meaning as it has in the definition of “basic model”).
(ii) In any instance where it is impossible for a manufacturer to select basic models for testing in accordance with all of these criteria, the criteria shall be given priority in the order in which they are listed. Within the limits imposed by the criteria, basic models shall be selected randomly.
(2)
(i) The average full-load efficiency of the sample X
(ii) The lowest full-load efficiency in the sample X
(3)
(a) Testing pursuant to § 431.17(a)(5)(ii) must be conducted in an accredited laboratory for which the accreditation body was:
(1) The National Institute of Standards and Technology/National Voluntary Laboratory Accreditation Program (NIST/NVLAP); or
(2) A laboratory accreditation body having a mutual recognition arrangement with NIST/NVLAP; or
(3) An organization classified by the Department, pursuant to § 431.19, as an accreditation body.
(b) NIST/NVLAP is under the auspices of the National Institute of Standards and Technology (NIST) which is part of the U.S. Department of Commerce. NIST/NVLAP accreditation is granted on the basis of conformance with criteria published in 15 CFR Part 285,
(a)
(b)
(1) It must have satisfactory standards and procedures for conducting and administering an accreditation system and for granting accreditation. This must include provisions for periodic audits to verify that the laboratories receiving its accreditation continue to conform to the criteria by which they were initially accredited, and for withdrawal of accreditation where such conformance does not occur, including failure to provide accurate test results.
(2) It must be independent of electric motor manufacturers, importers, distributors, private labelers or vendors. It cannot be affiliated with, have financial ties with, be controlled by, or be under common control with any such entity.
(3) It must be qualified to perform the accrediting function in a highly competent manner.
(4) It must be expert in the content and application of the test procedures and methodologies in IEEE Standard 112-1996 Test Method B and CSA Standard C390-93 Test Method (1), (Incorporated by reference, see § 431.15) or similar procedures and methodologies for determining the energy efficiency of electric motors.
(c)
(1)
(2)
(3)
(4)
(d)
(a)
(b)
(1) It must have satisfactory standards and procedures for conducting and administering a certification system, including periodic follow up activities to assure that basic models of electric motor continue to conform to the efficiency levels for which they were certified, and for granting a certificate of conformity.
(2) It must be independent of electric motor manufacturers, importers, distributors, private labelers or vendors. It cannot be affiliated with, have financial ties with, be controlled by, or be under common control with any such entity.
(3) It must be qualified to operate a certification system in a highly competent manner.
(4) It must be expert in the content and application of the test procedures and methodologies in IEEE Standard 112-1996 Test Method B and CSA Standard C390-93 Test Method (1), (Incorporated by reference, see § 431.15) or similar procedures and methodologies for determining the energy efficiency of electric motors. It must have satisfactory criteria and procedures for the selection and sampling of electric motors tested for energy efficiency.
(c)
(1)
(2)
(3)
(4)
(d)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(2)
(3)
(a) Each electric motor manufactured (alone or as a component of another piece of equipment) after October 24, 1997, or in the case of an electric motor which requires listing or certification by a nationally recognized safety testing laboratory, after October 24, 1999, shall have a nominal full load efficiency of not less than the following:
(b) For purposes of determining the required minimum nominal full load efficiency of an electric motor that has a horsepower or kilowatt rating between two horsepowers or kilowattages listed consecutively in paragraph (a) of this section, each such motor shall be deemed to have a horsepower or kilowatt rating that is listed in paragraph (a) of this section. The rating that the motor is deemed to have shall be determined as follows:
(1) A horsepower at or above the midpoint between the two consecutive horsepowers shall be rounded up to the higher of the two horsepowers;
(2) A horsepower below the midpoint between the two consecutive horsepowers shall be rounded down to the lower of the two horsepowers, or
(3) A kilowatt rating shall be directly converted from kilowatts to horsepower using the formula, 1 kilowatt = (1 / 0.746) horsepower, without calculating beyond three significant decimal places, and the resulting horsepower shall be rounded in accordance with paragraphs (b)(1) or (b)(2) of this section, whichever applies.
(c) This section does not apply to definite purpose motors, special purpose motors, and those motors exempted by the Secretary.
Any State regulation providing for any energy conservation standard, or other requirement with respect to the energy efficiency or energy use, of an electric motor that is not identical to a Federal standard in effect under this subpart is preempted by that standard, except as provided for in Section 345(a) and 327(b) and (c) of the Act.
The labeling rules in § 431.31, established pursuant to Section 344 of EPCA, 42 U.S.C. 6315, apply only to electric motors manufactured after October 5, 2000.
(a)
(i) The motor's nominal full load efficiency (as of the date of manufacture), derived from the motor's average full load efficiency as determined pursuant to this subpart; and
(ii) A Compliance Certification number (“CC number”) supplied by DOE to the manufacturer or private labeler, pursuant to § 431.36(f), and applicable to that motor. Such CC number must be on the nameplate of a motor beginning 90 days after either:
(A) The manufacturer or private labeler has received the number upon submitting a Compliance Certification covering that motor, or
(B) The expiration of 21 days from DOE's receipt of a Compliance Certification covering that motor, if the manufacturer or private labeler has not been advised by DOE that the Compliance Certification fails to satisfy § 431.36.
(2)
(3)
(b)
(i) On each page of a catalog that lists the motor; and
(ii) In other materials used to market the motor.
(2) The “ee” logo, or other similar logo or designations, may also be used in catalogs and other materials to the same extent they may be used on labels under paragraph (a)(3) of this section.
The provisions of § 431.31 supersede any State regulation to the extent required by Section 327 of the Act. Pursuant to the Act, all State regulations that require the disclosure for any electric motor of information with respect to energy consumption, other than the information required to be disclosed in accordance with this part, are superseded.
Section 431.36 sets forth the procedures for manufacturers to certify that electric motors comply with the applicable energy efficiency standards set forth in this subpart.
(a)
(1) The representations as to the basic model must be based on use of a certification organization; or
(2) Any testing of the basic model on which the representations are based must be conducted at an accredited laboratory.
(b)
(i) The nominal full load efficiency for each basic model of electric motor distributed is not less than the minimum nominal full load efficiency required for that motor by § 431.25;
(ii) All required determinations on which the Compliance Certification is based were made in compliance with the applicable requirements prescribed in this subpart;
(iii) All information reported in the Compliance Certification is true, accurate, and complete; and
(iv) The manufacturer or private labeler is aware of the penalties associated with violations of the Act and the regulations thereunder, and of 18 U.S.C. 1001 which prohibits knowingly making false statements to the Federal Government.
(2)
(ii) The Compliance Certification must identify the basic models on which actual testing has been performed to meet the requirements of § 431.17.
(iii) The format for a Compliance Certification is set forth in appendix C of this subpart.
(c)
(d)
(e)
(f)
(2)
(A) DOE will provide a single unique CC number, “CC____,” to the manufacturer or private labeler, and such CC number shall be applicable to all electric motors distributed by the manufacturer or private labeler, or
(B) When required by paragraph (f)(3) of this section, DOE will provide more than one CC number to the manufacturer or private labeler.
(ii) Subsequent Compliance Certification. When DOE advises that any other Compliance Certification is acceptable, it will provide a unique CC number for any brand name, trademark or other name when required by paragraph (f)(3) of this section.
(iii) When DOE declines to provide a CC number as requested by a manufacturer or private labeler in accordance with § 431.36(c), DOE will advise the requester of the reasons for such refusal.
(3)
(A) For which DOE has previously provided a CC number, or
(B) That duplicates or overlaps with other names under which the manufacturer or private labeler sells electric motors.
(ii) Once DOE has provided a CC number for a particular name, that shall be the only CC number applicable to all electric motors distributed by the manufacturer or private labeler under that name.
(iii) If the Compliance Certification in which a manufacturer or private labeler requests a CC number is the initial Compliance Certification submitted by it or on its behalf, and it distributes electric motors not covered by the CC number(s) DOE provides in response to the request(s), DOE will also provide a unique CC number that shall be applicable to all of these other motors.
This is a reprint of a policy statement which was published on November 5, 1997 at 62 FR 59978.
The Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6311,
Section 340(13)(A) of EPCA defines the term “electric motor” based essentially on the construction and rating system in the National Electrical Manufacturers Association (NEMA) Standards Publication MG1. Sections 340(13)(B) and (c) of EPCA define the terms “definite purpose motor” and “special purpose motor,” respectively, for which the statute prescribes no efficiency standards.
In its proposed rule to implement the EPCA provisions that apply to motors (61 FR 60440, November 27, 1996), DOE has proposed to clarify the statutory definition of “electric motor,” to mean a machine which converts electrical power into rotational mechanical power and which: (1) Is a general purpose motor, including motors with explosion-proof construction
Notwithstanding the clarification provided in the proposed rule, there still appears to be uncertainty as to which motors EPCA covers. It is widely understood that the statute covers “general purpose” motors that are manufactured for a variety of applications, and that meet EPCA's definition of “electric motor.” Many modifications, however, can be made to such generic motors. Motor manufacturers have expressed concern as to precisely which motors with such modifications are covered under the statute, and as to whether manufacturers will be able to comply with the statute by October 25, 1997 with respect to all of these covered motors. Consequently, motor manufacturers have requested that the Department provide additional guidance as to which types of motors are “electric motors,” “definite purpose motors,” and “special purpose motors” under EPCA. The policy statement that follows is based upon input from motor manufacturers and energy efficiency advocates, and provides such guidance.
EPCA specifies minimum nominal full-load energy efficiency standards for 1 to 200 horsepower electric motors, and, to measure compliance with those standards, prescribes use of the test procedures in NEMA Standard MG1 and Institute of Electrical and Electronics Engineers, Inc., (IEEE) Standard 112. In DOE's view, as stated in Assistant Secretary Ervin's letter of May 9, 1996, to NEMA's Malcolm O'Hagan, until DOE's regulations become effective, manufacturers can establish compliance with these EPCA requirements through use of competent and reliable procedures or methods that give reasonable assurance of such compliance. So long as these criteria are met, manufacturers may conduct required testing in their own laboratories or in independent laboratories, and may employ alternative correlation methods (in lieu of actual testing) for some motors. Manufacturers may also establish their compliance with EPCA standards and test procedures through use of third party certification or verification programs such as those recognized by Natural Resources Canada. Labeling and certification requirements will become effective only after DOE has promulgated a final rule prescribing such requirements.
Motors with features or characteristics that do not meet the statutory definition of “electric motor” are not covered, and therefore are not required to meet EPCA requirements. Examples include motors without feet and without provisions for feet, and variable speed motors operated on a variable frequency power supply. Similarly, multi speed motors and variable speed motors, such as inverter duty motors, are not covered equipment, based on their intrinsic design for use at variable speeds. However, NEMA Design A or B motors that are single speed, meet all other criteria under the definitions in EPCA for covered equipment, and can be used with an inverter in variable speed applications as an additional feature, are covered equipment under EPCA. In other words, being suitable for use on an inverter by itself does not exempt a motor from EPCA requirements.
Section 340(13)(F) of EPCA, defines a “small electric motor” as “a NEMA general purpose alternating current single-speed induction motor, built in a two-digit frame number series in accordance with NEMA Standards Publication MG 1-1987.” Section 346 of EPCA requires DOE to prescribe testing requirements and efficiency standards only for those small electric motors for which the Secretary determines that standards are warranted. The Department has not yet made such a determination.
As noted above, the Department's proposed definition of “electric motor” provides in part that it is a motor that “operates on polyphase alternating current 60-Hertz sinusoidal power, and * * * can be operated on 230 volts or 460 volts, or both.” In DOE's view, “can be operated” implicitly means that the motor can be operated successfully. According to NEMA Standards Publication MG1-1993, paragraph 12.44, “Variations from Rated Voltage and Rated Frequency,” alternating-current motors must operate successfully under running conditions at rated load with a variation in the voltage or the frequency up to the following: Plus or minus 10 percent of rated voltage, with rated frequency for induction motors;
NEMA Standards Publication MG1 categorizes electrical modifications to motors according to performance characteristics that include locked rotor torque, breakdown torque, pull-up torque, locked rotor current, and slip at rated load, and assigns design letters, such as Design A, B, C, D, or E, to identify various combinations of such electrical performance characteristics. Under Section 340(13)(A) of EPCA, electric motors subject to EPCA efficiency requirements include only motors that fall within NEMA “Design A and B * * * as defined in [NEMA] Standards Publication MG1-1987.” As to locked rotor torque, for example, MG1 specifies a minimum performance value for a Design A or B motor of a given speed and
Motors designed for use on a particular type of application which are in a frame size that is one or more frame
Motors built in a T-frame series or a T-frame size smaller than that assigned by MG 13-1984 (R1990) are also considered usable in most general purpose applications. This is because simple modifications can generally be made to fit a smaller motor in place of a motor with a larger frame size assigned in conformity with NEMA MG 13. Therefore, DOE believes that such smaller motors are covered by EPCA.
Some electric motors have seals to prevent ingress of water, dust, oil, and other foreign materials into the motor. DOE understands that, typically, a manufacturer will add seals to a motor that it manufactures, so that it will sell two motors that are identical except that one has seals and the other does not. In such a situation, if the motor without seals is “general purpose” and covered by EPCA's efficiency requirements, then the motor with seals will also be covered because it can still be used in most general purpose applications. DOE understands, however, that manufacturers previously believed motors with seals were not covered under EPCA, in part because IEEE Standard 112, “Test Procedure for Polyphase Induction Motors and Generators,” prescribed by EPCA, does not address how to test a motor with seals installed.
The efficiency rating of such a motor, if determined with seals installed and when the motor is new, apparently would significantly understate the efficiency of the motor as operated. New seals are stiff, and provide friction that is absent after their initial break-in period. DOE understands that, after this initial period, the efficiency ratings determined for the same motor with and without seals would be virtually identical. To construe EPCA, therefore, as requiring such separate efficiency determinations would impose an unnecessary burden on manufacturers.
In light of the foregoing, the Department believes that EPCA generally permits the efficiency of a motor with seals to be determined without the seals installed. Furthermore, notwithstanding the prior belief that such motors are not covered by EPCA, use of this approach to determining efficiency will enable manufacturers to meet EPCA's standards with respect to covered motors with seals by the date the standards go into effect on October 25, 1997.
Using the foregoing guidelines, the attached matrix provides DOE's view as to which motors with common features are covered by EPCA. Because manufacturers produce many basic models that have many modifications of generic general purpose motors, the Department does not represent that the matrix is all-inclusive. Rather it is a set of examples demonstrating how DOE would apply EPCA definitions, as construed by the above guidelines, to various motor types. By extension of these examples, most motors currently in production, or to be designed in the future, could probably be classified. The matrix classifies motors into five categories, which are discussed in the following passages.
Category I—For “electric motors” (manufactured alone or as a component of another piece of equipment) in Category I, DOE will enforce EPCA efficiency standards and test procedures beginning on October 25, 1997.
The Department understands that some motors essentially are relatively simple modifications of generic general purpose motors. Modifications could consist, for example, of minor changes such as the addition of temperature sensors or a heater, the addition of a shaft extension and a brake disk from a kit, or changes in exterior features such as the motor housing. Such motors can still be used for most general purpose applications, and the modifications have little or no effect on motor performance. Nor do the modifications affect energy efficiency.
Category II—For certain motors that are “definite purpose” according to present industry practice, but that can be used in most general purpose applications, DOE will generally enforce EPCA efficiency standards and test procedures beginning no later than October 25, 1999.
EPCA does not prescribe standards and test procedures for “definite purpose motors.” Section 340(13)(B) of EPCA defines the term “definite purpose motor” as “any motor designed in standard ratings with standard operating characteristics or standard mechanical construction for use under service conditions other than usual or for use on a particular type of application
Category II consists of electric motors with horsepower ratings that fall between the horsepower ratings in Section 342(b)(1) of EPCA, thermally protected motors, and motors with roller bearings. As with motors in Category I, these motors are essentially modifications of generic general purpose motors. Generally, however, the modifications contained in these motors are more extensive and complex than the modifications in Category I motors. These Category II motors have been considered “definite purpose” in common industry parlance, but are covered equipment under EPCA because they can be used in most general purpose applications.
According to statements provided during the January 15, 1997, Public Hearing, Tr. pgs. 238-239, Category II motors were, until recently, viewed by most manufacturers as definite purpose motors, consistent with the industry definition that did not contain the clause “which cannot be used in most general purpose applications.” Hence, DOE understands that many manufacturers assumed these motors were not subject to EPCA's efficiency standards. During the period prior and subsequent to the hearing, discussions among manufacturers resulted in a new understanding that such motors are general purpose under EPCA, since they
The Department understands that redesign and testing these motors in order to meet the efficiency standards in the statute may require a substantial amount of time. Given the recent recognition that they are covered, it is not realistic to expect these motors will be able to comply by October 25, 1997. A substantial period beyond that will be required. Moreover, the Department believes different manufacturers will need to take different approaches to achieving compliance with respect to these motors, and that, for a particular type of motor, some manufacturers will be able to comply sooner than others. Thus, the Department intends to refrain from taking enforcement action for two years, until October 25, 1999, with respect to motors with horsepower ratings that fall between the horsepower ratings in Section 342(b)(1) of EPCA, thermally protected motors, and motors with roller bearings. Manufacturers are encouraged, however, to manufacture
The following sets forth in greater detail, for each of these types of motors, the basis for the Department's policy to refrain from enforcement for two years. Also set forth is additional explanation of the Department's understanding as to why manufacturers previously believed intermediate horsepower motors were not covered by EPCA.
Section 342(b)(1) of EPCA specifies efficiency standards for electric motors with 19 specific horsepower ratings, ranging from one through 200 horsepower. Each is a preferred or standardized horsepower rating as reflected in the table in NEMA Standards Publication MG1-1993, paragraph 10.32.4,
To date, these motors have typically been designed in conjunction with and supplied to a specific customer to fulfill certain performance and design requirements of a particular application, as for example to run a certain type of equipment. See the discussion in Section IV below on “original equipment” and “original equipment manufacturers.” In large part for these reasons, manufacturers believed intermediate horsepower motors to be “definite purpose motors” that were not covered by EPCA. Despite their specific uses, however, these motors are electric motors under EPCA when they are capable of being used in most general purpose applications.
Features of a motor that are directly related to its horsepower rating include its physical size, and the ratings of its controller and protective devices. These aspects of a 175 horsepower motor, for example, which is an intermediate horsepower motor, must be appropriate to that horsepower, and would generally differ from the same aspects of 150 and 200 horsepower motors, the two standard horsepower ratings closest to 175. To re-design an existing intermediate horsepower electric motor so that it complies with EPCA could involve all of these elements of a motor's design. For example, the addition of material necessary to achieve EPCA's prescribed level of efficiency could cause the size of the motor to increase. The addition of magnetic material would invite higher inrush current that could cause an incorrectly sized motor controller to malfunction, or the circuit breaker with a standard rating to trip unnecessarily, or both. The Department believes motor manufacturers will require a substantial amount of time to redesign and retest each intermediate horsepower electric motor they manufacture.
To the extent such intermediate horsepower electric motors become unavailable because motor manufacturers have recognized only recently that they are covered by EPCA, equipment in which they are incorporated would temporarily become unavailable also. Moreover, re-design of such a motor to comply with EPCA could cause changes in the motor that require re-design of the equipment in which the motor is used. For example, if an intermediate horsepower electric motor becomes larger, it might no longer fit in the equipment for which it was designed. In such instances, the equipment would have to be re-designed. Because these motors were previously thought not to be covered, equipment manufacturers may not have had sufficient lead time to make the necessary changes to the equipment without interrupting its production.
With respect to intermediate horsepower motors, the Department intends to refrain from enforcing EPCA for a period of 24 months only as to such motor designs that were being manufactured prior to the date this Policy Statement was issued. The Department is concerned that small adjustments could be made to the horsepower rating of an existing electric motor, in an effort to delay compliance with EPCA, if it delayed enforcement as to all intermediate horsepower motors produced during the 24 month period. For example, a 50 horsepower motor that has a service factor of 1.15 could be renameplated as a 57
The Department understands that in order to redesign a thermally protected motor to improve its efficiency so that it complies with EPCA, various changes in the windings must be made which will require the thermal protector to be re-selected. Such devices sense the inrush and running current of the motor, as well as the operating temperature. Any changes to a motor that affect these characteristics will prevent the protector from operating correctly. When a new protector is selected, the motor must be tested to verify proper operation of the device in the motor. The motor manufacturer would test the locked rotor and overload conditions, which could take several days, and the results may dictate that a second selection is needed with additional testing. When the manufacturer has finished testing, typically the manufacturer will have a third party conduct additional testing. This testing may include cycling the motor in a locked-rotor condition to verify that the protector functions properly. This testing may take days or even weeks to perform for a particular model of motor.
Since it was only recently recognized by industry that these motors are covered by EPCA, in the Department's view the total testing program makes it impossible for manufacturers to comply with the EPCA efficiency levels in thermally protected motors by October 25, 1997, especially since each different motor winding must be tested and motor winding/thermal protector combinations number in the thousands.
Motors with roller bearings fit within the definition of electric motor under the statute. However, because the IEEE Standard 112 Test Method B does not provide measures to test motors with roller bearings installed, manufacturers mistakenly believed such motors were not covered. Under IEEE Standard 112, a motor with roller bearings could only be tested for efficiency with the roller bearings removed and standard ball bearings installed as temporary substitutes. Then on the basis of the energy efficiency information gained from that test, the manufacturer may need to redesign the motor in order to comply with the statute. In this situation, the Department understands that testing, redesigning, and retesting lines of motors with roller bearings, to establish compliance, would be difficult and time consuming.
Categories III, IV and V—Motors not within EPCA's definition of “electric motor,” and not covered by EPCA.
NEMA Standards Publication MG1-1993, with revisions one through three, Part 18, “Definite-Purpose Machines,” defines “a face-mounting close-coupled pump motor” as “a medium alternating-current squirrel-cage induction open or totally enclosed motor, with or without feet, having a shaft suitable for mounting an impeller and sealing device.” Paragraphs MG1-18.601-18.614 specify its performance, face and shaft mounting dimensions, and frame assignments that replace the suffix letters T and TS with the suffix letters JM and JP.
The Department understands that such motors are designed in standard ratings with standard operating characteristics for use in certain close-coupled pumps and pumping applications, but cannot be used in non-pumping applications, such as, for example, conveyors. Consequently, the Department believes close-coupled pump motors are definite-purpose motors not covered by EPCA. However, a motor that meets EPCA's definition of “electric motor,” and which can be coupled to a pump, for example by means of a C-face or D-flange end shield, as depicted in NEMA Standards Publication MG1, Part 4, “Dimensions, Tolerances, and Mounting,” is covered.
A motor designated in NEMA MG1-1993, paragraph MG1-1.26.1, as “totally-enclosed non-ventilated (IP54, IC410)”
A motor designated in NEMA MG1-1993 as “totally-enclosed air-over (IP54, IC417)” is intended to be cooled by ventilation means external to (
Consequently, neither the TENV motor nor the TEAO motor would be suitable for most general purpose applications, and, DOE believes they are definite-purpose motors not covered by EPCA.
An “integral gearmotor” is an assembly of a motor and a specific gear drive or assembly of gears, such as a gear reducer, as a unified package. The motor portion of an integral gearmotor is not necessarily a complete motor, since the end bracket or mounting flange of the motor portion is also part of the gear assembly and cannot be operated when separated from the complete gear assembly. Typically, an integral gearmotor is not manufactured to standard T-frame dimensions specified in NEMA MG1. Moreover, neither the motor portion, not the entire integral gearmotor, are capable of being used in most general purpose applications without significant modifications. An integral gearmotor is also designed for a specific purpose and can have unique performance characteristics, physical dimensions, and casing, flange and shafting configurations. Consequently, integral gearmotors are outside the scope of the EPCA definition of “electric motor” and are not covered under EPCA.
However, an “electric motor,” as defined by EPCA, which is connected to a stand alone mechanical gear drive or an assembly of gears, such as a gear reducer connected by direct coupling, belts, bolts, a kit, or other means, is covered equipment under EPCA.
The primary function of an electric motor is to convert electrical energy to mechanical energy which then directly drives machinery such as pumps, fans, or compressors. Thus, an electric motor is always connected to a driven machine or apparatus. Typically the motor is incorporated into a finished product such as an air conditioner, a refrigerator, a machine tool, food processing equipment, or other commercial or industrial machinery. These products are commonly known as “original equipment” or “end-use equipment,” and are manufactured by firms known as “original equipment manufacturers” (OEMs).
Many types of motors used in original equipment are covered under EPCA. As noted above, EPCA prescribes efficiency standards to be met by all covered electric motors manufactured after October 24, 1997, except that covered motors which require listing or certification by a nationally recognized safety testing laboratory need not meet the standards until after October 24, 1999. Thus, for motors that must comply after October 24, 1997, once inventories of motors manufactured before the deadline have been exhausted, only complying motors would be available for purchase and use by OEMs in manufacturing original equipment. Any non-complying motors previously included in such equipment would no longer be available.
The physical, and sometimes operational, characteristics of motors that meet EPCA efficiency standards normally differ from the characteristics of comparable existing motors that do not meet those standards. In part because of such differences, the Department is aware of two types of situations where strict application of the October 24, 1997, deadline could temporarily prevent the manufacture of, and remove from the marketplace, currently available original equipment.
One such situation is where an original equipment manufacturer uses an electric motor as a component in end-use equipment that requires listing or certification by a nationally recognized safety testing laboratory, even though the motor itself does not require listing or certification. In some of these instances, the file for listing or certification specifies the particular motor to be used. No substitution could be made for the motor without review and approval of the new motor and the entire system by the safety testing laboratory. Consequently, a specified motor that does not meet EPCA standards could not be replaced by a complying motor without such review and approval.
This re-listing or re-certification process is subject to substantial variation from one piece of original equipment to the next. For some equipment, it could be a simple paperwork transaction between the safety listing or certification organization and the OEM, taking approximately four to eight weeks to complete. But the process could raise more complex system issues involving redesign of the motor or piece of equipment, or both, and actual testing to assure that safety and performance criteria are met, and could take several months to complete. The completion time could also vary depending on the response time of the particular safety approval agency. Moreover, in the period immediately after October 24, the Department believes wholesale changes could occur in equipment lines when OEMs must begin using motors that comply with EPCA. These changes are likely to be concentrated in the period immediately after EPCA goes into effect on October 24, and if many OEMs seek to re-list or re-certify equipment at the same time, substantial delays in the review and approval process at the safety approval agencies could occur. For these reasons, the Department is concerned that certain end-user equipment that requires safety listing or certification could become unavailable in the marketplace, because an electric motor specifically identified in a listing or certification is covered by EPCA and will become unavailable, and the steps have not been completed to obtain safety approval of the equipment when manufactured with a complying motor.
Second, a situation could exist where an electric motor covered by EPCA is constructed in a T-frame series or T-frame size that is smaller (but still standard) than that assigned by NEMA Standards Publication MG 13-1984 (R1990), sections 1.2 and 1.3, in order to fit into a restricted mounting space that is within certain end-use equipment. (Motors in IEC metric frame sizes and kilowatt ratings could also be involved in this type of situation.) In such cases, the manufacturer of the end-use equipment might need to redesign the equipment containing the mounting space to accommodate a larger motor that complies with EPCA. These circumstances as well could result in certain currently available equipment becoming temporarily unavailable in the market, since the smaller size motor would become unavailable before the original equipment had been re-designed to accommodate the larger, complying motor.
The Department understands that many motor manufacturers and OEMs became aware only recently that the electric motors addressed in the preceding paragraphs were covered by EPCA. This is largely for the same reasons, discussed above, that EPCA coverage of Category II motors was only recently recognized. In addition, the Department understands that some motor manufacturers and original equipment manufacturers confused motors that themselves require safety listing or certification, which need not comply until October 25, 1999, with motors that, while not subject to such requirements, are included in original equipment that requires safety listing or certification. Consequently, motor manufacturers and original equipment manufacturers took insufficient action to assure that appropriate complying motors would be available for the original equipment involved, and that the equipment could accommodate such motors.
Where a particular electric motor is specified in an approved safety listing or certification for a piece of original equipment, and the motor does not meet the applicable efficiency standard in EPCA, the Department's policy will be as follows: For the period of time necessary for the OEM to obtain a revised safety listing or certification for that piece of equipment, with a motor specified that complies with EPCA, but in no event beyond October 24, 1999, the Department would refrain from taking enforcement action under EPCA with respect to manufacture of the motor for installation in such original equipment. This policy would apply only where the motor has been manufactured and specified in the approved safety listing or certification prior to October 25, 1997.
Where a particular electric motor is used in a piece of original equipment and manufactured in a smaller than assigned frame size or series, and the motor does not meet the applicable efficiency standard in EPCA, the Department's policy will be as follows: For the period of time necessary for the OEM to re-design the piece of equipment to accommodate a motor that complies with EPCA, but in no event beyond October 24, 1999, the Department would refrain from enforcing the standard with respect to manufacture of the motor for installation in such original equipment. This policy would apply only to a model of motor that has been manufactured and included in the original equipment prior to October 25, 1997.
To allow the Department to monitor application of the policy set forth in the prior two paragraphs, the Department needs to be informed as to the motors being manufactured under the policy. Therefore, each motor manufacturer and OEM should jointly notify the Department as to each motor they will be manufacturing and using, respectively, after October 24, 1997, in the belief that it is covered by the policy. The notification should set forth: (1) The name of the motor manufacturer, and a description of the motor by type, model number, and date of design or production; (2) the name of the original equipment manufacturer, and a description of the application where the motor is to be used; (3) the safety listing or safety certification organization and the existing listing or certification file or document number for which re-listing or re-certification will be requested, if applicable; (4) the reason and amount of time required for continued production of the motor, with a statement that a substitute electric motor that complies with EPCA could not be obtained by an earlier date; and (5) the name, address, and telephone number of the person to contact for further information. The joint request should be signed by a responsible official of each requesting company, and sent to: U.S. Department of Energy, Assistant Secretary for Energy Efficiency and Renewable Energy, Office of Building Research and Standards, EE-41, Forrestal Building, 1000 Independence Avenue, SW., Room 1J-018, Washington, DC 20585-0121. The Department does not intend to apply this policy to any motor for which it does not receive such a notification. Moreover, the Department may use the notification, and make further inquiries, to be sure motors listed in the notification meet the criteria for application of the policy.
This part of the Policy Statement will not apply to a motor in Category II, discussed above in Section III. Because up to 24 months is contemplated for compliance by Category II motors, the Department believes any issues that might warrant a delay of enforcement for such motors can be addressed during that time period.
The Department intends to incorporate this Policy Statement into an appendix to its final rule to implement the EPCA provisions that apply to motors. Any comments or suggestions with respect to this Policy Statement, as well as requests for further information, should be addressed to the Director, Building Technologies, EE-2J, U.S. Department of Energy, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585-0121.
1.
Definitions contained in §§ 431.2 and 431.12 are applicable to this appendix.
2.
Efficiency and losses shall be determined in accordance with NEMA MG1-1993 with Revisions 1 through 4, paragraph 12.58.1, “Determination of Motor Efficiency and Losses,” (Incorporated by reference, see § 431.15) and either:
(1) CSA International (or Canadian Standards Association) Standard C390-93 Test Method (1), (Incorporated by reference, see § 431.15),
(2) IEEE Standard 112-1996 Test Method B,
(i) Page 8, subclause 5.1.1.,
The specified temperature used in making resistance corrections should be determined by one of the following (Test Method B only allows the use of preference (a) or (b).), which are listed in order of preference.
(ii) Page 17, subclause 6.4.1.3.,
See 5.3 including 5.3.3, the separation of core loss from friction and windage loss. Prior to making this test, the machine shall be operated at no-load until the input has stabilized.
(iii) Page 40, subclause 8.6.3,
For continuous rated machines, the temperature test shall continue until there is 1 °C or less change in temperature rise over a 30-minute time period.
(iv) Page 47, at the top of 10.2 form B, immediately after the line that reads “Rated Load Heat Run Stator Winding Resistance Between Terminals,” the following additional line applies:
Temperature for Resistance Correction (t
(v) Page 47, at the bottom of 10.2 Form B, after the first sentence to footnote t
The values for t
(vi) Page 47, at the bottom of 10.2 Form B, below the footnotes and above “Summary of Characteristics,” the following additional note applies:
(vii) Page 48, item (22), the torque constants “k = 9.549 for torque, in N·m” and “k = 7.043 for torque, in 1bf·ft” do not apply. Instead, the following applies:
“k
(viii) Page 48, at the end of item (27), the following additional reference applies:
“See 6.4.3.2.”
(ix) Page 48, item (29). “See 4.3.2.2, Eq. 4,” does not apply. Instead the following applies:
Is equal to (10)·[k
3.
Any revision to IEEE Standard 112-1996 Test Method B with correction notice of January 20, 1998, to NEMA Standards Publication MG1-1993 with Revisions 1 through 4, or to CSA Standard C390-93 Test Method (1), subsequent to promulgation of this appendix B, shall not be effective for purposes of test procedures required under Part 431 and this appendix B, unless and until Part 431 and this appendix B are amended.
1. Name and Address of Company (the “company”):
2. Name(s) to be Marked on Electric Motors to Which this Compliance Certification Applies:
3. If manufacturer or private labeler wishes to receive a unique Compliance Certification number for use with any particular brand name, trademark, or other label name, fill out the following two items:
A. List each brand name, trademark, or other label name for which the company requests a Compliance Certification number:
B. List other name(s), if any, under which the company sells electric motors (if not listed in item 2 above):
This Compliance Certification reports on and certifies compliance with requirements contained in 10 CFR Part 431 (Energy Conservation Program for Certain Commercial and Industrial Equipment) and Part C of the Energy Policy and Conservation Act (Pub. L. 94-163), and amendments thereto. It is signed by a responsible official of the above named company. Attached and incorporated as part of this Compliance Certification is a Listing of Electric Motor Efficiencies. For each rating of electric motor* for which the Listing specifies the nominal full load efficiency of a basic model, the company distributes no less efficient basic model with that rating and all basic models with that rating comply with the applicable energy efficiency standard.
If any part of this Compliance Certification, including the Attachment, was prepared by a third party organization under the provisions of 10 CFR 431.36, the company official authorizing third party representations:
All required determinations on which this Compliance Certification is based were made in conformance with the applicable requirements in 10 CFR Part 431, subpart B. All information reported in this Compliance Certification is true, accurate, and complete. The company is aware of the penalties associated with violations of the Act and the regulations thereunder, and is also aware of the provisions contained in 18 U.S.C. 1001, which prohibits knowingly making false statements to the Federal Government.
This subpart contains energy conservation requirements for commercial warm air furnaces, pursuant to Part C of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. 6311-6316.
The following definitions apply for purposes of this subpart D, and of subparts J through M of this part. Any words or terms not defined in this Section or elsewhere in this Part shall be defined as provided in Section 340 of the Act.
(a) We incorporate by reference the following test procedures into subpart D of Part 431. The Director of the Federal Register has approved the material listed in paragraph (b) of this section for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 51. Any subsequent amendment to this material by the standard-setting organization will not affect the DOE test procedures unless and until DOE amends its test procedures. We incorporate the material as it exists on the date of the approval and a notice of
(b)
(2) Underwriters Laboratories (UL) Standard 727-1994, “Standard for Safety Oil-Fired Central Furnaces,” IBR approved for § 431.76.
(3) Sections 8.2.2, 11.1.4, 11.1.5, and 11.1.6.2 of the Hydronics Institute (HI) Division of GAMA Boiler Testing Standard BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers,” published January 2001 (HI BTS-2000), IBR approved for § 431.76.
(4) Sections 7.2.2.4, 7.8, 9.2, and 11.3.7 of the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) Standard 103-1993, “ Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” IBR approved for § 431.76.
(c)
(i) National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
(ii) U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Hearings and Dockets, “Test Procedures and Efficiency Standards for Commercial Warm Air Furnaces; Efficiency Certification, Compliance, and Enforcement Requirements for Commercial Heating, Air Conditioning and Water Heating Equipment;” Docket No. EE-RM/TP-99-450, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
(2)
(i) The ASHRAE Standard from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1971 Tullie Circle, NE., Atlanta, GA 30329, or
(ii) The ANSI Standard from Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112, or
(iii) The UL Standard from Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112, or
(iv) The HI Standard from the Hydronics Institute Division of GAMA, P.O. Box 218, Berkeley Heights, NJ 07922, or
(a) This Section covers the test procedures you must follow if, pursuant to EPCA, you are measuring the steady state thermal efficiency of a gas-fired or oil-fired commercial warm air furnace with a rated maximum input of 225,000 Btu per hour or more. Where this Section prescribes use of ANSI standard Z21.47-1998 or UL standard 727-1994, (Incorporated by reference, see § 431.75), perform only the procedures pertinent to the measurement of the steady-state efficiency.
(b)
(2)
(c)
(2)
(d)
(2)
(e)
(1) You must calculate the latent heat gain from the condensation of the water vapor in the flue gas, and calculate heat loss due to the flue condensate down the drain, as specified in sections 11.3.7.1 and 11.3.7.2 of ASHRAE Standard 103-1993, (Incorporated by reference, see § 431.75), with the exception that in the equation for the heat loss due to hot condensate flowing down the drain in Section 11.3.7.2, the assumed indoor temperature of 70° F and the temperature term T
(2) Adjustment to the Thermal Efficiency for Condensing Furnace. You must adjust the thermal efficiency as calculated in paragraph (d)(1) of this section by adding the latent gain, expressed in percent, from the condensation of the water vapor in the flue gas, and subtracting the heat loss (due to the flue condensate down the drain), also expressed in percent, both as calculated in paragraph (e)(1) of this section, to obtain the thermal efficiency of a condensing furnace.
Each commercial warm air furnace manufactured on or after January 1, 1994, must meet the following energy efficiency standard levels:
(a) For a gas-fired commercial warm air furnace with capacity of 225,000 Btu per hour or more, the thermal efficiency at the maximum rated capacity (rated maximum input) must be not less than 80 percent.
(b) For an oil-fired commercial warm air furnace with capacity of 225,000 Btu per hour or more, the thermal efficiency at the maximum rated capacity (rated maximum input) must be not less than 81 percent.
The following definitions apply for purposes of subparts D through G and J through M of this part. Other terms in these subparts shall be as defined elsewhere in this Part and, if not defined in this part, shall have the meaning set forth in Section 340 of the Act.
(1) In operation consumes, or is designed to consume energy;
(2) To any significant extent, is distributed in commerce for industrial or commercial use; and
(3) Is not a “covered product” as defined in Section 321(2) of EPCA, 42 U.S.C. 6291(2), other than a component of a covered product with respect to which there is in effect a determination under Section 341(c) of EPCA, 42 U.S.C. 6312(c).
(1) Such product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of such product;
(2) The person with whose brand or trademark such product (or container) is labeled has authorized or caused such product to be so labeled; and
(3) The brand or trademark of a manufacturer of such product does not appear on such label.
This subpart describes violations of EPCA's energy conservation requirements, specific procedures we will follow in pursuing alleged non-compliance of an electric motor with an applicable energy conservation standard or labeling requirement, and general procedures for enforcement action, largely drawn directly from EPCA, that apply to both electric motors and commercial HVAC & WH products.
(a) Each of the following is a prohibited act under sections 332 and 345 of the Act:
(1) Distribution in commerce by a manufacturer or private labeler of any “new covered equipment” which is not labeled in accordance with an applicable labeling rule prescribed in accordance with Section 344 of the Act, and in this part;
(2) Removal from any “new covered equipment” or rendering illegible, by a manufacturer, distributor, retailer, or private labeler, of any label required under this Part to be provided with such covered equipment;
(3) Failure to permit access to, or copying of records required to be supplied under the Act and this part, or failure to make reports or provide other information required to be supplied under the Act and this part;
(4) Advertisement of an electric motor or motors, by a manufacturer, distributor, retailer, or private labeler, in a catalog from which the equipment may be purchased, without including in the catalog all information as required by § 431.31(b)(1), provided, however, that this shall not apply to an advertisement of an electric motor in a catalog if distribution of the catalog began before the effective date of the labeling rule applicable to that motor;
(5) Failure of a manufacturer to supply at his expense a reasonable number of units of covered equipment to a test laboratory designated by the Secretary;
(6) Failure of a manufacturer to permit a representative designated by the Secretary to observe any testing required by the Act and this part, and to inspect the results of such testing; and
(7) Distribution in commerce by a manufacturer or private labeler of any new covered equipment which is not in compliance with an applicable energy efficiency standard prescribed under the Act and this part.
(b) In accordance with sections 333 and 345 of the Act, any person who knowingly violates any provision of paragraph (a) of this section may be subject to assessment of a civil penalty of no more than $110 for each violation. Each violation of paragraphs (a)(1), (2), and (7) of this section shall constitute a separate violation with respect to each unit of any covered equipment, and each day of noncompliance with paragraphs (a)(3) through (6) of this section shall constitute a separate violation.
(c) For purposes of this section:
(1) The term “new covered equipment” means covered equipment the title of which has not passed to a purchaser who buys such product for purposes other than:
(i) Reselling it; or
(ii) Leasing it for a period in excess of one year; and
(2) The term “knowingly” means:
(i) Having actual knowledge; or
(ii) Presumed to have knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of due care.
(a)
(1) The test notice procedure will only be followed after the Secretary or his/her designated representative has examined the underlying test data (or, where appropriate, data as to use of an alternative efficiency determination method) provided by the manufacturer and after the manufacturer has been offered the opportunity to meet with the Department to verify, as applicable, compliance with the applicable efficiency standard, or the accuracy of labeling information, or both. In addition, where compliance of a basic model was certified based on an AEDM, the Department shall have the discretion to pursue the provisions of § 431.17(a)(4)(iii) prior to invoking the test notice procedure. A representative designated by the Secretary shall be permitted to observe any re-verification procedures undertaken pursuant to this subpart, and to inspect the results of such reverification.
(2) The test notice will be signed by the Secretary or his/her designee. The test notice will be mailed or delivered by the Department to the plant manager or other responsible official, as designated by the manufacturer.
(3) The test notice will specify the model or basic model to be selected for testing, the method of selecting the test sample, the date and time at which testing shall be initiated, the date by which testing is scheduled to be completed and the facility at which testing will be conducted. The test notice may also provide for situations in which the specified basic model is unavailable for testing, and may include alternative basic models.
(4) The Secretary may require in the test notice that the manufacturer of an electric motor shall ship at his expense a reasonable number of units of a basic model specified in such test notice to a testing laboratory designated by the Secretary. The number of units of a basic model specified in a test notice shall not exceed 20.
(5) Within five working days of the time the units are selected, the manufacturer shall ship the specified test units of a basic model to the testing laboratory.
(b)
(c)
(d)
(1) The batch may be subdivided by the Department utilizing criteria specified in the test notice.
(2) A batch sample of up to 20 units will then be randomly selected from one or more subdivided groups within the
(3) Individual test units comprising the test sample shall be randomly selected from the batch sample.
(4) All random selection shall be achieved by sequentially numbering all of the units in a batch sample and then using a table of random numbers to select the units to be tested.
(e)
(2) No quality control, testing, or assembly procedures shall be performed on a test unit, or any parts and sub-assemblies thereof, that is not performed during the production and assembly of all other units included in the basic model.
(3) A test unit shall be considered defective if such unit is inoperative or is found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructions. Defective units, including those damaged due to shipping or handling, shall be reported immediately to the Department. The Department shall authorize testing of an additional unit on a case-by-case basis.
(f)
(2) All units tested under this paragraph shall be selected and tested in accordance with the provisions given in paragraphs (a) through (e) of this section.
(3) The manufacturer shall bear the cost of all testing conducted under this paragraph.
(4) The manufacturer shall cease distribution of the basic model tested under the provisions of this paragraph from the time the manufacturer elects to exercise the option provided in this paragraph until the basic model is determined to be in compliance. The Department may seek civil penalties for all units distributed during such period.
(5) If the additional testing results in a determination of compliance, a notice of allowance to resume distribution shall be issued by the Department.
(a) In the event that a model of an electric motor is determined non-compliant by the Department in accordance with § 431.192 or if a manufacturer or private labeler determines a model of an electric motor to be in noncompliance, then the manufacturer or private labeler shall:
(1) Immediately cease distribution in commerce of the basic model.
(2) Give immediate written notification of the determination of noncompliance, to all persons to whom the manufacturer has distributed units of the basic model manufactured since the date of the last determination of compliance.
(3) Pursuant to a request made by the Secretary, provide the Department within 30 days of the request, records, reports, and other documentation pertaining to the acquisition, ordering, storage, shipment, or sale of a basic model determined to be in noncompliance.
(4) The manufacturer may modify the non-compliant basic model in such manner as to make it comply with the applicable performance standard. Such modified basic model shall then be treated as a new basic model and must be certified in accordance with the provisions of this subpart; except that in addition to satisfying all requirements of this subpart, the manufacturer shall also maintain records that demonstrate that modifications have been made to all units of the new basic model prior to distribution in commerce.
(b) If a basic model is not properly certified in accordance with the requirements of this subpart, the Secretary may seek, among other remedies, injunctive action to prohibit distribution in commerce of such basic model.
If the Secretary determines that a basic model of any covered equipment does not comply with an applicable energy conservation standard:
(a) The Secretary will notify the manufacturer, private labeler, or any other person as required, of this finding and of the Secretary's intent to seek a judicial order restraining further distribution in commerce of units of such a basic model unless the manufacturer, private labeler or other person as required, delivers, within 15 calendar days, a satisfactory statement to the Secretary, of the steps the manufacturer, private labeler or other person will take to insure that the noncompliant basic model will no longer be distributed in commerce. The Secretary will monitor the implementation of such statement.
(b) If the manufacturer, private labeler or any other person as required, fails to stop distribution of the noncompliant basic model, the Secretary may seek to restrain such violation in accordance with sections 334 and 345 of the Act.
(c) The Secretary will determine whether the facts of the case warrant the assessment of civil penalties for knowing violations in accordance with sections 333 and 345 of the Act.
(a) Under sections 333(d) and 345 of the Act, before issuing an order assessing a civil penalty against any person, the Secretary must provide to such a person a notice of the proposed penalty. Such notice must inform the person that such person can choose (in writing within 30 days after receipt of the notice) to have the procedures of paragraph (c) of this section (in lieu of those in paragraph (b) of this section) apply with respect to such assessment.
(b)(1) Unless a person elects, within 30 calendar days after receipt of a notice under paragraph (a) of this section, to have paragraph (c) of this section apply with respect to the civil penalty under paragraph (a), the Secretary will assess the penalty, by order, after providing an opportunity for an agency hearing under 5 U.S.C. 554, before an administrative law judge appointed under 5 U.S.C. 3105, and making a determination of violation on the record. Such assessment order will include the administrative law judge's findings and the basis for such assessment.
(2) Any person against whom the Secretary assesses a penalty under this paragraph may, within 60 calendar days after the date of the order assessing such penalty, initiate action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with 5 U.S.C. chapter 7. The court will have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secretary for such further action as the court may direct.
(c)(1) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the
(2) If the person has not paid the civil penalty within 60 calendar days after the assessment has been made under paragraph (c)(1) of this section, the Secretary will institute an action in the appropriate District Court of the United States for an order affirming the assessment of the civil penalty. The court will have authority to review de novo the law and the facts involved and jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.
(3) Any election to have this paragraph apply can only be revoked with the consent of the Secretary.
(d) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (b) of this section, or after the appropriate District Court has entered final judgment in favor of the Secretary under paragraph (c) of this section, the Secretary will institute an action to recover the amount of such penalty in any appropriate District Court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment will not be subject to review.
(e)(1) In accordance with the provisions of sections 333(d)(5)(A) and 345 of the Act and notwithstanding the provisions of title 28, United States Code, or Section 502(c) of the Department of Energy Organization Act, the General Counsel of the Department of Energy (or any attorney or attorneys within DOE designated by the Secretary) will represent the Secretary, and will supervise, conduct, and argue any civil litigation to which paragraph (c) of this section applies (including any related collection action under paragraph (d) of this section) in a court of the United States or in any other court, except the Supreme Court of the United States. However, the Secretary or the General Counsel will consult with the Attorney General concerning such litigation and the Attorney General will provide, on request, such assistance in the conduct of such litigation as may be appropriate.
(2) In accordance with the provisions of sections 333(d)(5)(B) and 345 of the Act, and subject to the provisions of Section 502(c) of the Department of Energy Organization Act, the Secretary will be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this section, except to the extent provided in paragraph (e)(1) of this section.
(3) In accordance with the provisions of Section 333(d)(5)(c) and 345 of the Act, Section 402(d) of the Department of Energy Organization Act will not apply with respect to the function of the Secretary under this section.
Step 1. The first sample size (n
Step 2. Compute the mean (X
Step 3. Compute the sample standard deviation (S
Step 4. Compute the standard error (SE(X
Step 5. Compute the lower control limit (LCL
Step 6. Compare the mean of the first sample (X
(i) If the mean of the first sample is below the lower control limit, then the basic model is in non-compliance and testing is at an end.
(ii) If the mean is equal to or greater than the lower control limit, no final determination of compliance or non-compliance can be made; proceed to Step 7.
Step 7. Determine the recommended sample size (n) as follows:
Given the value of n, determine one of the following:
(i) If the value of n is less than or equal to n
(ii) If the value of n is greater than n1, the basic model is in non-compliance. The size of a second sample n
Step 8. Compute the combined (X
Step 9. Compute the standard error (SE(X
Step 10. Set the lower control limit (LCL
(i) If the mean of the combined sample (X
(ii) If the mean of the combined sample (X
If a determination of non-compliance is made in Steps 6, 7 or 10, of this appendix A, the manufacturer may request that additional testing be conducted, in accordance with the following procedures.
Step A. The manufacturer requests that an additional number, n
Step B. Compute the mean full-load efficiency, standard error, and lower control limit of the new combined sample in accordance with the procedures prescribed in Steps 8, 9, and 10, of this appendix A.
Step C. Compare the mean performance of the new combined sample to the lower control limit (LCL
(a) If the new combined sample mean is equal to or greater than the lower control limit, the basic model is in compliance and testing is at an end.
(b) If the new combined sample mean is less than the lower control limit and the value of n
(c) Otherwise, the basic model is determined to be in non-compliance.
(a)
(2) Any person who has submitted a Petition for Waiver as provided in this subpart, may also file an Application for Interim Waiver of the applicable test procedure requirements.
(b) Submission, content, and publication. (1) You must submit your Petition for Waiver in triplicate, to the Assistant Secretary for Energy Efficiency and Renewable Energy, U.S. Department of Energy. Each Petition for Waiver must:
(i) Identify the particular basic model(s) for which a waiver is requested, the design characteristic(s) constituting the grounds for the petition, and the specific requirements sought to be waived, and must discuss in detail the need for the requested waiver;
(ii) Identify manufacturers of all other basic models marketed in the United States and known to the petitioner to incorporate similar design characteristic(s);
(iii) Include any alternate test procedures known to the petitioner to evaluate the characteristics of the basic model in a manner representative of its energy consumption; and
(iv) Be signed by you or by an authorized representative. In accordance with the provisions set forth in 10 CFR 1004.11, any request for confidential treatment of any information contained in a Petition for Waiver or in supporting documentation must be accompanied by a copy of the petition, application or supporting documentation from which the information claimed to be confidential has been deleted. DOE will publish in the
(2) You must submit any Application for Interim Waiver in triplicate, with the required three copies of the Petition for Waiver, to the Assistant Secretary for Energy Efficiency and Renewable Energy, U.S. Department of Energy. Each Application for Interim Waiver must reference the Petition for Waiver by identifying the particular basic model(s) for which you seek a waiver and temporary exception. Each Application for Interim Waiver must demonstrate likely success of the Petition for Waiver and address what economic hardship and/or competitive disadvantage is likely to result absent a favorable determination on the Application for Interim Waiver. You or an authorized representative must sign the Application for Interim Waiver.
(c)
(2) If you apply for Interim Waiver, whether filing jointly with or subsequent to your Petition for Waiver with DOE, you must concurrently notify in writing all known manufacturers of domestically marketed units of the same product type (as defined in Section 340(1) of the Act), and must include in the notice a copy of the Petition for Waiver and a copy of the Application for Interim Waiver. In complying with this section, you must in the written notification include a statement that the Assistant Secretary for Energy Efficiency and Renewable Energy will receive and consider timely written comments on the Application for Interim Waiver. Upon filing an Application for Interim Waiver, you must in complying with the requirements of this paragraph certify to DOE that a copy of these documents has been sent to all known manufacturers of domestically marked units of the same product type (as listed in Section 340(1) of the Act). Such certification must include the names and addresses of such persons. You must comply with the provisions of paragraph (c)(1) of this Section with respect to the petition for waiver.
(d)
(2) Any person submitting written comments to DOE with the respect to a Petition for Waiver must also send a copy of such comments to the petitioner. In accordance with paragraph (b)(1) of this section, a petitioner may submit a rebuttal statement to the Assistant Secretary for Energy Efficiency and Renewable Energy.
(e)
(2)
(3)
(4)
(f)
(2)
(3)
(4)
(g)
(h)
Beginning on the effective date of such standard, an energy conservation standard set forth in this Part for a commercial HVAC & WH product supersedes any State or local regulation concerning the energy efficiency or energy use of that product, except as provided for in Section 345(b)(2)(B)-(D) of the Act.
(a) If you are the manufacturer of any covered equipment, you must establish, maintain and retain records of the following:
(1) The test data for all testing conducted pursuant to this part;
(2) For electric motors, the development, substantiation, application, and subsequent verification of any AEDM used under this part; and
(3) For electric motors, any written certification received from a certification program, including a certificate or conformity, relied on under the provisions of this part.
(b) You must organize such records and index them so that they are readily accessible for review. The records must include the supporting test data associated with tests performed on any test units to satisfy the requirements of this Part (except tests performed by us directly).
(c) For each basic model, you must retain all such records for a period of two years from the date that production of all units of that basic model has ceased. You must retain records in a form allowing ready access to DOE, upon request.
(a) Under sections 331 and 345 of the Act, any person importing any covered equipment into the United States must comply with the provisions of the Act and of this part, and is subject to the remedies of this part.
(b) Any covered equipment offered for importation in violation of the Act and of this part will be refused admission into the customs territory of the United States under rules issued by the Secretary of the Treasury, except that the Secretary of the Treasury may, by such rules, authorize the importation of such covered equipment upon such terms and conditions (including the furnishing of a bond) as may appear to the Secretary of Treasury appropriate to ensure that such covered equipment will not violate the Act and this part, or will be exported or abandoned to the United States.
Under Sections 330 and 345 of the Act, this Part does not apply to any covered equipment if:
(a) Such equipment is manufactured, sold, or held for sale for export from the United States (or such equipment was imported for export), unless such equipment is, in fact, distributed in commerce for use in the United States; and,
(b) Such equipment, when distributed in commerce, or any container in which it is enclosed when so distributed, bears a stamp or label stating that such covered equipment is intended for export.
Pursuant to sections 329(a) and 345 of the Act, for purposes of carrying out this part, the Secretary or the Secretary's designee, may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer the oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served upon any persons subject to this part, the Secretary may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as a contempt thereof.
Pursuant to the provisions of 10 CFR 1004.11, any person submitting information or data which the person believes to be confidential and exempt from public disclosure should submit one complete copy, and 15 copies from which the information believed to be confidential has been deleted. In accordance with the procedures established at 10 CFR 1004.11, the Department shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.
(a) The regulations in this subpart prescribe the procedures to be followed in connection with petitions requesting a rule that a State regulation prescribing an energy conservation standard or other requirement respecting energy use or energy efficiency of a type (or class) of covered equipment not be preempted.
(b) The regulations in this subpart also prescribe the procedures to be followed in connection with petitions to withdraw a rule exempting a State regulation prescribing an energy conservation standard or other requirement respecting energy use or energy efficiency of a type (or class) of covered equipment.
(a)
(1) Requirements of petition for exemption from preemption. A petition from a State for a rule for exemption from preemption shall include the information listed in paragraphs (a)(1)(i) through (a)(1)(vi) of this section. A petition for a rule and correspondence relating to such petition shall be available for public review except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR Part 1004.
(i) The name, address, and telephone number of the petitioner;
(ii) A copy of the State standard for which a rule exempting such standard is sought;
(iii) A copy of the State's energy plan and forecast;
(iv) Specification of each type or class of covered equipment for which a rule exempting a standard is sought;
(v) Other information, if any, believed to be pertinent by the petitioner; and
(vi) Such other information as the Secretary may require.
(b)
(1) Requirements of petition for exemption from preemption when energy emergency conditions exist within a State. A petition from a State for a rule for exemption from preemption when energy emergency conditions exist within a State shall include the information listed in paragraphs (a)(1)(i) through (a)(1)(vi) of this section. A petition shall also include the information prescribed in paragraphs (b)(1)(i) through (b)(1)(iv) of this section, and shall be available for public review except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR Part 1004:
(i) A description of the energy emergency condition which exists within the State, including causes and impacts.
(ii) A description of emergency response actions taken by the State and utilities within the State to alleviate the emergency condition;
(iii) An analysis of why the emergency condition cannot be alleviated substantially by importation of energy or the use of interconnection agreements;
(iv) An analysis of how the State standard can alleviate substantially such emergency condition.
(c)
(1) Requirements of petition to withdraw a rule exempting a State standard. A petition for a rule to withdraw a rule exempting a State standard shall include the information prescribed in paragraphs (c)(1)(i) through (c)(1)(vii) of this section, and shall be available for public review, except for confidential or proprietary information submitted in accordance with the Department of Energy's Freedom of Information Regulations set forth in 10 CFR Part 1004:
(i) The name, address and telephone number of the petitioner;
(ii) A statement of the interest of the petitioner for which a rule withdrawing an exemption is sought;
(iii) A copy of the State standard for which a rule withdrawing an exemption is sought;
(iv) Specification of each type or class of covered equipment for which a rule withdrawing an exemption is sought;
(v) A discussion of the factors contained in paragraph (a) of this section;
(vi) Such other information, if any, believed to be pertinent by the petitioner; and
(vii) Such other information as the Secretary may require.
(2) [Reserved]
(a)
(b)
(c)
(d)
(2) Saturdays, Sundays, and intervening Federal legal holidays shall be excluded from the computation of time when the period of time allowed or prescribed is 7 days or less.
(3) When a submission is required to be made within a prescribed time, DOE may grant an extension of time upon good cause shown.
(4) Documents received after regular business hours are deemed to have been submitted on the next regular business day. Regular business hours for the DOE's National Office, Washington, DC, are 8:30 a.m. to 4:30 p.m.
(5) DOE reserves the right to refuse to accept, and not to consider, untimely submissions.
(e)
(2) A petition may be submitted on behalf of more than one person. A joint petition shall indicate each person participating in the submission. A joint petition shall provide the information required by § 431.212 for each person on whose behalf the petition is submitted.
(3) All petitions shall be signed by the person(s) submitting the petition or by a duly authorized representative. If submitted by a duly authorized representative, the petition shall certify this authorization.
(4) A petition for a rule to withdraw a rule exempting a State regulation, all supporting documents, and all future submissions shall be served on each State agency, department, or instrumentality whose regulation the petitioner seeks to supersede. The petition shall contain a certification of this service which states the name and mailing address of the served parties, and the date of service.
(f)
(2) For purposes of the Act and this subpart, a petition is deemed to be filed on the date it is accepted for filing.
(g)
(a) Promptly after receipt of a petition and its acceptance for filing, notice of such petition shall be published in the
(b) In addition to the material required under paragraph (a) of this section, each notice shall contain a summary of the State regulation at issue and the petitioner's reasons for the rule sought.
DOE may consolidate any or all matters at issue in two or more proceedings docketed where there exist common parties, common questions of fact and law, and where such consolidation would expedite or simplify consideration of the issues. Consolidation shall not affect the right of any party to raise issues that could have been raised if consolidation had not occurred.
The Secretary may hold a public hearing, and publish notice in the
(a) After the submission of public comments under § 431.213(a), the Secretary shall prescribe a final rule or deny the petition within 6 months after the date the petition is filed.
(b) The final rule issued by the Secretary or a determination by the Secretary to deny the petition shall include a written statement setting forth his findings and conclusions, and the reasons and basis therefor. A copy of the Secretary's decision shall be sent to the petitioner and the affected State agency. The Secretary shall publish in the
(c) If the Secretary finds that he cannot issue a final rule within the 6-month period pursuant to paragraph (a) of this section, he shall publish a notice in the
(a) A final rule exempting a State standard from Federal preemption will be effective:
(1) Upon publication in the
(2) Three years after such rule is published in the
(3) Five years after such rule is published in the
(b) A final rule withdrawing a rule exempting a State standard will be effective upon publication in the
(a) Any petitioner whose petition for a rule has been denied may request reconsideration within 30 days of denial. The request shall contain a statement of facts and reasons supporting reconsideration and shall be submitted in writing to the Secretary.
(b) The denial of a petition will be reconsidered only where it is alleged and demonstrated that the denial was based on error in law or fact and that evidence of the error is found in the record of the proceedings.
(c) If the Secretary fails to take action on the request for reconsideration within 30 days, the request is deemed denied, and the petitioner may seek such judicial review as may be appropriate and available.
(d) A petitioner has not exhausted other administrative remedies until a request for reconsideration has been filed and acted upon or deemed denied.
(a) A decision to prescribe a rule that a State energy conservation standard or other requirement not be preempted is final on the date the rule is issued,
(b) A decision to prescribe a rule withdrawing a rule exempting a State standard or other requirement is final on the date the rule is issued,
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
Pursuant to Part C of title III of the Energy Policy and Conservation Act (EPCA), the Department of Energy (DOE or the Department) promulgates a rule prescribing test procedures to rate the energy efficiency of commercial packaged boilers and definitions relevant to this equipment. The rule also recodifies energy conservation standards prescribed by EPCA for commercial packaged boilers so that they are located contiguous with the test procedures that DOE promulgates today.
This rule is effective November 22, 2004. The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of November 22, 2004.
Mohammed Khan, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Mail Station, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-7892, FAX (202) 586-4617, e-mail:
This final rule incorporates, by reference, into Subpart E of Part 431, two test procedures contained in industry standards referenced by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) and the Illuminating Engineering Society of North America (IES) Standard 90.1 (“ASHRAE/IES Standard 90.1”) for commercial packaged boilers. Those industry standards are: the Hydronics Institute (HI) Division of the Gas Appliance Manufacturer's Association (GAMA) Boiler Testing Standard BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers” (which supersedes the ASHRAE Standard 90.1 referenced 1989 HI Standard, “Testing and Rating Standard for Heating Boilers,” 6th Edition, 1989); and American Society of Mechanical Engineers (ASME) PTC 4.1-1964/RA-1991, “Power Test Codes for Steam Generating Units.”
You can view copies of these standards in the resource room of the Building Technologies Program, room 1J-018 at the U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at (202) 586-2945, for additional information regarding visiting the resource room.
You can purchase copies of the HI Standard BTS-2000 from Hydronics Institute Division of GAMA, P.O. Box 218, Berkeley Heights, NJ 07922,
Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions designed to improve energy efficiency. Part B of title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program similar to Part B which is entitled “Certain Industrial Equipment” and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.
DOE publishes today's final rule pursuant to Part C which specifically provides for definitions, test procedures, labeling provisions, energy conservation standards, and authority to require information and reports from manufacturers.
DOE began implementation of Part C of title III of EPCA by establishing 10 CFR part 431. Part 431 is entitled “Energy Efficiency Program for Certain Commercial and Industrial Equipment.” Eventually, part 431 will include commercial heating, air conditioning and water heating products. It will consist of: Test procedures, Federal energy conservation standards, labeling, and certification and enforcement procedures. Today DOE proposes amendments to part 431 in order further to implement Part C of title III of EPCA.
As a first step in the process that led to today's final rule, DOE convened public workshops on April 14 and 15, 1998, and October 18, 1998, to solicit views and information from interested persons to aid in developing proposed rules that would address test procedures, certification and enforcement procedures, and EPCA's coverage for this equipment. The workshop discussions and comments focused on the following issues for packaged boilers specifically:
(1) The definition of commercial packaged boiler;
(2) Whether the efficiency standards and test procedures prescribed by EPCA apply only to boilers used in certain applications, to boilers below a certain capacity, and to low pressure boilers;
(3) The test procedures to be adopted;
(4) Adoption of separate testing provisions for condensing boilers, modular boilers, multiple boilers, or boilers designed for low temperature applications; and
(5) Testing and rating of a boiler designed for both steam and hot water applications.
After considering both oral and written comments, on August 9, 2000, DOE published a Notice of Proposed Rulemaking and Public Hearing (“proposed rule” or “NOPR”) (65 FR 48838) to implement the energy efficiency standards and test procedures mandated by EPCA for commercial packaged boilers. 65 FR 48838. The NOPR requested data, comments, and information regarding the proposed regulations. DOE conducted a public workshop/hearing (the public hearing) on September 20, 2000, to receive oral comments, and DOE also accepted written comments. In formulating today's final rule, DOE considered these comments and have incorporated recommendations where appropriate. Section II below discusses the comments that questioned or disagreed with the Department's positions as presented in the NOPR.
Energy conservation standard levels were not at issue in these proceedings. The NOPR merely proposed to recodify into the Department's regulations on efficiency requirements for commercial packaged boilers the energy conservation standard levels that had been established in 42 U.S.C. 6313(a) of EPCA for this equipment.
Today's final rule incorporates the following for commercial packaged boilers: (1) Clarification of EPCA's definition and coverage, (2) energy efficiency test procedures, and (3) energy conservation standards. The commercial packaged boilers covered under today's final rule: (1) Are low pressure steam and hot water heating boilers (steam boilers with a pressure of 15 psi gauge (psig) or less and hot water boilers with a pressure of 160 psig or less and water temperature of 250° F or less), (2) having a rated maximum input capacity of 300,000 Btu per hour (Btu/hr) or more, and (3) that are, “to any significant extent,” distributed in commerce for the heating, space conditioning or service water heating in buildings. High pressure steam and high temperature water boilers (steam boilers with a pressure higher than 15 psig, and water boilers with a pressure above 160 psig or a water temperature exceeding 250° F, or both) are not covered by the test procedures and standards in today's rule. This final rule also provides, in essence, that the person or entity that specifies the major component parts used in an assembled boiler is responsible for the boiler's compliance with EPCA efficiency requirements.
Today's final rule incorporates the test procedures contained in the commercial boiler testing standard HI BTS-2000 from the Hydronics Institute Division of GAMA (Incorporated by reference, see § 431.85) (including its provisions for testing condensing boilers) to determine the energy efficiency of commercial packaged boilers under EPCA. And the rule allows, as an alternative during a two year transition period, the use of ASME PTC 4.1-1964 (R1991) to test steel boilers under EPCA, since many manufacturers have traditionally used that procedure to test such boilers.
Finally, so that the efficiency test procedures and standards for commercial packaged boilers will be in the same place in our regulations, this rule recodifies elsewhere in part 431 the minimum energy efficiency levels prescribed in 42 U.S.C. 6313(a) of EPCA.
Representatives of eight organizations, comprising trade associations (the American Gas Association and GAMA), manufacturers (A.O. Smith Water Products Co. and Bock Water Heaters), private research/consulting entities (the Gas Technology Institute (GTI), Arthur D. Little Inc. (ADL), and BR Laboratories, Inc. (BR Labs)), and a state government energy agency (the California Energy Commission (CEC)), attended the public hearing on September 20, 2000. The American Society of Testing and Materials (ASTM) did not attend the public hearing but submitted written comments. GAMA and CEC also submitted written statements in advance of the hearing.
The following summarizes the issues addressed in the preamble of the NOPR and discusses in detail the points on which significant comments were presented during and after the public hearing.
EPCA defines “packaged boiler” as “a boiler that is shipped complete with heating equipment, mechanical draft equipment, and automatic controls; usually shipped in one or more sections.” (42 U.S.C. 6311(11)(B)) As discussed in the NOPR and as further discussed below, ASHRAE/IES Standard 90.1-1989, refers to five test standards for commercial heating boilers. The definitions for packaged boiler or boiler assembly in three of the four standards are essentially the same as, but not identical to, EPCA's definition with respect to the heating equipment and controls. The fourth standard defines only the type of low-pressure boilers that it covers and the fifth does not define packaged boilers.
The NOPR discussed in detail whether EPCA's efficiency requirements for commercial packaged boilers apply only to certain types of boilers based on their method of shipment and assembly, application (
GAMA suggested that in the NOPR's definition for “commercial packaged boiler” (proposed § 431.352), the phrase “capacity of 300,000 Btu/hr or more” should be replaced with “input rating of 300,000 Btu/hr or more.” GAMA stated that the word “capacity” is imprecise because it specifies neither input nor output. (GAMA, No. 2EE at p. 1). At the public hearing, GAMA explained that “capacity” in this context has more than one meaning. It means the output capacity to most people, but could mean input to a minor segment of the industry. GAMA stated that, as used in the definition, however, the 300,000 Btu/hr value should be the input rating of the boiler. Otherwise commercial boilers with input ratings of approximately 300,000 to 375,000 Btu/hr would not be covered by the proposed Federal regulations, since those boilers would have an output capacity of less than 300,000 Btu/hr. (GAMA, Tr. 35-38). CEC supported GAMA's suggestion, stating in part that the rated input has always been: (1) Used to define the size of gas appliances in the ANSI Z21 series of standards, (2) intended as the basis for defining capacity in ASHRAE/IES Standard 90.1, and (3) what the State of California believes is the basis for preemption of state efficiency requirements. (CEC, Tr. 35, 39). BR Laboratories, Inc. supported GAMA's position. (BR Labs., Tr. 39).
For a number of reasons, the Department agrees with the above comments that it should define “capacity” in terms of input rating. First, we accept the representations that rated input has been the capacity measure for differentiating efficiency requirements in voluntary standards. Particularly relevant here is that ASHRAE/IES Standard 90.1-1989 delineated categories of boilers (and prescribed efficiency requirements) by reference to the 300,000 Btu/hr value, without mentioning input or output,
For these reasons, we construe the term “capacity,” as applied to commercial packaged boilers in section 42 U.S.C. 6313(a)(4)(C)-(D) of EPCA, to mean the rated input not the output capacity. To clarify this point, we are including in our definition of “commercial packaged boiler,” in 10 CFR 431.82, the parenthetical “(rated maximum input)” to modify the term “capacity.”
CEC suggested that we delete the phrases “HVAC & WH product” and “to any significant extent” from the proposed definition of “commercial packaged boiler.” (CEC, No. 6 at pp. 3 and 5). DOE believes that it should not simply delete the term “HVAC & WH product” from this definition, but should instead replace it in the final rule. The Department proposed to include “HVAC & WH product” in the definition of “commercial packaged boiler” in order to incorporate by reference the qualifications set forth in EPCA's definition of “industrial equipment.” (42 U.S.C. 6311(2)(A)) Therefore, to clarify the regulatory language and respond to CEC's comments the definition of “commercial packaged boiler” in today's final rule includes the term “industrial equipment,” in place of “HVAC & WH product,” and we will incorporate the EPCA definition of “industrial equipment” elsewhere in 10 CFR Part 431. We address use of the term “to any significant extent” in Section II-B-3 below.
As discussed in the NOPR, steel and copper boilers are usually shipped as completely assembled units. Cast iron boilers, however, are occasionally shipped from the boiler manufacturer's factory completely assembled and wired, or in separate sections for assembly at the job site, but are usually sold through boiler distributors who either ship all the necessary sections out of their inventories, or have manufacturers ship some or all of the components, directly to the customer for assembly at the customer's site. Such boilers typically conform to a predefined design, which consists of sections specified by the manufacturer of the cast iron boiler section,
In the NOPR, DOE stated that it believes boilers distributed in these three ways whether directly by manufacturers or by distributors, fit within EPCA's definition of packaged boiler. Accordingly, DOE proposed to adopt EPCA's definition of packaged boiler, but with added language to clarify that if a commercial packaged boiler is shipped in more than one section, it will be covered even if the sections are produced by more than one manufacturer or originated or shipped at different times and from more than one location. DOE also indicated in the preamble of the NOPR that it does not believe EPCA's requirements for “packaged boilers” apply to custom-designed, field-constructed boiler systems which generally require alteration, cutting, drilling, threading, welding or similar tasks by the installer. DOE received no comments on these points. Therefore, the definition of “packaged boiler” in the final rule contains the language proposed in the NOPR. But to make the rule more explicit, DOE has added language to provide that field constructed, custom designed boilers are not included.
At the public hearing, GAMA again addressed the issue of who would be responsible for the testing and the efficiency rating of a commercial packaged boiler does not consist of manufacturer specified sections. DOE had stated, in essence, in the NOPR that if a vendor sells a commercial packaged boiler with components that are not specified and approved by a boiler manufacturer, DOE would consider the vendor to be the manufacturer of the boiler. GAMA stated at the hearing that it may be necessary to create, in the regulation, a special definition of a manufacturer. (GAMA, Tr. 45). CEC stated that in California a distributor or contractor on occasion will change the burner in a commercial packaged boiler shipped by the boiler manufacturer. CEC believes that such distributor or contractor should be responsible for the boiler's efficiency rating and supports GAMA's suggestion of having a definition of manufacturer that would make the regulation self-contained on this point. (CEC, Tr. 28, 43, 46-47).
The Department agrees that the regulations should define the term “manufacturer” with respect to commercial packaged boilers so as to clarify that any vendor or installer who sells a commercial packaged boiler that has components not specified by the boiler manufacturer is responsible for the testing and efficiency rating of that equipment. In such circumstances, the vendor or installer will be treated as a manufacturer for purposes of applying EPCA's requirements because it would be performing a manufacturing function. The Department will not treat such a firm merely as a distributor, retailer, or installer of such equipment. In addition, this definition of “manufacturer” in the final rule makes clear that the boiler manufacturer is responsible for complying with EPCA's requirements where the boiler consists of the components that the manufacturer has specified. Therefore, DOE is prescribing in § 431.82 of today's final rule a definition of “manufacturer for commercial packaged boilers” that incorporates EPCA's definition of this term and clarifies it as just described.
As explained in detail in the NOPR, we believe that the intent of EPCA is to apply the term “packaged boiler” to commercial boilers used in buildings for space conditioning and service water
The Department received no comment on the portion of the NOPR that directly addressed this issue. The CEC, however, suggested deletion of the phrase “to any significant extent” from the proposed definition of “commercial packaged boiler” (CEC, Tr. 66) because it believes the definition would be complete without it. As indicated in the NOPR, 65 FR 48842, inclusion of this phrase in the definition makes clear that the types of boilers used almost exclusively for industrial process heating or utility applications, and rarely sold for heating, space conditioning, or service water heating in buildings, are not covered by the standards and test procedures prescribed by EPCA for a “packaged boiler.” Accordingly we are not altering the proposed definition in this respect.
At the April 1998 workshop, participants discussed whether the DOE test procedure should apply only to packaged boilers that had a rated capacity below some upper limit. In the NOPR, we included no upper limit on capacity in the proposed definition of “commercial packaged boiler,” stating that we had no grounds to conclude that EPCA covers only boilers below a certain size. Nevertheless, given the limited quantities of high-capacity boilers used for space heating, and their large size, we solicited comments on whether there is an upper limit on capacity above which the proposed testing procedure would be unduly burdensome to conduct.
At the public hearing, GAMA stated that it still believed that the DOE testing and certification requirements should be limited to low pressure steam and hot water boilers having inputs of eight million Btu/hr or less. (GAMA, No. 2EE at pp. 1-2, and Tr. 49-56). GAMA stated that an upper limit of eight million Btu/hr would cover the vast majority of boilers sold in the U.S. for use in space heating of commercial buildings, and covered under ASHRAE standard 90.1, and that those boilers could be tested according to the test procedure in the HI-1989 standard under a controlled laboratory setting, as in the current industry certification programs. GAMA stated that for large buildings with a large heating load, it is more reasonable to use a modular boiler system or a multiple boiler system (consisting of several smaller boilers) than a single large boiler. Also, GAMA stated its view that low pressure boilers above eight million Btu/hr are usually custom designed for specific applications and constructed on site from a variety of separately supplied components in accordance with detailed engineering requirements. These boilers cannot be tested for efficiency until after they are constructed and made operational at the site, and such field tests are different from the testing of a completed packaged boiler unit under controlled laboratory conditions.
GAMA agreed that the I=B=R Directory (GAMA's directory of ratings for boilers and other heating equipment) does show a few boilers with sizes over eight million Btu/hr. GAMA stated that a manufacturer lists such boilers in the Directory to indicate its capability of building one at that large size, and usually will build only a few each year. GAMA stated that the testing of those large boilers at a manufacturer's facility in accordance with the HI standard is extremely difficult, and that is the reason that all manufacturers of cast iron steam and hot water boilers obtain those boilers' ratings based on the steam test only. GAMA stated that the larger size cast iron boilers usually are part of a family series of boilers with the same design and construction. According to GAMA, in the HI certification program it typically obtains the efficiency rating of those large size boilers by extrapolating or interpolating the tested efficiency ratings of two boilers in the same family series, picked near the extreme ends (in size, one at the small end, the other at the large end) of the family. GAMA stated this type of projection of the efficiency of a boiler in a family series is based on the boiler industry's long experience. GAMA stated that the manufacturer offers, in essence, a given model in a variety of inputs, where not every input is tested for the efficiency rating.
BR Labs stated that a boiler assembled in the field is normally tested there, and suggested that field testing might be warranted to obtain the efficiency rating of large size boilers. BR Labs also stated that it is common to make steel (fire tube or water tube) boilers having an input greater than 8 million Btu/hr for use by institutions, and that those boilers are designed in part for space heating. Furthermore, according to BR Labs, boilers larger than five to six million Btu/hr are commonly tested at the manufacturer's facility. (BR Labs, Tr. 44-45 and 57-58). CEC asserted that the statute clearly applies to all packaged boilers without any limitation with respect to size, but that DOE has the authority to make the test requirements for large boilers different from those for the small ones. (CEC, Tr. 61).
The foregoing discussion essentially raises two issues. One is the extent to which EPCA's definition of “packaged boiler,” and its efficiency requirements for that product, cover low pressure boilers with inputs greater than eight million Btu/hr. The second is whether, assuming such products are covered, DOE's test procedure should make special provision for them.
On the first issue, as stated above, the Department said in the NOPR that it had no grounds to conclude that EPCA covers only boilers below a certain size. There is nothing in the record that would justify DOE changing this position, or concluding that its earlier interpretation of EPCA was incorrect. Accordingly today's final rule contains no upper limit on the size of commercial packaged boilers that are covered by the rule. GAMA, however, in arguing that the DOE test procedure should not cover boilers with rated inputs above eight million Btu/hr, asserted that such boilers are rarely used for space heating and comfort conditioning, and are usually custom-designed and field-constructed. Pursuant to the definitions of “packaged boiler” and “commercial packaged boiler,” in section 431.82, today's final rule covers only boilers that are distributed “to any significant extent” for heating, space conditioning or service water heating in buildings, and excludes from coverage boilers that are custom-designed and field-constructed. These limitations on coverage exclude from the scope of the DOE test procedure all or most of the boilers GAMA asserts should be excluded.
As to the feasibility of testing boilers with rated inputs over eight million Btu/hr that would remain subject to the test procedure, ANSI Standard Z21.13 covers low pressure steam and hot water boilers with up to 12,500,000 Btu/hr rated input. That standard has been used by gas boiler manufacturers for several decades, indicating that testing of gas boilers for efficiency at rated inputs of eight to 12.5 million Btu/hr has been conducted without major difficulty. Most of the boilers listed in the directory of the HI 1998 I=B=R Ratings for Heating Boilers, which includes cast iron, steel, and copper boilers made by 21 commercial boiler manufacturers, had a nameplate input of under seven million Btu/hr. This substantiates GAMA's statement that most boilers certified by the HI are under eight million Btu/hr. However, one manufacturer listed models of its cast iron gas boilers at inputs of up to 9.5 million Btu/hr, and a major cast iron boiler manufacturer listed models of oil and gas fired boilers at inputs of up to
Based on the foregoing, the DOE test procedure in today's rule is not limited to packaged boilers below a specified upper limit in capacity, and contains no special provision for boilers over 8 million Btu/hr rated input. DOE notes, however, that the rules for commercial products allow a firm to determine a product's efficiency through use of calculation methods rather than testing, and to seek a waiver of the test procedure for a particular basic model. These provisions should give sufficient alternatives to firms that believe they cannot test these large boilers under the DOE test procedure.
Participants in the April and October 1998 workshops expressed differing opinions on the coverage of high pressure steam and high temperature water boilers, referred to here as “high pressure boilers.” In the NOPR, DOE stated that since no language in EPCA excludes packaged high pressure boilers from coverage under the statute, and since DOE believed high pressure packaged boilers are sometimes used for heating buildings, under the proposed rule EPCA's efficiency requirements would apply to packaged high pressure boilers which, “to any significant extent,” are distributed for use for space conditioning in buildings. However, DOE stated that there may not be clear-cut criteria for distinguishing a packaged high pressure boiler that can be used for space conditioning, and the limited quantities and large sizes of packaged high pressure boilers employed in space heating may make testing under the proposed DOE procedure unduly burdensome. Therefore, DOE solicited comments on the options of limiting application of EPCA efficiency requirements to those packaged high pressure boilers that are principally designed for heating buildings, or limiting coverage of packaged high pressure boilers to a specific maximum working pressure, such as 150 psig, above which one is unlikely to use it for commercial space heating. 65 FR 48843.
In comments on the NOPR, GAMA again stated its belief that high pressure boilers should be excluded from DOE testing requirements, because they are typically utilized for industrial process or power applications, not for commercial space heating applications. (GAMA, No. 2EE at p. 3).
The Department has further reviewed this issue, considering the statements from GAMA at the public hearing together with the comments from the participants at the earlier workshops. First, the Department again consulted the ASHRAE Handbook for HVAC Systems and Equipment. As stated in Chapter 10, Steam Systems, of the 2000 ASHRAE HVAC System and Equipment Handbook (Handbook), one of the most important decisions in the selection of a steam system is the design pressure. The Handbook states that on the basis of investment and operating cost considerations, energy efficiency, and control stability, the pressure should be held to the minimum values above the atmospheric pressure that accomplishes the required heating task, and that space heating and domestic water heating can best be accomplished, directly or indirectly, with low pressure steam less than 15 psig or hot water temperature less than 250 °F. High pressure steam is required only for loads such as dryers, presses, molding dies, power drives, and other processing, manufacturing, and power requirements, and there are significant increases in investment and operating cost associated with a high pressure system.
The Department also reviewed the definition of “boiler” in ASHRAE/IES Standard 90.1-1999. In the 1989 version of the Standard, “boiler” was defined as a “self-contained appliance for supplying steam or hot water.” In the 1999 version of the standard, the definition was revised to “a self-contained low-pressure appliance for supplying steam or hot water.” The Department believes the revised definition indicates that the consensus of the subcommittee on mechanical equipment of the ASHRAE Standard Project Committee 90.1R, whose members represent a wide range of interests in the HVAC industry, is that low pressure boilers are the boilers used for space heating in most commercial buildings, and that use of high pressure boilers for this purpose is not common.
Finally, representatives of the relevant industries (GAMA, the Council of Industrial Boiler Owners and the American Boiler Manufacturers Association) uniformly stated that high pressure boilers are not commonly used in space heating applications in commercial buildings.
On the basis of the above comments and information, the Department has decided upon further review of this issue that high pressure boilers are not currently covered by the standards and test procedures prescribed in EPCA. For reasons indicated in the NOPR and elsewhere in this notice, these requirements apply only to packaged boilers that are distributed to any significant extent for heating, space conditioning, or service water heating in buildings. The Department has now concluded that the information in the record demonstrates that high pressure boilers are not distributed to a significant extent for these purposes. Accordingly, the efficiency standards in today's final rule do not apply to these boilers, nor does the rule include a test procedure for high pressure steam and high temperature hot water boilers, as proposed in the NOPR. Instead, the rule prescribes only a test procedure for commercial packaged low pressure steam and hot water boilers, commonly referred to as ASME Section IV Heating Boilers. The Department may revisit the issue of EPCA's coverage of packaged high pressure boilers at a future date if some of the circumstances discussed above were to change—if, for example, ASHRAE/IES Standard 90.1 were to incorporate efficiency standards and test procedures for this equipment or additional information indicates that a significant number of these boilers are sold for use in heating and space conditioning in commercial buildings.
EPCA requires that the test procedures for measuring the efficiency of commercial packaged boilers be those generally accepted industry testing or rating procedures that were developed or are recognized by the American Society of Heating, Refrigerating and Air Conditioning Engineers, Inc., as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)). Also, if such an
The version of ASHRAE Standard 90.1 in effect on June 30, 1992, referenced five industry test standards that apply to gas-fired boilers or oil-fired boilers or both. These are the ANSI Standard Z21.13-1987 for gas-fired boilers (revised as ANSI Z21.13-1991 with Addendum ANSI Z21.13-1993a); the HI Testing and Rating Standard for Heating Boilers, sixth edition, 1989, for gas and oil-fired boilers (HI 1989); ASME Power Test Codes (PTC) 4.1-1964 (reaffirmed R1991) for Steam Generating Units for fossil fuel boilers (revised in 1998 as ASME PTC 4-1998, Fired Steam Generators, issued on December 31, 1999); the Underwriters Laboratory Standard 795-1973 for gas heating equipment (UL 795, revised in 1994 as UL 795-94); and the Underwriters Laboratory Standard UL Standard 726-1990 for oil-fired boilers (UL 726).
DOE evaluated the five referenced standards and presented those analyses in the April and October 1998 workshops. On the basis of this evaluation and the comments from the workshop attendees, in the NOPR we proposed the adoption of specific test procedures. DOE received comments on these proposals during the September 2000 public hearing and in writing.
As discussed above, the Department has determined that high pressure steam and high temperature water boilers are not covered at present by EPCA's requirements for test procedures and standards for packaged boilers. Therefore, today's rule does not contain test procedures or standards for these products, nor does DOE discuss below any comments it received as to the test procedures DOE should adopt for them. Also, DOE received no comments on our statement in the NOPR that DOE would not provide special test provisions for boilers designed for low temperature application. Therefore, DOE adheres to this rationale and position in the final rule and does not further discuss this issue. Finally, in the NOPR, the Department proposed an approach for testing, rating and reporting on boilers capable of supplying either hot water or steam. DOE received no comments on this approach and therefore it is implementing it in today's final rule.
On the basis of discussions during the two earlier workshops, in the NOPR DOE proposed to adopt, in large part, the HI-1989 standard as the uniform test standard for both gas and oil fired low pressure heating boilers. And because gas fired boilers have commonly been tested under ANSI Z21.13, DOE proposed to adopt certain test conditions specified in the ANSI standard as modifications to the HI-1989 standard. In addition to this, DOE proposed in the NOPR to allow manufacturers the alternative of using the Simplified Efficiency Test (Short Form) of ASME PTC 4.1, with some modifications that would ensure comparability between the two test procedures.
No commenter objected to adoption of HI-1989, with modifications, as the DOE test procedure, and none suggested that this test procedure would affect the efficiencies of boilers as measured using any other test procedure referenced in ASHRAE 90.1 in 1992. At the September 2000 public hearing however, GAMA stated that HI had developed a revised test standard, BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers,” which is based on the 1989 HI standard, and will replace that standard. Moreover, GAMA stated that the draft BTS-2000 standard adopts the DOE provisions as described in the NOPR, and recommended that DOE reference the new industry standard in place of the HI-1989 standard. GAMA agreed that it would submit the final version of the standard in the near future for review by DOE and by other stakeholders as requested by CEC. (GAMA, No. 2EE at pp. 2-3, and Tr. 71-80; CEC, Tr. 76-80). Also, GAMA stated that, in referencing the HI-1989 standard in the proposed rule, DOE had ignored certain sections in the standard that are important and needed to establish tolerances for the test data and duration of each test, and should be included in the referencing language. Those sections are Section 5.2.5 on derating the gas power burner rating based on the oil efficiency test, Section 9.1 on input range and definition of equilibrium conditions, and Section 9.2 on length of test. (GAMA, No. 2EE at pp. 2-3).
GAMA provided the Department with a draft version of the BTS-2000 standard in October 2000 (GAMA, No. 3), and a final version, dated January 2001, in April 2001. A comparison of the final version of BTS-2000 to the HI-1989 standard with respect to the test procedure for commercial heating boilers showed close agreement between the two documents. In addition, BTS-2000: (1) Incorporated the modifications to the HI-1989 standard proposed in the NOPR on the inlet and outlet boiler water temperatures for hot water boilers; (2) included a test procedure for condensing boilers that follows the test method prescribed in the ASHRAE standard 103-1993, as proposed in the NOPR (except the specification on boiler water inlet temperature); and (3) revised the test setup with respect to the test stack and the location for the measurement of flue gas temperature and flue gas sampling for gas-fired boilers for indoor installation to agree with the provisions in the ANSI Z21.13 and the ANSI Z21.13a-1993 addendum. Specifically, with respect to the latter, BTS-2000 (a) differentiates the setup for the test flue stack depending on whether the boiler input rate is below or above 400,000 Btu/hr, and (b) changes the flue gas measurement plane from the location inside the insulated flue pipe section 12 inches downstream of the flue collar or outlet from the boiler (requirement in HI-1989), to “immediately before the flue gases' discharge from the boiler” (specification in ANSI Z21.13). (The latter change eliminates the need for the HI-1989 requirement to insulate 12 inches of the test flue pipe of gas fired boilers, contained in the NOPR by virtue of the proposal to incorporate HI-1989 as the DOE test procedure.)
Pursuant to the statute, 42 U.S.C. 6314(a)(4)(B), the Department reviewed the amendments to the HI-1989 standard as contained in the BTS-2000 standard. The Department determined that the revisions to the HI-1989 standard in BTS-2000 are substantively the same as what was proposed in the NOPR. We have no basis to conclude that the test procedure in BTS-2000 either is not reasonably designed to produce results that reflect energy efficiency, energy use and estimated operating costs, or is unduly burdensome to conduct. Moreover, because BTS-2000 is essentially the same as the test procedure proposed in the NOPR, it would not alter the measured efficiencies that would have resulted from the proposed test procedure and would have little or no effect on efficiencies measured using the existing test procedures. See 65 FR at 48843-45. Nor has any evidence been presented that use of BTS-2000 or the proposed test procedure would render non-compliant a commercial boiler previously measured as minimally
As described above, GAMA also stated that the rule language should include several sections (5.2.5, 9.1, and 9.2) of the HI-1989 standard. The proposed rule language on test procedures did not reference Section 5.2.5 since it is part of Section 5.2 of HI-1989 on the approval procedure of a boiler's rating, which does not concern the test method. Also, sections 9.1 and 9.2 were already explicitly specified as part of the proposed rule language in Section 431.362(d)(1)(i), Test Measurements for Packaged Low Pressure Steam and Hot Water Boilers. See 65 FR 48851. In prescribing the use of BTS-2000 in today's final rule, DOE has retained the references to sections 9.1 and 9.2.
In its comments, GAMA also asserted that the proposed optional test standard, the ASME PTC 4.1, has the following problems: (1) It lacks “tolerances for input, pressure, number of tests required, and when the boiler has achieved steady state conditions;” (2) the test duration of four hours is too long for a combustion test, and the locations “of temperature, pressure, flue sampling, and stack configuration are not specified;” (3) it is a test standard for the acceptance test of a boiler after it is installed in the field where the test conditions are less controllable than a laboratory test; and (4) it has been replaced by the standard ASME PTC 4-1998 (issued on December 31, 1999), which is vastly different from the original ASME PTC 4.1. For these reasons, GAMA claimed that test results based on the ASME PTC 4.1 standard would be less accurate than results based on the HI-1989 standard. It also asserted that boilers in the same category should all be tested using a consistent procedure. GAMA therefore recommended that Section 431.362(c)(v) of the proposed rule, Alternative Test Procedure for Testing Low Pressure Steam and Hot Water boilers, which allows the use of PTC 4.1, be deleted. However, GAMA also suggested that for large boilers or boilers that are assembled in the field, field testing as per ASME PTC 4.1 might be allowed as an option. (GAMA, No. 2EE at p. 3 and Tr. 81-89). CEC stated that it generally opposes the inclusion of alternate test procedures since there is always confusion as to who has the option of choosing the test procedure—the manufacturer or the enforcing agency—but in this case it has no objection. CEC also suggested that DOE require one test method for testing certain types of boilers, and another method for other types, rather than allowing all products to use either method. (CEC, No. 2FF at p. 2 and Tr. 87-89).
The Department evaluated the new ASME PTC 4-1998 standard for possible adoption. As stated by GAMA, the new PTC 4-1998 is a completely re-written document and is vastly different from the PTC 4.1 in both style and details, even though the principles behind the test procedures remain unchanged. As stated in the Foreword to the standard, the PTC 4 committee made the decision to discourage the almost universal use of the abbreviated test procedure (The Short Form) in PTC 4.1. Therefore, the Short Form is no longer included in the new standard. After reviewing the PTC 4-1998 standard and analyzing its effect on entities that would be required to use it, the Department believes that, without the abbreviated test procedure, the new test standard is too burdensome an undertaking for testing the small (in comparison with the size of the steam boilers or generators in an utility plant) packaged low pressure steam and hot water boilers employed for commercial space heating. Therefore, the Department has decided that the new ASME PTC 4-1998 should not be adopted in today's final rule as a test procedure for commercial packaged boilers used for commercial space heating purposes.
The Department considered the comments of GAMA with respect to the accuracy of the tests under the ASME PTC 4.1 standard. DOE believes that Section 3.13 of ASME PTC 4.1, which references the relevant ASME Power Test Codes, adequately specifies the required accuracy in instruments and measurement. DOE agrees with GAMA, however, that the test run duration that ASME PTC 4.1 states as preferable, four hours, may be longer than needed for the smaller packaged steel boilers employed for space heating, and that when the test is conducted in the field after a boiler is installed, test conditions such as the room temperature and the boiler inlet water temperature may be different from the conditions in a testing laboratory. But DOE believes that with appropriate modifications to address such problems, including the modifications proposed in the NOPR, the abbreviated test procedure of ASME PTC 4.1 is sound.
Nevertheless, test results for products being rated under the same efficiency standard should be comparable, and DOE believes there would be some differences in the results obtained from the PTC 4.1 procedure and BTS-2000. Moreover, BTS-2000 is a sound, easy to follow, and up-to-date procedure that is readily available to manufacturers. By contrast, the abbreviated test procedure is not incorporated in a currently available standard, and the Foreword to PTC 4-1998 states that the PTC 4 committee decided to discourage its use.
On the other hand, as discussed in the NOPR, the American Boiler Manufacturers Association stated that its members use PTC 4.1 more frequently to test steel boilers, and the Council of Industrial Boiler Owners (CIBO) stated that its members lack familiarity with the HI-1989 standard. To the extent these firms are concerned about steel boilers used for industrial processes but which are rarely used for space conditioning and service water—and that seems particularly true for CIBO members—such boilers are not covered by today's requirements. Some manufacturers of steel boilers, moreover, have used the HI-1989 standard, the predecessor to BTS-2000, as shown by the listing of their boilers in the Hydronics Institute I=B=R rating directory (three manufacturers in the January 2001 directory). In addition, DOE believes BTS-2000 and ASME PTC 4.1 are essentially similar, and the differences between them are not fundamental. DOE is confident that, to the extent manufacturers need to convert from use of PTC 4.1 to BTS-2000, doing so will not be difficult, and will cause only limited and certainly not undue burdens. Nevertheless, DOE believes it would be reasonable to allow a transition period during which manufacturers of steel boilers can become familiar with BTS-2000 and assure that their products will comply with EPCA standards using that procedure.
Based on all of these considerations, DOE has decided in today's final rule to prescribe BTS-2000 as the DOE test procedure for all commercial packaged boilers, but to allow the use of ASME PTC 4.1, with modifications, as an optional test procedure for steel boilers for two years after the publication of this notice. During this period, manufacturers may use either BTS-2000 or the ASME PTC 4.1 abbreviated test procedure to determine the efficiency of steel boilers under EPCA, but if they use the PTC 4.1 procedure their tests must meet the following criteria:
(1) The minimum duration of a test run after steady state operation is achieved shall be 30 minutes. (This specification is the same as in BTS-2000.)
(2) The boiler inlet water temperature shall be at 35° F to 80° F, except that when a boiler is tested in the field after
(3) For hot water boilers, the boiler outlet water temperature shall be at 180°F ± 2°F.
(4) For steam boilers, steam pressure must range from atmospheric (zero psig) to two psig.
(5) In the heat loss method of ASME PTC 4.1 for calculating efficiency, the radiation loss term (and other minor loss terms) shall be set to zero to obtain the combustion efficiency (of 100 percent minus percent flue loss). These modifications to the abbreviated test procedure should correct the problems we believe exist with this procedure.
In the NOPR, DOE stated that condensing boilers are significantly more energy efficient than non-condensing boilers and a test procedure should be readily available to allow manufacturers to rate their products accordingly. In addition, a test procedure is needed for evaluating design options underlying any future minimum efficiency standards. The Department proposed to adopt the steady state test procedure for condensing boilers as prescribed in the ASHRAE 103-1993 standard. ASHRAE/IES Standard 90.1 does not directly reference an industry test standard for the testing of condensing boilers, but it references the DOE test procedure for residential boilers with input of less than 300,000 Btu/hr, which, in turn, references the ASHRAE 103-1993 standard. DOE proposed to adopt the procedure specified in sections 7.2.2.4, 7.8, 9.2 and 11.3.7 of ASHRAE standard 103-1993 with two modifications. Of relevance here, one of these modifications was that the boiler inlet water temperature be restricted to 80°F±5°F instead of the range of 35°F to 80°F specified for non-condensing boilers, since the inlet water temperature influences the amount of condensate produced and, thus, needs to be more accurately specified.
At the September 2000 public hearing, no objection was posed to the proposed testing method for condensing boilers. However, the revised Hydronics Institute Boiler Testing Standard BTS-2000 added a test method for condensing boilers similar to the one proposed in the NOPR, except that it does not restrict inlet water temperature to 80°F±5°F. (See sections 8.5.2, 9.1.2.1.4, 10.2.2, 10.2.3, 11.1.17, 11.1.18, 11.1.19, and 11.2.2 of BTS-2000.) Since the Department is adopting the BTS-2000 standard in today's final rule, ASHRAE Standard 103-1993 need not be referenced in order to provide a procedure for the testing of condensing boilers. But the final rule does provide that, for purposes of the DOE test procedure, in sections 8.5.2 and 9.1.2.1.4 of BTS-2000, the boiler inlet water temperature shall be at 80°F±5°F instead of the 80°F±10°F currently specified in the BTS-2000 standard.
A modular boiler system consists of a group of identical individual boilers installed as a system. A multiple boiler system consists of a group of individual boilers, of different design or different sizes or both, installed as a system. In the preamble of the NOPR, the Department stated that the efficiency rating for a packaged modular boiler system with individual modules or boilers of identical design and construction may be based on the rating of only one boiler module in the system. For a multiple boiler system where the individual boilers are of different designs, we stated that each boiler of a different design would be considered a separate packaged boiler and be required to meet the minimum efficiency standard prescribed for that product.
At the September 2000 public hearing, GAMA raised the question of why the Department proposed that a modular system would consist of individual boilers of 400,000 Btu/hr input or less. (GAMA, Tr. 90-91). DOE believes that this question results from a misunderstanding of our position. DOE had stated in the NOPR's preamble that “a modular boiler assembly * * * consist[s] of * * * boilers * * *
In a comment submitted to the Department after the September 2000 public hearing, GAMA stated that the BTS-2000 standard specifies flue pipe and connection requirements for testing power gas and oil boilers, and for gas-fired boilers designed for indoor installations (following the ANSI Z21.13 standard), but does not specify any vent requirement for gas-fired boilers designed for outdoor installations. GAMA also stated that manufacturers currently test both indoor and outdoor gas-fired boilers in accordance with the requirements of the ANSI Z21.13 standard, which specifically states that no test vent apparatus (other than that provided by the manufacturer) is required for gas-fired outdoor boilers. The Department believes that GAMA's comment needs to be addressed in today's final rule, because the test procedure in the rule should address venting for gas fired outdoor boilers. The current industry practice for testing gas-fired outdoor boilers is the ANSI Z21.13-1991 standard, which is referenced by ASHRAE Standard 90.1. Since DOE is not referencing the ANSI Z21.13-1991 standard in this rule, DOE is including the following language from Section 2.1.5 of the ANSI Z21.13 standard in section 431.86 of today's final rule: “A gas-fired boiler for outdoor installation with a venting system provided as part of the boiler must be tested with the venting system in place.”
As to rulemakings to amend test procedures, section 323(e) of EPCA, 42 U.S.C. 6293(e), provides that DOE shall determine whether the amended test procedure would alter the measured energy efficiency of any covered product. If the amendment does alter measured efficiency, the Secretary must determine the average efficiency level under the new test procedure of products that minimally complied with the applicable energy conservation standard prior to the test procedure amendment, and must set the standard at that level. (42 U.S.C. 6293(e)(2)) In addition, any existing model of a product that complied with the previously applicable standard would be deemed to comply with the new standard. (42 U.S.C. 6293(e)(3)) These provisions prevent changes in a test
EPCA provides that the DOE test procedures for commercial packaged boilers shall be those industry test procedures recognized by ASHRAE and referenced in ASHRAE Standard 90.1 and in effect on June 30, 1992. 42 U.S.C. 6314(a)(4)(A). For these products, the version of ASHRAE Standard 90.1 in effect on June 30, 1992, contains five industry test standards that apply to gas-fired boilers or oil-fired boilers or both. 65 FR 48838, 48843. Until today, therefore, since DOE had not adopted a test procedure for these products under EPCA, there was no single existing test procedure that manufacturers were required to use for these products. In practice, however, particular industry test procedures were generally used for particular types of boilers. 65 FR 48844. In the rule published today, DOE is adopting, in part, a test procedure based on a combination of the existing ASHRAE standards in effect on June 30, 1992. Since 42 U.S.C. 6314(a)(4)(A) provides that the DOE test procedures for boilers shall be those referenced in ASHRAE Standard 90.1 and in effect on June 30, 1992, the statute itself sanctions the adoption of provisions of any of these referenced test procedures. Thus, adoption today of a combination of these test procedures does not represent a change or amendment to the existing “required” test procedure for purposes of 42 U.S.C. 6293(e) when that section refers to an “amended test procedure.”
In addition, today's final rule provides for DOE adoption of BTS-2000, which in substance consists of the combination of ASHRAE referenced standards just referred to, but with one minor modification. For gas-fired products, BTS-2000 requires use of an equation for calculating flue loss instead of providing for use of a nomogram. This slight change has no effect on the measured energy efficiency. Thus, while this modification is a test procedure amendment within the meaning of 42 U.S.C. 6293(e), DOE need not take further action under that provision because this amendment does not alter the measured energy efficiency.
Today's final rule also contains two modifications to ASME PTC 4.1, another of the five industry test procedures in effect on June 30, 1992, and referenced in ASHRAE Standard 90.1. DOE is making both of these modifications in response to comments that it received on the NOPR. The first, a reduction in the minimum duration of a part of the test, will not alter the measured energy efficiency. The second, a relaxation of the required inlet water temperature when a manufacturer tests a boiler after installing it, will have only a de minimus effect on the measured combustion efficiency and should not put any models that are currently in compliance out of compliance. Thus, DOE will not take further action under 42 U.S.C. 6293(e) with regard to either of these modifications to ASME PTC 4.1.
The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) has determined that today's regulatory action is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, and certified in the NOPR that the proposed rule would not impose a significant economic impact on a substantial number of small entities. (64 FR 69597). We received no comments on this issue, and after considering the potential small entity impact of this final rule, DOE affirms the certification that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review pursuant to 5 U.S.C. 605(b).
This rulemaking will impose no new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (44 U.S.C. 3501
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. With respect to a proposed regulatory action that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation), section 202 of the Act requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under the Act (62 FR 12820) (also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988) that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice of final rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
We stated in the NOPR the reasons why section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977, 15 U.S.C. 788, (the FEAA) does not apply to the commercial standards incorporated into the proposed rule, except for ASHRAE Standard 103-1993. We received no comments on this issue.
As we stated and discussed in the NOPR, today's rule incorporates certain commercial standards which EPCA requires to be used. These standards are referenced in ASHRAE Standard 90.1-1989 and amendments thereto. Because DOE has very limited discretion to depart from the standards referenced in ASHRAE 90.1, Section 32 of the FEAA does not apply to them.
In the NOPR, we also stated that the final rule would include ASHRAE Standard 103-1993, “Method of Testing for Annual Fuel Utilization Efficiency of Residential Central Furnaces and Boilers,” a test standard which includes testing method for condensing boilers. We stated that DOE would comply with the requirements of section 32 for this particular standard since it is not referenced in the ASHRAE Standard 90.1. However, today's rule does not include ASHRAE Standard 103-1993. Instead, we are relying on the revised Hydronics Institute Boiler Testing Standard BTS-2000 which now has a method for testing condensing boilers.
Today's rule does not contain industry standards to which Section 32 applies.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of today's rule.
Administrative practice and procedure, Commercial products, Energy conservation, Incorporation by reference.
42 U.S.C. 6311-6316.
This subpart contains energy conservation requirements for certain commercial packaged boilers, pursuant to Part C of Title III of the Energy Policy and Conservation Act. (42 U.S.C 6311-6316)
The following definitions apply for purposes of this subpart E, and of subparts A and J through M of this part. Any words or terms not defined in this section or elsewhere in this part shall be defined as provided in 42 U.S.C. 6311.
(1) For heating or space conditioning applications in buildings; or
(2) For service water heating in buildings but does not meet the definition of “hot water supply boiler” in this part.
(1) Manufactures, produces, assembles or imports a commercial packaged boiler in its entirety;
(2) Manufactures, produces, assembles or imports a commercial packaged boiler in part, and specifies or approves the boiler's components, including burners or other components produced by others, as for example by specifying such components in a catalogue by make and model number or parts number; or
(3) Is any vendor or installer who sells a commercial packaged boiler that consists of a combination of components that is not specified or approved by a person described in paragraph (1) or (2) of this definition.
(1) A steam boiler designed to operate at a steam pressure higher than 15 psi gauge (psig); or
(2) A hot water boiler designed to operate at a water pressure above 160 psig or at a water temperature exceeding 250° F, or both; or
(3) A boiler that is designed to be capable of supplying either steam or hot water, and designed to operate under the conditions in paragraphs (1) and (2) of this definition.
(1) A steam boiler designed to operate at or below a steam pressure of 15 psig; or
(2) A hot water boiler designed to operate at or below a water pressure of 160 psig and a temperature of 250 °F; or
(3) A boiler that is designed to be capable of supplying either steam or hot water, and designed to operate under the conditions in paragraphs (1) and (2) of this definition.
(a) The Department incorporates by reference the following test procedures into subpart E of part 431. The Director of the Federal Register has approved the material listed in paragraph (b) of this section for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any subsequent amendment to this material by the standard-setting organization will not affect the DOE test procedures unless and until DOE amends its test procedures. The Department incorporates the material as it exists on the date of the approval and a notice of any change in the material will be published in the
(b)
(1) The Hydronics Institute (HI) of GAMA Boiler Testing Standard BTS-2000, “Method to Determine Efficiency of Commercial Space Heating Boilers,” published January 2001 (HI BTS-2000), IBR approved for § 431.86.
(2) The American Society of Mechanical Engineers Power Test Codes for Steam Generating Units, ASME PTC
(c)
(1)
(i) National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(ii) U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Hearings and Dockets, “Test Procedures and Efficiency Standards for Commercial Packaged Boilers,” Docket No. EE-RM/TP-99-470, 1000 Independence Avenue, SW., Washington, DC 20585.
(2)
(a)
(b)
(c)
(1)
(i)
(ii)
(iii)
(A) Follow the requirements for instruments and apparatus in sections 6 (Instruments) and 7 (Apparatus), of the HI BTS-2000 (Incorporated by reference, see § 431.85), with the exception of section 7.2.5 (flue connection for outdoor boilers) which is replaced with paragraph (c)(1)(iii)(B) of this section:
(B) Flue Connection for Outdoor Boilers: For oil-fired and power gas outdoor boilers, the integral venting means may have to be revised to permit connecting the test flue apparatus described in section 7.2.1 of BTS-2000. A gas-fired boiler for outdoor installation with a venting system provided as part of the boiler must be tested with the venting system in place.
(iv)
(A) Water Temperatures for Condensing Boilers—For condensing boilers the outlet temperature shall be 180°F±2°F and the inlet temperature shall be 80°F±5°F at all times during the test. (See also paragraphs (c)(2)(i) and (ii) of this section for condensing boilers.).
(B) [Reserved]
(2)
(i) Measure for combustion efficiency according to sections 9.1 (excluding sections 9.1.1.2.3 and 9.1.2.2.3), 9.2 and 10.2 of the HI BTS-2000 (Incorporated by reference, see § 431.85), except that for condensing boilers, replace the boiler water inlet temperature in section 9.1.2.1.4 of the HI BTS-2000 standard with the inlet temperature specified in paragraph (c)(1)(iv)(A) of this section.
(ii)
(iii)
(A)
(B)
(3)
(d)
(1)
(i) Use the test procedure for the efficiency test from ASME PTC 4.1 (Incorporated by reference, see § 431.85). Conduct the combustion efficiency test with the Abbreviated Efficiency Test (Simplified Efficiency Test or The Short Form) for gas and oil fuels described in Section 1.07 of ASME
(ii)
(A) Steam pressure for steam boilers—Test must be made at atmospheric pressure or at a pressure not exceeding 2 psig.
(B) Water temperature for hot water boilers—The inlet temperature must be 35 °F to 80 °F, except that when a boiler is tested in the field after installation the inlet temperature may be as recommended by the manufacturer, but must not exceed 140 °F. The outlet temperature shall be 180 °F ± 2 °F.
(C) After steady state operation is achieved, the minimum duration of a test run shall be 30 minutes.
(2)
(3)
Each manufacturer of a commercial packaged boiler manufactured on or after January 1, 1994, must meet the following energy efficiency standard levels:
(a) For a gas-fired packaged boiler with a capacity (rated maximum input) of 300,000 Btu/hr or more, the combustion efficiency at the maximum rated capacity must be not less than 80 percent.
(b) For an oil-fired packaged boiler with a capacity (rated maximum input) of 300,000 Btu/hr or more, the combustion efficiency at the maximum rated capacity must be not less than 83 percent.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Direct final rule.
Pursuant to the Energy Policy and Conservation Act (EPCA), the Department of Energy (the Department) promulgates a rule that accomplishes three objectives. First and principally, the rule sets forth test procedures to rate the energy efficiency of commercial air conditioners and heat pumps. Second, for ease of reference by commercial air conditioner manufacturers, this rule also includes the energy conservation standards prescribed by EPCA for commercial equipment that the Department has not amended. Third, also for ease of reference by commercial air conditioner manufacturers, the rule moves commercial air conditioning and heat pump minimum efficiency levels to a separate subpart.
This direct final rule is effective December 20, 2004, unless significant adverse or critical comments are received by November 22, 2004. If the effective date is delayed, a timely notice will be published in the
You may submit comments, identified by docket number EE-RM/TP-99-460 and/or RIN number 1904-AA97, by any of the following methods:
• Federal eRulemaking Portal:
• E-mail:
• Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Direct Final Rule for Commercial AC and Heat Pumps, EE-RM/TP-99-460 and/or RIN 1904-AA97, 1000 Independence Avenue, SW., Washington, DC, 20585-0121. Telephone: (202) 586-2945. Please submit one signed paper original.
• Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC, 20585.
Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking.
Docket: For access to the docket to read background documents or comments received, go to the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information regarding visiting the Resource Room.
Mohammed Khan, Project Manager, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, Forrestal Building, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-7892, FAX (202) 586-4617, e-mail:
This direct final rule incorporates, by reference, into Subpart F of Part 431, four test procedures for air conditioners and heat pumps contained in industry standards referenced by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) and the Illuminating Engineering Society of North America (IES or IESNA) Standard 90.1 (ASHRAE/IES Standard 90.1). Two of these industry standards were published
• ARI Standard 210/240-2003, “Unitary Air-Conditioning and Air-Source Heat Pump Equipment”,
• ARI Standard 340/360-2000, “Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment”,
• ISO Standard 13256-1, “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps”, and
• ARI Standard 310/380-2004 (which also has a CSA designation CSA-C744-04), “Standard for Packaged Terminal Air-Conditioners and Heat Pumps.”
You can view copies of these standards in the resource of the Buildings Technologies Program, room 1J-018 of the Forrestal Building at the Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at (202) 586-2945, for additional information regarding visiting the resource room. In addition, you can purchase copies of ASHRAE/IES Standard 90.1. from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1971 Tullie Circle, NE., Atlanta, GA 30329,
Part B of Title III of the Energy Policy and Conservation Act (EPCA) of 1975, Public Law 94-163, as amended, by the National Energy Conservation Policy Act of 1978 (NECPA), Public Law 95-619, the National Appliance Energy Conservation Act of 1987 (NAECA), Public Law 100-12, the National Appliance Energy Conservation Amendments of 1988 (NAECA 1988), Public Law 100-357, and the Energy Policy Act of 1992 (EPACT), Public Law 102-486, established the “Energy Conservation Program for Consumer Products other than Automobiles.” Part 3 of Title IV of NECPA amended EPCA to add “Energy Efficiency of Industrial Equipment,” which included air conditioning equipment and other types of commercial equipment.
EPACT also amended EPCA with respect to certain commercial equipment. It provided definitions, test procedures, labeling provisions, energy conservation standards, and authority to require information and reports from manufacturers.
With respect to some commercial equipment for which EPCA prescribes energy conservation standards, including commercial air conditioners and heat pumps, “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute or by the American Society of Heating, Refrigerating and Air Conditioning Engineers, as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry testing or rating procedure is amended, the Department must revise its test procedure to be consistent with the amendment, unless the Secretary determines, based on clear and convincing evidence, that to do so would not meet certain general requirements spelled out in the statute for test procedures. (42 U.S.C. 6314(a)(4)(B)) Before prescribing any test procedures for such equipment, the Secretary must publish them in the
The Department has an energy conservation program for consumer products, and certain commercial equipment, conducted under Part B of Title III of EPCA, 42 U.S.C. 6291-6309. Under EPCA, this program essentially consists of four parts: Test procedures, Federal energy conservation standards, labeling, and certification and
Part 431 (10 CFR Part 431), entitled “Certain Industrial Equipment,” implements our program for most commercial and industrial equipment covered under EPCA. These will include commercial heating, air conditioning and water heating equipment. Part 431 will consist of: Test procedures, Federal energy conservation standards, labeling, and certification and enforcement procedures. EPCA directs the Department, rather than the FTC, to administer the statute's efficiency labeling provisions for this commercial equipment.
In preparing proposed rules that would address test procedures, certification and enforcement procedures, and issues of EPCA's coverage for this equipment, the Department convened public workshops on April 14 and 15, 1998, and on October 19, 1998. As to commercial air conditioners and heat pumps specifically, workshop discussions and comments dealt with the following six issues:
(1) Coverage of heating-only heat pumps;
(2) Coverage of computer room air conditioners;
(3) Coverage of equipment with a variable-speed drive;
(4) Test procedures to be adopted;
(5) Minimum external static pressure; and
(6) Test procedure for water-source heat pumps.
The Department considered both oral and written comments, and incorporated recommendations where appropriate, in the Notice of Proposed Rulemaking (NOPR) of August 9, 2000. 65 FR 48828. The discussion section of the NOPR presented our position and explained the reasons for incorporating or not incorporating any significant recommendations. The NOPR was followed by a public hearing on September 21, 2000, and an opportunity for submission of written comments. The Department received oral or written comments from interested persons. They questioned or disagreed with the Department's position as presented in the NOPR only as to computer room air conditioners, variable speed equipment, and the test procedure for water source heat pumps. These comments are discussed in Section II.
Energy conservation standard levels were not at issue in these proceedings. The NOPR merely proposed to incorporate into the Department's regulations on efficiency requirements for small and large commercial package air conditioning and heating equipment the standard levels that had been established in Section 342(a) of EPCA for these products. Subsequent to issuance of the NOPR, in a separate proceeding, the Department promulgated a regulation (10 CFR part 431, Subpart Q) to replace some of these levels by adopting as Federal standards some of the efficiency levels contained in amendments to ASHRAE/IES Standard 90.1. 66 FR 3336, 3354-55 (January 12, 2001). These new Federal standards became effective on October 29, 2003.
Today's rule for commercial air conditioners and heat pumps includes: (1) Energy efficiency test procedures, (2) energy conservation standards, and (3) clarifications regarding EPCA's coverage.
The four test procedures incorporated in the rule—three ARI Standards and one ISO Standard—are listed at the beginning of this
As described in the Discussion section below, this rule will adopt the most recent versions of the ARI test standards as referenced above. These revisions occurred subsequent to the publication of the NOPR on August 9, 2000. By adopting the revised ARI test standards, with certain modifications, this rule will be current with industry test standards and it will ensure that the equipment covered by this rule is tested properly. However, because there has not been prior opportunity for comment on these revisions, stakeholders will be given such an opportunity as described at the beginning of this notice.
The Department has included the conservation standards so that they and the test procedures for commercial air conditioners and heat pumps will be in the same place in our regulations. The standards are the currently applicable minimum energy efficiency levels prescribed by Section 342(a) of EPCA, as well as the amendments to certain of these levels, referred to above. The amendments are being transferred from 10 CFR part 431 Subpart Q.
Because the Department believes that EPCA neither prescribes nor mandates efficiency standards or test procedures for computer room air conditioners, today's direct final rule does not cover this product. Nor does the rule include efficiency standards that account for partial load performance for commercial air conditioning equipment, except to restate those Seasonal Energy Efficiency Ratio (SEER) and Heating Seasonal Performance Factor (HSPF) standards already prescribed by EPCA for certain equipment less than 65,000 Btu per hour, since as to efficiency standards the purpose of today's rule is merely to incorporate existing requirements.
Finally, today's rule provides neither methods for manufacturers to certify to us the efficiency of commercial central air conditioners and heat pumps, nor enforcement and other administrative provisions for this equipment. The Department proposed regulations on these subjects, for air conditioning and certain other commercial equipment, in a notice of proposed rulemaking on December 13, 1999. 64 FR 69597. Until the Department adopts such regulations, the provisions of EPCA will govern directly the enforcement and administration of efficiency requirements for commercial air conditioning equipment. The provisions currently in Part 431 will not apply to these products.
The following discussion is divided into two sections: (1) Section II.A discusses the test procedures, which ARI revised following publication of the NOPR, for equipment other than water-source heat pumps; and (2) section II.B discusses the issues raised by oral or written comments received in response to the NOPR.
In the NOPR published on August 9, 2000, the Department proposed to adopt ARI Standard 210/240-94 and ARI Standard 340/360-93 for commercial and industrial unitary air conditioning and heat pump equipment, and ARI Standard 310/380-93 for packaged terminal air-conditioners and heat pumps. ARI Standard 210/240-94 covers equipment with cooling capacities under 135,000 Btu per hour while ARI Standard 340/360-93 covers equipment with cooling capacities greater than or equal to 135,000 Btu per hour.
Since publication of the NOPR, ARI has issued new versions of these test standards. ARI Standard 210/240-2003 has superceded ARI Standard 210/240-94, ARI Standard 340/360-2000 has superceded ARI Standard 340/360-93, and ARI Standard 310/380-2004 has superceded ARI Standard 310/380-93. The changes ARI made to its test standards are primarily editorial in nature, and alter neither efficiency test methods, nor calculation procedures, nor measured efficiencies for the equipment being tested, with one notable exception: Equipment with cooling capacities from 65,000 to 135,000 Btu per hour which were covered by ARI Standard 210/240 are now covered by ARI Standard 340/360.
For all other equipment, the Department is adopting the most recent versions of the ARI test standards in today's direct final rule, without change. These new versions are more readily available than the older versions and are included in the rule for the convenience of the affected parties. Also, to the extent the current versions are considered amendments to the ARI test procedures, their adoption will render the DOE test procedure “consistent with the amended industry test procedure,” in accordance with 42 U.S.C. 6314(a)(4)(B). As detailed below (section II.A.2.), the Department is adopting ARI Standard 340/360-2000, but with certain modifications, for equipment with a cooling capacity from 65,000 to 135,000 Btu per hour, to ensure that the test procedure in today's direct final rule allows for the proper testing of such equipment.
The most significant outcome of ARI's revisions of its test standards has been to amend the test procedure for equipment with cooling capacities from 65,000 to 135,000 Btu per hour, by replacing ARI Standard 210/240 with ARI Standard 340/360. Under 42 U.S.C. 6314(a)(4)(B), the Department must adopt the industry's amended test procedure unless there is “clear and convincing” evidence that to do so would result in a test procedure which produces results that do not reflect the energy efficiency of the equipment or which would be unduly burdensome to conduct.
Although the organization and language of ARI Standards 340/360-2000 and 210/240-94 differ substantially, for the most part the substance of the efficiency test method and calculation procedures in the two standards is the same. In addition, the test method in Standard 340/360-2000 improves upon the method in 210/240-94 in that Standard 340/360-2000 provides a clarification of the test conditions used to rate air conditioning equipment with optional outdoor air cooling coils. ARI Standard 340/360, however, lacks certain provisions that are in ARI Standard 210/240, and for certain types of equipment with cooling capacities from 65,000 to 135,000 Btu per hour, these omissions represent a substantial change in the test procedure. The Department has determined that, due to these omissions, ARI Standard 340/360-2000 clearly would not produce test results that would accurately reflect the equipment's measured efficiency. As a result, for equipment with cooling capacities from 65,000 to 135,000 Btu per hour, the Department is adopting ARI Standard 340/360-2000, as modified, by adding concepts and language from ARI Standard 210/240-2003 to ensure that the test procedure in today's direct final rule accurately measures the efficiency of all such equipment.
The following sets forth the reasons why ARI Standard 340/360-2000 is inadequate to test this equipment, and the modifications which the Department is incorporating into its test procedure to correct these deficiencies:
• Equipment with a Desuperheater/Water Heating Device: ARI Standard 340/360-2000 does not address the rating of equipment with desuperheater/water heating devices. The energy efficiency test results for such equipment will vary depending on whether the desuperheater/water heating device is left in operation. To ensure consistent and accurate test results for units equipped with a desuperheater/water heating device, today's test procedure provides that such equipment must be rated while the device is inoperative, consistent with Section 2.2.5 of ARI Standard 210/240-2003. To provide clarity, the rule language characterizes a desuperheater/water heating device as a refrigerant-to-water heat exchanger to heat domestic water.
• Models Manufactured Without Indoor Air-Circulating Fans: ARI Standard 340/360-2000 fails to include provisions to account for the input power of the indoor air-circulating fan for units which do not have such fans furnished as part of the model. Because these units are always installed and operated with such fans, by not providing for the input power of the indoor fan, the test procedure would underestimate the overall input power of the unit, thereby resulting in an energy efficiency rating which would be higher than it otherwise would be if the indoor fan input power were included. To ensure that the effects of air-circulation fans on equipment capacity and input power are accounted for in units which do not have indoor air-circulating fans furnished as part of the model, the Department is incorporating with minor editorial modifications a portion of Section 6.1 and the full text of Section 6.1.3.3c. of ARI Standard 210/240-2003 into its test procedure for equipment with cooling capacities from 65,000 to 135,000 Btu per hour.
The following is the language being incorporated from Section 6.1: “Standard Ratings of units which do not have indoor air-circulating fans furnished as part of the model,
The full text of section 6.1.3.3c, modified to reference the appropriate section in ARI Standard 340/360-2000, states: “Equipment which does not incorporate an indoor fan, but is rated in combination with a device employing a fan shall be rated as described in 6.1.3.2a of 340/360-2000. For equipment of this class which is rated for general use to be applied to a variety of heating units, the indoor-coil airflow rate shall be specified by the
• Equipment with Indoor Fans, Not Made for Use With Field Installed Duct Systems: ARI Standard 340/360-2000 does not provide external pressure specifications for units with indoor fans not intended for use with field-installed duct systems (free discharge). Without explicit provisions, these units would be tested with an external pressure greater than 0 inches of water. The resultant power input for the indoor fan would be greater than it otherwise should be, thereby resulting in a measured energy efficiency lower than it otherwise should be. To ensure that equipment with indoor fans not intended for use with field-installed duct systems (free discharge) are tested with the appropriate external pressure, the Department is incorporating with minor editorial modifications the full text of Section 6.1.3.3b and a portion of Section 6.1.3.6 of ARI Standard 210/240-2003 into its test procedure for equipment with cooling capacities from 65,000 to 135,000 Btu per hour.
The full text of section 6.1.3.3b states: “Equipment with indoor fans not intended for use with field installed duct systems (free discharge) shall be rated at the indoor-coil airflow rate delivered when operating at 0 in [sic] H
The language incorporated from Section 6.1.3.6 states: “Indoor air-moving equipment not intended for use with field installed duct systems (free discharge) shall be tested at 0 in [sic] H
• Water-Cooled Equipment: ARI Standard 340/360-2003 does not include an allowance for the power inputs for the cooling tower fan and circulating water pump motors for water-cooled units. By not including the input power of the fan and pump, the overall input power of the unit would be underestimated, thereby resulting in an energy efficiency rating which would be higher than it otherwise should be if the power inputs of the fan and pump were included. To ensure that water-cooled units include a total allowance for cooling tower fan and circulating water pump motor power inputs, the Department is incorporating with minor editorial modifications the following portion of Section 6.1 of ARI Standard 210/240-2003 into its test procedure: “Standard Ratings of water-cooled units shall include a total allowance for cooling tower fan motor and circulating water pump power inputs to be added in the amount of 10.0 W per 1,000 Btu/h [34.1 W per 1,000 W] cooling capacity.”
In accordance with 42 U.S.C. 6293(e), the Department has determined that none of the test procedure changes specified in the foregoing section alter the measured efficiency of equipment with cooling capacities from 65,000 to 135,000 Btu per hour.
At the time the NOPR was published, ASHRAE/IES Standard 90.1 specified ARI Standard 320, “Water-Source Heat Pumps,” as the test procedure for water-source heat pumps. Standard 90.1 also provided that, effective October 29, 2001, efficiency levels would increase for this equipment, and ISO Standard 13256-1, “Water-Source Heat Pumps—Testing and Rating for Performance—Part 1: Water-to-Air and Brine-to-Air Heat Pumps,” would replace ARI Standard 320 as the applicable test procedure. In the NOPR, the Department expressed its intention to prescribe ARI Standard 320-98 as the Department test procedure for water-source heat pumps, and to consider adopting the ISO standard to replace the ARI standard in a subsequent proceeding. The Department also solicited comments, however, on the possibility of adopting the ISO standard, instead of the ARI standard, in the final rule in this proceeding.
ARI provided oral comments during the Public Hearing on September 21, 2000, and written comments dated September 14, 2000, and October 25, 2000. The September 14 comments provided an overview of the differences between ARI Standard 320 and ISO Standard 13256-1. (ARI, No. 2EE, at 2-4)
Subsequently, in a final rule published on January 12, 2001, the Department amended EPCA's minimum efficiency levels for water-source heat pumps, adopting the new minimum efficiency levels stipulated by ASHRAE/IES Standard 90.1. 66 FR at 3354-55. These new efficiency levels apply as Federal requirements to all equipment manufactured after October 29, 2003. As mentioned above, ASHRAE/IES Standard 90.1 had been amended effective October 29, 2001, to specify ISO Standard 13256-1 (in place of ARI Standard 320) as the test procedure for water-source heat pumps, to provide a new method for determining compliance with these new efficiency levels under Standard 90.1. Because these levels are now also Federal requirements, the Department decided to address in today's direct final rule whether it will adopt the ISO test procedure for water source heat pumps.
EPCA in essence directs the Department to revise its test procedure to be consistent with an amendment to an industry testing or rating procedure, unless the Department determines that the new procedure is “unduly burdensome to conduct” or is not “reasonably designed to produce test results which reflect energy efficiency, energy use and estimated operating costs.” (42 U.S.C. 6314(a)(2) and (4)(B)) Additionally, the Department must determine “to what extent, if any, the proposed [amended] test procedure would alter the measured energy efficiency * * * as determined under the existing test procedure.” (42 U.S.C. 6293(e) and 6314(a)(4)(C))
The Department's examination of the ISO test procedure indicates that ISO Standard 13256-1 requires laboratory facilities and instrumentation and a level of effort similar to what ARI Standard 320 requires. In addition, ARI's comments urging DOE to adopt ISO Standard 13256-1 demonstrate that DOE's adoption of that standard has substantial support from industry. In addition, DOE did not receive any other comments concerning the adoption of ISO Standard 13256-1. Thus, the Department has determined that the ISO
As to rulemakings to amend test procedures, section 323(e) of EPCA, 42 U.S.C. 6293(e), provides that DOE shall determine whether the amended test procedure would alter measured energy efficiency of any covered product. If the amendment does alter measured efficiency, the Secretary must determine the average efficiency level under the new test procedure of products that minimally complied with the applicable energy conservation standard prior to the test procedure amendment, and must set the standard at that level. (42 U.S.C. 6293(e)(2)) In addition, any existing model of a product that complied with the previously applicable standard would be deemed to comply with the new standard. (42 U.S.C. 6293(e)(3)) These provisions prevent changes in a test procedure from indirectly altering the applicable Federal energy conservation standard. They also prevent products that complied with standards using the previous test procedure from being forced out of compliance by the new test procedure. The Department has determined that under the provisions of 42 U.S.C. 6293(e) that the Department's adoption here of ISO Standard 13256-1 would not alter the measured energy efficiency of water source heat pumps under the existing test procedure.
As discussed above, higher minimum efficiency levels for water source heat pumps went into effect under ASHRAE/IES Standard 90.1 on October 29, 2001, and as Federal requirements on October 29, 2003. ASHRAE adopted the ISO test procedure as of the former date, so that this test procedure would apply in determining compliance with the new standards. Further, the Department understands that the new standards were developed based on measurements using the ISO test procedure.
The new energy conservation standards that are in effect were developed using ISO Standard 13256-1, and ASHRAE clearly intended that the ISO test procedure be used to measure compliance with these standards. Thus, using ARI Standard 320 to determine whether manufacturers are meeting the new standards would produce inaccurate results. Only ISO Standard 13256-1 can accurately implement the new standards.
Furthermore, even if today's amendments do change the energy efficiency rating of any model and would prevent it from complying with the current energy conservation standards, the standard for that model became more stringent on October 29, 2003, and today's amendments are designed to implement the new standard. This renders irrelevant the model's ability or inability to comply with the current or former standards based on efficiency determinations under the existing test procedure. Thus, a change resulting from today's amendments to the test procedure could simply mean that the product in question does not meet the new efficiency standard.
In conclusion, today's rule provides that ISO Standard 13256-1 will be the sole test procedure under EPCA for water source heat pumps. This requirement is directly set forth in new section 431.262. It is also reflected in new section 431.271, which prescribes energy conservation standards, by incorporation of 30 °C (86 °F) as the entering water temperature at which EER must be rated, in place of the 85 °F temperature that was included in Subpart Q of 10 CFR which is being eliminated in another final action published today.
Mr. B. Subherwal of BR Laboratories spoke in favor of covering computer room air conditioners under this rule. He advocated using ASHRAE Standard 127-88 for testing because computer room air-conditioners in field applications perform at different conditions than those specified in any ARI standard.
The Department's view remains that computer room air conditioners are not currently covered by the standards and test procedures prescribed and mandated by EPCA. The reasons supporting this view—the primary one being that Congress appears not to have intended to cover this type of equipment—were presented in detail in Section II of the NOPR. As also set forth in the NOPR, if some of the relevant circumstances were to change—if, for example, ASHRAE Standard 90.1 were to incorporate efficiency standards and test procedures for this equipment or the equipment was to become widely used for conventional air conditioning applications—the Department might re-visit this issue.
Mitsubishi Electronics America, Inc., submitted a written comment dated October 20, 2000, which recommended that part load performance be considered in evaluating the efficiency of inverter-driven equipment because it rarely operates at full load (typically less than 1% of the time). (Mitsubishi, No. 4, at 1-2). The comment suggested a procedure presented in ARI Standard 550/590-1998, Appendix D, D3, to be used for evaluating an Integrated Part Load Value. Further, the letter contended that incorporating a procedure similar to that presented in ARI Standard 550/590-1998 would encourage manufacturers to incorporate this advanced technology into their product line, and this would improve National Energy Savings.
This comment essentially advocates that the Department establish efficiency standards and a performance descriptor that address part load performance of commercial air conditioning equipment. A similar comment was submitted to us earlier and is discussed in the NOPR. 65 FR 48831-3. As indicated there, with regard to efficiency standards the purpose of this rulemaking is to incorporate the requirements already imposed under EPCA (including any amendments by the Department to the standards established by EPACT). These requirements incorporate standards for part load performance only for small commercial, air-cooled package air-conditioning equipment having cooling capacity less than 65,000 Btu/h, which are included in today's rule. Therefore, Mitsubishi's suggestion that the Department prescribe efficiency standards for the part load performance of other air conditioning products is beyond the scope of this rulemaking. Nevertheless, as the Department recently stated when the Department addressed amendment of the standards established by EPACT, the Department will consider including integrated part load values in any prospective rulemaking for air conditioning equipment. 66 FR 3348.
DOE is publishing this direct final rule in order to allow stakeholders an opportunity to comment on revisions to this rule that have not had prior proposal. The direct final action will be effective December 20, 2004, unless significant adverse or critical comments
The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) has determined that today's regulatory action is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's rule under the provisions of the Regulatory Flexibility Act, and certified in the NOPR that the proposed rule would not impose a significant economic impact on a substantial number of small entities. (65 FR 48828, 48833 (August 9, 2000)) We received no comments on this issue, and after considering the potential small entity impact of this direct final rule, DOE affirms the certification that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review pursuant to 5 U.S.C. 605(b).
This rulemaking will impose no new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (44 U.S.C. 3501
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. With respect to a proposed regulatory action that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation), section 202 of the Act requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988) that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
The Department stated in the NOPR the reasons why section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977, 15 U.S.C. 788, does not apply to the four ARI commercial standards incorporated into the proposed rule. The Department received no comments on this issue.
The rule published today incorporates updated versions of three of these ARI standards, as well as an ISO standard referenced in Standard 90.1 in place of the fourth ARI standard. The Department continues to adhere to the view expressed in the NOPR that Section 32 of the FEAA does not apply to these four standards. However, for equipment at or above 65,000 but less than 135,000 Btu per hour, the Department is adopting one of these ARI standards with modifications drawn from another one of these ARI standards DOE is incorporating in today's rule. These modifications consist of test methods that EPCA currently requires manufacturers to use. (42 U.S.C. 6314(a)(4)(a)) The Department believes that Section 32 of the FEAA does not apply to its decision to require manufacturers to continue to use these test methods.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of today's rule.
Administrative practice and procedure, Commercial products, Energy conservation, Incorporation by reference.
42 U.S.C. 6311-6316.
This subpart specifies test procedures and energy conservation standards for certain commercial air conditioners and heat pumps, pursuant to Part C of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. 6311-6316.
The following definitions apply for purposes of this subpart F, and of subparts J through M of this part. Any words or terms not defined in this section or elsewhere in this part shall be defined as provided in 42 U.S.C. 6311.
(a) The Department incorporates by reference the following test procedures into subpart F of part 431. The Director of the Federal Register has approved the material listed in paragraph (b) of this section for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Any subsequent amendment to this material by the standard-setting organization will not affect the Department test procedures unless and until the Department amends its test procedures. The Department incorporates the material as it exists on the date of the approval and a notice of any change in the material will be published in the
(b)
(1) Air-Conditioning and Refrigeration Institute (ARI) Standard 210/240-2003 published in 2003, “Unitary Air-Conditioning and Air-Source Heat Pump Equipment,” IBR approved for § 431.96.
(2) ARI Standard 340/360-2000 published in 2001, “Commercial and Industrial Unitary Air-Conditioning and Heat Pump Equipment,” IBR approved for § 431.96.
(3) International Organization for Standardization (ISO) International Standard ISO 13256-1 published in 1998, “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps,” IBR approved for § 431.96.
(4) ARI Standard 310/380-2004 (CSA-C744-04) published in 2004, “Standard for Packaged Terminal Air-Conditioners and Heat Pumps,” IBR approved for § 431.96.
(c)
(1)
(i) National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(ii) U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Hearings and Dockets, “Test Procedures and Efficiency Standards for Commercial Air Conditioners and Heat Pumps,” Docket No. EE-RM/TP-99-460, 1000 Independence Avenue, SW., Washington, DC 20585.
(2)
(a)
(b)
Each commercial air conditioner or heat pump manufactured on or after January 1, 1994 (except for large commercial package air-conditioning and heating equipment, for which the effective date is January 1, 1995) must meet the applicable minimum energy efficiency standard level(s) set forth in Tables 1 and 2 of this section.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Direct final rule.
Pursuant to Part C of title III of the Energy Policy and Conservation Act (EPCA), the Department of Energy (DOE or the Department) promulgates a rule prescribing test procedures to rate the energy efficiency of commercial water heaters and hot water supply boilers. For these products and unfired hot water storage tanks, the rule also prescribes relevant definitions and recodifies existing energy conservation standards, so that they are located contiguous with the test procedures that DOE promulgates today.
This direct final rule is effective December 20, 2004, unless significant adverse or critical comments are received by November 22, 2004. If the effective date is delayed, a timely notice will be published in the
You may submit comments, identified by docket number EE-RM/TP-99-480 and/or RIN number 1904-AA95, by any of the following methods:
• Federal eRulemaking Portal:
• E-mail:
• Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Direct Final Rule for Test Procedures and Efficiency Standards For Commercial Water Heaters, Hot Water Supply Boilers and UnFired Hot Water Storage Tanks; EE-RM/TP-99-480 and/or RIN 1904-AA95, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. Please submit one signed paper original.
• Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. Department of Energy, Building Technologies Program, Room 1J-018, 1000 Independence Avenue, SW., Washington, DC 20585.
Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking.
Mohammed Khan, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal Building, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-7892, FAX (202) 586-4617, e-mail:
This direct final rule incorporates, by reference, into subpart G of part 431, test methods contained in an industry test standard referenced by the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc. (ASHRAE) and the Illuminating Engineering Society of North America (IES) Standard 90.1 (“ASHRAE/IES Standard 90.1”) for commercial water heaters and hot water supply boilers. The industry test standard is American National Standards Institute Standard Z21.10.3-1998 (ANSI Z21.10.3-1998), “Gas Water Heaters Volume III Storage Water Heaters, with Input Ratings Above 75,000 Btu per Hour, Circulating and Instantaneous, ANSI 21.10.3-1998, CSA 4.3-M98, and its Addenda, ANSI Z21.103a-2000, CSA 4.3a-M00.” DOE is incorporating by reference the “Method of Test” subsections of sections 2.9 and 2.10 in ANSI Z21.10.3-1998, CSA 4.3-M98 and the sections referenced there, including sections 2.1.7, 2.3.3, 2.3.4, 2.30 and Figure 3.
Copies of these standards are available for review in the resource room of the Building Technologies Program, room 1J-018 at the U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at (202) 586-2945, for additional information regarding visiting the resource room.
You can purchase copies of the ASHRAE Standard and the standard incorporated by reference from Global Engineering Documents, 15 Inverness Way East, Englewood, CO 80112,
Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions designed to improve energy efficiency of various products and equipment. Part B of title III (42 U.S.C. 6291-6309) provides for the “Energy Conservation Program for Consumer Products other than Automobiles.” Part C of Title III (42 U.S.C. 6311-6317) provides for a program similar to Part B which is entitled “Certain Industrial Equipment” and which includes commercial air conditioning equipment, packaged boilers, water heaters, and other types of commercial equipment.
DOE publishes today's direct final rule pursuant to Part C which specifically provides for definitions, test procedures, labeling provisions, energy conservation standards, and authority to require information and reports from manufacturers. (
With respect to some commercial equipment for which EPCA prescribes energy conservation standards under EPCA section 342, including water heating products, section 343(a)(4)(A) provides: “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute or by the American Society of Heating, Refrigerating and Air Conditioning Engineers, as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry testing or rating procedure is amended, DOE must revise its test procedures to be consistent with the amendment, unless the Secretary determines, based on clear and convincing evidence, that to do so would not meet certain general requirements spelled out in the statute for test procedures. (42 U.S.C. 6314(a)(4)(B)) Before prescribing any test procedures for such equipment, the Secretary must publish them in the
DOE began implementation of Part C of title III of EPCA by establishing 10 CFR part 431. Part 431 is entitled “Energy Efficiency Program for Certain Commercial and Industrial Equipment.” Eventually, part 431 will include commercial heating, air conditioning and water heating products. It will consist of: test procedures, Federal energy conservation standards, labeling, and certification and enforcement procedures. Today DOE proposes amendments to part 431 in order further to implement Part C of title III of EPCA.
As a first step in the process that led to today's direct final rule, the Department convened public workshops on April 14 and 15, 1998, and October 18, 1998, to solicit views and information from interested parties to aid in developing proposed rules that would address test procedures, certification and enforcement procedures, and EPCA's coverage for this equipment. The workshop discussions and comments focused on the following issues for commercial water heating products specifically:
(1) The test procedure to incorporate by reference for testing commercial water heaters;
(2) Proposed test procedures for testing unfired hot water storage tanks;
(3) Definition and coverage of hot water supply boilers;
(4) Coverage of instantaneous water heaters;
(5) Coverage and test procedures for heat pump water heaters; and
(6) Coverage of waste heat recovery water heaters.
After considering both oral and written comments the Department published a Notice of Proposed Rulemaking and Public Hearing (“proposed rule” or “NOPR”) to implement the energy efficiency standards and test procedures mandated by EPCA for commercial water heaters, hot water supply boilers and unfired hot water storage tanks. 65 FR 48852 (August 9, 2000) The NOPR requested data, comments, and information regarding the proposed regulations. The Department held a public workshop/hearing (the “public hearing”) on September 20, 2000, to receive oral comments. The Department accepted written comments until October 23, 2000.
In formulating today's direct final rule, the Department considered the comments received, and has incorporated recommendations where appropriate. The Department received comments with respect to the Department's position as presented in the NOPR only as to (1) The definition and coverage of instantaneous water heaters and hot water supply boilers, (2) a test procedure for booster water heaters, (3) certain details of the test procedures for other water heaters and (4) unfired storage tank test procedures. These comments are discussed in Section II.
For water heaters and unfired hot water storage tanks, energy conservation standard levels were not at issue in these proceedings. The NOPR merely proposed to recodify into the Department's regulations on efficiency requirements the standard levels that had been established in section 342(a) of EPCA for this equipment. For hot water supply boilers, in the NOPR the Department stated its intent to adopt the standard levels in Addendum n to ASHRAE/IES Standard 90.1-1989, which differ from the levels applicable to this equipment under section 342(a) of EPCA. Subsequent to issuance of the NOPR, in a separate proceeding, the Department promulgated a regulation (10 CFR 431 subpart Q) to adopt as Federal standards some of the efficiency levels contained in amendments to ASHRAE/IES Standard 90.1 for this water heating equipment. (66 FR 3336, 3356 ( January 12, 2001)). These Federal standards became effective on October 29, 2003, replacing corresponding standards in EPCA.
Today's rule incorporates the following for commercial water heating equipment: (1) Definitions, including some clarifications of EPCA's coverage, (2) energy efficiency test procedures, and (3) energy conservation standards.
The definitions largely incorporate language from EPCA. In addition, the
The rule prescribes the sections of ANSI Standard Z21.10.3-1998 set forth above, with some minor modifications, as the prescribed testing methodologies for water heaters (including booster water heaters) and hot water supply boilers. (Until one year from the publication of this rule, however, manufacturers of hot water supply boilers with capacities of less than 10 gallons may use either this test procedure, or, if they comply with the efficiency standards for commercial packaged boilers as described below, the test procedure for such boilers.) Because a new Federal energy conservation standard, which is a design rather than a performance standard, recently went into effect for unfired hot water storage tanks, the Department has not adopted a test procedure for this equipment.
Today's rule includes energy conservation standards so that they and the test procedures for commercial water heating equipment will be located contiguous to one another in DOE's regulations. The standards are as follows: (1) For electric storage water heaters and gas instantaneous water heaters with capacities of less than 10 gallons the currently applicable minimum energy efficiency levels prescribed by section 342(a) of EPCA; (2) for hot water supply boilers with capacities of less than 10 gallons, the efficiency levels set forth in the NOPR; and (3) for the remaining commercial instantaneous water heaters and hot water supply boilers, for storage water heaters and for unfired hot water storage tanks, the new levels that became effective on October 29, 2003.
Finally, because the Department believes that EPCA neither prescribes nor mandates efficiency standards or test procedures for waste heat recovery water heaters, today's direct final rule does not cover this equipment. This rule also does not provide a test procedure for commercial heat pump water heaters. The Department understands that ASHRAE has published a new standard (ANSI/ASHRAE 118.1-2003) which prescribes a method of test for commercial heat pump water heaters. The Department will evaluate whether to adopt it in the future.
Representatives of eight organizations, comprising trade associations (the American Gas Association and the Gas Appliance Manufacturers Association (GAMA)), manufacturers (A.O. Smith Water Products Co. (A.O. Smith) and Bock Water Heaters), private research/consulting entities (the Gas Technology Institute, Arthur D. Little, Inc., and BR Laboratories, Inc.), and a State government energy agency (the California Energy Commission (CEC)), attended the public hearing on September 20, 2000. The American Society of Testing and Materials (ASTM) did not attend the public hearing but submitted written comments. GAMA and CEC also submitted written statements in advance of the hearing, and GAMA submitted written comments after the hearing.
The following discusses issues on which comments were presented during and after the public hearing.
In the DOE test procedure for residential water heaters, Appendix E to Subpart B of 10 CFR Part 430, the definition of gas fired instantaneous water heaters excludes equipment designed to heat water to 180 °F or higher, or with storage volumes of two gallons or more. During the workshops held prior to the issuance of the NOPR, GAMA stated that such products are not designed or marketed for consumer/residential applications, regardless of their input ratings, and that they should be subject to the energy efficiency standards that apply to commercial water heaters. 65 FR 48854.
The Department stated in the preamble to the NOPR that the Department concurs that these products are generally distributed for commercial or industrial use, and rarely if ever for use by individual consumers. 65 FR 48855. In addition, the NOPR's proposed definition of “instantaneous water heater” stated that this product must be “a commercial HVAC & WH product.” 65 FR 48864. DOE defined the latter term, in a related NOPR, 64 FR 69598, 69610 (December 13, 1999), by reference to section 340(1) of EPCA, which in essence provides that a product is covered as a commercial product under the statute if it is distributed for commercial or industrial use, and not to any significant extent for personal or individual use. Thus, the NOPR's proposed test procedures and energy conservation standards for “instantaneous water heaters,” 65 FR 48864 and 48866, would implicitly apply to all instantaneous water heaters that heat water to temperatures of 180 °F and higher.
During the public hearing, however, GAMA claimed that the NOPR addressed this issue inadequately. (GAMA, Tr. 118-119
As indicated above, the Department intends to cover all commercial instantaneous water heaters in today's direct final rule. DOE clarifies this point in the direct final rule by adding to the definition of instantaneous water heater language that specifically includes products that raise water temperature to 180 °F or higher, and by substituting for “commercial HVAC & WH product” the term “industrial equipment.” This term is defined in section 340(2) of EPCA as including only equipment distributed to a significant extent for commercial or industrial use, and not for personal or individual use.
The Department explained in detail in the preamble of the NOPR its intention to adopt amendments to ASHRAE/IES Standard 90.1-1989 (contained in Addendum n to the Standard) with respect to hot water supply boilers, a type of packaged boiler that is used for service water heating. These amendments prescribed for hot water supply boilers the energy efficiency standards and test procedures that applied to commercial instantaneous water heaters under both ASHRAE/IES Standard 90.1-1989 and EPCA. The Department proposed to adopt these amendments with limited modifications necessary to adapt them for use under EPCA. Such modifications consist primarily of defining “hot water supply boiler” in terms of the intrinsic characteristics of such a boiler, as well as the way the manufacturer markets the product. Further, the Department stated in the preamble to the NOPR that if a boiler is manufactured so that it can be used as either a hot water supply boiler or a hydronic heating boiler, it would have to meet the energy efficiency standards for, and be tested as, both types of products. Finally, the Department proposed that these requirements would become effective 60 days after the direct final rule is promulgated.
The following discussion addresses the issues commenters raised as to the requirements for hot water supply boilers, relating to which equipment is covered and to the effective date of the requirements.
Pursuant to Addendum n, ASHRAE/IES Standard 90.1 states that a hot water supply boiler is “a boiler used to heat water for purposes other than space heating,” and applies the energy efficiency requirements specified for commercial instantaneous water heaters to hot water supply boilers used solely for heating potable water. The limited modifications the Department proposed in the NOPR for purposes of adopting Addendum n as a Federal requirement included defining certain equipment as a hot water supply boiler based on the equipment's features and how it is marketed, not how it is used. GAMA commented that DOE should limit its requirements for hot water supply boilers based on how products are actually used. The Department should adopt language identical to that in Addendum n to ASHRAE/IES Standard 90.1-1989. (GAMA, No. 4 and No. 5 at p. 2)
The Department explained in the NOPR that it did not intend to adopt the provisions of Addendum n exactly as written because they apply to equipment, indeed to a unit of equipment, based on how it is used. EPCA imposes requirements on equipment as manufactured. The Department pointed out that basing requirements for boilers on how they will be used would be untenable for manufacturers, and unenforceable, because manufacturers cannot know how a purchaser will use a particular unit of equipment. The Department stated, and continues to believe, that the proposed definition of hot water supply boiler in terms of physical features that are a necessary part of the equipment, and of how the manufacturer intends that the equipment be used, implements the intent of Addendum n to apply requirements for commercial water heaters to boilers that provide service water heating. GAMA's comments address neither the reasons the Department set forth in the NOPR for declining to adopt the language of Addendum n nor the specific provisions the Department proposed in an effort to adhere to Addendum n as closely as possible. Thus, the Department is not adopting GAMA's suggestion that the direct final rule contain language identical to Addendum n.
Accordingly, DOE adopts in today's direct final rule the approach proposed in the NOPR.
In the NOPR the Department proposed to define hot water supply boiler, in part, as a packaged boiler with an input rating from 300,000 Btu/hr to 12,500,000 Btu/hr. CEC commented that this rule should not exclude from coverage hot water supply boilers with inputs greater than 12,500,000 Btu/hr. (CEC, No. 2FF at p. 2) This element of the proposed definition is taken verbatim from the delineation of this equipment in ASHRAE/IES Standard 90.1 and does not mean that equipment with inputs greater than 12,500,000 Btu/hr are excluded from coverage under EPCA. Rather, any packaged boiler having an input greater than 12,500,000 Btu/hr, and otherwise having the characteristics of a “hot water supply boiler,” is covered by the provisions for packaged boilers.
The Department proposed that Addendum n's test procedures (ANSI Z21.10.3) and efficiency standards for hot water supply boilers would become effective as Federal requirements 60 days after publication of this rule, because the Department believed that manufacturers were already following the provisions of Addendum n (65 FR 48858). GAMA pointed out, however, that “manufacturers have not had their hot water supply boilers tested for compliance with the requirements of Addendum n because * * * to our knowledge, there are few, if any * * * jurisdictions * * * that have adopted and are enforcing Addendum n.” GAMA further stated that “manufacturers could not be certain that DOE would adopt the Addendum n requirements as Federal standards because (1) it was not clear that hot water supply boilers would be deemed a Federally-covered product, since there is no mention of hot water supply boilers in EPACT; and (2) Addendum n is a requirement applicable to a specific application rather than to all products of a given type.” (GAMA, No. 5 at pp. 1-2) Consequently, GAMA advocated that our adoption of the Addendum n requirements for hot water supply boilers become effective two years, rather than 60 days, after publication of this rule.
Since publication of the NOPR, this issue has narrowed somewhat. In another rulemaking, the Department adopted as Federal standards for hot water supply boilers with capacities equal to or greater than 10 gallons the efficiency levels prescribed in amendments to ASHRAE/IES Standard 90.1 for instantaneous water heaters. 66 FR at 3356. The Department adopted these standards in January 2001, and they apply to products manufactured on or after October, 29, 2003. For these products, therefore, no issue currently exists as to the effective date of efficiency standards. Still at issue, however, are the effective dates for (1) the test procedures that Addendum n prescribes for these larger capacity hot water supply boilers, and (2) both the test procedures and standards that Addendum n prescribes for hot water supply boilers with a capacity of less than 10 gallons.
As to the test procedures for the larger capacity hot water supply boilers, the Department will adhere to the approach proposed in the NOPR. Effective 60 days after publication of today's rule, the
As to hot water supply boilers with capacities of less than 10 gallons, the Department will not adhere to its proposed 60-day effective date. Instead, today's direct final rule provides that the new standards and test procedures applicable to these hot water supply boilers will become mandatory one year after publication of this rule. The Department believes this amount of lead time is warranted in light of the information GAMA provided as to the lack of compliance with Addendum n, and the time manufacturers may need to design and manufacture these smaller capacity hot water supply boilers to comply with the thermal efficiency standard that these products will now be required to meet. The Department recognizes that this is less than the two-year effective date requested by GAMA from publication of today's rule. But DOE believes the one-year effective date is reasonable for both manufacturers and purchasers for three reasons. First, the larger capacity hot water supply boilers are already subject to standards that use the thermal efficiency descriptor, and manufacturers either have begun or will shortly begin using the ANSI Z21.10.3 test procedure to measure compliance with these standards. Therefore, manufacturers will have experience in using the new descriptor and test procedure for hot water supply boilers and, for the smaller products, will need less lead time than advocated by GAMA. Second, from the standpoint of purchasers, and even manufacturers, a single approach should become mandatory for all hot water supply boilers as soon as possible so as to eliminate any confusion and inefficiency that might result from using different metrics to rate similar products. And third, as recognized by GAMA, manufacturers have been on notice since publication of the NOPR that the Department intended to apply to hot water supply boilers the efficiency requirements for instantaneous water heaters.
DOE also notes that the smaller capacity hot water supply boilers would not be exempt from Federal efficiency standards during the period before the new requirements become effective for them. Rather they would still be subject to the requirements for commercial packaged boilers.
Today's direct final rule will, however, allow products manufactured before such effective date to comply with the new requirements, reflecting the approach proposed in the NOPR for products manufactured before such requirements become mandatory. (65 FR at 48866) Specifically, hot water supply boilers with capacities of less than 10 gallons, manufactured subsequent to October 28, 2003, and within one year of publication of this rule, could meet either the requirements adopted for these products in today's rule or the applicable requirements for packaged boilers.
In the NOPR DOE stated its intention to incorporate by reference certain sections of ANSI Z21.10.3-1998 as the test procedure for commercial, gas-fired water heaters. None of the comments DOE received objected to this proposal, except in certain limited respects discussed below. Therefore, in today's direct final rule DOE is adopting the proposed test procedure for gas-fired water heaters, but with a minor modification concerning standby loss testing as described in section II-C-3 below.
Booster water heaters are typically designed to take in water that is already heated by a service water heater and “boost” the temperature even higher, raising already hot water (110 to 140 °F) up to a 180 °F or higher. They are typically used for commercial dishwashing.
The ASTM test procedure that CEC proposed for adoption is not referenced by ASHRAE/IES Standard 90.1. Nor has evidence been presented that this test procedure validly measures compliance with the applicable efficiency standards mandated by EPCA. See Tr. 125-27. Furthermore, as indicated above, there is dispute as to whether the ASTM procedure is needed to test booster water heaters, in place of the procedure referenced in Standard 90.1, ANSI Z21.10.3.
DOE has only limited authority to decline to adopt a test procedure referenced by ASHRAE/IES Standard 90.1 (42 U.S.C. 6314(a)) and the record does not clearly establish either that the ANSI test procedure is unsuitable for testing booster water heaters, or that the ASTM procedure is appropriate for use under the standard set forth in 42 U.S.C. 6314(a). Therefore, the Department is not prepared to determine that the ANSI procedure for this equipment should not be adopted, or to conclude that the ASTM procedure would meet the standards of 42 U.S.C. 6314(a)(4)(C). Accordingly, the Department is not adopting the ASTM test procedure, and the ANSI procedure will govern the testing of booster water heaters covered by EPCA. To the extent a manufacturer of a booster water heater, however, believes the product cannot be tested under ANSI Z21.10.3, or that the test procedure provides materially inaccurate comparative data, DOE's regulations will allow the manufacturer to ask DOE to waive the ANSI test procedures for one or more particular basic models and permit it to use the ASTM procedure instead.
The Department is aware that ANSI updated Z21.10.3-1998 by issuing ANSI Z21.10.3-2001, and that the only change to the efficiency testing portions of the test procedure is that they provide methods specifically for testing booster water heaters. DOE will evaluate this latest version and decide whether to adopt it in the future.
In the NOPR the Department stated its intention to incorporate by reference section 2.10 of ANSI Z21.10.3-1998 as the standby loss test procedure for commercial water heaters and hot water supply boilers, with certain additional stipulations. DOE also pointed out that versions of ANSI Z21.10.3 prior to 1998 called for the standby loss test to terminate 48 hours after the initiation of data collection unless the water heater is in the heating mode at that time, in which case the test would continue until a “cutout” occurs (
GAMA commented that the change was made to shorten the test procedure, but after its adoption manufacturers became aware that some water heaters, particularly certain new designs, do not experience this cutout until several days beyond the end of the 24 hours, well beyond the end of the 48 hour time period. According to GAMA, this can make the test quite long and burdensome. It suggested that DOE adopt the referenced test procedure with a modification that limits the duration of the standby loss test to the earlier of the first cutout that occurs after 24 hours from the time of initiation of data collection or the end of 48 hours from the initiation of data collection, as described above. (GAMA, No. 2EE at p. 4, Tr. 131-36, 137) CEC agreed with GAMA's proposal, characterizing it as a minor modification. (CEC, Tr. 136,138)
The Department concurs in the need for the modification suggested by GAMA and CEC. The Department believes that the evidence in the record is clear and convincing that without the 48 hour termination provision, the standby loss test procedure in ANSI Z21.10.3-1998 can pose an undue burden on manufacturers, and therefore this modification meets the applicable EPCA requirements for test procedures. Consequently, this rule will incorporate section 2.10 of ANSI Z21.10.3-1998 with the added requirement that the standby loss test will continue until the earlier of either, (1) the first cutout following 24 hours from the initiation of data collection, or (2) 48 hours from the initiation of data collection if the water heater is not in the heating mode at that time.
Finally, the Department believes GAMA is correct in stating that this modification would not alter the test results that would otherwise be produced under ANSI Z21.10.3-1998. (GAMA, Tr. at 135-36) To the extent, however, that a change in the test results is caused by limiting the duration of the standby loss test procedure to 48 hours, such change would simply tend to provide the same results as would have been obtained using previous versions of the ANSI Z21.10.3. This would realize DOE's original intent that adoption of the 1998 version of the test procedure not alter standby loss measurements. 65 FR 48859.
The Department also notes that the measured standby loss using ANSI Z21.10.3 (percent standby loss per hour) must be converted to a quantity (Btu/hour) that is consistent with the energy efficiency standards listed in Section 431.110, so that manufacturers can determine whether their products comply with the applicable standard. Therefore, to provide a uniform method for determining compliance, the Department is stipulating the following standard conversion formula as part of today's rule:
In the NOPR, the Department set forth its intention to adopt ANSI Z21.10.3-1998, with the adaptations specified for testing oil-fired water heaters in footnote e to Table 11.1 of ASHRAE/IES Standard 90.1-1989 Addendum n, as the EPCA test procedure for this product. A.O. Smith asserted, however, that one of the adaptations—that the burner rate be adjusted so that fuel pump pressure would lie within +/−1 percent of the manufacturer's specification—is unrealistic. (A.O. Smith, No. 3 at p. 1, Tr. 145-146) It recommended that instead the Department require the pump pressure to be within +/−10 percent of the manufacturer's specification.
Just as the fuel pump establishes the pressure at which fuel is delivered to the burner of an oil-fired water heater, the gas pressure regulator serves that function on a gas-fired water heater. ANSI Z21.10.3-1998 requires that, during the test of a gas-fired water heater, the outlet pressure for the gas pressure regulator must be within +/−10 percent of that recommended by the manufacturer. Requiring that the pump pressure be within this range during the test of an oil-fired appliance, as recommended by A.O. Smith, would appropriately allow the same magnitude of tolerance for the fuel pressure in this type of equipment as the test procedure already specifies for a gas-fired appliance. DOE believes that this requirement would not affect the test results. Furthermore, DOE agrees with A.O. Smith that the +/−1 percent tolerance would be very difficult to achieve.
In sum, DOE believes the evidence in the record is clear and convincing that maintaining this tolerance for the fuel pump pressure in testing the efficiency of oil-fired water heaters would pose an undue burden on manufacturers. Therefore, today's direct final rule requires instead that the pressure be at a level of +/−10 percent of the manufacturer's specification for the equipment. DOE has determined that this tolerance level meets the requirements of 42 U.S.C. 6314(a)(2).
In the NOPR, DOE set forth its intent to adopt ANSI Z21.10.3-1998, with the adaptations specified for testing electric water heaters in footnote e to Table 11.1 of ASHRAE/IES Standard 90.1-1989 Addendum n, as the EPCA test procedure for this equipment. A.O. Smith asserted, however, that one of the adaptations—that the electrical supply voltage be maintained within +/−1 percent of the center of the voltage range specified on the water heater nameplate—is unnecessary and would require costly equipment. (A.O. Smith, No. 3 at p. 1, Tr. 140) A.O. Smith recommended that instead the Department require the electrical supply voltage to be maintained within +/−5 percent of the nameplate specification.
This change would affect maintenance of the electrical supply but not the tolerance for measurement of electric energy consumed, since the test procedure would continue to require that such measurement be within a 1 percent tolerance. Thus, the change would not detract from the rigor of the test procedure. DOE also agrees with A.O. Smith that acceptance of its recommendation would not affect the test results and would ease the burden of testing this equipment.
For these reasons, DOE believes the evidence in the record is clear and convincing that maintaining this +/−1 percent supply voltage tolerance in the test procedure for electric water heaters would pose an undue burden on manufacturers. Therefore, today's direct final rule requires instead that the supply voltage be maintained at a level of +/−5 percent of the center of the voltage range specified on the nameplate. DOE has determined that this tolerance level meets the requirements of 42 U.S.C. 6314(a)(2).
Since ASHRAE/IES Standard 90.1 referenced no test procedure for hot water storage tanks as of the time EPACT was enacted, none was prescribed by statute. (42 U.S.C. 6314(a)(4)(A)) The Department proposed in the NOPR, therefore, to require that unfired hot water storage tanks having a storage capacity of 140 gallons or less be tested for heat loss according to a test procedure presented in the NOPR.
Commenters expressed many concerns about the proposed test procedure. (
For these reasons, today's direct final rule does not include a test procedure for unfired storage tanks.
As to rulemakings to amend test procedures, section 323(e) of EPCA, 42 U.S.C. 6293(e), provides that DOE shall determine whether the amended test procedure would alter the measured energy efficiency or measured energy use of any covered product as determined under the existing test procedure. If the amendment does alter such measured efficiency or energy use, the Secretary must determine the average efficiency or energy use level under the new test procedure of products that minimally complied with the applicable energy conservation standard prior to the test procedure amendment, and must set the standard at that level. (42 U.S.C. 6293(e)(2)) In addition, any existing model of a product that complied with the previously applicable standard would be deemed to comply with the new standard. (42 U.S.C. 6293(e)(3)) These provisions prevent changes in a test procedure from indirectly altering the applicable Federal energy conservation standard. They also prevent products that complied with standards using the previous test procedure from being forced out of compliance by the new test procedure.
EPCA provides that the DOE test procedures for commercial water heating products shall be those industry test procedures recognized by ASHRAE and referenced in ASHRAE Standard 90.1 and in effect on June 30, 1992. 42 U.S.C. 6341(a)(4)(A) For water heaters, the version of ASHRAE Standard 90.1 in effect on June 30, 1992, references the following: (1) For gas water heaters, ANSI Z21.10.3-1990, (2) for oil water heaters, ANSI Z21.10.3-1990, with certain modifications, and (3) for electric products, the standby loss provisions of ANSI Z21.10.3-1990 with certain modifications. From 1992 through 1998, ANSI issued six updated versions of Z21.10.3-1990, but only the 1998 version changed the energy efficiency and energy use testing provisions.
One of the changes in Z21.10.3-1998 to the standby loss test, for example, is specification of a lower tank water temperature. This reduction in tank water temperature allows for less heat energy loss to the surroundings and thus could affect standby loss. However, the equation that is used to calculate standby loss (as a percent per hour) effectively compensates for any possible affect on standby loss that a change in tank temperature could otherwise have. The change in tank temperature does not affect the measure of standby loss, and consequently does not alter measured energy use, as determined under the previously existing test procedure. Therefore, DOE will not take further action under 42 U.S.C. 6293(e) with regard to this change.
Another test procedure amendment—one of the Department's four additional changes to the test method—relates to the duration requirement for the standby loss test. As discussed in Section II.C.3 of this Direct Final Rule, the Department is adopting the standby loss test method in ANSI Z21.10.3-1998 with an added provision limiting the duration of that test. The Department believes that this modification would not alter the standby loss test results that would otherwise be produced under ANSI Z21.10.3-1998 or the previous version of this test method. Hence, this modification also does not alter measured energy use.
With respect to hot water supply boilers, this direct final rule prescribes ANSI Z21.10.3 as the required test procedure, as DOE proposed in the NOPR. 65 FR 48865. This represents a change in the applicable test procedure for hot water supply boilers, because as
DOE is publishing this direct final rule in order to allow stakeholders an opportunity to comment on revisions to this rule that have not had prior proposal. The direct final action will be effective December 20, 2004, unless significant adverse or critical comments are received by November 22, 2004. DOE views these revisions as noncontroversial and anticipates no significant adverse comments. However, in the event that significant adverse or critical comments are filed, DOE will withdraw the rule before the effective date. In the case of withdrawal of this action, the withdrawal will be announced by a subsequent
The Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) has determined that today's regulatory action is not a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003, and certified in the NOPR that the proposed rule would not impose a significant economic impact on a substantial number of small entities. (64 FR 69597) DOE received no comments on this issue, and after considering the potential small entity impact of this direct final rule, DOE affirms the certification that this rule will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review pursuant to 5 U.S.C. 605(b).
This rulemaking will impose no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments and the private sector. With respect to a proposed regulatory action that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation), section 202 of the Act requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). The Act also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under the Act (62 FR 12820) (also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note), provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice of direct final rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
Under Section 301 of the Department of Energy Organization Act (Pub. L. 95-91), the Department must comply with Section 32 of the Federal Energy Administration Act of 1974 (FEAA), as amended by the Federal Energy Administration Authorization Act of 1977. 15 U.S.C. 788. The Department stated in the NOPR the reasons why section 32 does not apply to the commercial standards incorporated into the proposed rule, except for its proposed test procedure for unfired hot water storage tanks. The Department received no comments on this issue.
The rule published today does not include the test procedure for unfired hot water storage tanks, although it does incorporate the other standards that the NOPR proposed for incorporation. The Department continues to adhere to the view expressed in the NOPR that section 32 of the FEAA does not apply to these standards.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of today's rule.
Administrative practice and procedure, Commercial products, Energy conservation, Incorporation by reference.
42 U.S.C. 6311-6316.
This subpart contains energy conservation requirements for certain commercial water heaters, hot water supply boilers and unfired hot water storage tanks, pursuant to Part C of Title III of the Energy Policy and Conservation Act, as amended, 42 U.S.C. 6311-6316.
The following definitions apply for purposes of this subpart G, and of subparts J through M of this part. Any words or terms not defined in this section or elsewhere in this part shall be defined as provided in section 340 of the Act, 42 U.S.C. 6311.
(1) Has an input rating from 300,000 Btu/hr to 12,500,000 Btu/hr and of at least 4,000 Btu/hr per gallon of stored water,
(2) Is suitable for heating potable water, and
(3) Meets either or both of the following conditions:
(i) It has the temperature and pressure controls necessary for heating potable water for purposes other than space heating, or
(ii) The manufacturer's product literature, product markings, product marketing, or product installation and operation instructions indicate that the boiler's intended uses include heating potable water for purposes other than space heating.
(a) The Department incorporates by reference the following test procedures into Subpart G of Part 431. The Director of the
(b)
(c)
(i) National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(ii) U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Hearings and Dockets, “Test Procedures and Efficiency Standards for Commercial Water Heaters, Hot Water Supply Boilers, and Unfired Hot Water Storage Tanks,” Docket No. EE-RM/TP-99-480, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
(2)
(d)
(2)
(ii) ASTM Standard Test Method C177-97, “Standard Test Method for Steady-State Heat Flux Measurements and Thermal Transmission Properties by Means of the Guarded-Hot-Plate Apparatus.”
(iii) ASTM Standard Test Method D2156-80, “Method for Smoke Density in Flue Gases from Burning Distillate Fuels.”
(a)
(b)
Each commercial storage water heater, instantaneous water heater, unfired hot water storage tank and hot water supply boiler