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Agricultural Marketing Service, USDA.
Final rule.
This final rule establishes a new Part 926 in the Code of Federal Regulations which requires persons engaged in the handling or importation of fresh cranberries or cranberry products (including handlers, producer-handlers, processors, brokers, and importers) not subject to the reporting requirements of the Federal cranberry marketing order (order) to report sales, acquisition, and inventory information to the Cranberry Marketing Committee (Committee), and to maintain adequate records on such activities. The establishment of the data collection, reporting, and recordkeeping requirements for entities not subject to the order is authorized under an amendment to section 8(d) of the Agricultural Marketing Agreement Act of 1937. The additional information is needed by the Committee to make more informed recommendations to USDA for regulations authorized under the cranberry marketing order. This rule also finalizes the Agricultural Marketing Service's intention to request approval of the new data collection and reporting requirements by the Office of Management and Budget.
February 11, 2005.
Patricia A. Petrella or Kenneth G. Johnson, DC Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, Suite 6C02, Unit 155, 4700 River Road, Riverdale, Maryland 20737; telephone: (301) 734-5243, Fax: (301) 734-5275; 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 pursuant to the Agricultural Marketing Agreement Act of 1937, as amended [7 U.S.C. 601-674], and as further amended October 22, 1999, by Pub. L. 106-78, 113 Stat. 1171, 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. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.
This action is necessary to implement authority on cranberry data collection consistent with a 1999 amendment to section 8(d) of the Act. If a cranberry order is in effect, the amendment authorizes the Secretary to require persons engaged in the handling or importation of fresh cranberries or cranberry products (including producer-handlers, second handlers, processors, brokers, and importers) to provide to the USDA certain information including information on sales, acquisitions, and inventories of fresh cranberries or cranberry products. Under the provisions of Part 926, such persons include handlers, producer-handlers, processors, brokers, and importers. Under the rule, the Committee will collect such information.
According to the Committee, the number of end users of cranberries and cranberry products has increased in recent years. This has increased the number of entities in the marketing chain acquiring, selling, and maintaining inventories of cranberries and cranberry products produced domestically and outside the United States. Significant quantities of cranberries and cranberry products are now being marketed by handlers, producer-handlers, processors, importers, brokers, and others not subject to the reporting requirements of the cranberry marketing order (7 CFR Part 929). The cranberry marketing order authorizes the Committee to obtain information on sales, acquisitions, and inventories of cranberries and cranberry products from handlers regulated under the order. Such handlers are those who can, freeze, or dehydrate cranberries produced within the production area, or who sell, consign, deliver, transport (except as a common or contract carrier of cranberries owned by another person) fresh cranberries or in any other way place fresh cranberries in the current of commerce within the production area or between the production area and any point outside thereof in the United States and Canada.
Prior to the 1999 amendment of the Act, the Committee and USDA did not have the authority to obtain information from entities not subject to the reporting requirements of the order. The 1999 amendment provides authority for USDA to expand the Committee's information gathering capability. With more complete information, the Committee would be able to make better-informed regulation recommendations to USDA. The Committee would also publish periodic reports aggregating the data on cranberry and cranberry products for use by all members of the industry.
Prior to the mid-1990's, the majority of cranberry inventories were held by handlers subject to the order, and the Committee was able to account for practically all of the cranberry and cranberry product inventory under the order. Under § 929.9 of the order, the term handler is defined as any person who handles cranberries. Handle means to sell, consign, deliver or transport
Section 929.46 of the cranberry marketing order requires the Committee to develop a marketing policy each year prior to May 1. Currently, in its marketing policy discussions, the Committee projects expected supply and market conditions for an upcoming season, based on information provided by growers and, particularly, handlers who are regulated under the order. These projections include an estimate of the marketable quantity (defined as the number of pounds of cranberries needed to meet total market demand and to provide for an adequate carryover into the next season). The Committee believes that its marketing policy is limited in some respects because it does not have the ability to include sales, acquisitions, and inventory reports from all segments of the cranberry industry.
Increased production, stagnant demand, and high inventory levels have compounded the problem of unreported inventories. With increased production and stagnant markets, the industry is producing far more cranberries than needed for current market needs. This situation has led to higher inventory levels. However, the Committee's inability to obtain needed information on cranberry sales, acquisitions, and inventories from entities not regulated under the marketing order has prevented it from obtaining complete information from all segments of the industry. With understated sales, acquisition, and inventory information, the Committee has been limited somewhat in making recommendations under the marketing order.
The ability to closely monitor levels of sales, acquisitions, and inventory is critical to the Committee in making more thorough recommendations. The 1999 amendment to the Act provides a means for collecting this information.
Section 8(d)(3) of the amended Act specifies that if an order is in effect with respect to cranberries, USDA may require persons engaged in the handling or importation of cranberries or cranberry products (including handlers, producer-handlers, processors, brokers, and importers) to provide such information as USDA considers necessary to effectuate the declared policy of the Act (which is to promote orderly marketing conditions and improve returns to producers), including information on acquisitions, inventories, and dispositions of cranberries and cranberry products. The amendment allows USDA to delegate to the Committee the authority to collect sales, acquisition, and inventory data from persons, other than regulated handlers under the marketing order, engaged in the handling or importation of cranberries. Under this proposal, the Committee would collect such information. Typically, marketing order committees collect information and require record keeping to ensure that USDA can verify handler reports. Additionally, the Committee also compiles collected information in its aggregate form to use when discussing cranberry supplies, inventories, and market strategies during its marketing policy discussions. This rule will assist the Committee in making more informed marketing recommendations.
A new Part 926 will be added to the regulations to authorize the Committee to collect data from such entities. New Part 926 will define terms and establish rules and regulations relative to the reporting and recordkeeping requirements necessary to effectuate the declared policy of the Act.
Several examples are listed below as to how data collection currently is conducted under the marketing order and how it will operate under the new data collection process. For instance, a grower harvests and delivers cranberries to a handler regulated under the cranberry marketing order. The regulated handler sells the cranberries to a processor. The regulated handler reports to the Committee the name, address, and amount of cranberries sold to the processor on a Handler Inventory Report—Supplement Form (HIR-SUP), and that completes the current marketing order data collection process. Under the new data collection process, the Committee, noting information used from marketing order reports to identify newly regulated entities, will send a report form (Handler/Processor Cranberry Inventory Report Form; HPCIR A-D) to the processor. The processor will complete the form by indicating names, sources, and amounts of domestic/foreign barrels of cranberries acquired, domestic/foreign sales, and beginning and ending inventories of cranberries (in freezers and in processed form, including concentrate) and submit the report form to the Committee.
In another example, a regulated handler sells cranberries to a broker. The broker sells the cranberries to three processors. The Committee receives the initial information (barrels acquired, sold, and in inventory) from the regulated handler and that ends the current marketing order data collection process. Under the data collection process, the Committee will also contact and send a report form (Importer Cranberry Inventory Report; Form ICIR A-D) to the broker to track the cranberries to the three processors. This form filed by the broker will provide the Committee with names, sources, and amounts of cranberry barrels acquired, amount sold to and received by the broker, processor and handler, and the beginning and ending inventories of cranberries (in freezers and in processed form, including concentrate) held by the broker. After receiving the broker's report, the Committee will send a Handler/Processor Cranberry Inventory Report Form to each of the three processors to complete and return to the Committee.
In a third example, a non-regulated handler acquires cranberries (imports or domestically produced cranberries from a non-marketing order production area). The non-regulated handler is outside the scope of the marketing order and thus, not required to report to the Committee under the current marketing order reporting process. However, through the information supplied from other producer-handlers, importers, processors and brokers, the Committee might be able to identify the non-regulated handler and send him/her a Handler/Processor Cranberry Inventory Report Form. The non-regulated handler will complete the form by indicating names, sources, and amounts of domestic/foreign barrels of cranberries acquired, foreign/domestic sales, and beginning and ending inventories of cranberries (in freezers and in processed form, including concentrate) and submit the report form to the Committee.
In the last example, a broker imports cranberries into the United States. The broker is outside the scope of the marketing order and not a regulated handler. Thus, there is no mandatory reporting or recordkeeping requirements that he/she has to meet. Under the new data collection requirements, the importer will be required to submit quarterly reports (on an Importer
All of these reports will be on the same reporting cycle (4 times a year or quarterly) as regulated handlers under the marketing order. Handlers, producer-handlers, processors, brokers, and importers will report any/all cranberry transactions that occurred during each of the reporting cycles. The purpose of this action is to provide the Committee with the ability to account for cranberries in the marketing pipeline after they have been sold by the regulated handler or if imported, brought into the United States.
All cranberries and cranberry products will be covered. This includes fresh cranberries, frozen cranberries, and cranberry concentrate. Currently, if a handler regulated under the order has juice, sauce or other finished cranberry products in inventory, the handler is required to determine the barrel equivalency of cranberries contained in those products and report this as inventory. Handlers, producer-handlers, processors, brokers, and importers will be required to do the same.
Data collection requirements will not apply once fresh cranberries or cranberry products reached retail markets. For example, a regulated handler (handler A), sells concentrate to processor B. Processor B uses the concentrate to bottle private label juice. The product is shipped to a wholesale/retail distribution center. The Committee will receive an initial report from handler A and subsequently from processor B. Processor B will continue to file reports for each cycle that the concentrate and cranberry products remained in his/her possession. The reporting requirement extends up to, but does not include, the retailer level.
Failure on the part of handlers, producer-handlers, processors, brokers, and importers to comply with the new data collection and recordkeeping requirements could lead to enforcement action, including the levying of penalties provided under 8c(14) of Act against the violating person or entity. False representation to an agency of the United States in any matter, knowing it to be false, is a violation of 18 U.S.C. 1001 which provides for a fine or imprisonment or both.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened.
Small agricultural service firms have been defined by the Small Business Administration [13 CFR 121.201] as those having annual receipts less than $5,000,000, and small agricultural producers are those with annual receipts of less than $750,000. There are about 20 handlers currently regulated under Marketing Order No. 929. In addition, there are about 1,250 producers of cranberries in the production area. Based on recent years' price and sales levels, AMS finds that nearly all of the cranberry producers and some of the handlers are considered small under the SBA definition.
In 2003, a total of 39,400 acres were harvested with an average U.S. yield per acre of 155.1 barrels. Grower prices in 2003 averaged $31.80 per barrel. Average total annual grower receipts for 2003 are estimated at $155,203 per grower. Of the 1,250 cranberry producers in the marketing order production area, between 86 and 95 percent are estimated to have sales equal to or less than $750,000. Few growers have sales that exceeded this threshold in recent years.
Under the marketing order, five handlers handle over 97 percent of the cranberry crop. Using Committee data on volumes handled, AMS has determined that none of these handlers qualify as small businesses under SBA's definition.
The remainder of the crop in the marketing order production area is marketed by about a dozen producer-handlers who handle their own crops. Dividing the remaining 3 percent of the crop by these producer-handlers, all are considered small businesses.
Cranberries are produced in 10 States under Marketing Order No. 929, but the vast majority of farms and production is concentrated in Massachusetts, New Jersey, Oregon, Washington, and Wisconsin. Average farm size for cranberry production is very small. The average across all producing States is about 33 acres. Wisconsin's average is twice the U.S. average at 66.5 acres, and New Jersey averages 83 acres. Average farm size is below the U.S. average for Massachusetts (25 acres), Oregon (17 acres) and Washington (14 acres).
Small cranberry growers dominate in all States: 84 percent of growers in Massachusetts harvest 10,000 or fewer barrels of cranberries, while another 3.8 percent harvest fewer than 25,000 barrels. In New Jersey, 62 percent of growers harvest less than 10,000 barrels, and 10 percent harvest between 10,000 and 25,000 barrels. More than half of Wisconsin growers raise less than 10,000 barrels, while another 29 percent produce between 10,000 and 25,000 barrels. Similar production patterns exist in Washington and Oregon. Over 90 percent of the cranberry crop is processed, with the remainder sold as fresh fruit.
According to the National Agricultural Statistics Service (NASS), the 2003 overall U.S. cranberry crop totaled 6.1 million barrels (1 barrel equals 100 pounds of cranberries). Total barrels of cranberry imports acquired were 1.06 million pounds. The U.S. 2003 preliminary price for fresh and processed cranberries was $50.90 and $30.60 per barrel respectively.
Under Part 926, the Committee estimates that there are approximately 130 handlers, producer-handlers, processors, brokers, and importers subject to the data collection requirements. Taking into account the profile of the size of the industry under the marketing order, we estimate that most of these entities are considered small under the SBA criteria.
Public Law 106-78, enacted October 22, 1999, amended section 608(d) of the Act to authorize USDA to require persons engaged in the handling of cranberries or cranberry products (including handlers, producer-handlers, processors, brokers, and importers) not subject to the order to maintain adequate records and report sales, acquisitions, and inventory information. The data collection and reporting requirements will help the Committee make more informed recommendations to USDA for regulations authorized under the cranberry marketing order.
This rule implements the reporting and recordkeeping requirements authorized by the amendment to the Act. Under the regulations, handlers, producer-handlers, processors, brokers, and importers are required to submit reports four times annually regarding sales, acquisitions, movement for further processing and disposition of cranberries and cranberry products.
The Committee discussed alternatives to this action, including continuing to
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. While the data collection and reporting requirements are similar to those reporting requirements regulated handlers must comply with under the cranberry marketing order, this action is necessary to assist the Committee in its volume regulation recommendations.
A proposed rule concerning this action was published in the
Seven comments were received during the comment period in response to the proposal. Comments were submitted by the Committee, two cranberry grower associations, a cranberry handler and a juice products association. The growers' associations and the Committee believe it is imperative that the Committee have the ability to collect cranberry data from all cranberry handlers and importers. These commenters contend that the Committee cannot have a concise measurement of industry inventory supplies unless it also obtains this information from second-handlers, processors, importers, and brokers. These commenters also stated that in developing its annual marketing policy, the Committee must estimate the carryover (inventory) of frozen cranberries and other cranberry products. Presently, the Committee can only obtain this data from first handlers with processing facilities within the production area. This action will allow the Committee to have more accurate information in formulating its marketing policy that is used in the decision making process to regulate the cranberry crop, if necessary.
The cranberry handler and the juice products association, in their respective comments, urged the Committee to adopt standard factors for converting processed products to raw fruit. According to the commenters, this would ensure consistent reporting and prevent the release of confidential yield data. Under the expanded data collection authority, all entities reporting to the Committee would use a similar form to report cranberry inventories as those used by handlers regulated under the Federal marketing order. For example, all entities, (under both the expanded data collection and the order), would report on the number of barrels of cranberries, both foreign and domestic, acquired, received, transferred or sold within or outside their respective districts or sold to the Government. No information on specific types of products is requested (
Both commenters suggested that conversion factors be incorporated into the reporting requirements. The Committee is aware of the generally accepted conversion factors within the industry. However, there is no table or chart of standard factors for converting processed products to raw fruit equivalents maintained or published by the Committee. The development of a table or chart of standard conversion factors would eliminate any guess work by the Committee when converting processed products to raw fruit equivalents. The development of this conversion table/chart has no relevance to the release of proprietary information. Further, the Committee is prohibited under the data collection provisions from disclosing any proprietary information to any person other than the Secretary or her designee(s). Civil and criminal charges can be levied for failing to comply with this provision. We have requested the Committee to meet following the adoption of this rule to discuss this matter and to recommend conversion factors to be implemented by USDA. The Committee could use the suggested conversion factors as a starting point for its discussions. Such factors would be implemented following notice and comment rulemaking procedures. USDA recognizes the importance of consistent reporting.
Two comments opposed to the proposed data collection, reporting, and recordkeeping requirements were received from an individual, and an importer of cranberry products.
One commenter does not want a cranberry committee to be established by the government since it would be a burden on the taxpayers. However, the Committee is already established and funded by assessments levied on handlers covered under the Federal cranberry marketing order. Taxpayer money is not used to pay Committee expenses.
This commenter further stated that importers should not have to file forms quarterly, but every five years. The submission of reports every five years would not help the Committee obtain complete data. Cranberries are produced every year and the Committee needs this information annually to make sound recommendations to USDA. Other statements made by this commenter were not germane to the proposed rule and are not addressed in this final rule.
The cranberry product importer opposes the proposal for five reasons: (1) It violates the spirit of free trade and the North American Free Trade Agreement (NAFTA); (2) it proposes the release of proprietary information; (3) it duplicates efforts and information already available; (4) there are no benefits for non-members of the Committee; and (5) the real issue is surplus versus new markets, not obtaining more information.
The commenter believes that this action violates free trade and the NAFTA agreement. USDA believes that such action would promote free trade and the initiatives under NAFTA by providing access to more complete and accurate cranberry inventory for use in conducting business in the domestic and world markets.
The commenter also asserts that this action will release proprietary information by divulging information about their product sources and acquisitions, inventory levels and sales, and open their premises to authorized agents of the Committee. The requested information will be collected by the Committee under the authority of the Agricultural Marketing Agreement Act of 1937 (Act). The Act does not allow proprietary and confidential business information to be released. Information distributed by the Committee would be released in aggregate numbers to protect the confidentiality of the firms reporting information to the Committee. The information will be used for the purpose of deciding whether volume regulation would be necessary for a particular cranberry crop.
This commenter further believes that this action is duplicative in nature since the U.S. Bureau of Customs and Border Protection Service (Customs) and the U.S. Food and Drug Administration
This commenter further believes that since it does not have members on the Committee, it would receive no benefits from this action and that the Committee should be developing programs to market more cranberries to absorb the excess production. The Committee operates generic domestic and export promotional programs that are designed to increase the demand and sales of cranberries that benefit the cranberry industry overall. Cranberry exporters and importers benefit from such activities whether or not they are Committee members. Moreover, all meetings of the Committee are public meetings and all interested persons can attend to express the views. Information on meeting times and locations can be obtained from the Committee and USDA. The export promotion program has been in operation for several years and focuses on several export markets. The domestic program is in the early development stages. The Committee recognizes that the industry needs to develop new markets and to expand existing markets for its increasing production. Marketing promotion programs provide a means to accomplish these objectives.
Accordingly, no changes will be made to the rule based on the comments received.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
This action requires a collection of information. These information collection requirements are discussed in the following section.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the information collection and recordkeeping requirements under the data collection, reporting, and recordkeeping requirements applicable to cranberries not subject to the cranberry marketing order have been previously approved by OMB and assigned OMB number 0581-0222.
Data collection, reporting and recordkeeping burdens are necessary for developing statistical data for maintenance of this program. The forms require information that is readily available from handlers, producer-handlers, processors, brokers and importers records which can be provided without data processing equipment or trained statistical staff.
It is estimated that it will take each person or entity approximately 20 minutes to complete each form. One of these forms, (Importer Cranberry Inventory Report Form; Form ICIR A-D) directs importers and brokers to indicate the name, address, variety acquired, amount sold to and received by brokers, processors, and handlers, and the beginning and ending inventories of cranberries held by the importer. The second form, (Handler/Processor Cranberry Inventory Report Form; Form HPCIR A-D) directs handlers, producer-handlers, and processors to indicate the name, address, variety acquired, domestic/foreign sales, acquisitions, and beginning and ending inventories. The forms will be required to be filed four times a year.
These forms were designed to capture the type of information the Committee needs on inventory and sales data for the entire cranberry industry. If all of the entities complete each form, it is estimated that the total annual burden on the respondents would be 1 hour and 20 minutes or a total of 174.66 hours. The regulations also require the retention of information for a total of three years.
For the purposes of checking and verifying reports filed under the regulations hereinafter, provisions are included which allows USDA or the Committee, through duly authorized agents, to have access to any premises where cranberries and cranberry products may be held. Authorized agents, at any time during regular business hours, will be permitted to inspect any cranberries and cranberry products held and any and all records with respect to the acquisition, holding or disposition of any cranberries and cranberry products which may be held or which may have been disposed of by that entity. All reports and records furnished or submitted by handlers, producer-handlers, processors, brokers, and importers to the Committee which include data or information constituting a trade secret or disclosing the trade position or financial condition, or business operations from whom received, will be in the custody and control of the authorized agents of the Committee, who will disclose such information to no person other than USDA.
Failure on the part of handlers, producer-handlers, processors, brokers, and importers to comply with the data collection and recordkeeping requirements could lead to enforcement action, including the levying of fines against the violating person or entity. Any violation of this regulation is subject to a penalty levied under 8c(14) of the Act. False representation to an agency of the United States in any matter, knowing it to be false, is a violation of 18 U.S.C. 1001 which provides for a fine or imprisonment or both.
The reporting requirements are expected to help the entire cranberry industry. While this rule increases reporting and recordkeeping requirements on affected entities, the benefits of this rule, however, could be substantial. By implementing this rule, the Committee will have access to more complete acquisition, sales, and inventory data and be able to make recommendations based on more detailed information. This, in turn, could lead to more effective marketing decisions and higher returns for producers and non-regulated entities.
After consideration of all relevant matter presented, including the comments received and other available information, it is hereby found that this rule as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Cranberries and cranberry products, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
(a) Each handler, producer-handler, processor, broker, and importer engaged in handling or importing cranberries or cranberry products who is not subject to the reporting requirements of the Federal cranberry marketing order, (7 CFR Part 926) shall, in accordance with § 926.17, file promptly with the Committee reports of sales, acquisitions, and inventory information on fresh cranberries and cranberry products using forms supplied by the Committee.
(b) Upon the request of the Committee, with the approval of the Secretary, each handler, producer-handler, processor, broker, and importer engaged in handling or importing cranberries or cranberry products who is not subject to the Federal cranberry marketing order (7 CFR Part 926) shall furnish to the Committee such other information with respect to fresh cranberries and cranberry products acquired and disposed of by such entity as may be necessary to meet the objectives of the Act.
Handlers, producer-handlers, importers, processors, and brokers not subject to the Federal cranberry marketing order (7 CFR Part 926) shall be required to submit four times annually, for each fiscal period reports regarding sales, acquisitions, movement for further processing, and dispositions of fresh cranberries and cranberry products using forms supplied by the Committee. An Importer Cranberry Inventory Report Form shall be required to be completed by importers and brokers. This report shall indicate the name, address, variety acquired, the amount sold to and received by brokers, processors, and handlers, and the beginning and ending inventories of cranberries held by the importer for each applicable fiscal period. A Handler/Processor Cranberry Inventory Report Form shall be completed by handlers, producer-handlers, and processors and shall indicate the name, address, variety acquired, domestic/foreign sales, acquisitions, and beginning and ending inventories.
Each handler, producer-handler, processor, broker, and importer shall maintain such records of all fresh cranberries and cranberry products acquired, imported, handled, withheld from handling, and otherwise disposed of during the fiscal period to
All reports and records furnished or submitted pursuant to this part which include data or information constituting a trade secret or disclosing the trade position or financial condition, or business operations from whom received, shall be in the custody and control of the authorized agents of the Committee, who shall disclose such information to no person other than the Secretary.
For the purpose of assuring compliance and checking and verifying records and reports required to be filed by handlers, producer-handlers, processors, brokers, and importers, USDA or the Committee, through its duly authorized agents, shall have access to any premises where applicable records are maintained, where cranberries and cranberry products are received, acquired, stored, handled, and otherwise disposed of and, at any time during reasonable business hours, shall be permitted to inspect such handler, producer-handler, processor, broker, and importer premises, and any and all records of such handlers, producer-handlers, processors, brokers, and importers. The Committee's authorized agents shall be the manager of the Committee and other staff under the supervision of the Committee manager.
The provisions of this part shall be suspended or terminated whenever there is no longer a Federal cranberry marketing order in effect.
Nuclear Regulatory Commission.
Final rule.
The Nuclear Regulatory Commission (NRC) is amending its regulations governing the use of byproduct material in specifically licensed portable gauges. The final rule requires a portable gauge licensee to use a minimum of two independent physical controls that form tangible barriers to secure portable gauges from unauthorized removal whenever the portable gauges are not under the control and constant surveillance of the licensee. The primary intent of this rulemaking is to increase licensees' control of portable gauges to reduce the opportunity for unauthorized removal or theft.
This final rule is effective on July 11, 2005.
Lydia Chang, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6319, e-mail
Portable gauges are devices containing licensed material that are used to determine physical properties (such as density and moisture content of soil, concrete, and other materials) in a field setting. The most commonly used portable gauges contain two encapsulated sources of radioactive material. One source is a sealed gamma source containing 0.30 to 0.37 gigabecquerels (8 to 10 millicuries) of cesium-137 (Cs-137) used to measure density. Another source is a sealed neutron source containing 1.48 to 1.85 gigabecquerels (40 to 50 millicuries) of americium-241/beryllium (Am-241/Be) used to measure moisture content. Other sources have also been utilized in portable gauges. When not in use, portable gauges are generally stored in a permanent storage location within a licensed facility. Sometimes, portable gauges are stored at a jobsite, at a temporary storage location, or on a vehicle. When transporting a portable gauge in a vehicle, the gauge is often placed in a transportation case, and then is secured in or onto the vehicle.
Under the authority of the Atomic Energy Act of 1954, NRC, together with the 33 Agreement States, regulates byproduct material used in portable gauges. There are approximately 1100 NRC specific licensees for portable gauges in non-Agreement States and approximately 4000 State specific licensees for portable gauges in Agreement States. There are an estimated 22,000 to 25,000 portable gauges in use in the United States.
Subpart I of 10 CFR part 20 addresses storage and control of licensed material. Specifically, § 20.1801, “Security of stored material,” requires licensees to secure from unauthorized removal or access licensed materials that are stored in controlled or unrestricted areas. Section 20.1802, “Control of material not in storage,” requires licensees to control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. Despite these requirements, the theft of portable gauges continues at a rate of approximately 50 gauges per year with a less than 50-percent recovery rate, based on reports in NRC's Nuclear Materials Events Database (NMED). More than two-thirds of the stolen gauges were taken from vehicles parked outdoors. In most of these incidents, the gauge was in a U.S. Department of Transportation (DOT) “Type A” transportation case, which was then secured with a metal chain to the open bed of a pickup truck. Frequently, the chain was cut or the transportation case was broken, and then the gauge was stolen. NRC has issued several “Information Notices” to increase licensees' awareness of security concerns regarding portable gauges. However, the yearly number of reported incidents has not changed in response to these notices.
Although the amount of radioactive material used in a portable gauge is relatively small, and the radioactive material is encapsulated in stainless steel, unauthorized removal of portable gauges still poses a potential public health and safety concern. A portable gauge that is not under the control of a licensee poses a potential radiation hazard to individuals that may come in close contact with the source. It also creates a concern if the portable gauge that is removed without authorization is abandoned, inadvertently recycled, or used inappropriately.
To reduce the potential risk to public health and safety, a working group with participation of personnel from the Agreement States of Florida and
After considering all comments received on the proposed rule and evaluating recommended alternative methods to increase the control of portable gauges, NRC finds that the requirements in the proposed rule are the preferred alternative because they provide the most flexibility for licensees (permitting a choice from a wide range of physical controls) without imposing excessive costs in implementing the controls. Therefore, the final rule contains the same requirements as the proposed rule.
NRC received eleven comment letters on the proposed rule. The commenters included a member of the public, members of an industry advisory group, three licensees, a radiation service company, two manufacturers, and three States. Copies of the public comments are available for public inspection and copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852.
Among the eleven comment letters, six state that they fully support the goal to reduce lost or stolen gauges; two state that current requirements are adequate; one indicates that the rule is well intended; one expresses the view that a double lock requirement may be excessive; and one believes that the current practice of using a chain to secure a portable gauge in an open-bed pickup truck is not adequate. Among comments from the three States, one indicates that the NRC proposed measures do not go far enough; one states that the current regulatory requirements are adequate; and one supports the goal of the rule but believes the proposed rule to be impractical. A discussion of the comments and NRC's responses follow:
There are many methods that could be used to secure the gauge and its transportation case, which could also keep the gauge and its transportation case out of sight. NRC does not believe it is cost-effective to require additional requirements for such purpose. NRC believes that regulations should provide sufficient flexibility to allow licensees to select the two independent physical controls to prevent the unauthorized removal of the portable gauges that best fit a licensee's needs.
Regarding the comment that wrapping chains around cases may stress and damage the case, NRC notes that transportation boxes are designed to be robust enough to safely transport the intended material. The DOT has design and testing requirements for Type A packages such as portable gauge transportation cases. Among the general design requirements, DOT has stated that each lifting attachment that is a structural part of the package must be designed with a minimum safety factor of three against yielding when used to lift the package in the intended manner. Type A packaging, with contents, must be capable of withstanding the water-spray, free-drop, stacking, and penetration tests. For example, for a stacking test, packaging must be subjected for a period of at least 24 hours to a compressive load equivalent to the greater of: (1) Five times the mass of the actual package; or (2) the equivalent of 13 kilopascals (1.9 pounds per square inch) multiplied by the vertically projected area of the package. For a penetration test, a bar of 3.2 centimeters (1.25 inches) in diameter with a mass of 6 kilograms (13.2 pounds) must be dropped and directed to fall onto the center of the weakest part of the case. Based on the rigorous testing requirements, it would appear that the transportation boxes for portable gauges are designed to withstand various stresses.
After considering public comment and continuing informal discussion with the DOT staff, it was decided that no changes would be made to the proposed rule. The final rule contains the exact same requirements as the proposed rule. Therefore, the requirements state that each portable gauge licensee shall use a minimum of two independent physical controls that form tangible barriers to secure portable gauges from unauthorized removal, whenever portable gauges are not under the control and constant surveillance of the licensee.
For the purpose of section 223 of the Atomic Energy Act (AEA), the Commission is amending 10 CFR part 30 under one or more of sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
NRC determined that the essential objective of 10 CFR 30.34(I) is to reduce the opportunity for unauthorized removal or theft of a portable gauge by requiring a portable gauge licensee to use a minimum of two independent physical controls that form tangible barriers to secure portable gauges from unauthorized removal whenever portable gauges are not under the control and constant surveillance of the licensee.
NRC believes that the final rule does not conflict with any existing State regulatory requirement. Personnel from the Agreement States of Florida and Arkansas participated as members of a working group along with the NRC staff in the development of this final rule and the earlier corresponding proposed rule.
The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, NRC is revising 10 CFR part 30 to add certain requirements for the security of portable gauges containing byproduct material. This action does not constitute the establishment of a standard that contains generally applicable requirements.
The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment; therefore, an environmental impact statement is not required. The Commission has concluded on the basis of an environmental assessment that these requirements would not have any effect on the environment in which portable gauges are currently regulated under 10 CFR part 30. The final rule would increase requirements to reduce opportunity for unauthorized removal or theft of portable gauges containing byproduct material.
NRC requested the views of the States on the environmental assessment for this rule. No comments were received on the environmental assessment. Because no changes were made in the requirements from the proposed rule to the final rule, the environmental assessment has not been changed. The environmental assessment and finding of no significant impact are available for inspection at the NRC Public Document Room, Public File Area O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Single copies of the environmental assessment and finding of no significant impact are available from Lydia Chang, telephone (301) 415-6319, e-mail
This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). Existing requirements were approved by the Office of Management
NRC may not conduct nor sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
In the proposed rule, the Commission requested public comment on the draft regulatory analysis specifically on the costs to licensees. No comments were received on the draft regulatory analysis. However, one of the comments received on the proposed rule indicated that the cost per unit in most cases will be substantially greater than NRC's estimate. Because a licensee has flexibility in selecting the physical controls to be used in securing a portable gauge, the actual cost would depend on the controls selected. The cost per unit could range from $100 for a metal cable to $400 for a simple metal tool box, to even a higher cost for a more elaborately designed metal enclosure. In the regulatory analysis, an average of $200 was used.
The Commission has finalized the regulatory analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The analysis is available for inspection in the NRC Public Document Room, Public File Area O1F21, One White Flint North, 11555 Rockville Pike, Rockville, MD. Single copies of the regulatory analysis are available from Lydia Chang, telephone (301) 415-6319, e-mail,
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. The final rule would affect about 1100 portable gauge specific NRC licensees and an additional 4000 Agreement State specific licensees. These licenses are issued principally to companies involved in road construction and maintenance. Many portable gauge licensees would qualify as small business entities as defined by 10 CFR 2.810. However, the final rule is not expected to have a significant economic impact on these licensees. Based on the regulatory analysis conducted for this action, the costs of the final rule for affected licensees are estimated at $200 per gauge. Among various alternatives considered, NRC believes that this final rule is the least burdensome and most flexible means of accomplishing NRC's regulatory objective. The regulatory analysis also notes that the requirements would result in potential cost savings for portable gauge licensees, particularly for the replacement of portable gauges due to unauthorized removal or theft. These savings would offset the implementation costs for portable gauge licensees. The NRC staff also notes that several Agreement States have imposed similar or more stringent requirements on their portable gauge licensees either by rule, order, or license condition.
In the published proposed rule (68 FR 45172; August 1, 2003), NRC specifically requested public comment from licensees concerning the impact of the proposed regulation because of the widely differing conditions under which portable gauge users operate. NRC particularly was seeking comment from licensees, who qualify as small businesses, as to how the proposed regulation would affect them and how the regulation may be tiered or otherwise modified to impose less stringent requirements on small entities while still adequately protecting the public health and safety. However, no comments were received on these issues.
NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.
In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.
Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951, as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 30.61 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
(i) Security requirements for portable gauges.
Each portable gauge licensee shall use a minimum of two independent physical controls that form tangible barriers to secure portable gauges from unauthorized removal, whenever portable gauges are not under the control and constant surveillance of the licensee.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Learjet Model 35, 35A, 36, and 36A airplanes modified by ARINC,
The effective date of these special conditions is December 23, 2004. Comments must be received on or before February 11, 2005.
Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM295, 1601 Lind Avenue SW., Renton, Washington 98055-4056; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NM295.
Greg Dunn, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (425) 227-2799; facsimile (425) 227-1320.
The FAA has determined that notice and opportunity for prior public comment is impracticable because these procedures would significantly delay certification of the airplane and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On September 27, 2004, ARINC Inc., 1632 South Murray Blvd., Colorado Springs, CO 80916 applied for a supplemental type certificate (STC) to modify Learjet Model 35, 35A, 36, and 36A airplanes. Learjet Model 35, 35A, 36, and 36A airplanes are currently approved under Type Certificate No. A10CE. The Learjet Model 35, 35A, 36, and 36A airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 18,000 pounds. These airplanes operate with a 2-pilot crew and can seat up to 8 passengers. The proposed modification is the installation of Dual Thommen AD-32 Air Data Display Units. The avionics/electronics and electrical systems to be installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.
Under the provisions of 14 CFR 21.101, ARINC, Inc. must show that the Learjet Model 35, 35A, 36, and 36A airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A10CE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The original type certification basis for the Learjet Model 35, 35A, 36, and 36A airplanes includes 14 CFR part 25, as amended by Amendments 25-2, 25-4, 25-7, 25-18 and § 25.571(d) of Amendment 25-10.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Learjet Model 35, 35A, 36, and 36A airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should ARINC, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A10CE, to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.
As noted earlier, the Learjet Model 35, 35A, 36, and 36A airplanes modified by ARINC, Inc. will incorporate Dual Thommen AD-32 Air Data Display Units that will perform critical functions. These systems may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.
There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that intended by
With the trend toward increased power levels from ground-based transmitters, and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.
It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:
1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through system tests and analysis.
2. A threat external to the airframe of the field strengths identified in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.
The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.
As discussed above, these special conditions are applicable to Learjet Model 35, 35A, 36, and 36A airplanes modified by ARINC, Inc. Should ARINC, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A10CE, to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features on Learjet Model 35, 35A, 36, and 36A airplanes modified by ARINC, Inc. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
1.
2. For the purpose of these special conditions, the following definition applies:
Federal Aviation administration (FAA), DOT.
Correcting amendment.
This document corrects an error that appears in the Code of Federal Regulations (CFR), title 14, as of January 1, 2004. The regulation relates to attitude-indicating instruments that are required to be installed on transport category rotorcraft.
Effective on January 12, 2005.
Terry Pearsall, phone (202) 267-3042.
Equipment.
49 U.S.C. 106(g), 40113, 44701-44702, 44704.
(g) A gyroscopic rate-of-turn indicator combined with an integral slip-skid indicator (turn-and-bank indicator) except that only a slip-skid indicator is required on rotorcraft with a third attitude instrument system that—
(1) Is usable through flight attitudes of ± 80 degrees of pitch and ± 120 degrees of roll;
(2) * * *
(3) * * *
(4) Operates independently of any other attitude indicating system;
Internal Revenue Service (IRS), Treasury.
Temporary regulations.
This document contains temporary regulations relating to the requirements for filing corporate income tax returns and returns of organizations required to file returns under section 6033 on magnetic media pursuant to section 6011(e) of the Internal Revenue Code. The term magnetic media includes any magnetic media permitted under applicable regulations, revenue procedures, or publications, including electronic filing. The text of the temporary regulations also serves as the text of the proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the
These regulations are effective January 12, 2005.
Michael E. Hara, (202) 622-4910 (not a toll-free number).
Electronic filing of tax returns benefits taxpayers and the IRS by eliminating the manual processing of returns and reducing errors that are more likely to occur during the manual preparation and processing of paper returns. Electronic filing results in faster settling of accounts and better customer service because the time required to process paper returns is eliminated. The error rate for corporate income tax returns filed on Form 1120, “U.S. Corporation Income Tax Return” and Form 1120S, U.S. Income Tax Return for an S Corporation,” on paper is approximately 20 percent. Information returns required to be filed under section 6033, which include Form 990, “Return of Organization Exempt From Income Tax,” and Form 990-PF, “Return of Private Foundation or Section 4947(a)(1) Trust Treated as a Private Foundation,” that are filed on paper have an error rate of approximately 35 percent. The error rate for paper returns is due in roughly equal parts to IRS processing errors and taxpayer return preparation mistakes. By contrast, electronically filed returns have an error rate of less than one percent because these returns are subject to screening by the IRS prior to being accepted and are not required to be input manually by the IRS. Furthermore, returns required to be filed pursuant to section 6033 must be made available to the public by both the organization and the IRS pursuant to section 6104. Many state charity regulatory agencies rely on these returns. Requiring these returns to be filed electronically improves the accuracy of the information for both public and regulatory oversight of these organizations.
Electronic filing of returns improves taxpayer satisfaction and confidence in the filing process, and may be more cost effective for taxpayers who file electronically. Electronic filing will enable the IRS to review taxpayer submissions expeditiously to reduce audit cycle time and will help the IRS identify emerging trends.
In February 2004, the IRS introduced Modernized e-File, a new electronic filing system for corporations required to file Form 1120 or Form 1120S and organizations required to file Form 990. During the development of Modernized e-File, the IRS worked closely with taxpayers and tax professionals to ensure that the new electronic filing system would satisfy their needs. Modernized e-File alleviates the burden of filing massive paper returns, which may be up to 50,000 pages in length. Electronically filed returns are processed upon receipt and, shortly thereafter, an IRS acknowledgment message is generated to inform taxpayers or tax professionals that the return has been accepted or rejected. Error messages for rejected returns identify the reasons the return was rejected and make it easier for the taxpayer or tax professional to correct the errors. Modernized e-File streamlines electronic filing by eliminating the need for paper documents to be mailed to the IRS and enables taxpayers to attach forms and schedules, along with other documents, to the return in Portable Document Format (PDF).
Section 6011(e) authorizes the Secretary to prescribe regulations providing the standards for determining which returns must be filed on magnetic media or in other machine-readable form. Section 6011(e)(2) provides that the Secretary may not require any person to file returns on magnetic media unless the person is required to file at least 250 returns during the calendar year. Section 6011(e)(2)(B) requires that the Secretary, prior to issuing regulations requiring these entities to file returns on magnetic media, take into account (among other relevant factors) the ability of the taxpayer to comply at reasonable cost with the requirements of the regulations. The term magnetic media includes any magnetic media permitted under applicable regulations, revenue procedures, or publications, including electronic filing. Recognizing the benefits of electronic filing, Congress enacted section 2001(a) of the IRS Restructuring and Reform Act of 1998, Public Law 105-206, 112 Stat. 727, which states that the policy of Congress is to promote paperless filing, with a long-range goal of providing for the filing of at least 80 percent of all Federal and information returns in electronic form by 2007.
The IRS has partnered with taxpayers and tax practitioners in the design of Modernized e-File to minimize burdens
These regulations amend the Regulations on Procedure and Administration (26 CFR part 301) relating to the filing on magnetic media pursuant to section 6011(e) of corporate income tax returns, S corporation returns, and returns required under section 6033. These regulations provide that certain large corporations, including S corporations, are required to file their corporate income tax returns electronically. These regulations also provide that certain large exempt organizations, nonexempt charitable trusts, and exempt and nonexempt private foundations are required to file electronically returns required to be filed under section 6033.
The IRS currently does not have the capability to accept electronic filing of certain types of Form 1120, Form 1120S, Form 990, and Form 990-PF, such as a Form 1120 for a taxpayer that has changed its accounting period or a Form 1120 that is the taxpayer's final return. These types of returns are excluded from the electronic filing requirement under these regulations. The IRS will announce those returns that are excluded from electronic filing under these regulations in its publications, forms and instructions. The Treasury Department and the IRS intend to require electronic filing of additional corporate income tax returns, excise tax returns and returns required to be filed under section 6033 as the IRS increases its capability to receive these forms electronically, provided that the Treasury Department and the IRS determine that taxpayers are able to comply with the electronic filing requirements at a reasonable cost.
To expand electronic filing, these regulations provide that the following taxpayers that are required by the Code or regulations to file at least 250 returns during the calendar year ending with or within the taxpayer's taxable year are required to file the following tax returns electronically for the taxable years indicated:
Some of these large entities already file their returns electronically. In addition, many of these large entities prepare their income tax returns electronically, but file the returns on paper. The Treasury Department and the IRS have determined that these taxpayers are able to comply at a reasonable cost with the requirement to file returns electronically. To eliminate the potential burden of electronic filing on small businesses that may not be able to comply at a reasonable cost, these regulations exclude small corporations and certain exempt organizations with total assets of less than $10 million.
The determination of whether an entity is required to file at least 250 returns is made by aggregating all returns, regardless of type, that the entity is required to file over the calendar year, including, for example, income tax returns, returns required under section 6033, information returns, excise tax returns, and employment tax returns. Under these regulations, corrected or amended returns are not counted in determining whether the 250-return threshold is met. All members of a controlled group of corporations are required to file their Forms 1120 electronically if the total number of returns required to be filed by the controlled group of corporations is at least 250.
The aggregation of returns required under these regulations is limited to determining whether an entity is required to file Form 1120, Form 1120S, Form 990, or Form 990-PF electronically. These regulations do not affect § 301.6011-2(c)(1)(iii), which provides that returns are not to be aggregated for purposes of determining whether information returns must be filed on magnetic media. These regulations also do not affect § 301.6721-1(a)(2)(ii), which provides that the 250-return threshold requirements apply separately to original and corrected returns.
Corporations required to file Form 1120 or Form 1120S electronically under these regulations may file amended returns on paper in the form allowed by Rev. Proc. 94-69 (1994-2 C.B. 804), or in the manner prescribed by any subsequent revenue procedure. However, an entity that files an incomplete electronic return and subsequently files an amended paper return before the return's due date has not complied with the provisions of these regulations because a second return filed before the due date is treated as an original return.
These regulations provide that the Commissioner may waive the requirements to file electronically in cases of undue hardship. Because the Treasury Department and the IRS believe that electronic filing will not impose significant burdens on the taxpayers covered by these regulations, the Commissioner will grant waivers of the electronic filing requirement only in exceptional cases. The Treasury Department and the IRS invite comments from the public regarding the waiver provision in these regulations. Additionally, the IRS will meet with various groups, including software developers and tax practitioners, to assist taxpayers in preparing to file their returns electronically. After considering comments, the Treasury Department and the IRS will issue guidance that will set forth the procedures by which a taxpayer may request a hardship waiver.
These regulations provide exclusions from the requirement to file electronically for certain corporations and organizations that have not had a longstanding filing obligation. Corporations and organizations are not required to file their returns electronically if they were not required to file a Form 1120, Form 1120S, Form 990, or Form 990-PF for the preceding taxable year or have not been in existence for at least one calendar year prior to the due date (not including extensions) of their Form 1120, Form 1120S, Form 990, or Form 990-PF.
A return filed electronically is deemed to be filed on the date of the electronic postmark. See § 301.7502-1(d). If a corporation or organization that is required to file electronically fails to do so, the corporation or organization is deemed to have failed to file its return.
To permit taxpayers sufficient time to implement the requirements of these regulations, these regulations apply to corporations required to file corporate income tax returns with total assets of $50 million or more as shown on their Schedule L of the Form 1120 or 1120S for taxable years ending on or after December 31, 2005, and to corporations required to file corporate income tax returns with total assets of $10 million or more as shown on their Schedule L of their Form 1120 or 1120S for taxable years ending on or after December 31, 2006. These regulations apply to any organization that is required to file Form 990 and that, for a taxable year ending on or after December 31, 2005, has total assets as of the end of the taxable year of $100 million or more or that, for a taxable year ending on or after December 31, 2006, has total assets as of the end of the taxable year of $10 million or more. These regulations will apply to any organization required to file Form 990-PF for taxable years ending on or after December 31, 2006. All other corporations and organizations are encouraged to adopt electronic filing as soon as feasible.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6) refer to the Special Analyses of the preamble to the cross-reference of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal author of these temporary regulations is Michael E. Hara, Office of the Associate Chief Counsel (Procedure and Administration), although other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The return of a corporation that is required to be filed on magnetic media under § 301.6011-5T of this chapter must be filed in accordance with Internal Revenue Service revenue procedures, publications, forms, or instructions. (
The return of an organization that is required to be filed on magnetic media under § 301.6033-4T of this chapter must be filed in accordance with Internal Revenue Service revenue procedures, publications, forms, or instructions. (
The return of an electing small business corporation that is required to be filed on magnetic media under § 301.6037-2T of this chapter must be filed in accordance with Internal Revenue Service revenue procedures, publications, forms, or instructions. (
26 U.S.C. 7805 * * *
Section 301.6011-5T also issued under 26 U.S.C. 6011. * * *
Section 301.6033-4T also issued under 26 U.S.C. 6033. * * *
Section 301.6037-2T also issued under 26 U.S.C. 6037. * * *
(a)
(2) All members of a controlled group of corporations must file their corporate income tax returns on magnetic media if the aggregate number of returns required to be filed by the controlled group of corporations is at least 250.
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(e)
The taxable year of Corporation X, a fiscal year taxpayer with assets in excess of $10 million, ends on September 30. During the calendar year ending December 31, 2007, X was required to file one Form 1120, “U.S. Corporation Income Tax Return,” 100 Forms W-2, “Wage and Tax Statement,” 146 Forms 1099-DIV, “Dividends and Distributions,” one Form 940, “Employer's Annual Federal Unemployment (FUTA) Tax Return,” and four Forms 941, “Employer's Quarterly Federal Tax Return.” Because X is required to file 252 returns during the calendar year that ended within its taxable year ending September 30, 2008, X is required to file its Form 1120 electronically for its taxable year ending September 30, 2008.
(f)
(a)
(b)
(c)
(d)
(1)
(2)
(3)
(e)
In 2006, Organization T, with total assets in excess of $10 million, is required to file one Form 990, “Return of Organization Exempt from Income Tax,” 200 Forms W-2, “Wage and Tax Statement,” and 60 Forms 1099-MISC, “Miscellaneous Income.” Because T is required to file 261 returns during the calendar year, T must file its 2006 Form 990 electronically.
(f)
(a)
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(e)
In 2007, Corporation S, an electing small business corporation with assets in excess of $10 million, is required to file one Form 1120S, “U.S. Corporation Income Tax Return,” 100 Forms W-2, “Wage and Tax Statement,” 146 Forms 1099-DIV, “Dividends and Distributions,” one Form 940, “Employer's Annual Federal Unemployment (FUTA) Tax Return,” four Forms 941, “Employer's Quarterly Federal Tax Return.” Because S is required to file 252 returns during the calendar year, S is required to file its 2007 Form 1120S electronically.
(f)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the waters surrounding the Wantagh Parkway Number 3 Bridge across the Sloop Channel in Town of Hempstead, New York. This zone is necessary to protect vessels transiting in the area from hazards imposed by construction barges and equipment. The barges and equipment are being utilized to construct a new bascule bridge over the Sloop Channel. Entry into this zone is prohibited unless authorized by the Captain of the Port Long Island Sound, New Haven, Connecticut.
This rule is effective from 12:01 a.m. on January 1, 2005 until 11:59 p.m. on May 31, 2005.
Documents indicated in this preamble as being available in the docket are part of docket CGD01-04-155 and will be available for inspection or copying at Group/MSO Long Island Sound, New Haven, CT, between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
Lieutenant A. Logman, Waterways Management Officer, Coast Guard Group/Marine Safety Office Long Island Sound at (203) 468-4429.
We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Good cause exists for not publishing an NPRM and for making this regulation effective less than 30 days after
In 2003, the Coast Guard approved bridge construction and issued a permit for bridge construction for the Wantagh Parkway Number 3 Bridge over the Sloop Channel. Contractors began work constructing the two bascule piers for the new bridge in early June 2004. A safety zone was not deemed necessary at the inception of the construction, as this channel is primarily used by smaller recreational vessels, which could maneuver outside of the channel. However, bridge construction equipment remains under the Wantagh Parkway Number 3 Bridge poses a potential hazard greater than originally anticipated. A safety zone was deemed necessary and was established on October 9, 2004 through December 31, 2004, the date when construction impacting the navigable channel was estimated to be complete.
On December 14, 2004 the New York State Department of Transportation advised the Coast Guard that construction of the Wantagh Parkway was experiencing delays, requiring equipment to be in the channel in a manner that would leave the waterway unsafe to marine traffic until May 31, 2005. The delay inherent in the NPRM process is contrary to the public interest and impracticable, as immediate action is needed to extend this safety zone to continue to prevent accidents by vessels transiting the area with the construction equipment.
Currently, there is a fixed bridge over the Wantagh Parkway Number 3 Bridge over the Sloop Channel in the Town of Hempstead, New York. New York Department of Transportation determined that a moveable bridge would benefit the boating community. In 2003, the Coast Guard approved bridge construction and issued a permit for bridge construction for the Wantagh Parkway Number 3 Bridge over the Sloop Channel. Contractors began work constructing the two-bascule piers for the new bridge in early June 2004. The equipment necessary for the construction of the bridge occupies the entire navigable channel. While there are side channels, which can be navigated, the equipment in the channel is extensive and poses a hazard to recreational vessels attempting to transit the waterway via the side channels under the bridge. Construction, requiring equipment in the navigable channel, was originally scheduled to end on December 31, 2004. Delays in construction require this equipment to occupy the navigable channel until May 31, 2005. To ensure the continued safety of the boating community, the Coast Guard is establishing a safety zone in all waters of the Sloop Channel within 300 yards of the bridge. This safety zone is necessary to protect the safety of the boating community who wish to utilize the Sloop Channel. Marine traffic may transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation in the Sloop Channel, except the portion delineated by this rule.
This regulation establishes a temporary safety zone on the waters of the Sloop Channel within 300-yards of the Wantagh Parkway Bridge. This action is intended to prohibit vessel traffic in a portion of the Sloop Channel in the Town of Hempstead, New York to provide for the safety of the boating community due to the hazards posed by significant construction equipment located in the waterway for the construction of a new bascule bridge. The safety zone is in effect from 12:01 a.m. on January 1, 2005 until 11:59 p.m. on May 31, 2005. Marine traffic may transit safely outside of the safety zone during the effective dates of the safety zone, allowing navigation in the Sloop Channel, except the portion delineated by this rule. Vessels may utilize the Goose Neck Channel in order to transit to those areas accessible by Sloop Channel. Entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.
Any violation of the safety zone described herein is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.
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). We expect the economic impact of this rule will be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: vessels may transit in all areas of the Sloop Channel and other than the area of the safety zone, and may utilize other routes with minimal increased transit time.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of the Sloop Channel in the Town of Hempstead, New York covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant 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 (
Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety Office Long Island Sound, at (203) 468-4429.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This 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 rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not concern an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 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.
To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action, therefore it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
The Coast Guard considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion Determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(3) All persons and vessels shall comply with the instructions of the COTP, or the designated on-scene U.S. Coast Guard representative. On-scene Coast Guard patrol personnel include commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, state, and federal law enforcement vessels.
Coast Guard, DHS.
Final rule; correction.
The Coast Guard Captain of the Port Puget Sound published in the
This rule is effective January 12, 2005.
LTJG T. Thayer, c/o Captain of the Port, Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-6232.
The Coast Guard published a document in the
Coast Guard, DHS.
Final rule.
The Coast Guard is expanding the geographical boundaries of the permanent security zone at Naval Base San Diego. This action is required to provide adequate area for the U.S. Navy to install an upgraded barrier system and provide the minimum required separation distances between the barrier and protected assets at Naval Station San Diego. The revised security zone will run adjacent to the navigation channel between Piers 14 and Pier 5. From the edge of the navigation channel west of Pier 5, the proposed security zone extends to a point 400 feet opposite of Pier 1. The existing security zone at Naval Station San Diego, implemented on April 15, 2003, does not provide adequate separation distance between protected vessels and the proposed barrier system.
This rule is effective February 11, 2005.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket SD 04-019 and are available for inspection or copying between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
MSTC Todd Taylor at (619) 683-6434.
On September 13, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; San Diego Bay” in the
On May 12, 2003, the Coast Guard published a final rule (68 FR 25288) creating a permanent security zone at Naval Station San Diego. This security zone allowed the U.S. Navy to install a small barrier system to protect critical assets at Naval Station San Diego. The U.S. Navy now intends to install a permanent waterfront boat barrier to protect all assets berthed at Naval Station San Diego. The existing security zone does not provide sufficient area to install the permanent barrier system or provide adequate minimum separation distance between the barrier and protected assets.
The Coast Guard received a total of three written responses following publication of the NPRM. San Diego Bay Pilots Association (SDBPA) provided a written response dated October 4, 2004. Their letter stated the SDBPA appreciated, respected, and supported the U.S. Navy's need to protect and secure vital assets in San Diego Bay. It further stated that the proposed extension between Pier 8 and Pier 14 was reasonable and would result in minimal negative impact on the transit of commercial traffic in the area. The SDBPA letter then identified concerns regarding the proposed extension between Pier 1 and Pier 8.
Specifically, SDBPA was concerned that extending the security zone and installing a Port Security Barrier would force the existing small vessel traffic such as tugs and tows, excursion vessels and general recreation vessels to intrude, or move closer to the shipping channel, thereby increasing congestion in the channel and raising the potential for marine accidents. The letter concluded by stating the SDBPA believed the proposed extension between Pier 1 and Pier 8 should not be extended farther than 400 feet from the pier heads, approximately 250 feet closer to shore than proposed in the NPRM.
Based on the SDBPA letter, the U.S. Coast Guard and U.S. Navy initiated several open meetings with the marine pilots to address specific concerns and operational plans for using the Port Security Barrier. During the course of those meetings, the U.S. Navy agreed to revise the coordinates of the mooring buoys at the north end of the boom to address the San Diego Marine Pilot's concerns. Accordingly, the Coast Guard revised the north western point of the security zone and moved it approximately 250 feet southeast, from 32°41′00.0″ N, 117°08′12.7″ W to 32°40′58.3″ N, 117°08′11.0″ W.
The U.S. Navy also agreed to revise the manner by which the Port Security Barrier would be opened and closed when vessels entered or departed the security zone to lessen the impact to the shipping channel. Specifically, the U.S. Navy proposed the barrier would be opened and moved parallel to the shore rather than out into the shipping channel.
The U.S. Coast Guard concurs with the U.S. Navy and the San Diego Marine Pilots Association that the proposed security zone can safely be extended approximately 400 feet west of the existing zone. Small vessel traffic is relatively light in the area, and most vessels already stay well clear of U.S. Navy's current barrier system. The impact to the shipping channel will be minimal, and the benefits of providing additional separation distance for the barrier system outweighs the impact to the shipping channel. Therefore, the Coast Guard changed the regulatory text of this proposal to identify a new geographic coordinates for Point B at 32°40′58.3″ N, 117°08′11.0″ W.
The U.S. Coast Guard received one e-mail response from the U.S. Navy Engineer in charge of the Port Security Barrier project stating he had made a typographical error in the latitude coordinate original project description. The Coast Guard had included that incorrect coordinate in the regulatory text of the NPRM. Specifically, the NPRM identifies the latitude of Point D as “32°40′27.4″ N”, but it should have read “32°40′17.0″ N”. All charts and diagrams of this security zone extension that were provided during the meetings and discussions addressed previously had correctly represented the proposed extension. Therefore, the Coast Guard has revised the regulatory text to correctly identify the correct latitude coordinates for Point D.
The U.S. Coast Guard received one signed letter from a private citizen stating strong support for the U.S. Coast Guard's and the U.S. Navy's right and responsibility to demonstrate a strong presence in the area as a deterrent to potential terror threats.
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).
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.
Due to National Security interests, the implementation of this security zone is necessary for the protection of the United States and its people. The size of the zone is the minimum necessary to provide adequate protection for U.S. Naval vessels, their crews, adjoining areas, and the public. The entities most likely to be affected, if any, are pleasure craft engaged in recreational activities and sightseeing. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting U.S. Naval vessels, their crews, and the public.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule does not have a significant economic impact on a substantial number of small entities because the expanded zone will still allow sufficient room for vessels to transit the channel unimpeded.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No small entities requested assistance.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule does not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The rule is not economically significant and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This 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 rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that the rule 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. The rule has not been designated by the Administrator of the Office of Information and Regulatory Affairs as significant energy actions. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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 (34)(g), of the Instruction, from further environmental documentation.
The U.S. Navy has separately considered the impact of their proposed project including the placement of anti-small boat barrier booms. The Coast Guard's analysis pertains solely to the expanded placement of the markers designating the security zones already in the waterway. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” (CED) will be available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
Authority: 33 U.S.C. 1226, 1231: 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
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(2) Persons desiring to transit the area of the security zone may contact the Captain of the Port at telephone number 619-683-6495 or on VHF channel 16 (156.8 MHz) to seek permission to transit the area. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port or his or her designated representative.
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National Aeronautics and Space Administration.
Final rule.
This rule adopts as final without change the proposed rule published in the
Celeste Dalton, NASA, Office of Procurement, Contract Management Division; (202) 358-1645; e-mail:
The NASA FAR Supplement at 1835.070(d) requires all research and development contracts to include the clause at 1852.235-73, Final Scientific and Technical Reports. SBIR and STTR contracts are considered R&D contracts and must include the clause at 1852.235-73. This clause provides direction to the contractor regarding its ability to release data first produced or used in performance of the contract. However, the clause currently only address the contractor's rights in data as defined in FAR 52.227-14, Rights in Data—General. Contractor rights in data under SBIR and STTR contracts are defined in FAR clause 52.227-20, Rights in Data—SBIR Program. This change adds an Alternate III to 1852.235-73 for use in SBIR and STTR contracts that references FAR 52.227-20 to recognize contractor data rights under SBIR and STTR contracts.
NASA published a proposed rule in the
This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
NASA certifies that this final rule does not have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601
The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
42 U.S.C. 2473(c)(1).
(d) * * *
(3) Except when Alternate II applies in accordance with paragraph (d)(2) of this section, the contracting officer shall insert the clause with its Alternate III in all SBIR and STTR contracts.
As prescribed by 1835.070(d)(3), insert the following as paragraph (e) of the basic clause:
(e) The Contractor's rights in data are defined in FAR 52.227-20, Rights In Data—SBIR Program. The Contractor may publish, or otherwise disseminate, such data without prior review by NASA. The Contractor is responsible for reviewing publication or dissemination of the data for conformance with laws and regulations governing its distribution, including intellectual property rights, export control, national security and other requirements, and to the extent the Contractor receives or is given access to data necessary for the performance of the contract which contain restrictive markings, for complying with such restrictive markings. In the event the Contractor has established its claim to copyright data produced under this contract and has affixed a copyright notice and acknowledgement of Government sponsorship, or has affixed the SBIR Rights Notice contained in paragraph (d) of FAR 52.227-20, the Government shall comply with such Notices.
National Highway Traffic Safety Administration (NHTSA), DOT.
Correcting amendment.
This document contains a correction to the due dates of reports under the early warning reporting rule.
This final rule is effective January 12, 2005.
Leo Yon, Office of Defects Investigation, NHTSA (phone: 202-366-5226).
On July 10, 2002, NHTSA published a final rule implementing the early warning reporting (EWR) provisions of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, 49 U.S.C. 30166(m). 67 FR 45822. The agency has adopted a number of amendments to that rule. As of October 1, 2003, 49 CFR 579.28(b) Due date of reports read as follows:
Except as provided in paragraph (n) of this section, each manufacturer of motor vehicles and motor vehicle equipment shall submit each report that is required by this subpart not later than 30 days after the last day of the reporting period. Notwithstanding the prior sentence, the due date for reports covering the third and fourth calendar quarter of 2003 and the first calendar quarter of 2004 shall be 60 days after the last day of the reporting period. Except as provided in § 579.27(b), if a manufacturer has not received any of the categories of information or documents during a quarter for which it is required to report pursuant to §§ 579.21 through 579.26, the manufacturer's report must indicate that no relevant information or documents were received during that quarter. If the due date for any report is a Saturday, Sunday or a Federal holiday, the report shall be due on the next business day.
Today's amendment corrects this error by re-inserting the last 2 sentences of § 579.28(b). In particular, the language is:
Except as provided in § 579.27(b), if a manufacturer has not received any of the categories of information or documents during a quarter for which it is required to report pursuant to §§ 579.21 through 579.26, the manufacturer's report must indicate that no relevant information or documents were received during that quarter. If the due date for any report is a Saturday, Sunday or a Federal holiday, the report shall be due on the next business day.
Imports, Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements.
Sec. 3, Pub. L. 106-414, 114 Stat. 1800 (49 U.S.C. 30102-103, 30112, 30117-121, 30166-167); delegation of authority at 49 CFR 1.50.
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is required to specify annual catch quotas for the Atlantic surfclam and ocean quahog fisheries. NMFS issues this rule to set final allowable harvest levels of Atlantic surfclams and ocean quahogs from the Exclusive Economic Zone and an allowable harvest level of Maine mahogany ocean quahogs from Atlantic waters north of 43°50′ N. lat. for the 2005, 2006, and 2007 fishing years.
Effective January 1, 2005.
Copies of supporting documents, including the Environmental Assessment, Regulatory Impact Review, Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), and the Essential Fish Habitat Assessment, are available from Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-6790.
The Final Regulatory Flexibility Analysis (FRFA) consists of the IRFA, and public comments and responses, and the summary of impacts and alternatives contained in the Classification section of the preamble of this final rule. Copies of the small entity compliance guide are available from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930-2298. A copy of the EA/RIR/IRFA is accessible via the Internet at
Brian R. Hooker, Fishery Policy Analyst, 978-281-9220.
The Fishery Management Plan for the Atlantic Surfclam and Ocean Quahog Fisheries (FMP) requires that NMFS, in consultation with the Mid-Atlantic
Detailed background information regarding the development of these quotas was provided in the preamble to the proposed rule (69 FR 67528, November 18, 2004), and is not repeated here. The comment period for the proposed rule ended December 20, 2004.
NMFS is also implementing clarifications to the Atlantic surfclam and ocean quahog regulations through this final rule. Amendments to §§ 648.70(a), and 648.71(a) and (a)(2), remove references to the dates on which the initial allocation of surfclams and ocean quahogs shall be determined, and remove references to the dates on which the proposed and final rules for the annual specifications must be specified and published in the
The final quotas for the 2005-2007 Atlantic surfclam, ocean quahog, and Maine mahogany ocean quahog fisheries, which are unchanged from the proposed rule, are shown in the table below. The status quo level of 2004 for Maine ocean quahog and surfclams is maintained for 2005-2007, but the ocean quahog quota is increased incrementally by 20 percent over the 3-year period.
NOAA Fisheries received one comment on the proposed rule during the comment period. The commenter stated the following concerns: (1) There is no rationale for an increase in surfclam quota; and (2) the proposed rule would allow overfishing to continue.
This final rule would not increase the quota for surfclams. The status quo (which is the maximum allowed under the FMP) would remain in effect for the 3-year quota period. Based on the most recent stock assessments, neither the Atlantic surfclam nor the ocean quahog resource is overfished, nor is overfishing occurring. The recommended quotas are expected to allow sustainable fishing to continue for at least 10 years for surfclams and 30 years for ocean quahogs.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
A delay in the effective date of this final rule would cause a disruption in the ordinary commerce of the surfclam and ocean quahog fisheries. Individual Transferable Quota (ITQ) shareholders each receive a portion of the overall annual quotas for the two species. An allocation holder receives an amount of cage tags equivalent to his/her share of the overall quota. Fishing for surfclams and ocean quahogs begins on January 1, 2005, regardless of the publication of the annual quota, as tags for the 2005 fishing year have already been issued by the vendor pursuant to § 648.75(b). Historically, allocations have been transferred either permanently or temporarily to meet changing economic circumstances in the fishery right from the commencement of these fisheries. For example, vessel owners who enter into a supply contract with a processor may experience vessel breakdowns that thwart performance of their contractual obligations. In this situation, it is imperative that the vessel owner have the ability to request that NMFS transfer temporarily part of his/her allocation to another harvester who is willing to fulfill the terms of the supply contract in time for the start of the 2005 fishing year on January 1, 2005. Further, and of more immediate concern is that several banks currently hold a total 17 surfclam and 12 ocean quahog allocations. These allocations are held by the banks as security for loans made by the banks to fisherman in these two fisheries. This entails the permanent transfer of the individual allocation to the bank as collateral for the pendency of the loan. The banks request NMFS on an annual basis to transfer temporarily the cage tags associated with the allocation back to the borrower. This transfer enables the borrower to begin fishing at the
A description of the reasons why this action is being taken by the Agency and the objectives of this final rule are continued in the preambles of the proposed rule and this final rule. This action does not contain any collection-of-information, reporting, or recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal rules. This action is taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and regulations at 50 CFR part 648. There are no compliance costs associated with this final rule.
A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are explained in the preambles of the proposed and final rule and are not repeated here.
No significant issues, including ones relating to the IRFA or the economic effects of the proposed rule, were raised in the public comments. One comment was received and has been addressed in the preamble to the final rule.
This action will impact approximately 138 small entities, 82 Atlantic surfclam allocation owners, and 56 ocean quahog allocation owners. In 2003, 50 vessels reported harvesting surfclams or ocean quahogs from Federal waters under the ITQ system. Thirty-five vessels in 2003 fished under Federal limited access Maine ocean quahog permits. All of these businesses are considered small entities under the standards described by the Small Business Administration because they have annual returns that do not exceed $3.5 million annually.
This rule does not impose any new reporting, recordkeeping, or other compliance requirements. Therefore, the costs of compliance are unchanged.
Economic impacts on small entities have been minimized within the constraints of the FMP. Specifically, the commercial quotas must meet the conservation objectives of the FMP, implemented in 50 CFR part 648 under the authority of the Magnuson-Stevens Act. This final rule establishes harvest levels for Atlantic surfclams that are the maximum allowable under the FMP for 2005-2007. Harvest levels for ocean quahogs will be the maximum allowable under the FMP by 2007.
The Council identified three surfclam quota alternatives in addition to the “no-action” alternative. The preferred alternative of 3.400 m bu (1.81 m hL) for 2005-2007, an alternative with a 45.6-percent decrease to 1.85 m bu (0.98 m hL), and an alternative with a 4.4-percent decrease to 3.25 m bu (1.73 m hL) were analyzed. The minimum allowable quota specified in the current OY range is 1.850 m bu (0.99 m hL) of surfclams. A 45.6-percent reduction in quota of would have a substantially negative impact on overall ex-vessel revenues equaling a $215,363-decrease per allocation. Adoption of the 4.4-percent decrease in quota would represent a $20,781-reduction per allocation. However, given the current biological status of the surfclam resource, the Council does not believe that a quota reduction is warranted at this time. In summation, the Council determined that the 45.6-percent reduction would significantly negatively impact revenues and a smaller 4.4-percent reduction is not warranted as the stock is not overfished and overfishing is not occurring. The preferred alternative is the 2004 status quo, thus it will have no impact on revenues.
The Council analyzed four ocean quahog quota alternatives in addition to the “no-action” alternative. The preferred alternative of a 20-percent increase over 3 years, an alternative with a 20-percent (1.0 m bu (0.53 m hL)) decrease, an alternative with the 2004 status quo of 5.0 m bushels (2.66 m hL), and an alternative with a 20-percent (1.0 m bu (0.53 m hL)) increase in 1 year were analyzed. The minimum allowable quota specified in the current OY range is 4.0 m bu (2.13 m hL) of ocean quahogs. Adoption of a 4.0 m bu (2.13 m hL) quota would represent a 20-percent decrease from the current quota. This alternative would take the most conservative approach to managing the fishery that is currently available to the Council, but would result in the fewest economic benefits available to the ocean quahog fishery. Given the current biological status of the quahog resource, the Council concluded that a quota reduction is not warranted. Adoption of the 2004 status quo quota will have no impact on revenues for small entities. A 20-percent increase in quota in the first year would move directly to the maximum quota allowed in the FMP and, if fully utilized, would equate to a $102,180-increase per allocation. However, the Council was concerned that the industry does not currently have a market available to absorb a large increase in landings that quickly. Additionally, due to uncertainty in the recent stock assessment, the Council recommended a gradual increase, with annual reviews to confirm its appropriateness. Although two alternatives would allow for increased revenues, the Council recommended a gradual 20-percent increase over 3 years, rather than the 20-percent increase in the first year.
The quota for Maine mahogany ocean quahogs is specified at the maximum allowable 100,000 Maine bu (35,240 hL). The FMP specifies that adjustments to the quota above 100,000 Maine bu (35,240 hL) require a scientific survey and stock assessment of the Maine mahogany ocean quahog resource. However, no survey or assessment has been conducted. The Council considered two alternative quotas for the Maine mahogany ocean quahog fishery, in addition to the preferred alternative of 100,000 Maine bushels (35,240 hL), including 50,000 Maine bu and 92,500 Maine bu (17,620 and 32,596 hL). Any quota below the 1999 landing level of 93,938 Maine bu (33,104 hL) would have resulted in a decrease in revenues to individual vessels.
Section 212 of the Small Business Regulatory Enforceement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the action a small entity is required to take to comply with a rule
Fisheries, Fishing, Reporting and recordkeeing requirements.
16 U.S.C. 1801
(a) * * *
(1) Each fishing year, the Regional Administrator shall determine the initial allocation of surfclams and ocean quahogs for the next fishing year for each allocation holder owning an allocation pursuant to paragraph (a)(2) of this section. For each species, the initial allocation for the next fishing year is calculated by multiplying the allocation percentage owned by each allocation owner as of the last day of the previous fishing year in which allocation owners are permitted to permanently transfer allocation percentage pursuant to paragraph (b) of this section (i.e., October 15 of every year), by the quota specified by the Regional Administrator pursuant to § 648.71. The total number of bushels of allocation shall be divided by 32 to determine the appropriate number of cage tags to be issued or acquired under § 648.75. Amounts of allocation 0.5 or smaller created by this division shall be rounded downward to the nearest whole number, and amounts of allocation greater than 0.5 created by this division shall be rounded upward to the nearest whole number, so that allocations are specified in whole cages. These allocations shall be made in the form of an allocation permit specifying the allocation percentage and the allocation in bushels and cage tags for each species. An allocation permit is only valid for the entity for which it is issued. Such permits shall be issued on or before December 15, to allow allocation owners to purchase cage tags from a vendor specified by the Regional Administrator pursuant to § 648.75(b).
(a)
(2)
(a) * * *
(1)
Agricultural Marketing Service, USDA.
Proposed rule.
This rule would establish the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle for, producers during the 2005-2006 marketing year, which begins on June 1, 2005. This rule invites comments on the establishment of salable quantities and allotment percentages for Class 1 (Scotch) spearmint oil of 677,409 pounds and 35 percent, respectively, and for Class 3 (Native) spearmint oil of 867,958 pounds and 40 percent, respectively. The Spearmint Oil Administrative Committee (Committee), the agency responsible for local administration of the marketing order for spearmint oil produced in the Far West, recommended this rule for the purpose of avoiding extreme fluctuations in supplies and prices to help maintain stability in the spearmint oil market.
Comments must be received by February 11, 2005.
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, 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 (7 CFR part 985), as amended, 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.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, which may be purchased from or handled for producers by handlers during the 2005-2006 marketing year, which begins on June 1, 2005. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
Pursuant to authority in §§ 985.50, 985.51, and 985.52 of the order, the Committee, with seven of its eight members present, met on October 6, 2004, and recommended salable quantities and allotment percentages for both classes of oil for the 2005-2006 marketing year. The Committee unanimously recommended the establishment of a salable quantity and allotment percentage for Scotch spearmint oil of 677,409 pounds and 35 percent, respectively. For Native spearmint oil, the Committee unanimously recommended the establishment of a salable quantity and allotment percentage of 867,958 pounds and 40 percent, respectively.
This rule would limit the amount of spearmint oil that handlers may purchase from, or handle for, producers during the 2005-2006 marketing year, which begins on June 1, 2005. Salable quantities and allotment percentages have been placed into effect each season since the order's inception in 1980.
The U.S. production of Scotch spearmint oil is concentrated in the Far West, which includes Washington, Idaho, and Oregon and a portion of Nevada and Utah. Scotch spearmint oil is also produced in the Midwest states of Indiana, Michigan, and Wisconsin, as well as in the States of Montana, South Dakota, North Dakota, and Minnesota. The production area covered by the marketing order currently accounts for
When the order became effective in 1980, the Far West had 72 percent of the world's sales of Scotch spearmint oil. While the Far West is still the leading producer of Scotch spearmint oil, its share of world sales is now estimated to be about 36 percent. This loss in world sales for the Far West region is directly attributed to the increase in global production. Other factors that have played a significant role include the overall quality of the imported oil and technological advances that allow for more blending of lower quality oils. Such factors have provided the Committee with challenges in accurately predicting trade demand for Scotch oil. This, in turn, has made it difficult to balance available supplies with demand and to achieve the Committee's overall goal of stabilizing producer and market prices.
The marketing order has continued to contribute to price and general market stabilization for Far West producers. The Committee, as well as spearmint oil producers and handlers attending the October 6, 2004, meeting estimated that the 2004 producer price of Scotch oil would maintain an average of $10.00 per pound. However, this producer price is below the cost of production for most producers as indicated in a study from the Washington State University Cooperative Extension Service (WSU), which estimates production costs to be between $13.50 and $15.00 per pound.
This low level of producer returns has caused a reduction in acreage. When the order became effective in 1980, the Far West region had 9,702 acres of Scotch spearmint. The Committee estimates that the current acreage of Scotch spearmint will be about 4,771 acres. Based on the reduced Scotch spearmint acreage, the Committee estimates that production for the 2004-2005 marketing season will be about 635,508 pounds.
The Committee recommended the 2005-2006 Scotch spearmint oil salable quantity (677,409 pounds) and allotment percentage (35 percent) utilizing sales estimates for 2005-2006 Scotch oil as provided by several of the industry's handlers, as well as historical and current Scotch oil sales levels. The Committee is estimating that about 650,000 pounds of Scotch spearmint oil, on average, may be sold during the 2005-2006 marketing year. When considered in conjunction with the estimated carry in of 351,427 pounds of oil on June 1, 2005, the recommended salable quantity of 677,409 pounds results in a total available supply of Scotch spearmint oil next year of about 1,028,836 pounds.
The recommendation for the 2005-2006 Scotch spearmint oil volume regulation is consistent with the Committee's stated intent of keeping adequate supplies available at all times, while attempting to stabilize prices at a level adequate to sustain the producers. Furthermore, the recommendation takes into consideration the industry's desire to compete with less expensive oil produced outside the regulated area.
Although Native spearmint oil producers are facing market conditions similar to those affecting the Scotch spearmint oil market, the market share is quite different. Over 90 percent of the U.S. production of Native spearmint is produced within the Far West production area. Also, most of the world's supply of Native spearmint is produced in the U.S.
The supply and demand characteristics of the current Native spearmint oil market, combined with the stabilizing impact of the marketing order, have kept the price relatively steady, between $9.10 and $9.30 per pound over the last five years. The Committee considers this level too low for the majority of producers to maintain viability. The WSU study referenced earlier indicates that the cost of producing Native spearmint oil ranges from $10.26 to $10.92 per pound.
Similar to Scotch, the low level of producer returns has also caused a reduction in Native spearmint acreage. When the order became effective in 1980, the Far West region had 12,153 acres of Native spearmint. The Committee estimates that the 2004-2005 acreage of Native spearmint is about 4,804 acres. Based on the reduced Native spearmint acreage, the Committee estimates that production for the 2004-2005 marketing season will be about 701,372 pounds.
The Committee recommended the 2005-2006 Native spearmint oil salable quantity (867,958 pounds) and allotment percentage (40 percent) utilizing sales estimates for 2005-2006 Native oil as provided by several of the industry's handlers, as well as historical and current Native oil sales levels. The Committee is estimating that about 945,000 pounds of Native spearmint oil, on average, may be sold during the 2005-2006 marketing year. When considered in conjunction with the estimated carry-in of 60,000 pounds of oil on June 1, 2005, the recommended salable quantity of 867,958 pounds results in a total available supply of Native spearmint oil next year of about 927,958 pounds.
The Committee's method of calculating the Native spearmint oil salable quantity and allotment percentage continues to primarily utilize information on price and available supply as they are affected by the estimated trade demand. The Committee's stated intent is to make adequate supplies available to meet market needs and improve producer prices.
The Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year to year. According to the National Agricultural Statistics Service, for example, the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices since the order's inception have generally stabilized at about $9.85 per pound for Native spearmint oil and at about $12.93 per pound for Scotch spearmint oil. However, the current prices for both classes of oil are below the average due to several factors, including the general uncertainty being experienced through the U.S. economy and the continuing overall weak farm situation, as well as an abundant global supply of spearmint oil. As noted earlier—although lower than what producers believe to be viable—prices currently appear to be stable at about $9.50 for both classes of oil.
The Committee based its recommendation for the proposed salable quantity and allotment percentage for each class of spearmint oil for the 2005-2006 marketing year on the information discussed above, as well as the data outlined below.
(A) Estimated carry-in on June 1, 2005—351,427 pounds. This figure is the difference between the estimated 2004-2005 marketing year trade demand of 620,000 pounds and the 2004-2005 marketing year total available supply of 971,427 pounds.
(B) Estimated trade demand for the 2005-2006 marketing year—650,000 pounds. This figure is based on input from producers at five Scotch spearmint oil production area meetings held in September 2004, as well as estimates provided by handlers and other meeting participants at the October 6, 2004, meeting. The average estimated trade demand provided at the five production area meetings was 620,867 pounds, whereas the average handler trade demand ranged from 600,000 to 650,000 pounds. The average of sales over the last five years was 761,142 pounds.
(C) Salable quantity required from the 2005-2006 marketing year production—298,573 pounds. This figure is the
(D) Total estimated allotment base for the 2005-2006 marketing year—1,935,455 pounds. This figure represents a one-percent increase over the revised 2004-2005 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.
(E) Computed allotment percentage—15.4 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.
(F) Recommended allotment percentage—35 percent. This recommendation is based on the Committee's determination that a decrease from the current season's allotment percentage of 40 percent to the computed 15.4 percent would not adequately supply the potential 2005-2006 market.
(G) The Committee's recommended salable quantity—677,409 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.
(H) Estimated available supply for the 2005-2006 marketing year—1,028,836 pounds. This figure is the sum of the 2005-2006 recommended salable quantity (677,409 pounds) and the estimated carry-in on June 1, 2005 (351,427 pounds).
(A) Estimated carry-in on June 1, 2005—60,000 pounds. This figure is the difference between the estimated 2004-2005 marketing year trade demand of 1,063,438 pounds and the revised 2004-2005 marketing year total available supply of 1,123,438 pounds.
(B) Estimated trade demand for the 2005-2006 marketing year—945,000 pounds. This figure is based on input from producers at the five Native spearmint oil production area meetings held in September 2004, as well as estimates provided by handlers and other meeting participants at the October 6, 2004, meeting. The average estimated trade demand provided at the five production area meetings was 957,000 pounds, whereas the average handler estimate was 945,000 pounds.
(C) Salable quantity required from the 2005-2006 marketing year production—885,000 pounds. This figure is the difference between the estimated 2005-2006 marketing year trade demand (945,000 pounds) and the estimated carry-in on June 1, 2005 (60,000 pounds).
(D) Total estimated allotment base for the 2005-2006 marketing year—2,169,894 pounds. This figure represents a one percent increase over the revised 2004-2005 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.
(E) Computed allotment percentage—40.8 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.
(F) Recommended allotment percentage—40 percent. This is the Committee's recommendation based on the computed allotment percentage, the average of the computed allotment percentage figures from the five production area meetings (40.6 percent), and input from producers and handlers at the October 6, 2004, meeting.
(G) The Committee's recommended salable quantity—867,958 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.
(H) Estimated available supply for the 2005-2006 marketing year—927,958 pounds. This figure is the sum of the 2005-2006 recommended salable quantity (867,958 pounds) and the estimated carry-in on June 1, 2005 (60,000 pounds).
The salable quantity is the total quantity of each class of spearmint oil, which handlers may purchase from, or handle on behalf of producers during a marketing year. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's allotment base for the applicable class of spearmint oil.
The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 677,409 pounds and 35 percent and 867,958 and 40 percent, respectively, are based on the Committee's goal of maintaining market stability by avoiding extreme fluctuations in supplies and prices and the anticipated supply and trade demand during the 2005-2006 marketing year. The proposed salable quantities are not expected to cause a shortage of spearmint oil supplies. Any unanticipated or additional market demand for spearmint oil, which may develop during the marketing year, can be satisfied by an increase in the salable quantities. Both Scotch and Native spearmint oil producers who produce more than their annual allotments during the 2005-2006 marketing year may transfer such excess spearmint oil to a producer with spearmint oil production less than his or her annual allotment or put it into the reserve pool until November 1, 2005.
This proposed regulation, if adopted, would be similar to regulations issued in prior seasons. Costs to producers and handlers resulting from this rule are expected to be offset by the benefits derived from a stable market and improved returns. In conjunction with the issuance of this proposed rule, USDA has reviewed the Committee's marketing policy statement for the 2005-2006 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulations, fully meets the intent of § 985.50 of the order. During its discussion of potential 2005-2006 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 the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed.
The establishment of these salable quantities and allotment percentages would allow for anticipated market needs. In determining anticipated market needs, consideration by the Committee was given to historical sales, as well as changes and trends in production and demand. This rule also provides producers with information on the amount of spearmint oil that should be produced for the 2005-2006 season in order to meet anticipated market demand.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of
There are eight spearmint oil handlers subject to regulation under the order, and approximately 59 producers of Class 1 (Scotch) spearmint oil and approximately 91 producers of Class 3 (Native) spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000.
Based on the 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 19 of the 59 Scotch spearmint oil producers and 21 of the 91 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 from 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 proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle for, producers during the 2005-2006 marketing year. The Committee recommended this rule to help maintain stability in the spearmint oil market by avoiding extreme fluctuations in supplies and prices. Establishing quantities to be purchased or handled during the marketing year through volume regulations allows producers to plan their mint planting and harvesting to meet expected market needs. The provisions of §§ 985.50, 985.51, and 985.52 of the order authorize this rule.
Instability in the spearmint oil sub-sector of the mint industry is much more likely to originate on the supply side than the demand side. Fluctuations in yield and acreage planted from season-to-season tend to be larger than fluctuations in the amount purchased by buyers. Demand for spearmint oil tends to be relatively stable from year-to-year. The demand for spearmint oil is expected to grow slowly for the foreseeable future because the demand for consumer products that use spearmint oil will likely expand slowly, in line with population growth.
Demand for spearmint oil at the farm level is derived from retail demand for spearmint-flavored products such as chewing gum, toothpaste, and mouthwash. The manufacturers of these products are by far the largest users of mint oil. However, spearmint flavoring is generally a very minor component of the products in which it is used, so changes in the raw product price have no impact on retail prices for those goods.
Spearmint oil production tends to be cyclical. Years of large production, with demand remaining reasonably stable, have led to periods in which large producer stocks of unsold spearmint oil have depressed producer prices for a number of years. Shortages and high prices may follow in subsequent years, as producers respond to price signals by cutting back production.
The significant variability is illustrated by the fact that the coefficient of variation (a standard measure of variability; “CV”) of Far West spearmint oil production from 1980 through 2003 was about 0.24. The CV for spearmint oil grower prices was about 0.14, well below the CV for production. This provides an indication of the price stabilizing impact of the marketing order.
Production in the shortest marketing years was about 49 percent of the 24-year average (1.875 million pounds from 1980 through 2003) and the largest crop was approximately 166 percent of the 24-year average. A key consequence is that in years of oversupply and low prices the season average producer price of spearmint oil is below the average cost of production (as measured by the Washington State University Cooperative Extension Service.)
The wide fluctuations in supply and prices that result from this cycle, which was even more pronounced before the creation of the marketing order, can create liquidity problems for some producers. The marketing order was designed to reduce the price impacts of the cyclical swings in production. However, producers have been less able to weather these cycles in recent years because of the decline in prices of many of the alternative crops they grow. As noted earlier, almost all spearmint oil producers diversify by growing other crops.
In an effort to stabilize prices, the spearmint oil industry uses the volume control mechanisms authorized under the order. This authority allows the Committee to recommend a salable quantity and allotment percentage for each class of oil for the upcoming marketing year. The salable quantity for each class of oil is the total volume of oil that producers may sell during the marketing year. The allotment percentage for each class of spearmint oil is derived by dividing the salable quantity by the total allotment base.
Each producer is then issued an annual allotment certificate, in pounds, for the applicable class of oil, which is calculated by multiplying the producer's allotment base by the applicable allotment percentage. This is the amount of oil for the applicable class that the producer can sell.
By November 1 of each year, the Committee identifies any oil that
There is a reserve pool for each class of oil that may not be sold during the current marketing year unless USDA approves a Committee recommendation to make a portion of the pool available. However, limited quantities of reserve oil are typically sold to fill deficiencies. A deficiency occurs when on-farm production is less than a producer's allotment. In that case, a producer's own reserve oil can be sold to fill that deficiency. Excess production (higher than the producer's allotment) can be sold to fill other producers' deficiencies.
In any given year, the total available supply of spearmint oil is composed of current production plus carry-over stocks from the previous crop. The Committee seeks to maintain market stability by balancing supply and demand, and to close the marketing year with an appropriate level of carryout. If the industry has production in excess of the salable quantity, then the reserve pool absorbs the surplus quantity of spearmint oil, which goes unsold during that year, unless the oil is needed for unanticipated sales.
Under its provisions, the order may attempt to stabilize prices by (1) limiting supply and establishing reserves in high production years, thus minimizing the price-depressing effect that excess producer stocks have on unsold spearmint oil, and (2) ensuring that stocks are available in short supply years when prices would otherwise increase dramatically. The reserve pool stocks grown in large production years are drawn down in short crop years.
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 Committee estimated the available supply during the 2004-2005 marketing year for both classes of oil at 2,094,865 pounds, and that the expected carry-in will be 411,427 pounds. Therefore, with volume control, sales by producers for the 2004-2005 marketing year would be limited to 1,545,367 pounds (the recommended salable quantity for both classes of spearmint oil).
The recommended salable percentages, upon which 2005-2006 producer allotments are based, are 35 percent for Scotch and 40 percent for Native. Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint. The econometric model estimated a $1.74 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 without volume control. The Far West producer price for both classes of spearmint oil was $9.50 for 2003, which is below the average of $11.26 for the period of 1980 through 2003, based on National Agricultural Statistics Service data. The surplus situation for the spearmint oil market that would exist without volume controls in 2005-2006 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.
The Committee discussed alternatives to the recommendations contained in this rule for both classes of spearmint oil. The Committee discussed and rejected the idea of recommending that there not be any volume regulation for Scotch spearmint oil because of the severe price-depressing effects that would occur without volume control.
The Committee also considered various alternative levels of volume control for Scotch spearmint oil, including leaving the percentage the same as the current season, increasing the percentage to a less restrictive level, or decreasing the percentage. After considerable discussion the Committee unanimously supported decreasing the percentage to 35 percent.
The Committee discussed and rejected the idea of recommending that there not be any volume regulation for Native spearmint oil. The immediate result would be to put an excessive amount of Native reserve pool oil on the market causing depressed prices at the producer level. With the current price for Native spearmint oil lower than the 10-year average, and sales below the 5-year average, the Committee, after considerable discussion, determined that 867,958 pounds and 40 percent would be the most effective salable quantity and allotment percentage, respectively, for the 2005-2006 marketing year.
As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information, including: (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) the prospective production of each class of oil; (4) the 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. Based on its review, the Committee believes that the salable quantity and allotment percentage levels recommended would achieve the objectives sought.
Without any regulations in effect, the Committee believes the industry would return to the pronounced cyclical price patterns that occurred prior to the order, and that prices in 2005-2006 would decline substantially below current levels.
As stated earlier, the Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year-to-year. National Agricultural Statistics Service records show that the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices have been consistently more stable since the marketing order's inception in 1980, with an average price (1980-2003) of $12.93 per pound for Scotch spearmint oil and $9.85 per pound for Native spearmint oil.
During the period of 1998 through 2003, however, large production and carry-in inventories have contributed to prices below the 24-year average, despite the Committee's efforts to balance available supplies with demand. Prices have ranged from $8.00 to $11.00 per pound for Scotch spearmint oil and between $9.10 and $10.00 per pound for Native spearmint oil.
According to the Committee, the recommended salable quantities and allotment percentages are expected to achieve the goals of market and price stability.
As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the order's inception. Reporting and recordkeeping requirements have remained the same for each year of regulation. These requirements have been approved by the Office of Management and Budget under OMB Control No. 0581-0065. Accordingly, this rule would not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically in order to avoid unnecessary and duplicative information collection by industry and public sector agencies. The USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 6, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons the opportunity to respond to the proposal, including any regulatory and informational impacts of this action on small businesses. This comment period is deemed appropriate so that a final determination can be made prior to June 1, 2005, the beginning of the 2005-2006 marketing year. All written comments received within the comment period will be considered before a final determination is made on this matter.
Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil.
For the reasons set forth in the preamble, 7 CFR part 985 is proposed to be amended as follows:
1. The authority citation for 7 CFR part 985 continues to read as follows:
7 U.S.C. 601-674.
2. A new § 985.224 is added to read as follows:
This section will not appear in the Code of Federal Regulations.
The salable quantity and allotment percentage for each class of spearmint oil during the marketing year beginning on June 1, 2005, shall be as follows:
(a) Class 1 (Scotch) oil—a salable quantity of 677,409 pounds and an allotment percentage of 35 percent.
(b) Class 3 (Native) oil—a salable quantity of 867,958 pounds and an allotment percentage of 40 percent.
Agricultural Marketing Service, USDA.
Proposed rule.
This document invites comments on a proposed amendment to the Fluid Milk Promotion Order (Order). The proposed amendment, requested by the National Fluid Milk Processor Promotion Board (Board), which administers the Order, would modify the terms of membership on the Board. The proposed amendment would require that any change in a fluid milk processor member's employer or change in ownership of the fluid milk processor who the member represents would disqualify that member. The member would continue to serve on the Board for a period of up to six months until a successor was appointed. In addition, a public member to the Board who changes employment, gains employment with a new employer, or ceases to continue in the same business would be disqualified in a manner similar to a fluid milk processor member. The Board believes that the proposed amendments are necessary to ensure the Board is able to equitably represent fluid milk processing constituents and the public interest through the National Fluid Milk Processor Promotion Program.
Comments must be submitted on or before February 11, 2005.
Comments should be filed with USDA/AMS/Dairy Programs, Promotion and Research Branch, Stop 0233—Room 2958-S, 1400 Independence Avenue, SW., Washington, DC 20250-0233. Comments may be faxed to (202) 720-0285 or e-mailed to
David R. Jamison, USDA/AMS/Dairy Programs, Promotion and Research Branch, Stop 0233—Room 2958-S, 1400 Independence Avenue, SW., Washington, DC 20250-0233, (202) 720-6961,
This proposed rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by Office of Management and Budget (OMB).
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform and is not intended to have a retroactive effect. If adopted, this proposed rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.
The Fluid Milk Promotion Act of 1990 (Act), as amended, authorizes the Order. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1999K of the Act, any person subject to the Order may file with the Secretary 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 the law and request a modification of the Order or to be exempted from the
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601
The Fluid Milk Promotion Order (7 CFR Part 1160) is authorized under the Fluid Milk Promotion Act of 1990 (Act) (7 U.S.C. 6401
The Board has proposed amendments to the membership provisions of the Order. The proposed amendment would require that any change in a fluid milk processor member's employer or change in ownership of the fluid milk processor who the member represents would disqualify that member. The member would continue to serve on the Board for a period of up to six months until a successor was appointed. In addition, a public member to the Board who changes employment or ceases to continue in the same business would be disqualified in a manner similar to a fluid milk processor member. These changes would address (1) potential movement of members from one fluid milk processor to another fluid milk processor or any other change in company affiliation; and (2) changes in affiliation of at-large public members.
The Board believes that the proposed amendments are necessary to ensure the Board is able to equitably represent fluid milk processing constituents and the public interest through the National Fluid Milk Processor Promotion Program.
The proposed amendment to the Order should not add any additional burden to regulated parties because it relates only to provisions concerning Board membership. Accordingly, the proposed amendments will not have a significant economic impact on a substantial number of small entities.
A review of reporting requirements was completed under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was determined that these proposed amendments would have no impact on reporting, recordkeeping, or other compliance requirements because they would remain the same to the current requirements. No new forms are proposed and no additional reporting requirements would be necessary.
This notice does not require additional information collection that requires clearance by the OMB beyond currently approved information collection. The primary sources of data used to complete the forms are routinely used in most business transactions. Forms require only a minimal amount of information which can be supplied without data processing equipment or a trained statistical staff. Thus, the information collection and reporting burden is relatively small. Requiring the same reports for all handlers does not significantly disadvantage any handler that is smaller than the industry average.
The proposed rule, if adopted, would amend the Order by modifying the membership qualification for the Board. Section 1160.200 of the Order sets out the criteria for the Secretary to appoint members to the Board where 15 members represent geographic regions and 5 are at-large members of the Board. The Board is proposing the attached amendment to address (1) potential movement of members from one fluid milk processor to another fluid milk processor; and (2) changes in affiliation of at-large public members.
The Board indicates that the fluid milk industry is a dynamic marketplace where mergers and other purchase activities are commonplace. As a result, there have already been circumstances where members representing a fluid milk processor have been subject to employment or ownership changes due to such mergers and other purchase activities. The Board believes that any change in a fluid milk processor member's employer or change in ownership of the fluid milk processor who the member represents should be subject to further examination. Accordingly, the Board has recommended that any change in employment of ownership would disqualify any member. The member would continue to serve on the Board for a period of up to six months until a successor was appointed.
The Board also believes that at-large public members appointed by the Secretary should be subject to the same criteria for disqualification as processor representatives serving on the Board. Pursuant to the Order, the Secretary may appoint up to two members from the general public. Since the Board is comprised of only 20 members, these at-large public representatives play an important role in guiding the Board's operations. Normally, these members have a high level of expertise in a certain area and provide an invaluable perspective in the Board's deliberations. However, the Board believes that changes in a public member's affiliation should be treated similarly to processor members. Therefore, the Board recommended that should a public member change employment or cease to continue in the business that the public member was operating when appointed to the Board, the public member would be disqualified in a manner similar to a fluid milk processor member. This would provide the Secretary with the ability to appoint a new public member should the circumstances warrant a change in representation.
The Board believes that the proposed amendment would ensure the Board is able to equitably represent fluid milk processing constituents and the public interest through the National Fluid Milk Processor Promotion Program.
Interested parties are invited to comment on this proposed rule. A 30-day comment period is provided. This period is deemed appropriate so as to implement the proposed changes, if adopted, as soon as possible, in order to avoid disruption of Board operations and to ensure that the Board represents
Fluid milk, Milk, Promotion.
For the reasons set forth in the preamble, it is proposed that 7 CFR part 1160 be amended as follows:
1. The authority citation for 7 CFR Part 1160 continues to read as follows:
7 U.S.C. 6401-6417.
2. In § 1160.200, paragraph (a) is revised to read as follows:
(a) There is hereby established a National Fluid Milk Processor Promotion Board of 20 members, 15 of whom shall represent geographic regions and five of whom shall be at-large members of the Board. To the extent practicable, members representing geographic regions shall represent fluid milk processing operations of differing sizes. No fluid milk processor shall be represented on the Board by more than three members. The at-large members shall include at least three fluid milk processors and at least one member from the general public. Except for the non-processor member or members from the general public, nominees appointed to the Board must be active owners or employees of a fluid milk processor. The failure of such a member to own or work for such fluid milk processor shall disqualify that member for membership on the Board except that such member shall continue to serve on the Board for a period not to exceed 6 months following the disqualification or until appointment of a successor Board member to such position, whichever is sooner, provided that such person continues to meet the criteria for serving on the Board as a processor representative. Should a member representing the general public cease to be employed by the entity employing that member when appointed, gain employment with a new employer, or cease to own or operate the business which that member owned or operated at the date of appointment, such member shall be disqualified for membership on the Board, except that such member shall continue to serve on the Board for a period not to exceed 6 months, or until appointment of a successor Board member, whichever is sooner.
Agricultural Marketing Service, USDA.
Proposed rule.
The Agricultural Marketing Service (AMS) is proposing to amend the Cotton Board Rules and Regulations by adjusting the total rate of assessment per kilogram for imported cotton collected for use by the Cotton Research and Promotion Program. The proposed total rate of assessment would be calculated by adding together the $1 per bale equivalent assessment and the supplemental assessment, and adjusting the sum to account for the estimated amount of U.S. cotton contained in imported textile products. The proposed adjustment would reduce the assessable portion of the cotton content of imported textile products by the estimated average amount of U.S. cotton contained therein. Exemptions and refunds would continue to be provided for importers wishing to document the U.S. cotton content of specific goods. The proposed rule would continue to ensure that the total assessment collected on imported cotton and the cotton content of imported products remain similar to those paid on domestically produced cotton, and that the U.S. cotton content of imported products is not subject to more than one assessment.
Comments must be received on or before March 14, 2005.
Interested persons are invited to submit written comments concerning this proposed rule to Whitney Rick, Assistant to the Deputy Administrator, Cotton Program, Agricultural Marketing Service, USDA, 1400 Independence Ave., SW., STOP 0224 Washington, DC 20250-0224. Comments should be submitted in triplicate. Comments may also be submitted electronically to:
Whitney Rick, Assistant to the Deputy Administrator, Cotton Program, AMS, USDA, 1400 Independence Ave., SW., Stop 0224, Washington, DC 20250-0224, telephone (202) 720-2259, facsimile (202) 690-1718, or e-mail at whitney.rick@usda.gov.
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This proposed rule would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Cotton Research and Promotion Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 12 of the Act, any person subject to an order may file with the Secretary a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the District Court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of ruling.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
There are an estimated 10,000 importers who are presently subject to rules and regulations issued pursuant to the Cotton Research and Promotion Order. The majority of these importers are small businesses under the criteria established by the Small Business Administration.
The proposed rule would reduce the total rate of assessment per kilogram for imported cotton products collected for use by the Cotton Research and Promotion Program. The proposed total rate of assessment would be calculated by adding together the $1 per bale equivalent assessment and the supplemental assessment, and adjusting the sum to account for the estimated amount of U.S. cotton contained in imported textile products. The proposed adjustment to the sum would reduce the assessable portion of the cotton content of imported products by 22.2 percent, the current average estimated by AMS of U.S. cotton contained therein. The proposed total rate of assessment per kilogram for imported raw cotton and cotton textile products would be calculated using the following formula:
A 500 pound bale equals 226.8 kg. (500 × .453597). $1 per bale assessment equals $0.002000 per pound (1/500) or $0.004409 per kg. (1/226.8).
The 2003 calendar year weighted average price received by producers for Upland cotton is $0.55 per pound or $1.2125 per kg. (0.55 × 2.2046). Five tenths of one percent of the average price in kg. equals $0.006063 per kg. (1.2125 × .005).
The adjustment for the U.S. cotton content of assessed imports is obtained by multiplying the sum of Nos. 1 and 2 above by the U.S. cotton share of total net cotton textile imports (0.222) which equals $0.002325 per kilogram ($0.010472 per kg. × 0.222). Subtracting this amount from the sum of Nos. 1 and 2 above would equal the proposed total rate of assessment for imported products of $0.008147 per kilogram ($0.010472 per kg. − $0.002325 per kg. = $0.008147).
The current total rate of assessment on imported raw cotton and imported cotton products is $0.008267 per kilogram. The proposed rule would increase the assessment on raw cotton to $0.010472, an increase of $0.002205. Even though the assessment would be raised for imported raw cotton, the increase is small and will not significantly affect small businesses. The proposed rule would decrease the total rate of assessment for imported cotton products to $0.008147 per kilogram, a decrease of $0.00012 per kilogram from last year. The proposed rule would not have a significant economic impact on a substantial number of importers of cotton and cotton-containing products because importers would be paying a small increase on imported raw cotton and a reduced rate of total assessment on imported cotton products.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
The Cotton Research and Promotion Act (Act), as amended, 7 U.S.C. 2101
7 U.S.C. 2101.
The Act authorizes the Secretary of the Department of Agriculture to issue a Cotton Research and Promotion Order. An amended Order was approved by producers and importers voting in a referendum held July 17-26, 1991. The amended Order was published in the
The Act requires the Secretary to establish procedures to ensure that U.S. (upland) cotton content of imported products is not subject to more than one assessment. Under the current procedures established in the regulations, an importer may receive an exemption from paying the assessment or a reimbursement of the assessment paid by submitting sufficient documentation to the Board to verify the U.S. cotton content of the products to be imported or already imported. Because foreign mills frequently mix U.S. cotton with other cottons when formulating cotton yarns and fabrics, the ability of importers, except those purchasing products from mills that use only U.S. cotton, to verify through documentation the U.S. cotton content of the products they are importing may be limited.
AMS believes that changes in the composition of U.S. cotton use and the upcoming completion of the removal of all U.S. import quotas on textile manufactures as outlined in the Agreement on Textile and Clothing necessitates a change to its current regulatory procedures for ensuring that U.S. (upland) cotton content of imported products is not subject to more than one assessment. Prior to the 2001/2002 crop year, the majority of U.S. (upland) cotton (58 percent in the 2000/2001 crop year) was consumed domestically by U.S. mills. Starting with the 2001/2002 crop year, a majority of U.S. cotton was exported (67 percent in 2003/2004). AMS expects this shift in the composition of U.S. cotton use to continue into the foreseeable future and that the ending of U.S. textile quotas will lead to an increase in the amount of U.S. cotton returning to the United States in cotton product imports. AMS, therefore, believes that it is appropriate at this time to make an adjustment to the total rate of assessment to account for the amount of U.S. cotton content of imported textile products.
The estimated amount of U.S. cotton contained in total assessable cotton imports would be calculated by multiplying the U.S. cotton export share of foreign mill use adjusted for location by assessable imports. Adjusting the average amount of U.S. cotton contained in total cotton imports for location would ensure that the U.S. cotton content of total cotton imports would properly account for differences among supplying countries with respect to U.S. cotton's share of their cotton mill use and in their share of U.S. cotton product imports.
AMS will use regularly published statistics on U.S. exports by destination (Weekly Export Sales Report), the world's textile usage of cotton by country (Foreign Agricultural Service Cotton Circular) and the raw cotton equivalent contained in imports and exports of textile manufactures by country (Cotton & Wool Outlook) in the calculations of the U.S. content of U.S. imports of processed cotton products. AMS would determine the percentage of U.S. cotton contained in total assessable cotton imports as follows:
Under the proposed rule, AMS examined the most current data available and determined that U.S. cotton's share of non-U.S. mill use for each region was as follows: North America, 100.0 percent; South America, 16.0 percent; Asia, 9.9 percent; Europe, 11.6 percent; Oceana, 0.0 percent; and Africa, 0.2 percent. These shares were obtained by dividing U.S. exports of raw cotton to each region by total cotton mill use in each region. The specific calculations are shown in Table 1.
Under the proposed rule, AMS examined the most current data available and determined that processed cotton imports into the U.S. totaled 9,232
Using the above method and the most current data available to AMS, the proposed rule would lower the total amount of assessments paid by importers for imported textile products by approximately 22.2 percent from the total amount of assessments paid by importers using current procedures. Raw cotton import assessments would increase by 26.7 percent based on the established formula. Exemptions and
The $1 per bale of cotton or per bale equivalent of cotton containing products, and the supplemental assessment would continue to be calculated the same way. The $1 per bale of cotton or per bale equivalent of cotton containing products assessment is levied on the weight of cotton produced or imported at a rate of $1 per bale of cotton which is equivalent to 500 pounds or $1 per 226.8 kilograms of cotton.
The supplemental assessment is levied at a rate of five-tenths of one percent of the value of domestically produced cotton, imported cotton, and the cotton content of imported products. AMS assigns the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of imported cotton. The current value of imported cotton as published in the
The U.S. cotton share of total net imported products is approximated at 0.222. This figure was obtained by multiplying U.S. cotton's share of each region's mill use by that region's share of assessable cotton imports. The U.S. content of assessable cotton imports for each supply region is shown in Table 2.
An example of the complete assessment formula and how the various figures are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
A 500 pound bale equals 226.8 kg. (500 × .453597).
$1 per bale assessment equals $0.002000 per pound (1/500) or $0.004409 per kg. (1/226.8).
The 2003 calendar year weighted average price received by producers for Upland cotton is $0.55 per pound or $1.2125 per kg. (0.55 × 2.2046).
Five tenths of one percent of the average price in kg. equals $0.006063 per kg. (1.2125 × .005).
The total rate of assessment per kilogram of raw cotton is $0.010472 per kg. (obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg., and the supplemental assessment $0.006063 per kg.), and making an adjustment of 0.222 for the U.S. cotton content of assessed imported textile products. The proposed total rate of assessment for imported cotton would be $0.008147 per kilogram. The current total rate of assessment on imported cotton is $0.008267 per kilogram. The proposed rule would decrease the total rate of assessment on imported cotton products to $0.008147 per kilogram, a decrease of $0.00012 per kilogram from last year.
The figures shown in the right hand column of the Import Assessment Table 1205.510(b)(3) are a result of such a calculation, and have been revised accordingly. These figures indicate the total assessment per kilogram due for each Harmonized Tariff Schedule (HTS) number subject to assessment.
A sixty-day comment period is provided to comment on the changes to the Cotton Board Rules and Regulations proposed herein. This period is deemed appropriate because this proposal would adjust the assessments paid by importers on imported raw cotton and cotton products under the Cotton Research and Promotion Order, by increasing the assessment on raw cotton and reducing the total rate of assessment for imported cotton products. These proposed changes would ensure that the total assessment collected on imported cotton and the cotton content of imported products remain similar to those paid on domestically produced cotton, and that the U.S. cotton content of imported products is not subject to more than one assessment.
Accordingly, the change proposed in this rule, if adopted, should be implemented as soon as possible.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble 7 CFR part 1205 is proposed to be amended as follows:
1. The authority citation for part 1205 continues to read as follows:
7 U.S.C. 2101-2118.
2. In § 1205.510, paragraph (b)(2) and the table in paragraph (b)(3)(ii) are revised to read as follows:
(b) * * * (2) The 12-month average of monthly weighted average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on
(3) * * *
(ii) * * *
Nuclear Regulatory Commission.
Denial of petition for rulemaking.
The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking (PRM-40-28) submitted by Mr. Donald A. Barbour, Philotechnics. The petitioner requested that the NRC amend its regulations governing the domestic licensing of source material to provide clarity regarding the effective control of depleted uranium aircraft counterweights held under the exemption in 10 CFR 40.13(c)(5). The petitioner believes that this amendment should address a number of issues concerning the exemption, storage, and disposal of these devices.
Copies of the petition for rulemaking, the public comments received, and NRC's letter to the petitioner may be examined at the NRC Public Document Room, Public File Area Room O1F21, 11555 Rockville Pike, Rockville, MD. These documents also may be viewed and downloaded electronically via the rulemaking Web site at
The NRC maintains an Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Gary C. Comfort, Jr., Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-8106, e-mail
On January 21, 2000 (65 FR 3394), the NRC published a notice of receipt of a petition for rulemaking filed by Donald A. Barbour, Philotechnics. The petitioner requested that the NRC amend its regulations to provide additional rules for the effective control of depleted uranium aircraft
The petitioner believes that the amendment should clarify at what point and under what circumstances, the licensing exemption in 10 CFR 40.13(c)(5) is no longer applicable to these devices; the length of time counterweights for which there is no demand or use may be stored as exempt material; the regulations that apply to aircraft that have been removed from service which have depleted uranium counterweights that can be transferred to unlicensed parts dealers and salvage operators; and, the need for radiological surveillance of long-term aircraft storage parks and facilities where aircraft with depleted uranium counterweights are regularly stored for protracted periods under unmonitored conditions. Additionally, the petitioner believes that an immediate notification is necessary to advise those organizations that currently possess depleted uranium aircraft counterweights of their responsibilities to the public. The petitioner asserts that the aviation community is tightly regulated and law abiding and that there are extremely effective channels of communication between the industry and its primary regulator, the Federal Aviation Administration (FAA). The petitioner suggests that the NRC take advantage of this situation by encouraging the FAA to issue an appropriate advisory bulletin that informs the aviation community of its responsibilities for managing depleted uranium counterweights. The petitioner provided a summary of key points which he believes should be considered for incorporation in such a notification.
The notice of receipt of the petition for rulemaking invited interested persons to submit comments. The comment period closed on April 5, 2000. The NRC received two comment letters from individuals (one of which was from the petitioner himself). Both comment letters supported the petition. The petitioner provided supplementary information in support of the petition including his interpretation of the regulatory background and more detailed descriptions of how counterweights are used in industry. Additionally, the petitioner's comments referenced data related to the potential mishandling of the counterweights. The other commenter provided an example of the potential costs associated with mishandling the counterweights and suggested that distribution requirements should be added to the regulation. By letter dated February 14, 2001, Mr. Barbour provided another supplement to his petition. In this supplement, the petitioner suggested additional rulemaking to (1) specify that only counterweights manufactured from depleted uranium, and not natural uranium, should be covered under the exemption; and (2) clarify the scope of activities allowed to repair or restore counterweight platings or coverings under 10 CFR 40.13(c)(5)(iv).
The NRC is denying the petition because it has determined that current NRC regulations provide adequate clarity and effectively address the petitioner's concerns. The NRC believes that clarification of the regulations for aircraft counterweights, as originally requested by the petitioner, can be most efficiently accomplished through the issuance of guidance rather than through rulemaking.
The NRC issued a regulatory information summary, RIS-01-013, “10 CFR Part 40 Exemptions For Uranium Contained in Aircraft Counterweights,” dated July 20, 2001, in response to the petitioner's request for an immediate notification to advise those organizations that currently possess depleted uranium aircraft counterweights of their regulatory responsibilities. This RIS reminds persons holding depleted uranium counterweights that the counterweights may not be modified under the exemption in 10 CFR 40.13(c)(5). The RIS also provides four alternatives to transfer the counterweights from the possessor's inventory: (1) Return the counterweights to the manufacturer or other facility licensed to process source material; (2) transfer the counterweights to another organization that will also use devices as aircraft counterweights; (3) transfer the counterweights for disposal at a facility licensed for disposal of radioactive material; or (4) transfer the counterweights to an unlicensed disposal facility that accepts exempt radioactive material.
The petitioner's primary concern in the original petition is that some persons holding the depleted counterweights may inappropriately accumulate and store the counterweights for lengthy periods of time. The petitioner is concerned that this activity will result in unnecessary exposures and that corrosion of the counterweights could occur resulting in additional pathways of exposure and unnecessary contamination. During resolution of the petition, the NRC evaluated (1) the regulatory history of the exemption, including the safety basis; (2) the current use of depleted uranium aircraft counterweights; and (3) the current language in the exemption.
As part of the evaluation of the petition, the NRC reviewed the regulatory history of the exemption for uranium counterweights. In 1960, the original exemption was implemented to only apply to the counterweight while installed in the aircraft and the counterweight impressed with the label reading “Caution—Radioactive Material—Uranium.” This 1960 exemption specifically prohibited the chemical, physical, metallurgical or other treatment or processing of the counterweight and the installation or removal of the counterweight. In 1961, the exemption was expanded to include “stored or handled in connection with installation or removal of such counterweights from aircraft.” The 1961 amendment also replaced the prohibition against modification of counterweights with the requirement that there be “no removal or penetration of the plating” on the counterweight. In 1969, the exemption was further amended, primarily to change the labeling requirement from “Caution—Radioactive Material—Uranium” to “Depleted Uranium.” Also, as part of the 1969 amendment, the specific requirement that there be “no removal or penetration of the plating” on the counterweight was returned to the prohibition against the chemical, physical, or metallurgical treatment or processing of any such counterweights. Under the 1969 amendment, however, repair or restoration of the plating or other covering was allowed. Finally, a new requirement was added that each counterweight was to be “durably and legibly labeled or marked” with the identification of the manufacturer and the statement “Unauthorized Alterations Prohibited.”
As part of the evaluation of the regulatory history, the NRC also reviewed the health and safety basis used during the initial implementation of the existing regulation. The original implementation was based upon calculations that indicated that exposures from installation and storage would be less than 10 percent of the limits in 10 CFR Part 20, with most of the exposure impacting the hands of the workers. This conclusion was based on a radiation dose rate at the surface of the counterweight of 1.3 millisievert per hour (mSv/hr) (130 millirems per hour [mrem/hr]) of beta and gamma radiation, of which the gamma component contribute only 0.03 mSv/hr (2.7 mrem/hr). Film badge studies from wrist bands
NRC's review has also indicated that depleted uranium counterweights are no longer being introduced into new aircraft. Furthermore, existing depleted uranium counterweights are generally being replaced, when replacement is needed, with counterweights made from tungsten. As a result, the number of depleted uranium counterweights in aircraft is diminishing, thus further reducing the need to revise the regulation because the number of individuals potentially being impacted should also decrease as time passes.
The current language for the exemption in 10 CFR 40.13(c)(5) includes “uranium contained in counterweights installed in aircraft, rockets, projectiles, and missiles, or stored or handled in connection with installation or removal of such counterweights. * * *” Based upon a review of the actual language and the regulatory history, it is clear that the exemption applies to storage only to the extent that the storage is in connection with the planned installation or recent removal from the aircraft. As such, the exemption does not include long-term storage unless it can be clearly shown that such storage is related to an intent to reuse the counterweight and that the counterweight continues to be maintained (
Similarly, if an aircraft containing depleted uranium counterweights is permanently removed from service, the counterweights should be removed from the former aircraft within a reasonable time period. The definition of an aircraft according to FAA regulations found in 14 CFR 1.1 is “a device that is used or intended to be used for flight in the air.” Therefore, if there is no clear intention to continue to use the aircraft for flight, the counterweights would no longer be considered “installed in the aircraft” under the exemption in 10 CFR 40.13(c)(5). Instead, the counterweight would be considered “stored” on the former aircraft. A counterweight stored on a former aircraft would be held with conditions similar to those conditions that apply to counterweights stored in connection with installation or removal (
In cases where the counterweights are no longer planned to be used or specifically licensed, the counterweights may still be covered under the exemption during a reasonable period while arrangements are made to properly transfer the counterweights, as long as the counterweights continue to be maintained in proper condition (
The NRC recognizes that some counterweights have been inappropriately sent to scrap yards or recyclers in the past. As the petitioner points out, a review of data in NMED indicates that alarms have been set off at scrap yards. The current exemption does not expressly prohibit transfers to any persons, including scrap yards or recyclers. However, the physical, metallurgical, or chemical modification of the counterweight is prohibited; therefore, counterweights should not be sent to locations where, in all likelihood, they will be altered or modified. Further, the detection and recovery of counterweights inappropriately sent to scrap yards or recyclers can lead to additional costs for the transferor or recipient. Although the NRC could amend the existing exemption to prohibit transfers to recyclers or scrap yards, the NRC does not believe that such an amendment would significantly reduce the number of these inappropriate transfers. The current regulation requires that counterweights held under this exemption must be labeled “Unauthorized Alterations Prohibited.” The NRC believes that persons who have inappropriately transferred counterweights to a recycle or scrap yard, despite the existing labeling on the counterweight, may not be aware of the prohibitions listed in the exemption itself. If a regulation requiring reporting of transfers were implemented, the transfer report might make it easier to identify the transferor so that appropriate action to retrieve the counterweight could be taken. However, the NRC believes that if someone were aware of these reporting requirements, they would likely be cognizant that the transfer to a recycler or a scrap yard is not allowed to begin with.
During resolution of the petition, the NRC considered additional options for rulemaking that might clarify the intent of this regulation and increase control over the use of depleted uranium aircraft counterweights. The NRC considered two types of rulemaking actions: (1) Specific licensing and (2) development of a general license specifically applicable to aircraft counterweights. In both cases, the NRC's analysis concluded that any benefits of the action were small compared to the costs and potential impacts associated with the action.
In the case of specific licensing, the costs to the industry and government would involve development and review of applications, and inspection of the new licensees. Because the NRC has no evidence to indicate that public health and safety is significantly impacted under the current exemption, the NRC believes the costs to implement specific
Although implementation of a general license would presumably add additional requirements to those found in the existing exemption, the general license would be less burdensome to both holders of the counterweights and the government than a specific license. However, the NRC believes that the costs related to regulatory development and implementation are still believed to outweigh any benefits that might be achieved by the creation of a general license. As with specific licensing, the options for disposal could be limited to low-level waste facilities, thus increasing the regulatory burden and costs for disposal. Although the NRC could develop a general license which allows some of the same disposal/transfer options that are currently available, State regulations and/or the licenses of disposal facilities may preempt the utilization of those options.
The NRC determined that modifying the exemption in 10 CFR 40.13(c)(5) or increasing the regulatory structure (through a new general license or specifically licensing the holders), pursuant to the petitioner's request would add little, if any, additional benefits to the protection of public health and safety. Therefore, the NRC is denying the petitioner's request that the exemption in 10 CFR 40.13(c)(5) be amended to clarify the requirements for storage. However, the NRC believes that most of the petitioner's apparent goals can be better achieved by publication of guidance in the form of a new RIS. The purpose of the guidance would be to clarify the intent of the existing regulations related to storage of depleted uranium aircraft counterweights. The NRC would issue the guidance to known holders of aircraft counterweights and other agencies and organizations that may have occasion to be interested in counterweights.
In a supplement to this petition (February 2001), the petitioner suggested that 10 CFR 40.13(c)(5) should be amended to clarify that only counterweights manufactured from depleted uranium, and not natural uranium, are covered under the exemption. Currently 10 CFR 40.13(c)(5) begins “Uranium contained in.* * *.” The petitioner identifies an apparent inconsistency with the labeling requirements in 10 CFR 40.13(c)(5)(ii) that require the counterweight to be impressed with “Depleted Uranium.” As a result, the petitioner states that the exemption should be more specific to begin the exemption with “Depleted uranium contained in.* * *.”
A historical review of this issue indicates that the exemption was originally meant to apply to counterweights manufactured from both natural uranium and depleted uranium. On July 18, 1969 (34 FR 12107), a proposed rule was published in the
The petitioner also requested that the NRC modify its regulations in 10 CFR 40.13(c)(5)(iv) to better delineate the scope of activities allowed as part of the repair or restoration of the plating or covering of an aircraft counterweight. The petitioner is concerned that some activities could impact the depleted uranium within the counterweight. The paragraph in question states “The exemption contained in this paragraph shall not be deemed to authorize the chemical, physical, or metallurgical treatment or processing of any such counterweights other than repair or restoration of any plating or any other covering.” The intent of this paragraph is to delineate the scope of activities allowed under the exemption. Although the counterweight may be modified to restore or repair the plating or covering around the counterweight, the depleted uranium within the counterweight cannot be altered at any time under the exemption, even as part of restoration or repair of the plating or other covering. As a result, actions such as chemical baths, sanding of oxidized depleted uranium, or electroplating, each of which would likely result in modification of the depleted uranium counterweight itself, are not permitted under the exemption. However, repainting or placing a new covering over the counterweight (to the extent it does not interact with the depleted uranium in the counterweight) is permitted under the exemption as the long as the impressings and other required markings remain legible as required under 10 CFR 40.13(c)(5)(ii) and (iii). The NRC is denying this issue in the petition because it has been determined that the existing regulation conforms with the petitioner's request and does not require additional clarification through rulemaking. However, the NRC believes that it may be worthwhile to provide additional guidance related to this aspect of the exemption. Therefore, the NRC plans to address this issue in the proposed RIS by clarifying the intent of the existing regulations related to the restoration and repair of depleted uranium counterweights.
In conclusion, no new information has been provided by the petitioner to support the petitioner's request that additional rulemaking is necessary at this time. Existing NRC regulations provide the basis for reasonable assurance that the common defense and security and public health and safety are adequately protected. Additional rulemaking would impose unnecessary regulatory burden and does not appear to be warranted. However, NRC does believe that some additional clarification, as originally requested by the petitioner, can be provided through guidance. Therefore, the NRC plans to issue a regulatory information summary which will provide clarification of the existing exemption as related to (1) long-term storage of the counterweights, (2) restoration and repair of the counterweights, and (3) removal of the counterweights from aircraft, rockets, projectiles, and missiles.
For the reasons cited in this document, the NRC denies this petition.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) that applies to certain EMBRAER Model EMB-135 and -145 series airplanes. The existing AD currently requires revising the airplane flight manual (AFM) to prohibit in-flight auxiliary power unit (APU) starts, and installing a placard on or near the APU start/stop switch panel to provide such instructions to the flightcrew. This proposed AD would add an optional revision to the AFM that allows limited APU starts and would add a terminating action. This proposed AD is prompted by the airplane manufacturer developing modifications that revise or eliminate the need for restrictions to in-flight APU starts. We are proposing this AD to prevent flame backflow into the APU compartment through the eductor during in-flight APU starts, which could result in fire in the APU compartment.
We must receive comments on this proposed AD by February 11, 2005.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590.
• Fax: (202) 493-2251.
• 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.
For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343-CEP 12.225, Sao Jose dos Campos—SP, Brazil.
You can examine the contents of this AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You can examine the AD docket on the Internet
On May 7, 2001, we issued AD 2001-10-01, amendment 39-12226 (66 FR 24049, May 11, 2001), for certain EMBRAER Model EMB-135 and EMB-145 series airplanes. That AD requires revising the FAA-approved Airplane Flight Manual (AFM) to prohibit in-flight auxiliary power unit (APU) starts, and installing a placard on or near the APU start/stop switch panel to provide such instructions to the flight crew. That AD was prompted by reports that two APU fire alarms were triggered during in-flight APU starts. We issued that AD to prevent flame backflow into the APU compartment through the eductor during in-flight APU starts, which could result in fire in the APU compartment.
Since we issued AD 2001-10-01, the airplane manufacturer has developed modifications specified in several service bulletins that allow for a change to restrictions placed on in-flight APU starts as well as the elimination of the need for restrictions placed on in-flight APU starts. We have determined that these modifications address the identified unsafe condition and enable operators to do in-flight APU starts.
Also, the preamble to AD 2001-10-01 explains that we considered the requirements of that AD “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.
EMBRAER has issued the following service bulletins:
• EMBRAER Alert Service Bulletin 145-49-A017, dated April 12, 2001, which describes procedures for installing a placard in the pedestal panel.
• EMBRAER Service Bulletin 145-49-0017, Change 01, dated June 7, 2001, which describes procedures for measuring the gap between the APU and the APU exhaust silencer, installing a flush-type APU air inlet, part number (P/N) 120-45060-001, installing a
• EMBRAER Service Bulletin 145-49-0018, Change 03, dated January 3, 2002, which describes procedures for measuring the gap between the APU and the APU exhaust silencer, installing a flush-type APU air inlet, P/N 145-48999-401, removing a placard, reidentifying the APU cowling, and contacting the manufacturer if measurements are not within the limits specified in the service bulletin. The service bulletin also specifies prior to or concurrent accomplishment of EMBRAER Service Bulletin 145-49-0009.
• EMBRAER Service Bulletin 145-49-0009, Change 07, dated September 1, 2002, which describes procedures for installing an APU silencer.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The Departmento de Aviacao Civil (DAC) issued Brazilian airworthiness directive 2001-04-02R2, dated June 29, 2001, to ensure the continued airworthiness of these airplanes in Brazil. The Brazilian airworthiness directive references procedures specified in the service information.
These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. We have examined the DAC's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would supersede AD 2001-10-01. This proposed AD would retain the actions required in AD 2001-10-01. The proposed AD would also require accomplishing the actions specified in the service bulletins described previously, as applicable, except as discussed under “Difference Between the Proposed AD and Service Bulletins.”
EMBRAER Service Bulletin 145-49-0017, Change 01, dated June 7, 2001; and EMBRAER Service Bulletin 145-49-0018, Change 03, dated January 3, 2002; specify that you may contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require you to repair those conditions using a method that we or the DAC (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or the DAC approve would be acceptable for compliance with this proposed AD.
Operators should note the following differences between the proposed AD and Brazilian airworthiness directive 2001-04-02R2, dated June 29, 2001:
The Brazilian airworthiness directive references EMBRAER Service Bulletin 145-49-0009, Revision 03, dated May 15, 2001, for accomplishing the optional terminating action. This proposed AD specifies that terminating action be done within 8,000 flight hours after the effective date of the AD in accordance with EMBRAER Service Bulletin 145-49-0009, Change 07, dated September 1, 2002. We have not given credit for actions done with previous issues of the service bulletin because there is additional work needed in Change 07 of the service bulletin. Mandating the terminating action is based on our determination that, in this case, long-term continued operational safety would be better ensured by a modification to remove the source of the problem, rather than by revising flight procedures. While revising flight procedures ensures that the flightcrew is informed that an unsafe condition may exist, it does not remove the source of that unsafe condition. Human factors (
The Brazilian airworthiness directive also references EMBRAER Service Bulletin 145-49-0018, original issue, or further revisions, for accomplishing the optional terminating action. This proposed AD specifies the terminating action also be done in accordance with EMBRAER Service Bulletin 145-49-0018, Change 03, dated January 3, 2002. We have not given credit for actions done with previous issues of the service bulletin because there is additional work needed in Change 03 of the service bulletin.
These differences have been coordinated with the Brazilian airworthiness authority.
AD 2001-10-01 has an applicability that specifies “ * * * with Hamilton Sundstrand Power Systems auxiliary power unit (APU) model T-62T-40C14 (APS 500R).” This proposed AD has an applicability that specifies “ * * * with Hamilton Sundstrand auxiliary power unit (APU) model T-62T-40C14 (APU 500R).” The “S” in APS 500R of the applicability of AD 2001-10-01 is a typographical error; APU 500R is the correct nomenclature. We also revised the nomenclature of the APU manufacturer from Hamilton Sundstrand Power Systems to Hamilton Sundstrand, which matches the nomenclature specified in the Brazilian airworthiness directive.
This proposed AD would retain all requirements of AD 2001-10-01. Since AD 2001-10-01 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing amendment 39-12226 (66 FR 24049, May 11, 2001) and adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration must receive comments on this AD action by February 11, 2005.
(b) This AD supersedes AD 2001-10-01, amendment 39-12226 (66 FR 24049, May 11, 2001).
(c) This AD applies to EMBRAER Model EMB-135 and -145 series airplanes, certificated in any category, equipped with Hamilton Sundstrand auxiliary power unit (APU) model T-62T-40C14 (APU 500R).
(d) This AD was prompted by the airplane manufacturer developing modifications that revise or eliminate the need for restrictions to in-flight APU starts. We are issuing this AD to prevent flame backflow into the APU compartment through the eductor during in-flight APU starts, which could result in fire in the APU compartment.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 25 flight hours or 10 days after May 29, 2001 (the effective date of AD 2001-10-01), whichever occurs first, accomplish the actions required by paragraphs (f)(1) and (f)(2) of this AD.
(1) Install a placard on or near the APU start/stop switch panel that reads:
Installing a placard in accordance with EMBRAER Alert Service Bulletin 145-49-A017, dated April 12, 2001, is acceptable for compliance with the action required by paragraph (f)(1) of this AD.
(2) Revise the Limitations section of the AFM to include the information on the placard, as specified in paragraph (f)(1) of this AD, and to limit APU starts to ground conditions only. This may be accomplished by inserting a copy of this AD in the AFM.
Because APU starts are prohibited in flight when an engine-driven generator is inoperative, the APU must be started on the ground in order to dispatch, and the APU must be kept operational for the entire flight.
(g) Doing the actions specified in paragraphs (g)(1) and (g)(2) of this AD in accordance with EMBRAER Service Bulletin 145-49-0017, Change 01, dated June 7, 2001, terminates the requirements of paragraph (f) of this AD.
(1) Measure the gap between the APU and the APU exhaust silencer, install a flush-type APU air inlet, and install or replace, as applicable, the placard on or near the APU start/stop switch panel with a placard that reads:
(2) Revise the Limitations section of the AFM to include the information on the placard specified in paragraph (g)(1) of this AD to limit APU starts. This may be accomplished by inserting a copy of this AD
(h) Within 8,000 flight hours after the effective date of this AD, measure the gap between the APU and the APU exhaust silencer, install a flush type APU air inlet, remove any placard on or near the APU start/stop switch panel that limits APU starts, and reidentify the APU cowling, in accordance with EMBRAER Service Bulletin 145-49-0018, Change 03, dated January 3, 2002, except as provided by paragraph (j) of this AD. Doing the actions in paragraph (h) of this AD terminates the requirements of paragraphs (f) and (g) of this AD and any copy of AD 2001-10-01 or this AD may be removed from the AFM.
(i) Prior to or concurrently with the actions specified in paragraphs (g) and (h) of this AD, install an APU silencer in accordance with EMBRAER Service Bulletin 145-49-0009, Change 07, dated September 1, 2002.
(j) If, during the actions required by paragraphs (g) and (h) of this AD, any measurement exceeds the limits specified in EMBRAER Service Bulletin 145-49-0017, Change 01, dated June 7, 2001; or EMBRAER Service Bulletin 145-49-0018, Change 03, dated January 3, 2002; as applicable; and the service bulletin specifies to contact EMBRAER: Before further flight, repair per a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the DAC (or its delegated agent).
(k) Actions accomplished before the effective date of this AD according to EMBRAER Service Bulletin 145-49-0017, dated May 15, 2001, are considered acceptable for compliance with the corresponding actions specified in this AD.
(l)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) AMOCs approved previously in accordance with AD 2001-10-01, amendment 39-12226, are approved as AMOCs for the corresponding requirements in paragraph (f) of this AD.
(m) Brazilian airworthiness directive 2001-04-02R2, dated June 29, 2001, also addresses the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) that applies to certain Boeing Model 707 airplanes and Model 720 and 720B series airplanes. The existing AD currently requires a preventive modification of the front spar fitting on the outboard engine nacelle. This proposed AD would remove the requirement to do this preventive modification, and would require repetitive inspections for cracking of the front spar fitting of the inboard and outboard nacelle struts, and replacement of any cracked fitting with a new fitting. The proposed AD would also apply to more airplanes. This proposed AD is prompted by a report indicating that a crack was found in a front spar fitting that had been replaced as part of the modification required by the existing AD. We are proposing this AD to detect and correct this cracking, which could result in reduced structural integrity of the engine nacelle, and consequent separation of an engine from the airplane.
We must receive comments on this proposed AD by February 28, 2005.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590.
• Fax: (202) 493-2251.
• 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.
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You can examine the contents of this AD docket on the Internet at
Candice Gerretsen, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6428; fax (425) 917-6590.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You can examine the AD docket on the Internet at
On August 20, 2001, we issued AD 2001-17-24, amendment 39-12415 (66 FR 45572, August 29, 2001), for certain Boeing Model 707 airplanes and 720 and 720B series airplanes. That AD requires a preventive modification of the front spar fitting on the outboard engine nacelle. That AD was prompted by reports indicating that fatigue cracks have been found in the front spar fitting on the outboard engine nacelle. We issued that AD to prevent this fatigue cracking, which could reduce the structural integrity of the nacelle and result in separation of the engine from the airplane.
Since we issued AD 2001-17-24, we have received a report indicating that a crack was found in a front spar fitting that had been previously modified as required by AD 2001-17-24. This report led to a determination that the currently required modification is not effective in preventing the previously identified unsafe condition.
Since we issued AD 2001-17-24, we have also determined that the front spar fitting on the inboard engine nacelle may also be subject to the same unsafe condition found on the outboard engine nacelle.
We have reviewed Boeing Alert Service Bulletin A3514, dated July 29, 2004. The service bulletin describes procedures for performing repetitive detailed inspections for cracking of the upper surface of the front spar fitting of nacelle struts 1, 2, 3, and 4; and replacing any cracked fitting with a new fitting.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. This proposed AD would supersede AD 2001-17-24. This proposed AD would remove the requirement to do the preventive modification of the front spar fitting on the outboard engine nacelle. This proposed AD would require repetitive inspections for cracking of the front spar fitting of the inboard and outboard nacelle struts, and replacement of any cracked fitting with a new fitting. The proposed AD would also apply to more airplanes because it would apply to airplanes having front spar fittings previously modified during production.
We have revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models.
There are about 290 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing amendment 39-12415 (66 FR 45572, August 29, 2001) and adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration must receive comments on this airworthiness directive (AD) action by February 28, 2005.
(b) This AD supersedes AD 2001-17-24, amendment 39-12415 (66 FR 45572, August 29, 2001).
(c) This AD applies to Boeing Model 707-100 long body, -200, -100B long body, and -100B short body series airplanes; Model 707-300, -300B, -300C, and -400 series airplanes; and Model 720 and 720B series airplanes; certificated in any category; having line numbers 1 through 1012 inclusive.
(d) This AD was prompted by a report indicating that a crack was found in a front spar fitting that had been replaced as part of the modification required by AD 2001-17-24, amendment 39-12415. We are issuing this AD to detect and correct this cracking, which could result in reduced structural integrity of the engine nacelle, and consequent separation of an engine from the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Prior to the accumulation of 3,500 total flight hours, or within 18 months after the effective date of this AD, whichever occurs later: Do a detailed inspection for cracking of the front spar fitting of the inboard and outboard nacelles according to the Accomplishment Instructions of Boeing Alert Service Bulletin A3514, dated July 29, 2004. Repeat the inspection thereafter at intervals not to exceed 700 flight hours.
There is no terminating action at this time for the repetitive inspections required by paragraph (f) of this AD.
(g) If any cracking is found during any inspection required by paragraph (f) of this AD: Before further flight, replace the cracked front spar fitting with a new fitting, according to the Accomplishment Instructions of Boeing Alert Service Bulletin A3514, dated July 29, 2004.
(h)(1) As of October 3, 2001 (the effective date of AD 2001-17-24, amendment 39-12415), no person may install a front spar fitting, part number 65-2532 or 65-2532-5, on the outboard engine nacelle on any airplane.
(2) As of the effective date of this AD, no person may install, on any airplane, a front spar fitting having a part number other than the part numbers specified in paragraph 2.C.2. of Boeing Alert Service Bulletin A3514, dated July 29, 2004.
(i)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) An AMOC that provides an acceptable level of safety may be used for any repair that is required by this AD, if it is approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the approval must specifically refer to this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain McDonnell Douglas transport category airplanes. This proposed AD would require doing repetitive detailed inspections for accumulation of debris (blockage) of the drain holes of the pitot tubes, and cleaning if any evidence of debris is found. This proposed AD is prompted by reports of blocked drain holes of the pitot tubes. We are proposing this AD to prevent blocked drain holes of the pitot tubes, which could result in the accumulation of water in the pitot-static system and consequent failure of that system. Failure of the pitot-static system could result in erroneous airspeed indications in the cockpit and consequent loss of airspeed control.
We must receive comments on this proposed AD by February 28, 2005.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
•
•
•
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024).
You can examine the contents of this AD docket on the Internet at
The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2005-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2005-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at
You can examine the AD docket on the Internet at
On November 6, 1996, a McDonnell Douglas Model MD-11 airplane departed the end of the runway after landing in instrument meteorological conditions in Buenos Aires, Argentina. During approach to landing, the flight crew had several in-flight advisories, and the airplane excessively vibrated. The vibration was attributed to a flap overspeed condition caused by erroneous airspeed indications. Investigation revealed that the pitot-static system had accumulated a significant amount of water. The drain holes on two of the three pitot tubes were completely blocked by debris. The third pitot tube had one drain hole totally blocked and the other hole partially blocked.
In 1997, a similar incident of blocked drain holes of the pitot tubes occurred on another Model MD-11 airplane. Although the design of the pitot-static system was reviewed and found to meet FAA regulations, we determined that the maintenance task cards used by operators lacked sufficient detail about inspecting the drain holes of the pitot tubes. To correct this, in 2002, Boeing issued a report recommending additional maintenance actions. Since then there have been additional similar incidents, indicating that the manufacturer's recommendations have not been fully implemented.
Blocked drain holes of the pitot tubes, if not corrected, could result in the accumulation of water in the pitot-static system and consequent failure of that system. Failure of the pitot-static system could result in erroneous airspeed indications in the cockpit and consequent loss of airspeed control.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require doing repetitive detailed inspections (
There are about 314 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 216 airplanes of U.S. registry. The proposed inspections would take about 2 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $28,080, or $130 per airplane, per inspection cycle.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration (FAA) must receive comments on this AD action by February 28, 2005.
(b) None.
(c) This AD applies to all McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, DC-10-40F, MD-10-10F, MD-10-30F, MD-11, and MD-11F airplanes; certificated in any category.
(d) This AD was prompted by reports of blocked drain holes of the pitot tubes. We are issuing this AD to prevent blocked drain holes of the pitot tubes, which could result in the accumulation of water in the pitot-static system and consequent failure of that system. Failure of the pitot-static system could result in erroneous airspeed indications in the cockpit and consequent loss of airspeed control.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 90 days after the effective date of this AD, do a detailed inspection for accumulation of debris (blockage) of the drain holes of the pitot tubes in accordance with paragraphs (g) and (h) of this AD. The actions required by paragraph (g) must be done before those in paragraph (h) of this AD. Repeat the inspection thereafter at intervals not to exceed 650 flight hours.
For the purposes of this AD, a detailed inspection is “an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirrors magnifying lenses, etc. may be necessary. Surface cleaning and elaborate procedures may be required.”
(g) Do a visual check in accordance with paragraphs (g)(1) through (g)(3) of this AD. The visual check must be done by certificated maintenance personnel.
(1) Make certain that the pitot heat is off and the pitot tubes are not hot.
Caution. Exercise care in checking pitot tubes to prevent severe burns to your hands.
(2) Attempt to look through the left and right drain holes of each pitot tube.
(3) Make sure that ambient light (or flashlight) is visible through both drain holes of each pitot tube.
(h) Do a forced air check in accordance with paragraphs (h)(1) through (h)(3) of this AD. The forced air check must be done by certificated maintenance personnel.
Exercise care in checking pitot tubes to prevent severe burns to your hands.
(1) Make certain that the pitot heat is off and the pitot tubes are not hot.
Excessive, as well as sudden, pressurization or depressurization applied to a pitot system by either method can cause damage to instruments. Do not exceed 9.0 pounds per square inch (psi) or 550 knots when pressurizing the system. Do not exceed 1.0 psi per second or 90 knots per second when pressurizing or depressurizing the system.
(2) Three methods are given in Table 1 of this AD. Only one test must be done and all are equivalent.
(3) Check for airflow out of each drain hole. Make sure that you do not cover the drain holes when checking.
(i) If test method 3 in paragraph (h)(2)(iii) of this AD is used, an air data line tester with pitot and static port adapters is required.
(j) If any evidence of drain hole blockage (
(k) The Manager, Los Angeles ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 767-400ER, 777-200, and 777-300 series airplanes. This proposed AD would require replacing, with new parts, the existing tie-down fitting studs that secure galleys, purser work stations, and closets to the seat tracks. This proposed AD is prompted by a report that tie-down fitting studs were found damaged. We are proposing this AD to prevent a galley, purser work station, or closet from detaching from the tie-down fitting studs during an emergency landing, which could injure passengers or crewmembers, or obstruct escape routes and impede emergency evacuation.
We must receive comments on this proposed AD by February 28, 2005.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW, Nassif Building, room PL-401, Washington, DC 20590.
• By fax: (202) 493-2251.
• 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.
For service information identified in this proposed AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You can examine the contents of this AD docket on the Internet at
Robert Kaufman, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6433; fax (425) 917-6590.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You can examine the AD docket on the Internet at
We have received a report indicating that tie-down fitting studs, which secure galleys, purser work stations, and closets to the seat tracks, have been found cracked or deformed on a Boeing 777-200 series airplane during production. Investigation revealed that the original torque values were too high, which damaged the fitting studs during installation. This condition, if not corrected, could result in a galley, purser work station, or closet detaching from the tie-down fitting studs during an emergency landing, which could injure passengers or crewmembers, or obstruct escape routes and impede emergency evacuation.
The subject tie-down fitting studs were also installed on Boeing Model 767-400ER and 777-300 series airplanes using the same original torque values used on Model 777-200 series airplanes. Therefore, all of these models may be subject to the same unsafe condition.
We have reviewed Boeing Service Bulletins 767-25-0338, dated October 9, 2003; and 777-25-0217, dated July 17, 2003. Those service bulletins describe procedures for replacing, with new parts, the existing tie-down fitting studs that secure galleys, purser work stations, and floor-mounted closets to the seat tracks. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Information.”
The compliance time for the actions that would be required by the proposed AD differs from the compliance times recommended in the service information. Boeing Service Bulletin 767-25-0338 recommends doing the actions “at the next maintenance period when manpower and facilities are available.” Boeing Service Bulletin 777-25-0217 recommends doing the actions at the “next convenient maintenance opportunity, not to exceed 7 years from the initial release” of the service bulletin. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, and the time necessary to perform the proposed actions. In light of all of these factors, we find that a 60-month compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. We have coordinated this difference with Boeing, and they concur with our proposed compliance time.
There are about 349 airplanes of the affected design in the worldwide fleet, including about 118 U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this proposed AD, at an average labor rate of $65 per hour.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration (FAA) must receive comments on this AD action by February 28, 2005.
(b) None.
(c) This AD applies to Boeing Model 767-400ER series airplanes, certificated in any category, having Variable Numbers VQ071 through VQ076 inclusive; and Model 777-200 and -300 series airplanes, certificated in any category, as listed in Boeing Service Bulletin 777-25-0217, dated July 17, 2003.
(d) This AD was prompted by a report that tie-down fitting studs were found damaged. We are issuing this AD to prevent a galley, purser work station, or closet from detaching from the tie-down fitting studs during an emergency landing, which could injure passengers or crewmembers, or obstruct escape routes and impede emergency evacuation.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 60 months after the effective date of this AD: Replace, with new parts, the existing tie-down fitting studs that secure galleys, purser work stations, and floor-mounted closets to the seat tracks, by doing all actions in accordance with the Accomplishment Instructions of Boeing Service Bulletin 767-25-0338, dated October 9, 2003 (for Boeing Model 767-400ER series airplanes); or Boeing Service Bulletin 777-25-0217, dated July 17, 2003 (for Boeing Model 777-200 and -300 series airplanes); as applicable.
(g) For Boeing Model 777-200 and -300 series airplanes: Replacements accomplished before the effective date of this AD according to Boeing Service Bulletin 777-25-0217, dated July 18, 2002, are considered acceptable for compliance with the corresponding action specified in this AD.
(h) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
Federal Aviation Administration, DOT.
Proposed rule; withdrawal.
This action withdraws a notice of proposed rulemaking (NPRM) that proposed a new airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes. That action would have required installing shield assemblies for power feeder cables in the forward and aft lower cargo compartments, and installing an additional shield for the power feeder cable of the auxiliary power unit in the aft lower cargo compartment. Since the issuance of the NPRM, the Federal Aviation Administration (FAA) has determined that the proposed requirements are included in the requirements of another existing AD; the NPRM does not contain any new requirements beyond those of the existing AD. Accordingly, the proposed rule is withdrawn.
Elvin K. Wheeler, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5344; fax (562) 627-5210.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes; was published in the
We have considered the comments that have been submitted on the proposed AD. One commenter points out that an existing AD, AD 94-09-02, amendment 39-8890 (59 FR 18720, April 20, 1994), currently requires accomplishment of the original issue of Boeing Service Bulletin MD80-24-100. The commenter further states that all affected airplanes listed in Revision 04 of that service bulletin (referenced as the appropriate source of service information in the proposed rule) were affected by the previous revisions of that service bulletin, and that the proposed rule contains no new requirements beyond those required by the existing AD.
We agree. We have determined that the requirements of the proposed rule are included in the requirements of another existing AD. The existing AD, AD 94-09-02, is applicable to certain McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) series airplanes; and Model MD-88 airplanes; as listed in McDonnell Douglas MD-80 Service Bulletin 24-94, Revision 1, dated May 28, 1987, and McDonnell Douglas Model MD-80 Service Bulletin 24-100, dated March 30, 1988. That AD requires an inspection to detect damage of the auxiliary power unit (APU) power feeder cable installation, repair of damaged cables, modification of the cable installation, and an inspection of previously modified airplanes to determine whether a spacer or “stand off” has been installed, and installation of those items, if necessary. That action was prompted by reports of generator power feeder cables electrically shorting to the airplane structure due to chafing. The requirements of that AD are intended to prevent the APU power feeder cable from chafing against adjacent structures, which could result in electrical shorting and arcing, and a fire below the cabin floor.
Additionally, AD 94-09-02 references McDonnell Douglas MD-80 Service Bulletin 24-100, dated March 30, 1988, as the appropriate source of service information for accomplishing the modification. The proposed rule references McDonnell Douglas Alert Service Bulletin MD80-24A100, Revision 04, dated January 24, 2000, as the appropriate source of service information for accomplishing the modification (installing shield assemblies for power feeder cables). Revision 04 was issued merely to elevate the service bulletin to the “alert” status and to reference AD 94-09-02; no additional work is required. All airplanes affected by Revision 04 are also affected by the previous revisions of the service bulletin.
The proposed rule does not contain any new requirements beyond those required by AD 94-09-02. Accomplishment of the requirements of AD 94-09-02 adequately addresses the identified unsafe condition.
Upon further consideration, the FAA has determined that the proposed requirements are included in the requirements of another existing AD; the proposed rule does not contain any new requirements beyond those of the existing AD. Accordingly, the proposed rule is hereby withdrawn.
Withdrawal of this NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future.
Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, the notice of proposed rulemaking, Docket 2000-NM-168-AD, published in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus Model A330, A340-200, and A340-300 series airplanes. This proposed AD would require repetitive inspections of a certain bracket that attaches the flight deck instrument panel to the airplane structure, replacement of the bracket with a new, improved bracket, and related investigative and corrective actions if necessary. This proposed AD is prompted by reports of cracking of a certain bracket that attaches the flight deck instrument panel to the airplane structure. We are proposing this AD to detect and correct a cracked bracket. Failure of this bracket, combined with failure of the horizontal beam, could result in collapse of the left part of the flight deck instrument panel, and consequent reduced controllability of the airplane.
We must receive comments on this proposed AD by February 11, 2005.
Use one of the following addresses to submit comments on this proposed AD.
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, room PL-401, Washington, DC 20590.
• By fax: (202) 493-2251.
• 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.
For service information identified in this proposed AD, contact Airbus, 1 Rond Point Maurice Belonte, 31707 Blagnac Cedex, France.
You can examine the contents of this AD docket on the Internet at
Tim Backman, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2797; fax (425) 227-1149.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You can examine the AD docket on the Internet at
The Direction Génénrale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on all Airbus Model A330, A340-200, and A340-300 series airplanes. The DGAC advises that a certain bracket, one of eight parts that attaches the flight deck instrument panel to airplane structure, has been found cracked on several airplanes. In one case, the bracket was completely broken. The cracking has been attributed to tightening of the bracket during assembly, combined with further effects of differential pressure and flight loads. Failure of the bracket cannot be detected without an inspection. If the horizontal beam also fails, failure of this bracket could lead to collapse of the left part of the flight deck instrument panel, and consequent reduced controllability of the airplane.
Airbus has issued Service Bulletins A330-25-3227 and A340-25-4230, both including Appendix 01, both dated June 17, 2004. The service bulletins describe procedures for performing repetitive detailed visual inspections of a certain bracket that attaches the flight deck instrument panel to airplane structure, and replacing the bracket with a new, improved bracket if necessary. If both flanges of the bracket are cracked, the service bulletin recommends contacting Airbus for further action. The DGAC mandated the service information and issued French airworthiness directives F-2004-140 and F-2004-141, both dated August 18, 2004, to ensure the continued airworthiness of these airplanes in France.
These airplanes models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Among the Proposed AD, the French Airworthiness Directives, and the Service Information.” The proposed AD would also require sending the inspection results for any cracked bracket to Airbus.
If you find both flanges of a subject bracket broken, the service information and French airworthiness directives F-2004-140 and F-2004-141 instruct you to contact Airbus. This proposed AD would require that, if you find both flanges of a bracket broken, before further flight, you replace the bracket and perform any applicable related investigative and corrective actions in accordance with a method approved by the FAA or the DGAC (or its delegated agent). These related investigative and corrective actions may include inspections for damage to surrounding structure caused by the broken bracket, and corrective actions for any damage that is found.
For Model A330 series airplanes, Airbus Service Bulletins A330-25-3227 and French airworthiness directive F-2004-140 specify an initial inspection threshold of 16,500 total flight cycles. This proposed AD would require you to perform the initial inspection prior to the accumulation of 16,500 total flight cycles or within 60 days after the effective date of the AD, whichever is later. We have included a 60-day grace period to ensure that any airplane that is close to or has passed the 16,500-total-flight-cycle threshold is not grounded as of the effective date of the AD.
In this proposed AD, the “detailed visual inspection” specified in the Airbus service bulletins is referred to as a “detailed inspection.” We have included the definition for a detailed inspection in a note in the proposed AD.
We consider this proposed AD interim action. If final action is later identified, we may consider further rulemaking then.
This proposed AD would affect about 19 Model A330 series airplanes of U.S. registry. The proposed inspection would take about 1 work hour per airplane, per inspection cycle, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $1,235, or $65 per airplane, per inspection cycle.
There are currently no affected Model A340-200 and -300 series airplanes of U.S. registry. However, if one of these airplanes is imported and put on the U.S. Register in the future, this cost estimate will also apply to those airplanes.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. 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 regulatory evaluation of the estimated costs to comply with this proposed AD. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The Federal Aviation Administration must receive comments on this AD action by February 11, 2005.
(b) None.
(c) This AD applies to all Airbus Model A330, A340-200, and A340-300 series airplanes, certificated in any category.
(d) This AD was prompted by reports of cracking of a certain bracket that attaches the flight deck instrument panel to the airplane structure. We are issuing this AD to detect and correct a cracked bracket. Failure of this bracket, combined with failure of the horizontal beam, could result in collapse of the left part of the flight deck instrument panel, and consequent reduced controllability of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Airbus Service Bulletins A330-25-3227 (for Model A330 series airplanes) and A340-25-4230 (for Model A340-200 and -300 series airplanes), both including Appendix 01, and both dated June 17, 2004, as applicable.
(g) At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD, perform a detailed inspection of the bracket having part number (P/N) F2511012920000, which attaches the flight deck instrument panel to airplane structure, in accordance with the service bulletin.
(1) For Model A330 series airplanes: Prior to the accumulation of 16,500 total flight cycles, or within 60 days after the effective date of this AD, whichever is later.
(2) For Model A340-200 and -300 series airplanes: Prior to the accumulation of 9,700 total flight cycles, or within 2,700 flight cycles after the effective date of this AD, whichever is later.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(h) If no cracking is found during the initial inspection required by paragraph (g) of this AD: Repeat the inspection thereafter at the applicable interval specified in paragraph (h)(1) or (h)(2) of this AD.
(1) For Model A330 series airplanes: Intervals not to exceed 13,800 flight cycles.
(2) For Model A340-200 and -300 series airplanes: Intervals not to exceed 7,000 flight cycles.
(i) If any cracking is found during any inspection required by paragraph (g) or (h) of this AD: Do the actions in paragraphs (i)(1), (i)(2), and (i)(3) of this AD, except as provided by paragraph (j) of this AD.
(1) Before further flight: Replace the cracked bracket with a new, improved bracket having P/N F2511012920095, in accordance with the service bulletin.
(2) Within 30 days after performing the inspection, or within 30 days after the effective date of this AD, whichever is later: Report the cracked fitting to Airbus, Department AI/SE-A21, 1 Round Point Maurice Bellonte, 31707 Blagnac Cedex, France. The report must include the airplane serial number, the number of flight cycles and flight hours on the airplane, the date of the inspection, and whether both flanges of a bracket are broken. Submitting Appendix 01 of the applicable service bulletin is acceptable for compliance with this paragraph. Under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(3) Inspect the replaced bracket at the time specified in paragraph (i)(3)(i) or (i)(3)(ii) of this AD. Then, do repetitive inspections or replace the bracket as specified in paragraph (h) or (i) of this AD, as applicable.
(i) For Model A330 series airplanes: Within 16,500 flight cycles.
(ii) For Model A340-200 and -300 series airplanes: Within 9,700 flight cycles.
(j) If both flanges of a bracket are broken: Before further flight, replace the bracket and
(k) The Manager, International Branch, ANM-116, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(l) French airworthiness directives F-2004-140 and F-2004-141, both dated August 18, 2004, also address the subject of this AD.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Eagle Aircraft (Malaysia) Sdn. Bhd. Model Eagle 150B airplanes. This proposed AD would require you to modify or replace the co-pilot rudder pedal assembly. This proposed AD results from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Malaysia. We are issuing this proposed AD to prevent binding of the co-pilot rudder pedal assembly due to premature wear of the bushing, which could result in loss of co-pilot rudder and brake control. This failure could result in loss of control of the airplane.
We must receive any comments on this proposed AD by February 11, 2005.
Use one of the following to submit comments on this proposed AD:
•
•
•
•
•
To get the service information identified in this proposed AD, contact Eagle Aircraft (Malaysia) Sdn. Bhd., P.O. Box 1028, Pejabat Pos Besar, Melanka, Malaysia, 75150; telephone: 011 (606) 317-4105; facsimile: 011 (606) 317-7213.
To view the comments to this proposed AD, go to
Karl Schletzbaum, Aerospace Engineer, Small Airplane Directorate, ACE-112, 901 Locust, Rm 301, Kansas City, Missouri 64106; telephone: (816) 329-4146; facsimile: (816) 329-4149.
Investigation revealed that the two incidents resulted from premature wear of the bushing, P/N 2720D08-39, in the co-pilot rudder pedal assembly. Premature wear of the bushing allowed it to slide out of the housing resulting in excessive play between the co-pilot rudder pedal assembly and the shaft. That condition caused the co-pilot rudder control pushrod pivot, P/N 2720D08-31/04, to bind with the co-pilot pivot arms, P/N 2720D08-42.
Stronger material is now used to manufacture the bushing and it has also been improved by including side stoppers.
Eagle Aircraft Optional Service Bulletin SB 1096, dated September 9, 2003, includes procedures for modifying the existing co-pilot rudder pedal assembly, P/N 2720D07-02, from a welded to a bolted design to allow individual parts replacement within the assembly and includes instructions for incorporating rudder control stoppers.
Eagle Aircraft Optional Service Bulletin SB 1097, dated September 9, 2003, includes procedures for replacing the existing co-pilot rudder pedal assembly, P/N 2720D07-02, with a new bolted design co-pilot rudder pedal assembly, P/N 2720D07-10.
Under this bilateral airworthiness agreement, the DCA has kept us informed of the situation described above.
Since the unsafe condition described previously is likely to exist or develop on other Eagle 150B airplanes of the same type design that are registered in the United States, we are proposing AD action to prevent binding of the co-pilot rudder pedal assembly due to premature wear of the bushing, which could result in loss of co-pilot rudder and brake control. This failure could result in loss of control of the airplane.
We estimate the following costs to accomplish the proposed 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 proposed AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD):
(a) We must receive comments on this proposed airworthiness directive (AD) by February 11, 2005.
(b) None.
(c) This AD affects Model Eagle 150B airplanes, manufacturer serial numbers (MSN) 016 through 042, that are:
(1) Equipped with a co-pilot rudder pedal assembly welded design, part number (P/N) 2720D07-02; and
(2) Certificated in any category.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Malaysia. We are issuing this AD to prevent binding of the co-pilot rudder pedal assembly due to premature wear of the bushing, which could result in loss of co-pilot rudder and brake control. This failure could result in loss of control of the airplane.
(e) To address this problem, you must do the following, unless already done:
(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, Standards Office, Small Airplane Directorate, FAA. For information on any already approved alternative methods of compliance, contact Karl Schletzbaum, Aerospace Engineer, Small Airplane Directorate, ACE-112, 901 Locust, Rm 301, Kansas City, Missouri, 64106; telephone: (816) 329-4146; facsimile: (816) 329-4149.
(g) The FAA can issue a special flight permit under sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate your airplane to a location where you can accomplish the requirements of this AD provided that the following is adhered to:
(1) Remove the co-pilot rudder pedal assembly, P/N 2720D07-02, from installation following Eagle Aircraft Mandatory Service Bulletin SB 1095, dated September 16, 2003; and
(2) Install a temporary placard in a visible place on the instrument panel that has the following wording:
“WARNING: CO-PILOT RUDDER PEDAL IS NON-FUNCTIONAL.”
(h) Malaysia CAM AD 002-10-2004, Issue date: October 30, 2004, also addresses the subject of this AD.
(i) To get copies of the documents referenced in this AD, contact Eagle Aircraft, P.O. Box 1028, Pejabat Pos Besar, Melaka, Malaysia, 75150; telephone: 011 (606) 317-4105; facsimile: 011 (606) 317-7213. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at
Bureau of the Census, Commerce Department.
Notice of proposed rulemaking and request for comments.
The U.S. Census Bureau (Census Bureau) proposes to amend the Foreign Trade Statistics Regulations (FTSR) to incorporate the requirement for reporting the Kimberley Process Certificate (KPC) number for the exports (reexports) of rough diamonds filed through the Automated Export System (AES) in accordance with the Clean Diamond Trade Act. This rule would serve to carry out the purposes of Executive Order 13312 of July 29, 2003, which implemented the Clean Diamond Trade Act and the Kimberley Process
Submit written comments on or before February 11, 2005.
Please direct all written comments on this proposed rule to the Director, U.S. Census Bureau, Room 2049, Federal Building 3, Washington, DC 20233. You may also submit comments, identified by RIN number, to the Federal e-Rulemaking Portal:
C. Harvey Monk, Jr., Chief, Foreign Trade Division, U.S. Census Bureau, Room 2104, Federal Building 3, Washington, DC 20233-6700, by phone at (301) 763-2255, by fax at (301) 457-2645, or by e-mail:
On July 29, 2003, the President issued Executive Order 13312, which implemented Public Law 108-19, known as the Clean Diamond Trade Act (the Act). The Act implemented the Kimberley Process in the United States by authorizing the President to prohibit the importation into or the exportation from the United States of any rough diamond, from whatever source, unless the rough diamond is controlled through the Kimberley Process Certification Scheme, as defined in the Act. This means shipments of rough diamonds between the United States and nonparticipants in the Kimberley Process are prohibited, and shipments between the United States and participants are permitted only if they are handled in accordance with the standards, practices, and procedures of the Kimberley Process set forth in the Rough Diamonds Control Regulations, 31 CFR part 592, promulgated by the Department of the Treasury's Office of Foreign Assets Control (OFAC) (see 69 FR 56936 dated September 23, 2004).
Section 6 of the Act names the Census Bureau as the exporting authority for the United States. This requires the Census Bureau to validate the KPC for exports of rough diamonds. The KPC is a forgery-resistant document of a participant nation or entity that demonstrates that an exportation of rough diamonds has been controlled through the Kimberley Process and contains the minimum elements required by OFAC regulations (31 CFR part 592). Each KPC is assigned an identification number called the KPC number.
To comply with the requirements of the Act, the Census Bureau amended the FTSR on October 20, 2003, to incorporate requirements for the mandatory electronic filing via the AES of exports of rough diamonds. The Census Bureau proposes to amend the FTSR to require the reporting through AES of the KPC number found on the KPC for all exports of rough diamonds classified under Harmonized System subheadings 7102.10, 7102.21, and 7102.31. This requirement will not affect filers of Shipper's Export Declarations since all exports of rough diamonds are required to be filed through the AES.
Shipments of rough diamonds from the United States must also meet additional Department of the Treasury requirements identified in the Office of Foreign Assets Control's Rough Diamonds Control Regulations, Title 31, CFR, Part 592.
To further the implementation of the Clean Diamonds Trade Act and Executive Order 13312, which implements the Act, the Census Bureau proposes to amend § 30.63 of the FTSR to specify the requirement for reporting the KPC number via the AES for exports of rough diamonds.
The Departments of State, the Treasury, and Homeland Security concur with the provisions contained in this notice of proposed rulemaking.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule will not have significant impact on a substantial number of small entities. This action would require that U.S. Principal Parties in Interest (USPPIs) or authorized agents in the United States report the KPC number along with current data filing requirement to the AES. Only those USPPIs or agents filing information on exports of rough diamonds would be required to report the KPC number. The SBA's table of size standards indicates that businesses that are the USPPI or authorized agent and file export information are considered small businesses if they employ less than 500 people.
The Census Bureau estimates that approximately 1,600 shipments of rough diamonds classified under Harmonized System subheadings 7102.10, 7102.21, and 7102.31 were exported from the United States in 2003. There were on average 47 exporters exporting rough diamonds each month during 2003. This number of exporters reflects those companies that actually exported rough diamonds. We do not know the total population of exporters of rough diamonds. Of the total number of rough diamond exporters, the number that are small entities also is unknown. The Census Bureau estimates that it will take 7 seconds to report the KPC number in AES, which is 10 total burden hours on all exporters. Because the new requirement imposes only a small burden on affected entities, this rule would not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required and has not been prepared.
This rule has been determined to be not significant for purposes of Executive Order 12806. It has been determined that this rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number. This rule contains a collection-of-information subject to the requirements of the PRA (44 U.S.C. 3501
Economic statistics, Foreign trade, Exports, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, Title 15 CFR part 30, is proposed to be amended as follows:
1. The authority citation for part 30 continues to read as follows:
5 U.S.C. 301; 13 U.S.C. 301-307; 19 U.S.C. 3901-3913; Reorganization Plan 5 of 1950 (3 CFR 1949-1953 Comp., 1004); E.O. 13312; and Department of Commerce Organization Order No. 35-2A,
2. In § 30.63, add a paragraph (b)(22) to read as follows:
(b) * * *
(22)
Federal Trade Commission.
Notice of intent to request public comments.
As part of its ongoing systematic review of all Federal Trade Commission rules and guides, the Commission gives notice that, during 2005, it intends to request public comments on the two rules listed below. The Commission will request comments on, among other things, the economic impact of, and the continuing need for, the rules; possible conflict between the rules and state, local, or other federal laws or regulations; and the effect on the rules of any technological, economic, or other industry changes. No Commission determination on the need for or the substance of the rules should be inferred from the intent to publish request for comments. In addition, the Commission announces a revised 10-year regulatory review schedule.
Further details may be obtained from the contract person listed for the particular rule.
The Commission intends to initiate a review of and solicit public comments on the following rules during 2005:
(1) Children's Online Privacy Protection Rule, 16 CFR part 312. Agency Contracts: Karen Muoio, (202) 326-2491, and Rona Kelner, (202) 326-2752, Federal Trade Commission, Bureau of Consumer Protection, Division of Advertising Practices, 600 Pennsylvania Ave., NW., Washington, DC 20580.
(2) Deceptive Advertising as to Sizes of Viewable Pictures Shown by Television Receiving Sets Rule, 16 CFR part 410. Agency Contact: Neil Blickman, (202) 326-3038, Federal Trade Commission, Bureau of Consumer Protection, Division of Advertising Practices, 600 Pennsylvania Ave., NW., Washington, DC 20580.
As part of its ongoing program to review all current Commission rules and guides, the Commission also has tentatively scheduled reviews of other rules and guides for 2006 through 2015. A copy of this tentative schedule is appended. The Commission, in its discretion, may modify or reorder the schedule in the future to incorporate new legislative rules, or to respond to external factors (such as changes in the law) or other considerations.
15 U.S.C. 41-58.
By direction of the Commission.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing.
In the Rules and Regulations section of this issue of the
Written or electronic comments must be received by February 28, 2005. Requests to speak (with outlines of topics to be discussed) at the public hearing scheduled for March 16, 2005, must be received by February 28, 2005.
Send submissions to: CC:PA:LPD:PR (REG-130671-04), Room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-130671-04), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the IRS internet Web site at
Concerning the proposed regulations, Michael E. Hara, (202) 622-4910 concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Robin Jones at (202) 622-7180 (not toll-free numbers).
Temporary regulations in the Rules and Regulations section of this issue of the
It has been determined that these proposed regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. The IRS and Treasury Department note that these regulations only prescribe the method of filing returns that are already required to be filed. Further, these regulations are consistent with the requirements imposed by statute.
Section 6011(e)(2)(A) provides that, in prescribing regulations providing standards for determining which returns must be filed on magnetic media or in other machine-readable form, the Secretary shall not require any person to file returns on magnetic media unless the person is required to file at least 250 returns during the calendar year. Consistent with the statutory provision, these regulations do not require Forms 1120, Forms 1120S, Forms 990, or Forms 990-PF to be filed electronically unless 250 or more returns are required to be filed.
Further, if a taxpayer's operations are computerized, reporting in accordance with the regulations should be less
Pursuant to section 7805(f) of the Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed regulations and how they can be made easier to understand. The IRS and Treasury Department also request comments on the procedures and criteria for hardship waivers from the electronic filing requirements. The IRS and Treasury Department also request comments on the accuracy of the certification that the regulations in this document will not have a significant economic impact on a substantial number of small entities. All comments will be available for public inspection and copying.
A public hearing has been scheduled for March 16, 2005 at 10 a.m. in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit comments and an outline of the topics to be discussed and the time to be devoted to each topic by February 28, 2005.
A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Michael E. Hara, Office of the Assistant Chief Counsel (Procedure and Administration).
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1 and 301 are proposed to be amended as follows:
26 U.S.C. 7805. * * *
[The text of proposed § 1.6011-5 is the same as the text of § 1.6011-5T published elsewhere in this issue of the
[The text of proposed § 1.6033-4 is the same as the text of § 1.6033-4T published elsewhere in this issue of the
[The text of proposed § 1.6037-2 is the same as the text of § 1.6037-2T published elsewhere in this issue of the
26 U.S.C. 7805 * *
Section 301.6011-5 also issued under 26 U.S.C. 6011. * * *
Section 301.6033-4 also issued under 26 U.S.C. 6033. * * *
Section 301.5037-2 also issued under 26 U.S.C. 6037. * * *
[The text of proposed § 301.6011-5 is the same as the text of § 301.6011-5T published elsewhere in this issue of the
[The text of proposed § 301.6033-4 is the same as the text of § 3011.6033-4T published elsewhere in this issue of the
[The text of proposed § 301.6037-2 is the same as the text of § 301.6037-2T published elsewhere in this issue of the
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations relating to the disclosure of returns and return information pursuant to section 6103(n) of the Internal Revenue Code (Code). The proposed regulations describe the circumstances under which officers or employees of the Treasury Department, a State tax agency, the Social Security Administration, or the Department of Justice may disclose returns and return information to obtain property or services for tax administration purposes, pursuant to a written contract or agreement. The proposed regulations clarify the existing regulations with respect to redisclosures of returns or return information by contractors, especially with regard to redisclosures by contractors to agents or subcontractors, and clarify that the civil and criminal penalties of sections 7431, 7213, and 7213A apply to the agents or subcontractors. The proposed regulations also clarify that section 6103(n) applies to written contracts or agreements that are entered into to obtain property or services for purposes of tax administration, including contracts that are not awarded under the Federal Acquisition Regulations (FAR), 48 CFR pts. 1 through 53.
The proposed regulations will affect officers and employees of the Treasury Department, a State tax agency, the Social Security Administration, or the Department of Justice who disclose returns or return information in connection with a written contract or agreement for the acquisition of property or services for tax administration purposes. The proposed regulations will also affect any person, or officer, employee, agent, or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information in connection with a written contract or agreement for the acquisition of property or services.
Written or electronic comments and requests for a public hearing must be received by April 12, 2005.
Send submissions to CC:PA:LPD:PR (REG-148867-03), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-148867-03), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically, via the IRS Internet site at
Helene R. Newsome, 202-622-4570 (not a toll-free number).
The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collections of information should be received by March 14, 2005. Comments are specifically requested concerning:
Whether the proposed collections of information are necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collections of information (see below);
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
The collections of information in this proposed regulation are in § 301.6103(n)-1(d) and (e)(3). This information is required and will be used to ensure compliance with the internal revenue laws and regulations, and to protect the privacy of American taxpayers. The collections of information are required to obtain a benefit. The likely respondents are state or local governments, business or other for-profit institutions, federal agencies, and/or small businesses or organizations.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
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 return information are confidential, as required by 26 U.S.C. 6103.
Under section 6103(a), returns and return information are confidential unless the Code authorizes disclosure. Section 6103(n) authorizes, pursuant to regulations prescribed by the Secretary, returns and return information to be disclosed to any person, including any person described in section 7513(a), for purposes of tax administration, to the extent necessary in connection with: (1) The processing, storage, transmission, and reproduction of returns and return information; (2) the programming, maintenance, repair, testing, and procurement of equipment; and (3) the providing of other services.
Clarification is needed with respect to whether the existing regulations permit redisclosures by persons authorized to receive the returns and return information to their agents or subcontractors, and if so, whether certain penalty provisions, written notification requirements, and safeguard requirements are applicable to these agents and subcontractors. The proposed regulations make these clarifications. The existing regulations provide that any person, or officer or employee of the person, who receives returns or return information under the existing regulations, may redisclose the returns or return information when authorized in writing by the IRS. The proposed regulations clarify that redisclosures to agents or subcontractors are permissible provided that the IRS authorizes the redisclosures in writing. The proposed regulations clarify that agents and subcontractors are persons described in section 6103(n) and, accordingly, are subject to the civil and criminal penalty provisions of sections 7431, 7213, and 7213A for the unauthorized inspection or disclosure of returns or return information. The proposed regulations clarify that agents
Finally, the proposed regulations clarify that section 6103(n) applies to written contracts or agreements that are entered into to obtain property or services for tax administration purposes, including contracts that are not awarded under the FAR.
The structure of the proposed regulations is very similar to that of the existing regulations, with the exception of modifications to clarify: The redisclosure authority of contractors, especially to agents or subcontractors; the applicability to agents and subcontractors of written notification requirements, safeguard requirements, and the civil and criminal penalty provisions of sections 7431, 7213, and 7213A; and the applicability of section 6103(n) to written contracts or agreements for tax administration purposes, including contracts that are not awarded under the FAR. The proposed regulations also elaborate on the safeguard protections that the IRS may require. Finally, the proposed regulations contain other minor changes for organizational and clarity purposes.
The proposed regulations, at § 301.6103(n)-1(a)(2)(ii), provide that any person, or officer or employee of the person, who receives returns or return information under the proposed regulations, may further disclose the returns or return information, when authorized in writing by the IRS, to the extent necessary to carry out the purposes of the written contract or agreement. To eliminate any ambiguity as to whether this provision applies to agents and subcontractors, the proposed regulation states that disclosures may include redisclosures to a person's agent or subcontractor, or officer or employee of the agent or subcontractor. The proposed regulations, at § 301.6103(n)-1(a)(3), provide guidance applicable if agents or subcontractors, or officers or employees of the agents or subcontractors, who receive returns or return information under § 301.6103(n)-1(a)(2)(ii), are to exercise the authority to redisclose the returns or return information to another officer or employee of the agent or subcontractor whose duties or responsibilities require the returns or return information for a purpose described in the proposed regulations. The proposed regulations, at § 301.6103(n)-1(c), set forth the civil and criminal penalties to which agents, subcontractors, and their officers or employees, are subject for unauthorized inspection or disclosure of returns or return information. The proposed regulations, at § 301.6103(n)-1(d), extend the written notification requirements to agents and subcontractors. In particular, agents or subcontractors who receive returns or return information under the proposed regulations must provide written notice to their officers and employees of the purposes for which returns or return information may be used and of the potential civil and criminal penalties for unauthorized inspections or disclosures. The proposed regulations, at § 301.6103(n)-1(e), clarify that agents or subcontractors who receive returns or return information under the proposed regulations are subject to all safeguard requirements described in the proposed regulations.
The proposed regulations clarify that section 6103(n) applies to written contracts or agreements that are entered into to obtain property or services for purposes of tax administration, including contracts that are not awarded under the FAR. The existing regulations use the term
The proposed regulations, at § 301.6103(n)-1(a)(4), clarify that any person, or officer, employee, agent or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information under the proposed regulations, may redisclose the returns or return information pursuant to § 301.6103(p)(2)(B)-1 (concerning disclosures by a Federal, State, or local agency, or its agents or contractors, for a purpose authorized, and subject to all applicable conditions imposed, by section 6103). The proposed regulations, at § 301.6103(n)-1(e), add the requirement that any person, or agent or subcontractor of the person, who may receive returns or return information under the proposed regulations, must agree, before the disclosure of any returns or return information to the person, agent, or subcontractor, to an IRS inspection of his, her, or its site or facilities. Finally, the proposed regulations, at § 301.6103(n)-1(e)(3), set forth the condition that before the execution of a contract or subcontract for the acquisition of property or services under which returns or return information will be disclosed in accordance with the proposed regulations, the contract must be made available to the IRS.
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collections of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that any burden on taxpayers is minimal in that the estimated average burden per respondent for complying with the collections of information imposed by these regulations is 6 minutes. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f), this notice of proposed rulemaking will be submitted to the Chief Counsel of the Small Business Administration for comment on its impact on small businesses.
Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic and written comments (a signed original and eight (8) copies) that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clarity of the proposed rule and how it may be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by a person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place of the hearing will be published in the
The principal author of these regulations is Helene R. Newsome, Office of the Associate Chief Counsel (Procedure & Administration), Disclosure & Privacy Law Division.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a)
(i) Equipment or other property; or
(ii) Services relating to the processing, storage, transmission, or reproduction of returns or return information, the programming, maintenance, repair, or testing of equipment or other property, or the providing of other services.
(2) Any person, or officer or employee of the person, who receives returns or return information under paragraph (a)(1) of this section, may—
(i) Further disclose the returns or return information to another officer or employee of the person whose duties or responsibilities require the returns or return information for a purpose described in this paragraph; or
(ii) Further disclose the returns or return information, when authorized in writing by the Internal Revenue Service (IRS), to the extent necessary to carry out the purposes described in this paragraph. Disclosures may include disclosures to an agent or subcontractor of the person, or officer or employee of the agent or subcontractor.
(3) An agent or subcontractor, or officer or employee of the agent or subcontractor, who receives returns or return information under paragraph (a)(2)(ii) of this section, may further disclose the returns or return information to another officer or employee of the agent or subcontractor whose duties or responsibilities require the returns or return information for a purpose described in this paragraph (a).
(4) Any person, or officer, employee, agent or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information under this paragraph, may, subject to the provisions of § 301.6103(p)(2)(B)-1 (concerning disclosures by a Federal, State, or local agency, or its agents or contractors), further disclose the returns or return information for a purpose authorized, and subject to all applicable conditions imposed, by section 6103.
(b)
(2) Disclosure of returns or return information in connection with a written contract or agreement for the acquisition of property or services described in paragraph (a) of this section shall be made only to the extent necessary to reasonably, properly, or economically perform the contract. For example, disclosure of returns or return information to employees of a contractor for purposes of programming, maintaining, repairing, or testing computer equipment used by the IRS or a State tax agency shall be made only if the services cannot be reasonably, properly, or economically performed without the disclosure. If it is determined that disclosure of returns or return information is necessary, and if the services can be reasonably, properly, and economically performed by disclosure of only parts or portions of a return or if deletion of taxpayer identity information (as defined in section 6103(b)(6)) reflected on a return would not seriously impair the ability of the employees to perform the services, then only the parts or portions of the return, or only the return with taxpayer identity information deleted, may be disclosed.
(c)
(d)
(1) Returns or return information disclosed to the officer or employee may be used only for a purpose and to the extent authorized by paragraph (a) of this section;
(2) Further inspection of any returns or return information for a purpose or to an extent not authorized by paragraph (a) of this section constitutes a misdemeanor, punishable upon conviction by a fine of as much as $1,000, or imprisonment for as long as 1 year, or both, together with costs of prosecution;
(3) Further disclosure of any returns or return information for a purpose or to an extent not authorized by paragraph (a) of this section constitutes a felony, punishable upon conviction by a fine of as much as $5,000, or imprisonment for as long as 5 years, or both, together with the costs of prosecution;
(4) Further inspection or disclosure of returns or return information by any person who is not an officer or
(5) A conviction for an offense referenced in paragraph (c)(2) or (3) of this section shall, in addition to any other punishment, result in dismissal from office or discharge from employment if the person convicted is an officer or employee of the United States.
(e)
(2) Any person, or officer, employee, agent or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information under paragraph (a) of this section, shall comply with all applicable conditions and requirements as the IRS may prescribe from time to time (prescribed requirements) for the purposes of protecting the confidentiality of returns and return information and preventing disclosures or inspections of returns or return information in a manner not authorized by this section.
(3) The terms of any written contract or agreement for the acquisition of property or services as described in paragraph (a) of this section shall provide, or shall be amended to provide, that any person, or officer, employee, agent or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information under paragraph (a) of this section, shall comply with the prescribed requirements. Any contract or agreement shall be made available to the IRS before execution of the contract or agreement. For purposes of this paragraph (e)(3), a written contract or agreement shall include any contract or agreement between a person and an agent or subcontractor of the person to provide the property or services described in paragraph (a) of this section.
(4) If the IRS determines that any person, or officer, employee, agent or subcontractor of the person, or officer or employee of the agent or subcontractor, who receives returns or return information under paragraph (a) of this section, has failed to, or does not, satisfy the prescribed requirements, the IRS may take any actions it deems necessary to ensure that the prescribed requirements are or will be satisfied, including—
(i) Suspension of further disclosures of returns or return information by the IRS to the State tax agency, the Social Security Administration, or the Department of Justice, until the IRS determines that the conditions and requirements have been or will be satisfied;
(ii) Suspension of further disclosures by the Treasury Department otherwise authorized by paragraph (a) of this section; and
(iii) Suspension or termination of any duty or obligation arising under a contract or agreement with the Treasury Department.
(f)
(1) The term
(2) The term
(3) The term
(g)
Pension Benefit Guaranty Corporation.
Proposed rule; correction.
This document corrects inadvertent errors in two instructions in the regulatory text of a proposed rule published in the
James L. Beller, Attorney, Pension Benefit Guaranty Corporation, Office of the General Counsel, Suite 340, 1200 K Street, NW., Washington, DC 20005-4026, 202-326-4024. (For TTY/TTD users, call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.)
In proposed rule FR doc 04-28398, beginning on page 77679 in the issue of December 28, 2004, make the following corrections to the regulatory text:
1. On page 77682, column 3, in the first line of instruction 4, correct “§ 4000.24” to read “4000.23” and, in the 8th line of instruction 4, correct “§ 4000.24
2. On Page 77683, column 1, in the first line, correct paragraph (b)(3) of § 4000.23 to read as follows:
(b) * * *
(3) * * * A submission made through our Web site is considered to have been received when we receive an electronic signal that you have performed the last act necessary to indicate that your submission is filed and cannot be further edited or withdrawn.
3. On page 77684, column 3, in the 13th line of instruction 13, correct paragraph (b)(2) of § 4010.9 to read as follows:
(b) * * *
(2) For each controlled group member included in the consolidated financial statements (other than an exempt entity), the member's revenues and operating income for the information year, and net assets at the end of the information year.
United States Mint, Treasury.
Notice of proposed rulemaking.
The proposed rule would establish procedures under which the United States Mint will implement and execute the provisions of 31 U.S.C. 333(c), which authorizes the Secretary of the Treasury to assess a civil penalty against any person who has misused the words, titles, abbreviations, initials, symbols, emblems, seals, or badges of the United States Mint.
Submit comments on or before February 18, 2005.
Send written comments to Daniel P. Shaver, Chief Counsel, Office of Chief Counsel, United States Mint, 801 9th Street, NW., Washington DC 20220; or visit
James L. Adler, Senior Attorney, United States Mint at (202) 354-7286, not a toll-free call.
Section 333(c) of title 31, United States Code, authorizes the Secretary of the Treasury to assess a civil penalty against any person who has misused the words, titles, abbreviations, initials, symbols, emblems, seals, or badges of the Department of the Treasury, including the United States Mint. The Secretary of the Treasury has delegated to the Director of the United States Mint the authority to enforce the civil penalty provisions of 31 U.S.C. 333(c) with respect to the misuse of United States Mint words, titles, abbreviations, initials, symbols, seals, trademarks, and badges, and with respect to the misuse of Department of the Treasury words, titles, abbreviations, initials, symbols, seals, trademarks, and badges when in connection with activities related to United States Mint operations and programs. The proposed rule establishes procedures to ensure that persons assessed with a civil penalty under 31 U.S.C. 333(c) are accorded due process. These procedures are based on the procedures of the Department of the Treasury at 31 CFR part 27.
This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866. As required by the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this proposed rule will not have a significant impact on small entities. This regulation provides due process protections for those persons assessed a civil penalty for misusing United States Mint names, symbols, titles, abbreviations, trademarks or badges. Any imposition of a civil penalty on a small business entity flows directly from the authorizing statute, 31 U.S.C. 333.
The United States Mint requests comments from all interested persons. Comments received prior to the closing date will be carefully considered. Comments received after the closing date will be considered to the extent possible, but no assurance can be given that they will be given consideration. No information contained in comments received will be considered confidential even if the comment, or a portion thereof, is marked confidential. Comments will be available to the public without restriction. The name of the person or entity making a comment is not exempt from disclosure.
The principal author of this document is James L. Adler, Senior Attorney, Office of Chief Counsel, United States Mint. The principal author of the proposed regulation contained herein is Daniel P. Shaver, Chief Counsel, Office of Chief Counsel, United States Mint. However, other personnel in the Treasury Department, Departmental Offices, and in the United States Mint's Office of Chief Counsel have participated in its development.
Administrative practice and procedure, Advertising, Consumer protection, Currency, Penalties, Seals and insignia, Signs and symbols, Trademarks.
For the reasons set forth in the preamble, the United States Mint proposes to amend 31 CFR part 92 as follows:
1. The authority citation for part 92 is revised to read as follows:
5 U.S.C. 301, 321, 333.
2. The heading for part 92 is revised to read as set forth above.
3. Add a subpart heading before § 92.1 to read as follows:
4. Add a subpart heading before § 92.5 to read as follows:
5. Add a new Subpart C (§§ 92.11 through 92.18) to read as follows:
(a) The procedures in this subpart implement the provisions of 31 U.S.C. 333(c), which authorize the Secretary of the Treasury to assess a civil penalty against any person who has misused the words, titles, abbreviations, initials, symbols, emblems, seals, or badges of the United States Mint in violation of 31 U.S.C. 333(a).
(b) The procedures in this subpart do not apply to the extent that the Secretary of the Treasury, the Director of the United States Mint, or their authorized designees have specifically granted to the person express permission, in writing, to manufacture, produce, sell, possess, or use the words, titles, letters, abbreviations, initials, symbols, emblems, seals, or badges in a contract, agreement, license, letter, memorandum, or similar document.
(a)
(b)
(1) Either an attorney assigned to the Legal Division, Department of the Treasury, or an employee of the
(2) Capable of examining the matter without actual or apparent conflict of interest.
(c)
(d)
(1) A civil monetary penalty; and
(2) Any other civil or equitable remedy deemed necessary to rectify the potential for a continued misuse or harm from an activity found to have been in violation of 31 U.S.C. 333.
(e)
(1) The date that the misuse occurred;
(2) The date that the misuse had the effect of conveying the false impression that the activity was associated with or approved, endorsed, sponsored or authorized by the United States Mint or its officers or employees; or
(3) If the violation is a continuing one, the date on which the misuse of the words, titles, abbreviations, initials, symbols, emblems, seals, or badges protected by 31 U.S.C. 333 or the procedures in this subpart last occurred.
(f)
(g)
(h)
(1) The individual named in an Initial Notice of Assessment; or
(2) The head of the partnership, association, corporation, company, business, firm, manufacturer, or any other organization, enterprise, or institution named in the Initial Notice of Assessment.
(i)
(a)
(1) That person uses in connection with, or as a part of, any advertisement, solicitation, business activity, or product, whether alone or with other words, letters, symbols, or emblems—
(i) The words “Department of the Treasury,” “United States Mint,” or “U.S. Mint”;
(ii) The titles “Secretary of the Treasury,” “Treasurer of the United States,” “Director of the United States Mint,” or “Director of the U.S. Mint”;
(iii) The abbreviations or initials of any entity or title referred to in paragraph (a)(1)(i) or (a)(1)(ii) of this section;
(iv) Any symbol, emblem, seal, or badge of an entity referred to in paragraph (a)(1)(i) of this section (including the design of any envelope, stationery, or identification card used by such an entity); or
(v) Any colorable imitation of any such words, titles, abbreviations, initials, symbols, emblems, letters, seals, or badges; and
(2) That person's use is in a manner that could reasonably be interpreted or construed as conveying the false impression that such advertisement, solicitation, business activity, or product is in any manner approved, endorsed, sponsored, authorized by, or associated with the United States Mint, or any officer, or employee thereof.
(b)
(c)
(d)
(2) The assessing official may commence a civil action to recover or enforce any civil penalty imposed in a Final Notice of Assessment issued pursuant to § 92.17 at any time before the end of the two-year period beginning on the date of the Final Notice of Assessment. If judicial review of the Final Notice of Assessment is sought, the two-year period begins to run from the date that a final and unappealable court order is issued.
(e)
(a) When an employee of the United States Mint learns of or discovers a potential violation of 31 U.S.C. 333 or the procedures in this subpart, he or she will refer the matter, with all available evidence, to the assessing official.
(b) The assessing official will consider relevant factors when determining whether to initiate an action to impose a civil penalty under the procedures in this subpart. Those factors may include, but are not limited to, the following:
(1) The scope of the misuse;
(2) The purpose and/or nature of the misuse;
(3) The extent of the harm caused by the misuse;
(4) The circumstances of the misuse; and
(5) The benefit intended to be derived from the misuse.
(c) If the assessing official decides to initiate an action to impose a civil penalty under the procedures in this subpart, he or she will, in writing:
(1) Appoint an examining official; and
(2) Delegate to the examining official the authority to prepare, sign, and serve an initial notice of assessment on behalf of the assessing official.
The examining official shall prepare and serve an Initial Notice of Assessment by United States mail or other means upon any person believed to be in violation of § 92.13 and otherwise subject to a civil penalty. The notice shall provide the name and telephone number of the examining official, who can provide information concerning the notice and the procedures in this subpart. The notice shall include the following:
(a) A specific reference to the provisions of § 92.13 violated;
(b) A concise statement of the facts that support the conclusion that such a violation occurred;
(c) The maximum amount of the potential penalty that the assessing official could impose, and/or any other proposed civil or equitable remedy;
(d) A notice informing the person alleged to be in violation of § 92.13 that he or she:
(1) May, within 30 days of the date of the notice, agree to pay the civil monetary penalty and consent to each proposed civil or equitable remedy, thereby waiving the right to make a written response under § 92.16 and to seek judicial review under § 92.18:
(i) By electronic funds transfer (EFT) in accordance with instructions to be provided by the examining official; or
(ii) By means other than EFT only with the written approval of the assessing official;
(2) May make a written response in accordance with § 92.16 within 30 days of the date of the notice asserting, as appropriate:
(i) Why a civil monetary penalty and/or other civil or equitable remedy should not be imposed;
(ii) Why a civil monetary penalty should be in a lesser amount than proposed; and
(iii) Why the terms of a proposed civil or equitable remedy should be modified;
(3) May be represented by an attorney or other representative, provided that a designation of representative signed by the person alleged to be in violation is received by the assessing official; and
(4) May request, within 20 days of the date of the notice, a copy of or opportunity to review any documents and other evidence that the United States Mint compiled and relied on in determining to issue the notice (the assessing official reserves the right to assert privileges available under law and may decline to disclose certain documents or other evidence protected by such privileges); and
(e) An advisement of the following:
(1) If no written response is received within the time allowed in § 92.16(b), a Final Notice of Assessment may be issued without a presentation by the person;
(2) If a written response has been made and it is deemed necessary, the examining official may request, orally or in writing, additional information from the respondent;
(3) A Final Notice of Assessment may be issued in accordance with § 92.17 requiring that the civil monetary penalty be paid and compliance with the terms of any other civil or equitable remedy;
(4) A Final Notice of Assessment is subject to judicial review in accordance with 5 U.S.C. 701
(5) All submissions sent in response to the Initial Notice of Assessment must be transmitted to the address specified in the notice and include the name, address, and telephone number of the respondent.
(a)
(i) A reference to and specifically identify the Initial Notice of Assessment involved;
(ii) The full name of the person against which the Initial Notice of Assessment has been made;
(iii) If not a natural person, the name and title of the head of the organization named in the Initial Notice of Assessment; and
(iv) If a representative of the person named in the Initial Notice of Assessment is filing the written response, a copy of the duly executed designation as representative.
(2) The written response must admit or deny each violation of § 92.13 alleged in the Initial Notice of Assessment. Any alleged violation not specifically denied will be presumed to be admitted. Where an allegation is denied, the respondent shall specifically set forth the legal or factual basis upon which the allegation is denied. If the basis of the written response is that the respondent is not the person responsible for an allegation, the written response must set forth sufficient information to allow the agency to determine the truth of such an assertion. The written response should include any and all documents and other information that the respondent believes should be a part of the administrative record on the matter.
(b)
(2) If a request for documents or other evidence is made pursuant to § 92.15(d)(4), the written response must be received not later than 20 days after the date of the United States Mint's response to the request.
(3)(i) In computing the number of days allowed for filing a written response under this paragraph, the first day counted is the day after the date of the Initial Notice of Assessment. If the last date on which the response is required to be filed by this paragraph is a Saturday, Sunday or Federal holiday, the response will be due on the next business day after that date.
(ii) If a response is transmitted by United States mail, it will be deemed timely filed if postmarked on or before the due date.
(4) The examining official may extend the period for making a written response under paragraphs (b)(1) and (b)(2) of this section for up to ten days for good cause shown. Requests for extension beyond ten days must be approved by the assessing official and must be based on good cause shown. Generally, failure to obtain representation in a timely manner will not be considered good cause.
(c)
(d)
(1) In fully considering the matter, the examining official will not consider any additional evidence introduced in the record by the United States Mint after the Initial Notice of Assessment unless and until the respondent has been notified that such additional evidence will be considered, and has had an opportunity to review and comment on such evidence.
(2) The examining official will prepare a concise report, addressed to the assessing official, which will contain the following:
(i) The entire administrative record on the matter, including all information provided in or with a written response timely filed by the respondent and any additional information provided pursuant to § 92.15(e)(2), as well as all evidence upon which the Initial Notice of Assessment was based, and any additional evidence as provided for in § 92.16(d)(1).
(ii) A finding, based on the preponderance of the evidence, as to each alleged violation specified in the Initial Notice of Assessment;
(iii) For each violation that the examining official determines to have occurred, a recommendation as to the appropriate amount of a civil monetary penalty to be imposed and the terms of any other appropriate civil or equitable remedy. In making this recommendation, the examining official will consider relevant factors including, but not limited to, the following:
(A) The scope of the misuse;
(B) The purpose and/or nature of the misuse;
(C) The extent of the harm caused by the misuse;
(D) The circumstances of the misuse; and
(E) The benefit intended to be derived from the misuse.
(iv) If the examining official determines that a violation has occurred, a proposed Final Notice of
(v) Any additional information or considerations that the assessing officer should consider in a decision to issue a Final Notice of Assessment under § 92.17.
(3) The examining official will submit his or her report to the Deputy Chief Counsel, United States Mint, for legal review. If the Deputy Chief Counsel is not available to perform this legal review, the Chief Counsel, United States Mint, shall designate a qualified attorney on the United States Mint staff (or, with the appropriate approval, an attorney assigned to the Treasury Department Legal Division) to perform this review. The Deputy Chief Counsel or designee will determine:
(i) Whether the proceedings comply with legal requirements;
(ii) What effects any errors would have;
(iii) Whether sufficient evidence supports the examining official's findings; and
(iv) Whether the examining official's recommendations are consistent with his or her findings.
(4) Upon completion of legal review:
(i) If the Deputy Chief Counsel or designee determines that there is no deficiency, he or she will forward the report to the Chief Counsel, United States Mint.
(ii) If the Deputy Chief Counsel or designee determines that a deficiency exists, he or she will return the report to the examining official with instructions on the corrective action that the examining official must take to remedy each deficiency. After the examining official has taken corrective action, he or she will resubmit the report to the Deputy Chief Counsel or designee in accordance with § 92.16(d)(3).
(5) Upon receipt of a final report under § 92.16(d)(4)(i), the Chief Counsel will review the record and forward the report, and his or her recommendations as to final action, to the assessing official.
(a) In making a final determination whether to impose a penalty, the assessing official shall take into consideration the entire report prepared by the examining official and the recommendations of the Chief Counsel, United States Mint. While the assessing official should accord appropriate weight to the findings and recommendations of the examining official, and the recommendations of the Chief Counsel, the assessing official is not bound by them. The assessing official may approve, disapprove, modify, or substitute any or all of the examining official's findings and recommendations if, in his or her judgment, the evidence in the record supports such a decision. The assessing official will determine whether:
(1) The facts warrant a conclusion that no violation has occurred; or
(2)(i) The facts warrant a conclusion that one or more violations have occurred; and
(ii) The facts and violations found justify the conclusion that a civil penalty should be imposed.
(b) If the assessing official determines that no violation has occurred, the official shall promptly send a letter indicating that determination to the person served with an Initial Notice of Assessment and to any designated representative of such person.
(c) If the assessing official determines that a violation has occurred:
(1) The assessing official shall issue a Final Notice of Assessment to the person served with an Initial Notice of Assessment and to any designated representative of such person.
(2) The assessing official may, in his or her discretion:
(i) Impose a civil monetary penalty and/or any civil or equitable remedy deemed necessary to rectify the potential for a continued misuse or harm from the violation(s);
(ii) Not impose a civil monetary penalty and/or civil or equitable remedy; or
(iii) Impose a civil monetary penalty and/or civil or equitable remedy and condition payment of the civil monetary penalty on the violator's future compliance with 31 U.S.C. 333, and with any civil or equitable remedy contained in the Final Notice of Assessment.
(3) If a civil monetary penalty is imposed under § 92.17(c)(2)(i) or (iii), the assessing official shall determine the appropriate amount of the penalty in accordance with 31 U.S.C. 333(c)(2). In determining the amount of a civil penalty, the assessing official will consider relevant factors including, but not limited to, the following:
(i) The scope of the misuse;
(ii) The purpose and/or nature of the misuse;
(iii) The extent of the harm caused by the misuse;
(iv) The circumstances of the misuse; and
(v) The benefit intended to be derived from the misuse.
(4) The Final Notice of Assessment shall:
(i) Include the following:
(A) A specific reference to each provision of § 92.13 found to have been violated;
(B) A concise statement of the facts warranting a conclusion that each violation has occurred;
(C) An analysis of how the facts and each violation justifies the conclusion that a civil monetary penalty and/or civil or equitable remedy should be imposed; and
(D) The amount of each civil monetary penalty imposed, a statement as to how the amount of each penalty was determined, and the terms of any civil or equitable remedy deemed necessary to rectify the potential for a continued misuse or harm from each violation; and
(ii) Inform the person of the following:
(A) Payment of a civil monetary penalty imposed by the Final Notice of Assessment must be made within 30 days of the date of the notice, and that any civil or equitable remedy imposed must be complied with as provided in the Final Notice of Assessment;
(B) Payment of a civil monetary penalty imposed by the Final Notice of Assessment shall be by EFT in accordance with instructions provided in the notice, unless the assessing official has given written approval to have payment made by other means;
(C) Payment of a civil monetary penalty imposed by the Final Notice of Assessment constitutes consent by the person to comply with the terms of any civil or equitable remedy contained in the notice;
(D) If payment of a civil monetary penalty imposed by the Final Notice of Assessment has been waived on the condition that the person comply with the terms of any civil or equitable remedy contained in the notice or comply in the future with 31 U.S.C. 333 and the procedures in this subpart, the failure by the person to so comply will make the civil monetary penalty payable on demand;
(E) If a civil monetary penalty is not paid within 30 days of the date of the Final Notice of Assessment (or on demand under paragraph (c)(3)(ii)(D) of this section), or if a civil or equitable remedy is not complied with in accordance with the terms of the notice, a civil action to collect the penalty or enforce compliance may be commenced at any time within two years of the date of the Final Notice of Assessment; and
(F) Any civil monetary penalty and civil or equitable remedy imposed by the Final Notice of Assessment may be subject to judicial review in accordance with 5 U.S.C. 701
A final Notice of Assessment issued under the procedures in this subpart may be subject to judicial review pursuant to 5 U.S.C. 701
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Maryland, Commonwealth of Virginia and the District of Columbia for the Metropolitan Washington, DC severe 1-hour ozone nonattainment area (the Washington area). These revisions include the post 1996-1999 and post 1999-2005 rate-of-progress (ROP) plans, changes to the 1990 base year inventory, a contingency measures plan, certain transportation control measures (TCMs), and a demonstration that each SIP contains sufficient transportation control measures to offset growth in vehicle miles traveled (VMT) as necessary to demonstrate ROP and attainment of the 1-hour national ambient air quality standard (NAAQS) for ozone. The intended effect of this action is to propose approval of revisions submitted to satisfy the SIP requirements of 1-hour ozone nonattainment areas classified as severe. These revisions are being proposed for approval in accordance with the Clean Air Act (CAA or the Act).
Written comments must be received on or before February 11, 2005.
Submit your comments, identified by Regional Material in EDocket (RME) ID Number R03-OAR-2004-DC-0009 by one of the following methods:
A. Federal eRulemaking Portal:
B. Agency Web site:
C. E-mail:
D. Mail: R03-OAR-2004-DC-0009, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Christopher Cripps, (215) 814-2179, or by e-mail at
The use of “we,” “us,” or “our” in this document refers to EPA. The use of “States” in this document refers to the State of Maryland, the Commonwealth of Virginia and the District of Columbia.
The EPA is proposing approval of the post 1996-1999 ROP plans, the post 1999-2005 ROP plans and the contingency measure plans for both ROP and attainment submitted by the District of Columbia, Maryland and Virginia (“the States”) for the Washington area. In addition, EPA is also proposing approval of the States' revisions to the 1990 base year emissions inventory, TCMs, and a demonstration that the SIP for each State contains sufficient TCMs to offset growth in VMT as necessary to achieve ROP and to attain the ozone NAAQS (commonly referred to as the VMT Offset SIP). Tables 1 and 2 identify the initial submittal dates and the dates on which the States' submitted amendments for these plans and measures:
The post 1996-1999 ROP Plan SIP revisions also include certain TCMs, specifically those TCMs identified in Appendix H of the States' submittals.
Hereafter, the SIP revisions listed in Table 2 of this document will be called the “2004 SIP revisions.” The States' 2004 SIP revisions include the post 1999-2005 ROP plans, the VMT Offset SIPs, revisions to the 1990 base year emissions inventory, and the contingency measures plans for ROP and attainment for the Washington area. The 2004 SIP revisions also include certain TCMs, namely those TCMs identified in Appendix J of the SIP revision submittals. The 2004 SIP revisions also include the States' attainment demonstration plans for the Washington area. Those attainment demonstration plans are the subject of a separate rulemaking action.
The Washington area is comprised of the entire District of Columbia (the District), a portion of Maryland (Calvert, Charles, Frederick, Montgomery, and Prince George's Counties), and a portion of Virginia (Alexandria, Arlington County, Fairfax, Fairfax County, Falls Church, Manassas, Manassas Park, Prince William County, and Stafford County).
On January 3, 2001 (66 FR 586), the EPA approved the States' post 1996-1999 ROP plans, attainment demonstration plans (those submitted during 1998 and 2000) and an attainment date extension for the Washington area. A petition for review of that final rule was filed. On July 2, 2002, the United States Courts of Appeals for the District of Columbia Circuit (the court) ruled on the petition and vacated our January 3, 2001 approval of the States' attainment demonstrations, their 1996-1999 ROP plans and the attainment date extension. (
On January 24, 2003 (68 FR 3410), EPA published a final rule determining that the Washington area failed to attain the November 15, 1999 ozone attainment deadline for serious areas and reclassifying the Washington area from serious to severe ozone nonattainment. That final rule also specified the additional SIP elements mandated by the CAA for that severe area, that would have to be adopted and submitted as SIP revisions by the States for the Washington area as a result of its reclassification to severe.
On April 17, 2003 (68 FR 19106), EPA conditionally approved the States' post 1996-1999 ROP plans and those versions of the attainment demonstration plans submitted during 1998 and 2000, contingent upon the States fulfilling commitments they made to submit the additional elements required of SIPs for a severe area within one year. The Sierra Club filed a petition for review of that final rule alleging, among other things, that EPA could not lawfully conditionally approve these SIP revisions due to a lack of specificity in the States' commitment letters, and that EPA should require the post 1996-1999 ROP plans be revised to use the latest mobile sources emission factor model.
On February 3, 2004, the court ruled on that petition and issued its opinion vacating our April 17, 2003 rule. The court granted the petition solely on the issue that use of a conditional approval was not appropriate nor available to EPA on these SIPs. The court denied the petition for review in all other respects. (
Given that the States have now adopted and submitted contingency measures plans and ROP plans through to the 2005 attainment year, EPA is proposing to approve the post 1996-1999 ROP plans that applied to the Washington area pursuant to the area's initial classification as a serious ozone nonattainment area. In addition, EPA is proposing approval of the States' revisions to the 1990 base year emissions inventory. EPA is also proposing to approve the 2004 SIP revisions listed in Table 2 of this document, namely the post 1999-2005 ROP plans, contingency measures plans, and VMT offset plans that apply to the Washington area as a result of its reclassification to severe 1-hour ozone nonattainment. The contingency measure plans identify those measures that were implemented as a consequence of the failure of the Washington area to meet its original November 15, 1999 serious area attainment date, and also identify those adopted measures that will be implemented should the now reclassified Washington area fail to attain the1-hour ozone NAAQS by the severe area deadline date of November 15, 2005 or if the area fails to make reasonable further progress (RFP) or meet a ROP milestone. In addition, EPA is proposing to approve certain TCMs which were made part of the States' post 1996-1999 ROP plans as well as part of the 2004 SIP revisions. These SIP revisions and our rationale for proposing to approve them are discussed in more detail in the subsequent sections of this document.
EPA mandated the use of the MOBILE6 model for the post-1999 ROP plan development and also required associated revisions to the 1990 base year inventory. (
The States added several new sources to the point source inventory, that is, large stationary sources of VOC and nitrogen oxides (NO
The States also updated the area and nonroad portion of the inventory for aircraft emissions and ground support equipment at commercial airports using the Emissions Dispersion Modeling System (EDMS) to recompute the 1990 base year emissions. The Federal Aviation Administration requires EDMS as the methodology for performing air quality emissions and air quality analyses modeling for aviation sources. It further requires airport sponsors to use the most recent EDMS model to calculate all emissions at airports to satisfy the National Environmental Policy Act (NEPA), the CAA's general conformity requirements, and other statutorily mandated analyses. EPA has endorsed the use of EDMS.
The prior methodology used by the States for the 1990 inventory, as compared to EDMS, resulted in higher base year NO
The District, Virginia and Maryland must demonstrate reasonable further progress (RFP) for the Washington area. These jurisdictions, under the auspices of the Metropolitan Washington Air Quality Committee (MWAQC), with the assistance of the Metropolitan
The CAA requires that serious and above ozone nonattainment areas develop plans to reduce area-wide VOC base line emissions after 1996 by 3 percent per year (averaged over consecutive 3-year periods) until the year of the attainment date required for that classification of nonattainment area. The Washington area was initially classified as a serious ozone nonattainment area with an attainment date of November 15, 1999. As such, the Washington area States had and continue to have a requirement that a post 1996-1999 ROP plan be SIP-approved which demonstrates a 9 percent reduction in baseline emissions by 1999.
As previously noted, EPA published a final rule reclassifying the Washington area to severe ozone nonattainment on January 24, 2003, effective March 25, 2003. The statutory attainment date for severe areas is November 15, 2005. The final rule reclassifying the Washington area to severe ozone nonattainment imposed additional requirements on the Washington area including, among other things, a post 1999-2005 ROP plan to achieve an additional 9 percent reduction in base line emissions between 1999 and 2002, and, a further 9 percent reduction between 2002 and 2005. This 9 percent reduction requirement is a continuation of the ROP requirement for a 15 percent reduction in VOC post 1990-1996. For post 1996 and post 1999 ROP plans, the Act allows the substitution of NO
1.
2.
(a) The “noncreditable reductions” due to the Federal Motor Vehicle Control Program (FMVCP) promulgated by January 1, 1990, (“FMVCP Tier 0”) and Reid Vapor Pressure (RVP) regulations required under section 211(h) of the Act (Phase 2 RVP),
(b) Any noncreditable reasonably available control technology (RACT) rule correction reductions required by section 182(a)(2)(A) of the Act,
(c) An amount equal to the required 15 percent reduction in baseline VOC emissions.
The required 15 percent reduction in baseline VOC emissions is not computed as 15 percent of the 1990 ROP VOC emissions inventory. Because section 182(b)(1)(C) defines “base line emissions” as the 1990 ROP inventory less those 1990 calendar year emissions that would be eliminated by the FMVCP Tier 0 and Phase 2 RVP programs by the milestone year, an “adjusted” 1990 base year inventory must be computed to reduce the 1990 ROP inventory by the amount of emissions that would be eliminated by implementation of the FMVCP Tier 0 and Phase 2 RVP programs. The required 15 percent reduction in baseline VOC emissions is, therefore, 15 percent of the “adjusted” 1990 base year inventory for 1996.
For subsequent milestone years, a similar process is used to compute the target level of emissions. For each three year period after 1996, the “fleet turnover correction” (FTC) (that amount of base line emission eliminated by FMVCP Tier 0 and Phase 2 RVP programs during that three year period) is computed and the “adjusted” 1990 base year inventory is computed (which is the “adjusted” 1990 base year inventory for the prior milestone year minus the relevant FTC). The target level for a milestone year is the target level for the prior milestone year minus the FTC for the three-year period minus the required ROP reductions.
Table 3 summarizes the process for computing ROP target levels continued through the 2005 milestone year:
A post 1996-1999 ROP plan consists of a plan to achieve a target level of emissions by November 15, 1999. As previously stated, there are emission inventories and calculations associated with the plan including the base year emission inventory, future year projection inventories, and target level calculations. The post 1996-1999 ROP plan also identifies the amount of creditable emission reductions that each state must achieve for the nonattainment area-wide plan to get a 9 percent reduction accounting for any growth in emissions from 1990 to 1999. The EPA addressed the sufficiency of the Washington area's post 1996-1999 ROP plan base year emission inventory, future year projection inventories, and target level calculations in its previous notices regarding the Washington area attainment demonstration. (
Although EPA requires that states use the latest mobile source emissions factor model available at the time a plan is developed, our policy is not to require states that have already submitted SIPs or that submitted SIPs shortly after MOBILE6's release to revise these SIPs simply because the new motor vehicle emissions model becomes available. (
As stated previously, EPA promulgated a final action on January 3, 2001 (66 FR 586) fully approving and a final action on April 17, 2003 (68 FR 19106) conditionally approving these 1996-1999 ROP plan SIP revisions which the court vacated. It is important to note that although the Sierra Club's petition for review of our April 17, 2003 final rule claimed, among other things, that the approval of the States' 1996-1999 ROP plans was arbitrary and capricious because those plans relied on an outdated emissions model and that EPA should require that the post 1996-1999 ROP plans be revised using MOBILE6, in its February 3, 2004 ruling on the petition, the court denied the petition for review on this claim. (
The post 1996-1999 ROP plan describes the emission reduction credits that the Washington area jurisdictions are claiming toward their 9 percent reduction requirement. We can credit reductions for the ROP requirement for rules promulgated by EPA and for state measures we have approved as SIP revisions. The post 1996-1999 ROP plan control measures for the Washington area are listed in Tables 4 and 5 of this document and described in more detail in the Technical Support Document (TSD) for this rulemaking.
Table 6 summarizes the VOC and NO
Unlike the post 1996-1999 ROP plan, EPA explicitly requires that the States develop the post 1999-2005 ROP plan using the updated MOBILE6 emission factor model because the requirement for such a plan came due for the Washington area after the release of MOBILE6. (
As shown in Table 3 of this document, the 1999 target level is the 1996 target level minus a percentage of the adjusted 1990 Base Year Inventory for 1999 and the FTC for 1999; and the 1996 target level is the 1990 ROP Inventory minus the following three amounts:
(a) 15 percent of the “adjusted” 1990 base year inventory for 1996;
(b) Reductions from RACT rule corrections; and
(c) Emissions eliminated through 1996 by Tier 0 FMVCP/Phase 2 RVP programs.
Therefore, the 1999 target level is just the 1990 ROP inventory minus the following five amounts:
(1) 15 percent of the “adjusted” 1990 base year inventory for 1996;
(2) Reductions from RACT rule corrections;
(3) Emissions eliminated through 1996 by Tier 0 FMVCP/Phase 2 RVP programs;
(4) A percentage of the “adjusted” 1990 Base Year Inventory for 1999; and
(5) The FTC for 1999.
To continue this process for 2002 and 2005, the steps outlined in Table 3 of this document entitled, “General Process for Computing ROP Target Levels” are used for the 2002 and 2005 milestone targets as shown in Tables 7a and 7b.
The post 1999-2005 ROP plan describes the emission reduction credits that the Washington area jurisdictions are claiming toward their 9 percent reduction requirements. We can credit reductions for the ROP requirement for rules promulgated by the EPA and for state measures we have approved as SIP revisions. The control measures used in the post 1999-2005 ROP plan for the Washington area are listed in Tables 9 and 10 of this document and described in more detail in the TSD for this rulemaking. The control measures include all those in the post 1996-1999 portion of the plan, plus additional measures. Table 9 lists those measures credited in the 1996-1999 ROP that continue to produce benefits in the post-1999 period. There are several reasons why a post 1996-1999 measure can also be credited in the post-1999 period. First, the uncontrolled baseline is computed from the1990 levels, not the 1999 levels. Thus, if a source category emits at a rate of one ton of pollutant per 10 units of activity (
Another way a measure included in the post 1996-1999 ROP plan can produce additional emission reduction benefits after 1999 is when increasing portions of the source category are subject to more stringent standards over time. This is true of mobile source controls under the FMVCP and NLEV programs and for EPA's nonroad mobile source standards. As time passes, more and more of the source category is made of newer vehicles or engines that were manufactured to meet the most recent emission standards. For instance, in the case of on-road mobile sources, the emission factor computed using the MOBILE emission factor model declines for future years. Once again, reductions are computed by subtracting a future controlled projected emissions from uncontrolled emissions. The future year
The post 1999-2005 ROP plan for the Washington area also includes additional emission reduction measures beyond those included in the post 1996-1999 ROP plan. All the States have adopted limits on certain architectural and industrial maintenance (AIM) coatings that are more stringent than the limits required under the Federal regulations for AIM coatings. The post 1999-2005 ROP plan also includes Virginia's rule for solvent cleaning operations which is based on the Federal maximum achievable control technology (MACT) standard for chlorinated solvent vapor degreasers. The States each have issued rules that regulate VOC emissions from portable fuel containers by setting standards for the design and construction of these containers.
The post 1999-2005 ROP plan also relies upon VOC emission reductions from emissions standards promulgated by EPA for several categories of nonroad mobile sources. These categories are:
(a) Spark ignition outboard, personal water craft and jetboat engines (OB/PWC) and stern drive and inboard engines;
(b) Large spark-ignition engines such as those used in forklifts and airport ground-service equipment;
(c) Recreational vehicles using spark-ignition engines such as off-highway motorcycles, all-terrain vehicles, and snowmobiles; and
(d) Recreational marine diesel engines.
The 1999-2005 ROP plan also relies upon additional TCMs which are strategies to both reduce VMT and decrease the amount of emissions per VMT, and are considered an essential element of control strategies for nonattainment areas.
The post 1999-2005 ROP plan also relies upon certain voluntary non-regulatory measures as an alternative to traditional “command and control” regulatory approaches. Voluntary emission reduction program measures have the potential to encourage new, untried and cost-effective approaches to reduce emissions. Under EPA's guidance, voluntary emission reduction program measures can be approved if the State retains enforceable responsibility for the amount of emission reductions associated with the voluntary measures and meets certain other obligations.
The post 1999-2005 ROP plan's control measures for the Washington area are listed in Table 10 of this document and described in more detail in the TSD for this rulemaking.
EPA can only credit reductions in a ROP plan required by section 182(c)(2) if those reductions meet the creditability requirements of sections 182(b)(1)(C) and (D) of the Act. One restriction for creditability is that the reduction has to result from a rule promulgated by EPA, from a permit issued pursuant to Title V of the Act, or from a rule that EPA has approved into the applicable SIP(s) (
All of the reductions from national rules (all those in Table 9 as well as those listed on lines 4 and 5 of Table 10) for which the States seek credit in their post 1996-1999 and post 1999-2005 ROP plans have been promulgated by EPA. All of the reductions from State rules included in Table 9 and in lines 2 and 3 of Table 10 for which the States seek credit in their post 1996-1999 and post 1999-2005 ROP plans have been approved into the applicable SIP.
As for the rest of the State measures, EPA can only credit the ROP plan with reductions from a measure approved into the applicable SIP, and, hence, can only issue a final rule approving the ROP plan after or concurrently with our approval of state measures projected to generate sufficient reductions to demonstrate ROP. However, EPA can propose approval of an ROP plan if we have proposed approval of enough measures to generate the reductions needed to demonstrate ROP. EPA has already proposed approval for all the measures listed in Table 10. The TCMs in the 1996-1999 ROP plan and the 2004 SIP revisions are being proposed for approval in this notice of proposed rulemaking. The status of each of the remaining items is as follows:
EPA proposed approval of the Maryland and Virginia State AIM rules on May 25, 2004 (69 FR 29674) and June 7, 2004 (69 FR 31780), respectively. For the measures listed in Table 11, a notice of proposed rulemaking (NPR) has been published in the
The post 1999-2005 plan demonstrates that the Washington area meets the post 1999-2005 ROP requirement of the Act by showing that the ROP plan will generate sufficient emission reductions to reduce the projected uncontrolled 2002 or 2005 emissions to less than or equal to a target level of emissions for that year which represents a 9 percent reduction in baseline emissions. The 2002 and 2005 NO
The 2002 and 2005 uncontrolled NO
While not a factor in our evaluation for approval, EPA notes that the post 1999-2005 ROP plan also demonstrates reasonable further progress for VOC emissions for 2002 and 2005 in a more generic manner pursuant to section 172(c)(2) of the Act. This is evidenced by the numerous VOC reduction measures in the plan. With the exception of the voluntary measures (the approval of which has been proposed in a separate proposed rulemaking) and the TCMs (the approval of which is also proposed in this document), the bulk of these measures are part of the measures identified in the contingency plan to address the failure to attain by November 15, 1999. As will be discussed in succeeding sections of this document, the approval of the contingency measure plan and the ROP demonstration required by section 182(c)(2) is contingent upon approval of these measures. The attainment demonstration relies on VOC as well as NO
EPA has approved ROP plans under section 182(c)(2) that relied solely upon NO
EPA concludes that the post 1999-2005 ROP plan in the 2004 SIP revisions does demonstrate ROP of at least a nine (9) percent reduction in NO
In order to determine whether the post 1996-1999 and post 1999-2005 ROP plans satisfy EPA's guidance and the Act regarding NO
EPA concludes that the 2004 SIP revisions demonstrate that the relative reduction in ozone precursor emissions from the entire inventory is greater than that used in the photochemical grid modeling for the Washington area and that the weight of evidence shows that the measures creditable towards the 2005 milestone year will result in attainment by no later than November 15, 2005. Furthermore, we have determined that this demonstration does not depend upon any measures in the contingency measure plan, and that the States have used the latest planning assumptions for emissions estimates for all source categories. EPA also concludes that the attainment demonstration modeling shows that NO
Sections 172(c)(9) and 182(c)(9) of the Act require that SIPs contain additional contingency measures that will take effect without further action by the state or EPA if an area fails to attain the standard by the applicable date, or fails to meet ROP deadlines. The Act does not specify how many contingency measures are needed or the magnitude of emissions reductions that must be provided by these measures. However, EPA provided our initial guidance interpreting the contingency measure requirements of 172(c)(9) and 182(c)(9) in the April 16, 1992, General Preamble for Implementation of the Act (
The 2004 SIP revisions identify two groups of measures that have been implemented since November 15, 1999. The first of these measures is phase 2 of the RFG program. By opting into the reformulated gasoline program, the States ensured that the further benefits of the program would be implemented on January 1, 2000. Such implementation would be earlier than what would have occurred had RFG been implemented in the area due to reclassification. Under section 181 of the Act, EPA has no enforceable duty to reclassify an area sooner than 6 months after the attainment date.
EPA bases the determination of failure to attain upon air quality monitoring data and thus must have ozone season data for the attainment year in hand. States are required to report air quality data at least quarterly and each report is due no later than 90 days after the end of the quarterly reporting period (40
The second phase of the RFG program was implemented prior to EPA's January 24, 2003 rule which determined that the Washington area failed to attain the 1-hour ozone NAAQS by November 15, 1999 and which reclassified it to severe nonattainment. EPA believes, however, the fact that the measure was implemented prior to the effective date of the reclassification should not render it ineligible for use as a contingency measure. After all, if a measure implemented prior to the attainment date can count towards the failure-to-attain contingency requirement, then surely this measure, which was implemented shortly after the attainment deadline, can count towards the failure-to-attain by November 15, 1999 contingency requirement.
The second group of measures are additional measures implemented after November 15, 1999, but before November 15, 2005. These additional measures are the States AIM coatings, portable fuel container (PFC) and solvent cleaning rules discussed in Section IV. E. of this document. A summary of the expected benefits from these measures is presented in Table 12.
While these additional measures were not adopted as contingency measures before the Washington area was reclassified to severe nonattainment (or before November 15, 1999) and then implemented to take effect without any further action by the States or EPA after the area failed to attain, EPA believes that the adoption of these additional measures also fulfill the contingency measure requirement for a serious area. The SIPs applicable to the Washington area did not identify contingency measures prior to the reclassification, and, the ultimate remedy for such a defect would be to implement additional measures over and above those in the applicable SIP. These measures were adopted and made enforceable after the March 1, 2003 effective date that of EPA final rule reclassifying the Washington area to severe nonattainment for failing to attain the ozone NAAQS. (
In the General Preamble (57 FR 13498 at 13510, April 16, 1992), we stated that the contingency measure would need to achieve reductions in the year following the year in which the failure has been identified. In the January 24, 2003 final rule, EPA issued the determination that the Washington area had failed to attain by November 15, 1999. Thus, under the guidance in the General Preamble the measures should have been implemented no later than one year from March 1, 2003, the effective date of the January 24, 2003 final rule. However, the States have adopted the additional rules to fulfill the contingency measure requirement, these measures have been implemented on the dates shown in Table 12, and the measures have been submitted as SIP revisions. EPA believes that it would serve no purpose to disapprove the contingency measure plan simply because the measures were not implemented by March 1, 2004, since the remedy would require yet another rule adoption process which cannot cure the problem of having missed a deadline that is nearly two years in the past.
As discussed in Section IV. E. of this document, EPA has not yet approved all these contingency measures. The States have calculated the amount of VOC or NO
EPA is proposing to approve the contingency plan as containing adopted and implemented measures to address the Washington area's failure to attain by November 15, 1999 and for the 1996-1999 ROP plan. Any final action to approve the contingency plan can only occur concurrently with or after approval of all the measures as SIP revisions.
The States have identified a number of fully adopted measures which can be implemented with minimal further action on their part and with no additional rulemaking actions to fill the contingency plan in the event the Washington area has a failure to make ROP or fails to attain by November 15, 2005. These measures include:
(a) The District's rule for solvent cleaning operations rules which are based on the Federal maximum achievable control technology (MACT) standard for chlorinated solvent vapor degreasers and thus require higher levels of technology than required previous District requirements;
(b) The District's and Maryland's rules for consumer products that set more stringent limits than the otherwise applicable Federal rules;
(c) The District's and Virginia's rules covering refinishing operations of motor vehicles. These rules set more stringent VOC control standards for these operations than otherwise applicable Federal regulations. The main difference in the state rules versus the federal rule is that the federal rule regulates only the VOC content of the repair coatings whereas the state rules also require the use of high transfer-efficiency painting methods (
(d) Post 2005 reductions from the portable fuel containers rules in all three States. The reductions from Virginia's, Maryland's and the District's rules are credited towards the ROP and attainment plans only to the extent the measure produces benefits by January 1, 2005 and November 15, 2005. The measure will accrue additional benefits after November 15, 2005 as additional old containers are replaced by ones meeting the new requirements. These additional benefits are credited towards the contingency plan.
The measures in the contingency measure plan will be implemented upon a fixed schedule whether or not EPA issued a finding of failure that the Washington area failed achieve a post 1999 ROP milestone or fails to attain by November 15, 2005. All of the rules except Maryland's portable fuel containers regulation will take effect January 1, 2005. Maryland's portable fuel containers regulation took effect January 1, 2003. Thus, all of the rules can be implemented without further action by the State or EPA.
In guidance issued in 1993, we allow the use of surplus reductions that have already been achieved before the failure has been identified to serve as contingency measures in the year after the failure for attainment and ROP plans. If an area then fails to meet a milestone which triggers the implementation of contingency measures, the state would have one year to backfill the contingency measure. (
The States have not used the VOC reductions on which the contingency measure plan relies in either the attainment demonstration or post 1996-1999 and post 1999-2005 ROP plans. The attainment demonstration relies upon a total of over 210 TPD reduction in VOC emissions. Given that the contingency measures are about 6 percent of the total number of reductions and given that the implementation date of January 1, 2005, EPA believes that these contingency measures are not reasonably available control measures (RACM) because they would not advance the attainment date from the 2005 ozone season to the 2004 ozone season. Therefore, the early implemented contingency measures are surplus to the attainment demonstration. A summary of the expected benefits from these measures is presented in Table 13.
EPA can only approve the contingency plan after or concurrently with EPA's approval of any State contingency measures rules into the applicable SIP. However, we can propose approval of the contingency measure plan once EPA has proposed approval of the state contingency measures into the applicable SIP.
EPA has already published final or proposed rules in the
EPA is proposing to approve the contingency plan as containing adopted and implemented measures to address the contingency measure requirements in the event the Washington area fails to attain the 1-hour ozone NAAQS by November 15, 2005 and for any future failures to achieve ROP or a ROP milestone. Any final approval is contingent upon approval of sufficient State measures to achieve the 3 percent of baseline emission requirement. To have sufficient measures to achieve the 3 percent of baseline emission requirement, EPA will have promulgate final rules approving all of the measures listed in Tables 12 and 13.
Section 182(d)(1)(A) of the Act requires states containing ozone nonattainment areas classified as severe, pursuant to section 181(a) of the Act, to adopt transportation control strategies and TCMs to offset increases in emissions resulting from growth in VMT or numbers of vehicle trips and to obtain reductions in motor vehicle emissions as necessary (in combination with other emission reduction requirements) to comply with the Act's ROP milestones and attainment demonstration requirements. Our interpretation of section 182(d)(1)(A) is discussed in the April 16, 1992, General Preamble (57 FR 13498). Section 182(d)(1)(A) of the Act specifies submission of the VMT Offset SIP by November 15, 1992, for any severe and above ozone nonattainment area. However, EPA has concluded that section 182(i) of the Act authorizes EPA to adjust applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions of new requirements applicable to an area which has been reclassified. In the final rule reclassifying the Washington area to severe nonattainment, EPA established the submission deadline of March 1, 2004 for the section 182(d)(1) SIP revision as EPA set for all the other new SIP revision elements applicable to reclassified area.
In the “General Preamble” EPA explained how States are to demonstrate that the VMT requirement is satisfied. Sufficient measures must be adopted so projected motor vehicle VOC emissions will stay beneath a “ceiling level” established through modeling of mandated transportation-related controls. When growth in VMT and vehicle trips would otherwise cause a motor vehicle emissions upturn, this upturn must be prevented, or offset, by TCMs. If projected total motor vehicle emissions during the ozone season in one year are not higher than during the previous ozone season due to the control measures in the SIP, the VMT Offset requirement is satisfied. In order to make these projections, a curve of vehicle emissions is modeled to represent the effects of required reductions from the following mandatory programs: an enhanced performance standard vehicle I/M program, Phase 2 RVP, RFG, and the FMVCP. (
A detailed description of the States' VMT offset SIPs for the Washington area and our evaluation of how those SIPs satisfy the applicable requirements of the Act and EPA's guidance is provided in the TSD prepared in support of this rulemaking. That TSD is available in the E-Docket of this rulemaking and from the EPA Regional Office listed in Addresses section of this document.
The States' plans show, and EPA's evaluation confirms, that the modeled curve for the Washington area does not turn upward (indicating the control programs are offsetting increases in emission from growth in VMT). Therefore, no TCMs would be necessary to offset emissions from growth in VMT under section 182(d)(1)(A). However, the District, Maryland and Virginia have chosen to include certain TCMs as measures to help meet the ROP and attainment requirements.
Typical TCMs included in the plans are bicycle racks on buses and at transit stations, park-and-ride lots, additional bus shelters, additional bicycle lanes, purchase of compressed natural gas buses to replace diesel fueled buses, and additional/improved side walks to encourage walking. The TCMs also include outfitting 866 buses with continuously regenerating filters and the use of ultra-low sulfur diesel fuel. The TCMs are described in more detail in Appendix H of the revised plan document, entitled, “Revised State Implementation Plan (SIP) Revision, Phase I Attainment Plan for the Washington DC-MD-VA Nonattainment Area” dated April 16, 1999 (“April 1999 Post-1996 Plan”). This plan was submitted as a SIP revision on May 25, 1999, May 20, 1999, and on May 25, 1999 by the District, Maryland and Virginia, respectively. Further TCMs in the February 19, 2004 plan, are described in section 7.5 and Appendix G of that document. The February 19, 2004 plan was submitted as a SIP revision on February 24, 2004 by Maryland, and on February 25, 2004 by the District and Virginia.
EPA concludes that the States have submitted sufficient TCMs to meet the requirement of section 182(d)(1)(A) of the Act. EPA is proposing to approve the VMT Offset SIP submitted by the States on the dates listed in Table 2 of this document.
Transportation conformity is a CAA requirement for metropolitan planning organizations and the U.S. Department of Transportation to ensure that federally supported highway and transit activities are consistent with (“conform to”) the SIP. Conformity to a SIP means that an action will not cause or contribute to new violations; worsen existing violations; or delay timely attainment. The conformity requirements are established by CAA section 176(c). We issued the transportation conformity rule (40 CFR part 93) to implement this CAA requirement.
As described in the CAA and our conformity rule, control strategy SIPs such as ROP plans and attainment demonstrations, and maintenance plan SIPs, must establish and identify MVEBs to ensure areas continue to demonstrate ROP and reach attainment. These MVEBs are “ceilings” for emissions from motor vehicles, and are used in conformity analyses to determine whether transportation plans and projects conform to the attainment, ROP, and maintenance SIPs. In order for transportation plans and projects to conform, estimated emissions from transportation plans and projects must not exceed the applicable MVEBs contained in attainment demonstration, ROP or maintenance plans.
According to the transportation conformity rule, MVEBs in a submitted SIP may apply for conformity purposes even before we have approved the SIP, under certain circumstances. The MVEBs in a submitted SIP cannot be used before we have approved the SIP
As stated elsewhere in this document, EPA's approvals of the 1996-1999 ROP plan and the earlier versions (those submitted during 1998 and 2000) of the attainment demonstration SIP revisions were vacated by the court. Therefore, the MVEBs in these SIP revisions are not currently in the approved SIP. EPA had issued adequacy findings for the MVEBs in the post 1996-1999 ROP plan and the earlier versions of the attainment demonstration SIP revisions (those submitted during 1998 and 2000) prior to our January 3, 2001 final approval (66 FR 586) of those SIPs. (
Therefore, the only MVEBs in the approved SIPs for the Washington area are those for VOC in the approved 15% ROP plan for 1996. (
This action proposes to approve the post 1996-1999 ROP plan for the Washington area and its 1999 MVEBs into the District of Columbia, Maryland and Virginia SIPs. This action also proposes to approve the 1999-2005 ROP plan and its 2002 and 2005 MVEBs as revisions to the District of Columbia, Maryland and Virginia SIPs. A subsequent final action to approve of the 2005 budgets in the 1999-2005 ROP plan will supersede the December 16, 2003 finding of adequacy.
Likewise, by this proposed rulemaking, EPA is also initiating the adequacy process under 40 CFR 93.118(f) for the 2005 budgets in the 1999-2005 ROP plan submitted by Maryland on February 24, 2004 and by the District and Virginia on February 25, 2004. Should EPA make a final adequacy finding on these 2005 ROP budgets, prior to taking a final action to approve them as SIP revisions, that adequacy finding would supersede the December 16, 2003 adequacy finding, and thus make the 2005 budgets in the 1999-2005 ROP plans submitted by Maryland on February 24, 2004 and by the District and Virginia on February 25, 2004 the applicable 2005 ROP budgets.
The motor vehicle emissions budgets for 1999 in the 1996-1999 ROP plan are 128.5 tons per day of VOC and 196.4 tons per day of NO
(1) For 2002, 125.2 tons per day for VOC and 290.3 tons per day of NO
(2) For 2005, 97.4 tons per day for VOC and 234.7 tons per day of NO
Approval of the ROP plans for the Washington area also requires approval of the associated contingency plans. Therefore, EPA is proposing to approve the post 1996-1999 ROP plans, the post 1999-2005 ROP plans and the contingency measures plans submitted by the District, Maryland and Virginia for the Washington area. Approval of the ROP plans requires previous or concurrent SIP-approval of all the emission reduction measures upon which the ROP demonstrations rely. Likewise, approval of the contingency measure plans requires prior or concurrent SIP approval of the measures in those plans. With respect to other ROP plans, all of the measures are either Federal measures that have been promulgated by EPA or state measures that have been approved by EPA as SIP revisions into the District's, Maryland's and Virginia's SIPs. However, as
EPA is proposing approval of the District of Columbia's 1996-1999 ROP plan SIP revision for the Washington area which was submitted on November 3, 1997, as supplemented on May 25, 1999, and the TCMs in Appendix H of the May 25, 1999 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revisions.
EPA is proposing approval of the revision to the 1990 Base Year Emissions Inventory submitted by the District of Columbia on September 5, 2003 as supplemented on February 25, 2004.
EPA is proposing approval of the District of Columbia's post 1999-2005 ROP plan SIP revision for the Washington area which was submitted on September 5, 2003 as supplemented on February 25, 2004 and the TCMs in Appendix J of the February 25, 2004 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revisions.
EPA is proposing to determine that the District of Columbia has adopted sufficient TCMs to address growth in VMT and number of vehicle trips as required under section 182(d)(1)(A).
EPA is proposing approval of the District of Columbia's contingency measure plan SIP revision for the Washington area which was submitted on September 5, 2003, as supplemented on February 25, 2004. Final approval is contingent upon final approval of enough measures in the contingency measure plan to represent a 3 percent reduction of the 2002 baseline emissions and final approval of the following measures identified by the District of Columbia as measures in the plan: The District's rules for consumer products, motor vehicle refinishing, AIM, solvent cleaning and portable fuel containers.
EPA is proposing approval of Maryland's post 1996-1999 ROP plan SIP revision for the Washington area which was submitted on December 24, 1997, as supplemented on May 20, 1999, and the TCMs in Appendix H of the May 20, 1999 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revision.
EPA is proposing approval of the revision to the 1990 Base Year Emissions Inventory submitted by Maryland on September 2, 2003 as supplemented on February 24, 2004.
EPA is proposing approval of Maryland's post 1999-2005 ROP plan SIP revision for the Washington area which was submitted on September 2, 2003 as supplemented on February 24, 2004 and the TCMs in Appendix J of the February 24, 2004 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revisions.
EPA is proposing to determine that Maryland has adopted sufficient TCMs to address growth in VMT and number of vehicle trips as required under section 182(d)(1)(A).
EPA is proposing approval of Maryland's contingency measure plan SIP revision for the Washington area which was submitted on September 3, 2003, as supplemented on February 24, 2004. Final approval is contingent upon final approval of enough measures in the contingency measure plan to represent the 3 percent reduction of the 2002 baseline emissions and of the following measures identified by Maryland as measures in the plan: Maryland's rules for consumer products, AIM, and portable fuel containers.
EPA is proposing approval of Virginia's post 1996-1999 ROP plan SIP revision for the Washington area which was submitted on December 29, 1997, as supplemented on May 25, 1999, and the TCMs in Appendix H of the May 25, 1999 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revisions.
EPA is proposing approval of the revision to the 1990 Base Year Emissions Inventory submitted by Virginia on August 19, 2003 as supplemented on February 25, 2004.
EPA is proposing approval of Virginia's post 1999-2005 ROP plan SIP revision for the Washington area which was submitted on August 19, 2003 as supplemented on February 25, 2004 and the TCMs in Appendix J of the February 25, 2004 submittal. Final approval is contingent upon final approval of the contingency measure plan in the 2004 SIP revisions.
EPA is proposing to determine that Virginia has adopted sufficient transportation control measures necessary to address growth in VMT and number of vehicle trips as required under section 182(d)(1)(A).
EPA is proposing approval of Virginia's contingency measure plan SIP revision for the Washington area which was submitted on August 19, 2003, as supplemented on February 25, 2004. Final approval is contingent upon final approval of enough measures in the contingency measure plan to represent the 3 percent reduction of the 2002 baseline emissions and of the following measures identified by Virginia as measures in the plan: Virginia's rules for motor vehicle refinishing, AIM, solvent cleaning and portable fuel containers.
EPA is proposing to approve the MVEBs established and identified in the Post 1996-1999 and Post 1999-2005 ROP Plans for the Washington area submitted by the District, Maryland and Virginia on the dates as provided in this document. The MVEBs for 1999 in the 1996-1999 ROP plan are 128.5 tons per day of VOC and 196.4 tons per day of NO
(1) For 2002, 125.2 tons per day for VOC and 290.3 tons per day of NO
(2) For 2005, 97.4 tons per day for VOC and 234.7 tons per day of NO
EPA is also initiating the adequacy process under 40 CFR 93.118(f) for the 2005 budgets in the 1999-2005 ROP plans. EPA will not be initiating a separate adequacy process. Persons wishing to comment on the adequacy of these MVEBs should do so at this time.
EPA is soliciting public comments on all these proposed actions and the associated issues discussed in this document. These comments will be considered before taking final actions.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (15 U.S.C. 601
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Notice of availability; opening of public comment period.
The Environmental Protection Agency (EPA, we, or Agency) is announcing, and soliciting public comment for 45 days on, EPA's proposed approval of the Hanford Central Characterization Project (CCP) to characterize retrievably-stored, contact-handled, transuranic (TRU) debris waste for disposal at the Waste Isolation Pilot Plant (WIPP). EPA is also proposing to designate any changes or expansions to this waste characterization approval as Tier 1, according to EPA's recently effective procedures for approval of WIPP waste generator sites. A Tier 1 designation means that DOE must first obtain written approval from EPA prior to disposing of waste characterized using new or revised processes, equipment, or waste streams. The documents related to this proposed approval are available for review in the public dockets listed in
EPA is requesting public comment on the documents. Comments must be received by EPA's official Air Docket on or before February 28, 2005.
Comments may be submitted by mail to: EPA Docket
Mr. Ed Feltcorn, Office of Radiation and Indoor Air, (202) 343-9422. You can also call EPA's toll-free WIPP Information Line, 1-800-331-WIPP or visit our Web site at
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. However, late comments may be considered if time permits.
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You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
DOE operates the WIPP near Carlsbad in southeastern New Mexico as a deep geologic repository for disposal of transuranic (TRU) radioactive waste. As defined by the WIPP Land Withdrawal Act (LWA) of 1992 (Pub. L. 102-579), as amended (Pub. L. 104-201), TRU waste consists of materials containing elements having atomic numbers greater than 92 (with half-lives greater than twenty years), in concentrations greater than 100 nanocuries of alpha-emitting TRU isotopes per gram of waste. Much of the existing TRU waste in the United States consists of items contaminated during the production of nuclear weapons, such as rags, equipment, tools, and sludges.
On May 13, 1998, EPA announced its final compliance certification decision to the Secretary of Energy (published May 18, 1998, 63 FR 27354). This decision stated that the WIPP will comply with EPA's radioactive waste disposal regulations at 40 CFR part 191, subparts B and C.
The final WIPP certification decision includes conditions that (1) prohibit shipment of TRU waste for disposal at WIPP from any site other than the Los Alamos National Laboratory (LANL) until EPA determines that the site has established and executed a quality assurance program, in accordance with §§ 194.22(a)(2)(i), 194.24(c)(3), and 194.24(c)(5) for WC activities and assumptions (Condition 2 of appendix A to 40 CFR part 194); and (2) prohibit shipment of TRU waste for disposal at WIPP from any site other than LANL until EPA has approved the procedures developed to comply with the waste characterization requirements of § 194.22(c)(4) (Condition 3 of appendix A to 40 CFR part 194).
In July 2004, EPA finalized changes to § 194.8(b) of the WIPP Compliance Criteria that modified the approval process for waste characterization programs at TRU waste generator/storage sites. According to these changes, EPA's waste characterization approval process will follow these steps for newly approved sites:
• EPA will conduct a baseline inspection at a TRU waste generator/storage site in accordance with the § 194.8 requirements and evaluate various waste characterization program components based on the site's demonstration of its capabilities.
• Following a baseline inspection, EPA will issue a
• EPA will seek public comment on the proposed baseline compliance decision and place supporting documentation in the public dockets.
• After consideration of public comment, EPA will issue a final baseline compliance decision for a TRU waste site. Following this approval, EPA will continue to evaluate and approve, if necessary, changes to the approved WC program activities in accordance with the assigned tiering designations.
Waste generator sites are permitted to initiate waste characterization activities at a site prior to EPA's inspection. EPA inspectors observe all major elements of the waste characterization process during the baseline inspection. However, the waste generator sites are not permitted to ship characterized waste to WIPP without EPA's written approval.
Today's proposed baseline compliance decision for the Hanford CCP is the first action under the new approval process at 40 CFR 194.8(b). The Central Characterization Project was established by DOE to augment the ability of TRU waste sites to characterize and certify waste in accordance with EPA's WIPP Compliance Criteria. Because the CCP is essentially a mobile waste characterization facility, EPA treats CCP at Hanford (as we have with the CCP at other waste generator sites) as a separate WC program from the main Hanford site. Therefore, the Hanford CCP must meet all of the waste characterization and quality assurance requirements of the WIPP Compliance Criteria.
EPA conducted the inspection of the Hanford CCP from September 8-12, 2003. The purpose of the inspection was to determine the technical adequacy of the Hanford CCP to characterize TRU debris waste from the Plutonium Finishing Plant using acceptable knowledge (AK), nondestructive assay (NDA), nondestructive examination (NDE), and data transfer to the WIPP
In 2004, DOE was able to demonstrate adequate resolution of the inspection findings and concerns to EPA.
Between the time when EPA conducted the inspection and the time when the inspection findings were resolved, EPA's changes to the waste characterization approval process became effective (October 14, 2004). Under the newly revised 40 CFR 194.8(b), EPA is proposing to approve the disposal of retrievable-stored, contact-handled, TRU debris waste, characterized by the Hanford CCP at the WIPP using AK, NDA using the Mobile Segmented Gamma Scanner (SGS), NDE using real-time radiography (RTR). (Visual examination was not evaluated as part of this inspection. Visual examination of these contact-handled TRU debris containers was performed using the Hanford main site's approved processes.) EPA's inspection report is available from our docket and online. The inspection report describes what we inspected, what we determined to be technically adequate, what we identified as deficiencies and the corrective action that was required for EPA's proposed approval. In addition, the inspection report explains the basis for the tiering requirement and the subsequent reporting requirements.
EPA is proposing a Tier 1 designation for any changes to the approved Hanford CCP waste characterization activities. This means that DOE must obtain written approval from EPA prior to using any new or revised processes, equipment, or waste streams.
When EPA finalized the changes to the Compliance Criteria, EPA indicated that “the first approvals conducted under the new process are likely to be highly detailed and very intensive, since EPA will need to work with DOE and stakeholders to ensure that the full range of waste characterization activities is identified and placed in appropriate reporting/approval tiers.” We envisioned that this scheme, applied at a typical DOE waste generator site, would address a variety of possible program changes or expansions as clean-up operations progressed or more sophisticated techniques were developed. In such a case, various tiering levels would be necessary to address the relative significance of potential program changes. The Hanford CCP, however, is not typical of the situation we would expect for most approvals. As noted previously, Hanford CCP has already completed its intended waste characterization activities. All characterization was accomplished using exclusively the equipment and procedures described in our proposed approval, and was applied solely to the PFP debris waste stream. Because CCP operations at Hanford have concluded, we do not expect any changes or expansions to its waste characterization program. Therefore, for efficiency and simplicity, we are categorizing any and all changes as Tier 1. We believe this approach is simple and expedient, given that changes are not expected. Furthermore, this is appropriate given that any changes, if they did occur, would require re-deployment of the CCP at Hanford and warrant a high level of scrutiny. We emphasize that EPA does not believe that the Hanford CCP baseline compliance decision is typical of the inspections and approvals that will be done in the future under the new requirements of 40 CFR 194.8(b).
In summary, through this
Following a review and evaluation of public comments, EPA will finalize the proposed baseline compliance decision for the Hanford CCP. EPA will notify DOE of our final decision via letter and post the final decision on our Web site.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); extension of comment period.
On November 2, 2004, FRA published a Notice of Proposed Rulemaking (NPRM) in the
Written Comments: Comments must be received by February 3, 2005. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
You may submit comments identified by DOT DMS Docket Number FRA-2004-17645 by any of the following methods:
• Web site:
• Fax: Comments may be faxed to the following number: 1-202-493-2251.
• Mail: Comments may be mailed to the Docket Management Facility at the U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Hand deliver comments to Room PL-401 on the plaza level of the Nassif Building, which is located at 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal e-Rulemaking Portal: Go to
John Punwani, Office of Research and Development, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 20, Washington, DC 20590 (telephone: (202) 493-6369); Charles L. Bielitz, Mechanical Engineer, Office of Safety Assurance and Compliance, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6314); or Darrell L. Tardiff, Trial Attorney, Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 (telephone: (202) 493-6038).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Reopening of comment periods; request for comment on addendum to initial regulatory flexibility analysis.
This document reopens the comment period on a notice of proposed rulemaking (NPRM) to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 214, “Side Impact Protection,” to add a dynamic pole test to the standard, and on an NPRM on adding specifications and qualification requirements for a new mid-size adult male crash test dummy for use in the pole test. The agency is taking this action in response to a petition from the Alliance of Automobile Manufacturers requesting additional time to submit comments. The agency is reopening the comment period for 90 days. This document also informs readers that the agency will be placing in the docket an addendum to an initial regulatory flexibility analysis (IRFA) relating to the proposed addition of the dynamic pole test to FMVSS No. 214. Comments are requested on the addendum.
Comments to docket numbers NHTSA-2004-17694 published May 17, 2004 (69 FR 27990), and NHTSA-2004-18864 published September 15, 2004 (69 FR 55550), and on the addendum to the IRFA (Docket No. 17694), must be received by April 12, 2005.
You may submit comments (identified by the DOT DMS Docket Number) 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 20590-001. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington,
Federal eRulemaking Portal: Go to
Dr. William Fan, NHTSA Office of Crashworthiness Standards (202) 366-4922), or Deirdre Fujita, NHTSA Office of Chief Counsel (telephone (202) 366-2992; fax (202) 366-3820). Both of these officials may be reached at 400 Seventh St., SW., Washington, DC 20590.
In May 2004, NHTSA published a notice of proposed rulemaking that proposed to upgrade FMVSS No. 214, “Side Impact Protection,” by requiring that all passenger vehicles with a gross vehicle weight rating of 4,536 kilograms (10,000 pounds) or less protect front seat occupants against head, thoracic, abdominal and pelvic injuries in a vehicle-to-pole test simulating a vehicle crashing sideways into narrow fixed objects like telephone poles and trees (69 FR 27990, May 17, 2004; Docket 2004-17694). The NPRM proposed that compliance with the pole test would be determined in tests using a new, second-generation test dummy representing mid-size adult males (the “ES-2re” crash test dummy) and a new test dummy representing small adult females (the “SID-IIsFRG” test dummy). The NPRM also proposed using the new dummies in the standard's existing vehicle-to-vehicle test that uses a moving deformable barrier (MDB) to simulate a moving vehicle being struck in the side by another moving vehicle. NHTSA provided a 150-day comment period for the proposal, which closed October 14, 2004.
Publication of NPRMs to add specifications and qualification requirements for the ES-2re and SID-IIsFRG crash test dummies to 49 CFR Part 572 (NHTSA's regulation on anthropomorphic test devices) followed the FMVSS No. 214 proposal. A proposal for the ES-2re was published September 15, 2004 (69 FR 55550; Docket No. 18864). The comment period for that NPRM closed November 15, 2004. An NPRM proposing specifications and qualification requirements for the SID-IIsFRG test dummy was published on December 8, 2004 (69 FR 70947; Docket No. 18865). A 90-day comment period was provided.
The Alliance of Automobile Manufacturers (Alliance) petitioned the agency to re-open the comment period for the FMVSS No. 214 NPRM for at least an additional eight months. The Alliance believed that the ES-2re and SID-IIsFRG test dummies were not available in sufficient quantities for member companies to assess the proposed pole test procedures. The Alliance indicated that dummy manufacturers were not able to supply the test dummies in response to manufacturers' demand. The petitioner stated that eight months is needed to provide sufficient time for Alliance members to complete dummy component tests (the petitioner estimated that three to four months is needed for this); to undertake vehicle tests (the petitioner suggested this would take another three to four months); and to analyze data and draft their comments (petitioner stated those steps would take another one to two months).
The Alliance also petitioned to extend the comment period for the ES-2re NPRM for eight months. The petitioner stated that it needs the time to facilitate a comprehensive technical evaluation of the dummy and perform fleet testing, and that the eight months would align the comment closing date with that requested by the Alliance for the FMVSS No. 214 NPRM. The petitioner believed that the 150-day comment period provided for the May 2004 FMVSS No. 214 NPRM contrasts with a nine-month comment period that NHTSA provided in 1988 when the agency proposed to adopt the MDB test into FMVSS No. 214.
The agency is reopening the comment periods for the FMVSS No. 214 and the ES-2re NPRMs for 90 days. The 90 day period coincides with the comment period that the agency has provided for the SID-IIsFRG NPRM. We note that the ES-2re and SID-IIsFRG dummies were available following publication of the FMVSS No. 214 NPRM in May 2004 and that the 150 day comment period provided ample time for manufacturers to obtain and begin evaluating the test dummies and to perform fleet assessments. However, vehicle manufacturers did not know the calibration procedures and values that the agency was considering for the dummies' performance requirements until publication of the Part 572 NPRMs in September (ES-2re) and December 2004 (SID-IIsFRG). Reopening the comment period gives manufacturers time to assess the dummies' performance and to conduct fleet testing using the calibrated dummies.
NHTSA believes that a 90 day extension is sufficient and that providing 8 months is unwarranted. The Alliance stated that manufacturers need three to four months to do “component testing” of the dummies. We believe that component testing can be done in a matter of days or weeks rather than months. Also, calibration procedures were published for the ES-2re dummy in September and for the SID-IIsFRG in early December. We also estimate that six weeks is sufficient for conducting vehicle tests and for evaluating the data, based on the agency's experience with testing vehicles under NHTSA's consumer information New Car Assessment Program (NCAP). We further estimate that drafting and submitting comments on this priority rulemaking can be done in less than a month. All told, this period amounts to not more than 3 months. A longer period would unnecessarily delay key decisions by NHTSA about the FMVSS No. 214 rulemaking and would delay the potential societal benefits associated with a final rule.
It is noted that the 90 day period does not even include the period that has passed since the closing dates of the comment periods for the FMVSS No. 214 and ES-2re NPRMs (October 14, 2004 and November 15, 2005, respectively). From those dates until today, manufacturers could have been and presumably were working on dummy and vehicle assessment. Thus, as a practicable matter, more than 90 days has been provided. It is further noted that the agency will consider late comments to the extent possible.
The 8-month period that the Alliance requested is too long. The petitioner has not explained how the manufacturers have been using the 150 day comment period of the FMVSS No. 214 NPRM to respond to the proposal. Information obtained by NHTSA from the two dummy manufacturers indicate that they were able to fill orders of the SID-IIsFRG and ES-2re dummies and of the conversion kits (converting a SID-IIs to the SID-IIsFRG by the addition of the floating rib guide modifications and an ES-2 to an ES-2re by addition of the rib extensions) within a reasonable time. One manufacturer shipped full dummies or conversion kits within nine days on the average from receipt of order, while the other needed less than 8 weeks for full dummies and 4 weeks for kits. The agency is not convinced that a good faith effort to obtain the test dummies went unheeded by the dummy manufacturers.
We further disagree with the petitioner's view that an 8 month extension is supported by the agency's decision in 1988 to provide a 9 month comment period for the NPRM on the MDB test. The comment period for that rulemaking was extraordinarily long because it was the first time that a full scale dynamic impact test had been proposed for FMVSS No. 214. In contrast, a pole test with an instrumented dummy, substantially similar to the test proposed in the May 2004 NPRM, is already an option being used in FMVSS No. 201, “Occupant protection in interior impact,” and manufacturers are thus familiar with the protocol. Also, the deformable barrier was a new test device with its own properties, and was much more complex than the rigid pole used in the pole test. In addition, there were three new test dummies under consideration in the MDB rulemaking to represent a 50th percentile adult male: General Motors supported the BioSID; the European community supported the EuroSID; and NHTSA supported the SID. The three dummies had different characteristics and new injury criteria, each of which had to be individually considered. In contrast, the May 2004 NPRM only proposes the ES-2re as the 50th percentile male test dummy used in the NPRM. Not only is this the sole test dummy proposed as the representative device for the mid-size male, all vehicle manufacturers were familiar with the dummy through use of the ES-2 in vehicle development and NCAP-type programs in Europe, Japan and Australia. In light of these facts, reopening the comment period for an additional 8 months is unwarranted.
Accordingly, the public comment closing dates for DOT Docket Nos. 17694 and 18864 are reopened for 90 days as indicated in the
NHTSA is preparing an addendum to the initial regulatory flexibility analysis (IRFA) that was contained in the Preliminary Economic Assessment (PEA) for the May 17, 2004 NPRM on FMVSS No. 214. The addendum will be placed in Docket No. 17694. (The PEA is the first entry in Docket No. 17694). The addendum to the IRFA discusses the economic impacts on small vehicle manufacturers, of which there are four. Comments are requested on the addendum to the IRFA. Comments should be submitted to Docket. No. 17694 within the comment period reopened by today's
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the appropriate docket number in your comments.
Your comments must not be more than 15 pages long. (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under
You may also submit your comments to the docket electronically by logging onto the Dockets Management System website at
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under
NHTSA will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under
You may read the comments received by Docket Management at the address given above under
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
1. Go to the Docket Management System (DMS) Web page of the Department of Transportation (
2. On that page, click on “search.”
3. On the next page (
4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the
Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the Docket for new material.
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
49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at 49 CFR 1.50.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments; correction.
On January 3, 2005, NMFS published a notification that the New England Fishery Management Council and the Mid-Atlantic Fishery Management Council have submitted Amendment 2 to the Monkfish Fishery Management Plan (FMP) (Amendment 2) incorporating the draft Final Supplemental Environmental Impact Statement (FSEIS), Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA), for Secretarial review and requested comments from the public. Amendment 2 was developed to address essential fish habitat and bycatch issues, and to revise the FMP to address several issues raised during the public scoping process. In the January 3, 2005, notification, NMFS inadvertently referred to this action as a proposed interim rule. This document corrects that error.
Comments on Amendment 2 to the Monkfish FMP must be received on or before March 3, 2005.
Allison R. Ferreira, Fishery Policy Analyst, phone: (978) 281-9103; fax: (978) 281-9135; e-mail:
An NOA for Amendment 2 to the Monkfish FMP was published in the
NMFS in the
Therefore, in the NOA for Amendment 2 to the Monkfish FMP published on January 3, 2005, which was the subject of FR Doc 04-28738, in the second line of the
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Notice of advisory committee meeting.
In accordance with the Federal Advisory Committee Act (5 U.S.C. App. II) announcement is made of a forthcoming meeting of the National Advisory Committee for Tobacco Inspection Services.
The meeting will be held on February 1, 2005, at 9 a.m.
The meeting will be held at the Old Town Alexandria Holiday Inn, 480 King Street, Alexandria, Virginia 22314.
William O. Coats, Associate Deputy Administrator, Tobacco Programs, AMS, USDA, telephone number (202) 205-0567 or fax (202) 205-0235.
The purpose of the meeting is to elect officers, discuss recent legislation affecting mandatory inspection, and review various regulations issued pursuant to the Tobacco Inspection Act (7 U.S.C. 511
The meeting is open to the public. Persons, other than members who wish to address the Committee at the meeting should contact William O. Coats, Associate Deputy Administrator, Tobacco Programs, AMS, USDA, STOP 0280, 1400 Independence Avenue, SW, Washington, DC 20250-0280, prior to the meeting. Written statements may be submitted to the Committee before, at, or after the meeting. If you need any accommodations to participate in the meeting, please contact the Tobacco Programs at (202) 205-0567 by January 24, 2005, and inform us of your needs.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Food and Nutrition Service's (FNS) intention to request an extension for a currently approved information collection, the WIC Financial Management and Participation Report with Addendum.
Comments on this notice must be received by March 14, 2005.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Patricia N. Daniels, Director, Supplemental Food Programs Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 520, Alexandria, VA 22302.
All responses to this notice will be summarized and included in the request for OMB approval, and will become a matter of public record.
Requests for additional information or copies of the information collection form and instructions should be directed to: Patricia N. Daniels, (703) 305-2749.
In addition, nonentitlement programs, such as the WIC Program, are required to conduct an annual closeout and reconciliation of grants. Departmental regulations at 7 CFR 3016.23(b) require that “[a] grantee must liquidate all obligations incurred under the award not later than 90 days after the end of the funding period (or as specified in a program regulation) to coincide with the submission of the annual Financial Status Report (SF-269).” WIC Program regulations at 7 CFR 246.17(b)(2) instruct State agencies to “submit to FNS, within 150 days after the end of the fiscal year, final fiscal year closeout reports.” The final WIC Financial Management and Participation Report (FNS-798) submitted for the year with its addendum (FNS-798A) are used as a substitute for the SF-269, because they maintain the integrity of WIC's two grant components (food and nutrition services and administration (NSA)) as well as the four NSA grant components (program management, client services, nutrition education, and breastfeeding promotion and support).
Forest Service, USDA.
Notice of meeting.
The Ravalli County Resource Advisory Committee will be meeting to discuss project development for 2005 and project updates for 2004. Agenda topics will include electing a chairperson for 2005, public outreach methods, and a public forum (question and answer session). The meeting is being held pursuant to the authorities in the Federal Advisory Committee Act (Public Law 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393). The meeting is open to the public.
The meeting will be held on January 25, 2005, 6:30 p.m.
The meeting will be held at the Ravalli County Administration Building, 215 S. 4th Street, Hamilton, Montana. Send written comments to Dan Ritter, Acting District Ranger, Stevensville Ranger District, 88 Main Street, Stevensville, MT 59870, by facsimile (406) 777-7423, or electronically to
Dan Ritter, Acting Stevensville District Ranger and Designated Federal Officer. Phone: (406) 777-5461.
Rural Business-Cooperative Service, USDA.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business-Cooperative Service's (RBS) intention to request an extension of the clearance for an existing information collection in order to render service to associations of producers of agricultural, forestry, fisheries products and federations, and subsidiaries, thereof, as authorized in the Cooperative Marketing Act of 1926.
Comments on this notice must be received by March 14, 2005.
Tracey L. Kennedy, Agricultural Economist, RBS, U.S. Department of Agriculture, 1400 Independence Avenue SW., STOP 3252, Washington, DC 20250-3252, Telephone (202) 690-1428.
Authority and Duties of Division (7 U.S.C. 453).
(a) The division shall render service to associations of producers of agricultural products, and federations and subsidiaries, thereof, engaged in the cooperative marketing of agricultural products including processing, warehousing, manufacturing, storage, the cooperative purchasing of farm supplies, credit, financing, insurance, and other cooperative activities.
(b) The division is authorized to:
(1) Acquire, analyze, and disseminate economic, statistical, and historical information regarding the progress, organization, and business methods of cooperative associations in the United States and foreign countries.
(2) Conduct studies of the economic, legal, financial, social, and other phases of cooperation, and publish the results thereof. Such studies shall include the analyses of the organization, operation, financial and merchandising problems of cooperative organizations.
(3) Make surveys and analyses if deemed advisable of the accounts and business practices of representative cooperative associations upon their request; report to the association so surveyed the results thereof; and with the consent of the association so surveyed to publish summaries of the results of such surveys, together with similar facts, for the guidance of cooperative associations and for the purpose of assisting cooperative associations in developing methods of business and market analysis.
(4) Acquire from all available sources, information concerning crop prospects, supply, demand, current receipts, exports, imports, and prices of agricultural products handled or marketed by cooperative associations, and employ qualified commodity marketing specialists to summarize and analyze this information and disseminate the same among cooperative associations and others.
RBS also has a stated objective to “assist U.S. farmer cooperatives to expand their participation in international trade of agricultural products and supplies and to review their progress.”
As trade agreements are implemented and domestic farm supports are reduced, a global presence is increasingly important to producers, their communities, and to job-creation and retention in agri- and food-related industries. Measurement and monitoring of cooperatives' global presence are stated objectives of RBS's International Trade Program. In order to carry out the Agency's mission and objectives, RBS needs to collect information from the cooperative community. This information collection
Beginning in 1980, RBS's predecessor, ACS, collected cooperative trade data at 5-year intervals. Value of cooperative exports by commodity and destination was measured, as well as information related to method of sale. Values of imports by cooperatives, commodity, and country of origin were collected in 1986 and 1991. Since 1997, data have been collected on an annual basis, as it became apparent that data collected at intervals longer than 1 year do not provide for meaningful analysis. Further, data collected prior to 1997 had been strictly limited to exports and imports, neglecting other important international arrangements such as strategic alliances and foreign direct investments. A more comprehensive, annual data set accomplishes stated Cooperative Service objectives to measure and monitor cooperatives' global presence. These data are generally not available to RBS unless provided by the cooperatives.
Copies of this information collection can be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, at (202) 692-0043.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the function of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Cheryl Thompson, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, 1400 Independence Avenue SW., STOP 0742, Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of a public record.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek , Departmental Paperwork Clearance Officer, Department of Commerce, Room 6086, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Geraldine Burt, Census/Field Division, Room 1784/FOB 3, Washington, DC 20233-4400, and 301-763-1935.
Retention of trained field interviewing staff is a major concern for the Census Bureau because of both the monetary costs associated with employee turnover, as well as the potential impact on data quality. The Field Representative Exit Survey is used to collect data from a sample of our former current survey interviewers (field representatives) and decennial operations interviewers (enumerators). The purpose of the Field Representative Exit Survey is to determine the reasons for interviewer turnover and what the Census Bureau might do to help reduce its turnover rate for interviewing staff.
We will use Form BC-1294 to collect data from field representatives who leave the Census Bureau. We will use Form BC-1294(D) to collect data from the enumerators hired to work on the 2010 Test Census in 2005/2006 (and in the 2008 Dress Rehearsal in 2007) who stop working voluntarily before the operation for which they were hired is completed. Both forms ask questions about the factors that affected an interviewer's decision regarding voluntarily leaving employment with the Census Bureau. The BC-1294 and BC-1294(D) cover the same topics, but the questions and response choices on the BC-1294(D) have been tailored to decennial census operations.
Interviewer turnover is of heightened concern during a decennial census because of the short time periods for data collection operations and the potential adverse impact excessive turnover would have on completing operations as scheduled. The 2010 Test Censuses are being used by the Census Bureau to test and experiment with procedures in a simulated census environment in preparation for the 2010 Census. The second of the major field tests for the 2010 Test Census will be conducted in 2006. The primary goal of the 2006 Census Test will be to test and improve the field and automated systems needed to support the major design components of the 2010 Census. The results of the 2006 Census Tests will inform the design of the 2008 Dress Rehearsal. Emphasis in the 2006 Census Test will be on continuing the assessment of new methods and systems proposed for 2010, including an analysis of the impact of the use of hand-held computers for locating addresses and route planning, interviewing and collection of Global Positioning Systems (GPS) coordinates on field staffing.
The information collected via the Field Representative Exit Survey will help the Census Bureau develop plans to reduce turnover in its current survey and decennial interviewing staff. These results allow for better informed management decisions regarding the field work force and the implementation of more effective recruitment, pay plans, interviewer training, and retention strategies for both current and decennial interviewers.
The data will be collected by telephone. Interviews with former current survey field representatives should take approximately seven (7) minutes. We estimate that interviews will be conducted with a total of 500 field representatives on a yearly basis. Approximately every month, a sample of one-half of all field representatives who voluntarily resigned within the period will be contacted by telephone to complete a BC-1294 questionnaire.
The form BC-1294(D) contains a few more questions related to decennial census working conditions, including the impact of proposed automation of some data collection operations. Interviews with former enumerators should take approximately ten (10) minutes. Initial hiring for the 2006 Test Census is scheduled to begin in 2005 for early operations. The 2010 Census Dress Rehearsal is scheduled for 2008, with initial hiring to begin in 2007. It is estimated that interviews will be conducted with 375 former enumerators in 2005, 2006, and 2007. Beginning approximately two weeks after the start of the 2006 Tests Census operations in 2005 (and in 2007 for the 2008 Dress Rehearsal), a sample of enumerators who have continuously been in a non-pay status for a period of two weeks will be contacted by telephone to complete a BC-1294(D) questionnaire.
Title 5 U.S.C. 3101 and Title 13 U.S.C. 23.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to J. Michael Stump or Tonika Butler, Bureau of the Census, 4700 Silver Hill Rd. Stop 5780, Room Number 1314, SFB #2, Washington, DC 20233-5780 and 301-763-1429.
The Special Census Program is a reimbursable service offered and performed by the Census Bureau for the government of any state; county, city, or other political subdivision within a state, for the government of the District of Columbia, and for the government of any possession or area over which the U.S. exercises jurisdiction, control, or sovereignty, and other governmental units which require current population data between decennial censuses.
Many states distribute funds based on current population statistics. In addition, special census data are used by the local jurisdictions to plan new schools, transportation systems, housing programs, and water treatment facilities.
The Census Bureau will use the following forms to update addresses listed on the Census Bureau's Master Address File (MAF) and to enumerate populations in special censuses:
SC-1, Special Census Enumerator Questionnaire—This interview form will be used to collect special census data at regular housing units (HU).
SC-1(SUPP), Continuation Form for Enumerator Questionnaire—This interview form will be used to collect special census data at a regular HU when there are more than five members in a household.
SC-1(Telephone), Special Census Enumeration Questionnaire—This interview form will be used to collect special census data when a respondent calls the local special census office.
SC-2, Special Census Special Place Questionnaire—This interview form will be used to collect special census data at group quarters (GQ) in special places (SP) such as hospitals, prisons, boarding and rooming houses, campgrounds, hotels, college dormitories, military facilities, and convents.
SC-116, Group Quarters Enumeration Control Sheet—This page will be used by Special Census enumerators to list residents/clients at GQs.
SC-351, Group Quarters Initial Contact Checklist—This checklist will be used by enumerators to collect contact information and to determine the type of GQ.
SC-920, Address Listing Page—This page will include existing addresses from the MAF. Special Census enumerators will update these addresses, if needed, at the time of enumeration.
SC-921(HU), Housing Unit Add Page—This page will be used by enumerators to add HUs that are observed to exist on the ground and that are not contained on the address listing page.
SC-921(SP), Special Place/Group Quarter Add Page—This page will be used by enumerators to add SPs/GQs that are observed to exist on the ground and that are not reflected in the address listing page.
The Special Census Program will operate as a generic OMB clearance including a library of forms and the operational procedures that will be used for the many special censuses we anticipate conducting this decade. The Census Bureau will establish a reimbursable agreement with a variety of potential special census customers that are unknown at this time.
We will submit for OMB's review and approval, under cover of a change worksheet, any special-purpose questions requested by customers to be added to special census questionnaires.
The Special Census Program will use the Census 2000 Update/Enumerate (U/E) methodology. Enumerators will canvass their assigned areas with an address register that contains addresses obtained from the MAF. Special Census enumerators will update the address information, as needed, based on their observation of HUs and/or SPs/GQs that exist on the ground. Additionally, enumerators will interview households at regular HUs and residents at GQs using the appropriate Special Census questionnaire.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Notice and request for comments.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, DOC Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Pat Heinig, BIS ICB Liaison, Department of Commerce, Room 6704, 14th & Constitution Avenue, NW., Washington, DC 20230.
This information collection requires the submission of documents to support export license applications, or the retention of documents for shipments made under applicable License Exceptions of petroleum products derived from a naval petroleum reserve.
Submission with BIS form BIS-748P and record retention.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, DOC Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW, Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Pat Heinig, BIS ICB Liaison, Department of Commerce, Room 6704, 14th and Constitution Avenue, NW., Washington, DC 20230.
These recordkeeping and reporting requirements are clear statements of normal business records for high performance computers (HPC) that are expected to be maintained by end-users in destinations where there is a potential for diversion to unauthorized endusers. The records must be available for inspection by U.S. officials to maintain surveillance of HPC usage and implementation of appropriate safeguards.
Reports and recordkeeping.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Notice and request for comments.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, DOC Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Pat Heinig, BIS ICB Liaison, (202) 482-4848, Department of Commerce, Room 6704, 14th and Constitution Avenue, NW., Washington, DC 20230.
This collection is required in compliance with U.S. export regulations. The information furnished by U.S. exporters provides the basis for decisions to grant licenses for export, reexport, and classifications of commodities, goods and technologies that are controlled for reasons of national security and foreign policy. This revision includes the burden associated with 3rd party disclosures, certifications and notification requirements imposed on the public.
Submitted on form BIS-748P.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Proposed collection; comment request.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, DOC Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Pat Heinig, BIS ICB Liaison, (202) 482-4848, Department of Commerce, Room 6704, 14th and Constitution Avenue, NW., Washington, DC 20230.
This collection of information is the certification of the overseas importer to the U.S. government that he/she will import specific commodities from the U.S. and will not reexport such commodities except in accordance with U.S. export regulations.
Requests for information, copies of documents or requirements to send notifications submitted to BIS.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has preliminarily determined that sales by the respondents in this review, covering the period December 1, 2002, through November 30, 2003, have been made at prices less than normal value (NV). In addition, we are preliminarily rescinding this review with respect to Tianjin Custom Wood Processing Co., Ltd. (TCW), because TCW reported, and we confirmed, that it made no shipments of subject merchandise to the United States during the period of review (POR). If these preliminary results are adopted in the final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. The Department invites interested parties to comment on these preliminary results.
January 12, 2005.
Paul Stolz or Marin Weaver, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-4474 and (202) 482-2336, respectively.
On December 2, 2003, the Department published in the
On December 4, 2003, in accordance with 19 CFR 351.213(b), a PRC exporter, Shandong Rongxin Import and Export Co., Ltd. (Rongxin), requested an administrative review of the order on certain cased pencils from the PRC. On December 31, 2003, the petitioners, Sanford L.P., Musgrave Pencil Company, RoseMoon Inc., and General Pencil Company, requested that the Department conduct an administrative review of exports of subject merchandise made by eight producers/exporters.
The Department published a notice announcing its initiation of an antidumping duty administrative review covering the exports of the above-referenced companies during the POR.
In its February 19, 2004, response to the Department's questionnaire, TCW stated that it did not export subject merchandise to the United States during the POR. CFP/Three Star, Orient International Holding Shanghai Foreign Trade Co., Ltd. (SFTC), and Rongxin submitted timely questionnaire responses. The remaining exporters/producers did not submit questionnaire responses and did not request that we extend the applicable deadlines for doing so.
On August 19, 2003, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the Department extended the time limit for the preliminary results of this review until December 30, 2004. See
The Department is conducting this administrative review in accordance with section 751 of the Act.
Imports covered by this order are shipments of certain cased pencils of any shape or dimension (except as described below) which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (
Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
We are preliminarily rescinding this review with respect to TCW because it made no shipments of subject merchandise to the United States during the POR. The Department reviewed CBP data and entry documents which indicate that TCW did not export subject merchandise to the United States during the POR.
In proceedings involving non-market-economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to governmental control and thus should be assessed a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to investigation in an NME country this single rate unless an exporter can demonstrate that its export activities are sufficiently independent so that it should be granted a separate rate. Rongxin, CFP/Three Star, and SFTC provided the separate-rates information we requested and reported that their export activities are not subject to governmental control.
We examined the separate-rates information the respondents provided in order to determine whether the companies are eligible for a separate rate. The Department's separate-rates test, which is used to determine whether an exporter is independent from governmental control, does not consider, in general, macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from governmental control of its export activities so as to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
The Department considers the following
Rongxin, CFP/Three Star, and SFTC reported that the merchandise under review was not subject to restrictive stipulations associated with their business license (
Typically, the Department considers the following four factors in evaluating whether a respondent is subject to
As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. See
Rongxin, CFP/Three Star, and SFTC reported that they determine prices for sales of the subject merchandise based on market principles, the cost of the merchandise, and profit. Moreover, Rongxin, CFP/Three Star, and SFTC stated that they negotiated their prices directly with their customers. Also, each company claimed that their prices are not subject to review or guidance from any governmental organization. In addition, the record indicates that Rongxin, CFP/Three Star, and SFTC have the authority to negotiate and sign contracts and other agreements. Further, these companies claimed that their negotiations are not subject to review or guidance from any governmental organization. Finally, there is no evidence on the record to suggest that there is any governmental involvement in the negotiation of their contracts.
Furthermore, Rongxin, CFP/Three Star, and SFTC reported that they have autonomy in making decisions regarding the selection of management. All three companies indicated that their selection of management is not subject to review or guidance from any governmental organization.
Finally, Rongxin, CFP/Three Star, and SFTC reported that there are no restrictions on the use of their export revenues. There is no evidence on the record with respect to any of these companies to suggest that there is any governmental involvement in decisions regarding disposition of profits or financing of losses.
Therefore, the evidence on the record supports a preliminary finding of the absence of
The evidence placed on the record of this review by Rongxin, CFP/Three Star, and SFTC demonstrates an absence of governmental control, both in law and in fact, with respect to their exports of the merchandise under review in accordance with the criteria identified in
To determine whether the respondents' sales of subject merchandise were made at less than NV, we compared the export price (EP) to NV, as described in the “Export Price” and “Normal Value” sections of this notice, below.
In accordance with section 772(a) of the Act, the Department calculated EPs for sales by Rongxin, CFP/Three Star, and SFTC to the United States because the subject merchandise was sold directly to unaffiliated customers in the United States (or to unaffiliated resellers outside the United States with knowledge that the merchandise was destined for the United States) prior to importation and constructed export-price methodology was not otherwise indicated. We made deductions from the net sales price for foreign inland
For the reasons stated in the “Normal Value” section below, we selected India as the primary surrogate country. We valued foreign brokerage and handling using Indian values that were reported in the public version of the questionnaire response placed on the record in
For exports from NME countries, section 773(c)(1) of the Act provides that the Department shall determine NV using a factors of production (FOP) methodology if the subject merchandise is exported from an NME country and available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Section 351.408 of the Department's regulations sets forth the methodology the Department uses to calculate the NV of merchandise exported from NME countries. The Department has treated the PRC as an NME country in every proceeding involving the PRC. Because none of the parties to this proceeding contested such treatment, we calculated NV in accordance with sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c).
In accordance with section 773(c)(3) of the Act, the factors of production (FOP) the parties used in producing pencils include but are not limited to the following inputs: (1) hours of labor required, (2) quantities of raw materials employed, (3) amounts of energy and other utilities consumed, and (4) representative capital costs, including depreciation. In accordance with section 773(c)(4) of the Act, the Department valued the FOPs, to the extent possible, using the costs of the FOP in one or more market-economy countries that are at a level of economic development comparable to that of the PRC and are significant producers of comparable merchandise. We determined that India is comparable to the PRC in terms of
In accordance with section 773(c)(1) of the Act, for purposes of calculating NV, we attempted to value the FOPs using surrogate values that were in effect during the POR. If we were unable to obtain surrogate values that were in effect during the POR, we adjusted the values, as appropriate, to account for inflation or deflation between the effective period and the POR. We calculated the inflation or deflation adjustments for all factor values, as applicable, except labor using the WPI for the appropriate surrogate country as published in
1) For producers that purchased Chinese lindenwood pencil slats, we valued slats using publicly available, published U.S. prices for American basswood lumber because price information for Chinese lindenwood and American basswood is not available from any of the potential surrogate countries.
2) For producers that manufactured slats from Chinese lindenwood timber, we valued the timber using publicly available, published U.S. prices for American basswood timber because price information for Chinese lindenwood and American basswood is not available from any of the potential surrogate countries. The U.S. timber prices for basswood are published in the
3) We valued the following material inputs using Indian import data from the World Trade Atlas (WTA) for December 2002 through November 2003: acetone, alkyds resin, beeswax, butanes, butyl ester, calcium carbonate, cellulose, erasers, dibutyl ester, diluent, dyestuff, ethanol, ethyl ester, ferrules, foam grips, foil, formaldehyde, glitter, glue, graphite powder, hardening oil, heat transfer film, kaolin clay, key chains, lithopone, malice acid ester, methyl benzene, nitro-paint/lacquer, penetrating agent, pigment, plastic, printing ink, propylene, pyroxylin, sawdust/wood, soap, soft agent, stearic acid, sticker paper, talcum powder, titanium, toppers, velvet wrap, wax, and dye.
4) We valued black and color cores using Indonesian import data from the WTA for January 2002 through December 2002. We were not able to calculate separate surrogate values for black versus color cores based on information on the record of this review.
We also valued the following material inputs using Indonesian import data: erasers, graphite powder, tallow, castor oil, and syrup.
5) In accordance with 19 CFR 351.408 (c)(1), we valued certain material inputs used by CFP/Three Star at acquisition cost because it purchased these inputs from a market- economy supplier and paid them for using a market-economy currency.
6) We valued the following packing materials using Indian import data from the WTA for December 2002 through November 2003: cardboard cartons, master cartons, packing boxes, packing tape, pallets, paper labels, plastic boxes, plastic canisters, plastic shrink wrap,
7) We valued electricity using the 2002 Indian industry rate for electricity (U.S. dollars/kWh) from the publicly available
8) In accordance with 19 CFR 351.408(c)(3), we valued labor using a regression-based wage rate for the PRC listed in the Import Administration web site under “Expected Wages of Selected NME Countries.” See http://ia.ita.doc.gov/wages.
9) We derived ratios for factory overhead, selling, general and administrative (SG&A) expenses, and profit using the financial statements of Asia Wood International Corporation (Asia Wood), a wood-products producer in the Philippines. As stated above, the Philippines is a significant producer of comparable merchandise. Asia Wood's financial statements represent the best available record information with which to derive financial ratios because Asia Wood employs a number of the same production processes as those used by the respondents, including, for example, cutting wood, sanding wood, glueing wood, and painting wood. From this information, we were able to calculate factory overhead as a percentage of direct materials, labor, and energy expenses, SG&A expenses as a percentage of the total cost of manufacturing, and profit as a percentage of the sum of the total cost of manufacturing and SG&A expenses.
We used the following sources to value truck and rail freight services provided to transport the finished product to the port and direct materials, packing materials, and coal from the suppliers of the inputs to the producers. To value truck freight, we used the freight rates published in the Great Indian Bazaar at http://www.infobanc.com/logtruck.htm. We obtained distances between cities from the following website: http://www.mapsofindia.com. The value reflects freight rates in effect on September 25, 2004. We valued rail-freight services using the April 1995 rates published by the Indian Railway Conference Association. We adjusted these values, as appropriate, to account for inflation or deflation between the effective period and the POR using the WPI published by the Reserve Bank of India.
For further discussion of the surrogate values we used for these preliminary results of review, see the
Three producers/exporters named in the notice of initiation did not respond to the Department's questionnaire. The PRC- wide rate applies to all entries of subject merchandise except for entries from PRC producers/exporters that have their own calculated rate. Companies that have not demonstrated their entitlement to a separate rate are appropriately considered to be part of the PRC-wide entity. Therefore, we determine it is necessary to review the PRC-wide entity because it did not provide information necessary to the instant proceeding. In doing so, we note that section 776(a)(1) of the Act mandates that the Department use the facts available if necessary information is not available on the record of an antidumping proceeding. In addition, section 776(a)(2) of the Act provides that if an interested party or any other person: (A) Withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the Department shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department shall promptly inform the party submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that party with an opportunity to remedy or explain the deficiency. Section 782(e) of the Act provides that the Department shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority. Because the PRC-wide entity provided no information, we determine that sections 782(d) and (e) of the Act are not relevant to our analysis. According to section 776(b) of the Act, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (SAA) accompanying the URAA, H. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). Furthermore, “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” Antidumping Duties; Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).
As above stated, the PRC-wide entity did not respond to our requests for information. Because the PRC-wide entity did not respond to our request for information in the form or manner requested, we find it necessary, under section 776(a)(2) of the Act, to use facts otherwise available as the basis for the preliminary results of review for the PRC-wide entity. In addition, pursuant to section 776(b) of the Act, we find that the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with a request for information. As noted above, the PRC-wide entity failed to respond in the proper format or in a timely manner to the Department's questionnaire, despite repeated requests that it do so. Thus, because the PRC-wide entity refused to participate fully in this proceeding, we find it appropriate to use an inference that is adverse to the interests of the PRC-wide entity in selecting from among the facts otherwise available. By doing so, we ensure that the companies that are part of the PRC-wide entity will not obtain a more favorable result by failing to cooperate than had they cooperated fully in this review. An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See the Statement of Administrative Action (SAA), H.R. Doc. 103-316 at 870 (1994). Corroborate means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. The SAA emphasizes at 869, however, that the Department need not prove that the selected facts available are the best alternative information.
In this review, we are using as adverse facts available the highest dumping margin from this or any prior segment of the proceeding, the current PRC-wide rate of 114.90 percent. This rate was calculated in the 1999 - 2000 administrative review of the order on certain cased pencils from the PRC. See
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Nothing in the record of this review calls into question the relevance of the margin we have selected as adverse facts available. Moreover, the selected margin is the current PRC-wide rate and is currently applicable to exporters who do not have a separate rate. Thus, it is appropriate to use the selected rate as adverse facts available in the instant review.
As a result of our review, we preliminarily determine that the following margins exist for the period December 1, 2002, through November 30, 2003:
In accordance with 19 CFR 351.224(b), the Department will disclose to interested parties within five days of the date of publication of this notice the calculations it performed for the preliminary results. An interested party may request a hearing within 30 days of publication of the preliminary results. See 19 CFR 351.310(c). Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, within five days after the time limit for filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments are requested to submit with the argument (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Further, the Department requests that parties submitting written comments provide the Department with a diskette containing the public version of those comments. We will issue a memorandum identifying the date of a hearing, if one is requested. Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days of publication of the preliminary results.
Upon completion of this administrative review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. We have calculated customer-specific antidumping duty assessment amounts for subject merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total quantity of sales examined. We calculated these assessment amounts because there is no information on the record which identifies entered values or the importers of record. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review. If these preliminary results are adopted in the final results of review, we will direct CBP to assess the resulting assessment amounts, calculated as described above, on each of the applicable entries during the review period.
The following deposit requirements will apply to all shipments of pencils from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rates for the reviewed companies named above will be the rates for those firms established in the final results of this administrative review; (2) for any previously reviewed or investigated PRC or non-PRC exporter, not covered in this review, with a separate rate, the cash deposit rate will be the company-specific rate established in the most recent segment of this proceeding; (3) for all other PRC exporters, the cash deposit rate will be the PRC-wide rate established in the final results of this review; and (4) the cash deposit rate for any non-PRC exporter of subject merchandise from the PRC will be the rate applicable to the PRC exporter that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this determination in accordance with sections section 751(a)(1) and 777(i)(1) of the Act.
Notice of issuance of an Export Trade Certificate of Review, Application No. 04-00004.
The Department of Commerce has issued an Export Trade Certificate of Review to AmRus Ventures, Inc. (“AMRUS”). This notice summarizes the conduct for which certification has been granted.
Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number), or by e-mail at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 400l-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 (2004).
Export Trading Company Affairs is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of the Certificate in the
All products.
All services.
Technology Rights, including, but not limited to, patents, trademarks, copyrights, and trade secrets that relate to Products and Services.
Export Trade Facilitation Services, including, but not limited to, professional services and assistance relating to: government relations; state and federal export programs; foreign trade and business protocol; consulting; market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; shipping and export management; export licensing; advertising; documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportation services; and the formation of shippers' associations.
The Export Markets include all parts of the world except the United States (the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
AMRUS may:
1. Provide and/or arrange for the provision of Export Trade Facilitation Services;
2. Engage in promotional and marketing activities and collect information on trade opportunities in the Export Markets and distribute such information to clients;
3. Enter into exclusive and/or non-exclusive licensing and/or sales agreements with Suppliers for the export of Products, Services, and/or Technology Rights in Export Markets;
4. Enter into exclusive or non-exclusive agreements with distributors and/or sales representatives in Export Markets;
5. Allocate export sales or divide Export Markets among Suppliers for the sale and/or licensing of Products, Services, and/or Technology Rights;
6. Allocate export orders among Suppliers;
7. Establish the price of Products, Services, and/or Technology Rights for sale and/or licensing in Export Markets;
8. Negotiate, enter into, and/or manage licensing agreements for the export of Technology Rights;
9. Enter into contracts for shipping; and
10. Exchange information on a one-to-one basis with individual Suppliers regarding inventories and near-term production schedules for the purpose of determining the availability of Products for export and coordinating export with distributors.
1. In engaging in Export Trade Activities and Methods of Operation, AMRUS will not intentionally disclose, directly or indirectly, to any Supplier any information about any other Supplier's costs, production, capacity, inventories, domestic prices, domestic sales, or U.S. business plans, strategies, or methods that is not already generally available to the trade or public.
2. AMRUS will comply with requests made by the Secretary of Commerce on behalf of the Secretary of Commerce or the Attorney General for information or documents relevant to conduct under the Certificate. The Secretary of Commerce will request such information or documents when either the Attorney General or the Secretary of Commerce believes that the information or documents are required to determine that the Export Trade, Export Trade Activities, and Methods of Operation of a person protected by this Certificate of Review continue to comply with the standards of Section 303(a) of the Act.
AMRUS has named no members (other than itself as Applicant) that are seeking protection under the Export Trade Certificate of Review.
1. “Supplier” means a person who produces, provides, or sells Products, Services and/or Technology Rights.
A copy of this certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4001, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
International Trade Administration, U.S. Department of Commerce.
Notice of invitation to energy industry event—Norwegian offshore opportunities forum.
March 3, 2005.
8 a.m.
The Houstonian Hotel, Houston, Texas.
As part of the U.S.-Norway Oil and Gas Industry Summit in Houston, the Royal Norwegian Ministry of Petroleum and Energy and the U.S. Department of Commerce are pleased to invite you, or a representative you designate from your company, to a breakfast briefing on opportunities on the Norwegian Continental Shelf (NCS). The briefing will provide offshore exploration and production companies with an overview of the resource potential and the framework conditions on the NCS.
Although Norway is the third largest oil exporter in the world, only about
Please RSVP by February 18, 2005 to Patterson Brown, U.S. Department of Commerce, 202/482.4950, 202/482.0170 (fax), or
National Institute of Standards and Technology (NIST), Commerce.
Notice; request for comments.
The National Institute of Standards and Technology announces that it plans to develop Federal Information Processing Standard (FIPS) 140-3, which will supersede FIPS 140-2, Security Requirements for Cryptographic Modules. FIPS 140-2, approved by the Secretary of Commerce and announced in the
Comments on new and revised requirements for FIPS 140-3 must be received on or before Febrary 28, 2005.
Comments may be sent electronically to
Mr. Allen Roginsky (301) 975-3603, National Institute of Standards and Technology, 100 Bureau Drive, STOP 8930, Gaithersburg, MD 20899-8930. E-mail:
A copy of FIPS 140-2 is available electronically from the NIST Web site at:
FIPS 140-2, Security Requirements for Cryptographic Modules, superseded FIPS 140-1, which had been issued in 1994. FIPS 140-1 specified that the standard be reviewed within five years to consider its continued usefulness and to determine whether new or revised requirements should be added. NIST conducted a review of FIPS 140-1 in 1998-99, and the standard was reaffirmed as FIPS 140-2 in 2001 with technical modifications to address technological advances that had occurred since FIPS 140-1 had been issued.
FIPS 140-2 identifies requirements for four increasing, qualitative levels of security for cryptographic modules. The four security levels cover a wide range of potential applications and a wide spectrum of information types, including data with the potential to cause low, moderate and serious impacts on organizations should there be a loss of confidentiality, integrity or availability of the data. In 1995, NIST and the Communications Security Establishment (CSE) of the Government of Canada established the Cryptographic Module Validation Program (CMVP) to validate cryptographic modules to FIPS 140-1 and other cryptography-based standards. Nearly 500 cryptographic modules and many implementations of cryptographic algorithms have been tested by National Voluntary Laboratory Accreditation Program (NVLAP) accredited, independent third-party laboratories and have been validated. Products validated by this program are used in Canada, the U.S., and many other countries. Federal government agencies are required to acquire products that have been validated under the CMVP when they use cryptographic-based security systems to protect their information. The CMVP enables vendors of cryptographic products to use a common standard and a common testing
NIST plans to develop FIPS 140-3 to meet the new and revised requirements of Federal agencies for cryptographic systems, and to address technological and economic changes that have occurred since the issuance of FIPS 140-2. As the first step in the development of FIPS 140-3, NIST invites comments from the public, users, the information technology industry, and Federal, State and local government organizations concerning the need for and recommendations for a new standard.
NIST is especially interested in comments on the following issues:
(1) Compatibility with industry standards.
(2) New technology areas.
(3) Introduction of additional levels of security.
(4) Additional requirements specific to physical security.
(5) Portability of applications (including operating systems) based on platform and/or environment.
Following its review of the comments submitted in response to this notice, NIST will hold open, public workshops in 2005 to discuss the development of FIPS 140-3. These workshops will be announced in the
NIST will develop a plan for a transition period for testing and validating modules to FIPS 140-3, and for agencies to develop plans to acquire products that are compliant with FIPS 140-3. The transition plan will also address the use by Federal agencies of cryptographic modules that have been validated for compliance to FIPS 140-1 and FIPS 140-2.
Federal Information Processing Standards (FIPS) are issued by the National Institute of Standards and Technology after approval by the Secretary of Commerce pursuant to Section 5131 of the Information Technology Management Reform Act of 1996 and the Federal Information Security Management Act of 2002 (Public Law 107-347).
E.O. 12866: This notice has been determined not to be significant for the purposes of E.O. 12866.
National Institute of Standards and Technology, Commerce.
Notice of jointly owned invention available for licensing.
The invention listed below is jointly owned by the U.S. Government, as represented by the Department of Commerce, and Biospace, Inc. The Department of Commerce's interest in the invention is available for licensing in accordance with 35 U.S.C. 207 and 37 CFR part 404 to achieve expeditious commercialization of results of federally funded research and development.
Technical and licensing information on this invention may be obtained by writing to: National Institute of Standards and Technology, Office of Technology Partnerships, Attn: Teresa Bradshaw, Building 820, Room 213, Gaithersburg, MD 20899. Information is also available via telephone: (301) 975-2624 , fax (301) 869-2751, or e-mail:
NIST may enter into a Cooperative Research and Development Agreement (“CRADA”) with the licensee to perform further research on the invention for purposes of commercialization. The invention available for licensing is:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of issuance of an incidental harassment authorization.
In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that an Incidental Harassment Authorization (IHA) has been issued to the California Department of Transportation (CALTRANS) to take small numbers of California sea lions, Pacific harbor seals, and gray whales, by harassment, incidental to construction of a replacement bridge for the East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in California.
This authorization is effective from January 3, 2005, until January 3, 2006.
A copy of the application, IHA, and/or a list of references used in this document may be obtained by writing to Steve Leathery, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315
Kenneth Hollingshead, NMFS, (301) 713-2289, ext 128, or Monica DeAngelis, NMFS, (562) 980-3232.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Permission may be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as:
...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.
On September 1, 2004, NMFS received a request from CALTRANS requesting renewal of an IHA for the possible harassment of small numbers of California sea lions (
A detailed description of the SF-OBB project was provided in the November 14, 2003 (68 FR 64595),
A notice of receipt and request for 30-day public comment on the application and proposed authorization was published on October 20, 2004 (69 FR 61652). During the 30-day public comment period, no comments were received on this action.
General information on the marine mammal species found in California waters can be found in Caretta et al. (2004), which is available at the following URL:
The marine mammals most likely to be found in the SF-OBB area are the California sea lion and Pacific harbor seal. From December through May gray whales may also be present in the SF-OBB area. Information on these 3 species was provided in the November 14, 2003 (68 FR 64595),
CALTRANS and NMFS have determined that open-water pile driving, as outlined in the project description, has the potential to result in behavioral harassment of California sea lions, Pacific harbor seals, and gray whales that may be swimming, foraging, or resting in the project vicinity while pile driving is being conducted. Pile driving could potentially harass those few pinnipeds that are in the water close to the project site, whether their heads are above or below the surface.
Based on airborne noise levels measured and on-site monitoring conducted during 2004 under the current IHA, noise levels from the East Span project are not resulting in the harassment of harbor seals hauled out on Yerba Buena Island. Also, noise levels from the East Span project are not expected to result in harassment of the sea lions hauled out at Pier 39 as airborne and waterborne sound pressure levels (SPLs) would attenuate to below harassment levels by the time they reach that haul-out site, 5.7 kilometers (3.5 miles) from the project site.
For reasons provided in greater detail in NMFS' November 14, 2003 (68 FR 64595)
The following mitigation measures are currently required under the IHA to reduce impacts to marine mammals to the lowest extent practicable. NMFS is requiring these mitigation measures to be carried out under the new IHA.
An air bubble curtain system is required to be used only when driving the permanent open-water piles. While the bubble curtain is required specifically as a method to reduce impacts to endangered and threatened fish species in SFB, it may also provide some benefit for marine mammals. The NMFS' Biological Opinion and the California Department of Fish and
As a result of the determinations made during the Pile Installation Demonstration Project (PIDP) restrike and the investigation at the Benicia-Martinez Bridge, NMFS determined in 2003 that CALTRANS must install an air bubble curtain for pile driving for the open-water piles without cofferdams located at the SF-OBB. This air bubble curtain system consists of concentric layers of perforated aeration pipes stacked vertically and spaced no more than five vertical meters apart in all tide conditions. The minimum number of layers must be in accordance with water depth at the subject pile: 0-<5 m = 2 layers (1263 cfm); 5-<10 m = 4 layers (2526 cfm), 10-<15 m = 7 layers (4420 cfm); 15-<20 m = 10 layers (6314 cfm); 20-<25 m= 13 layers (8208 cfm). The lowest layer of perforated aeration pipes must be designed to ensure contact at all times and tidal conditions with the mudline without sinking into the bay mud. Pipes in any layer must be arranged in a geometric pattern, which will allow for the pile driving operation to be completely enclosed by bubbles for the full depth of the water column.
To provide a uniform bubble flux, each aeration pipe must have four adjacent rows of air holes along the pipe. Air holes must be 1.6-mm diameter and spaced approximately 20 mm apart. The bubble curtain system will provide a bubble flux of at least two cubic meters per minute, per linear meter of pipeline in each layer. Air holes must be placed in 4 adjacent rows.
The air bubble curtain system must be composed of the following: (1) an air compressor(s), (2) supply lines to deliver the air, (3) distribution manifolds or headers, (4) perforated aeration pipes, and (5) a frame. The frame facilitates transport and placement of the system, keeps the aeration pipes stable, and provides ballast to counteract the buoyancy of the aeration pipes in operation. Meters are required to monitor the operation of the bubble curtain system. Pressure meters will be installed and monitored at all inlets to aeration pipelines and at points of lowest pressure in each branch of the aeration pipeline. If the pressure or flow rate in any meter falls below 90 percent of its operating value, the contractor will cease pile driving operations until the problem is corrected and the system is tested to the satisfaction of the CALTRANS resident engineer.
A safety zone is to be established and monitored to include all areas where the underwater SPLs are anticipated to equal or exceed 190 dB re 1 mPa RMS (impulse) for pinnipeds. Also, a 180-dB re 1 mPa RMS (impulse) safety zone for gray whales must be established for pile driving occurring during the gray whale migration season from December through May. Prior to commencement of any pile driving, a preliminary 500-m (1,640-ft) radius safety zone for pinnipeds (California sea lions and Pacific harbor seals) will be established around the pile driving site, as it was for the PIDP. Once pile driving begins, either new safety zones can be established for the 500 kJ and 1700 kJ hammers or the 500 m (1,640 ft) safety zone can be retained. If new safety zones are established based on SPL measurements, NMFS requires that each new safety zone be based on the most conservative measurement (i.e., the largest safety zone configuration). SPLs will be recorded at the 500-m (1,640-ft) contour. The safety zone radius for pinnipeds will then be enlarged or reduced, depending on the actual recorded SPLs.
Observers on boats will survey the safety zone to ensure that no marine mammals are seen within the zone before pile driving of a pile segment begins. If marine mammals are found within the safety zone, pile driving of the segment will be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor will wait at least 15 minutes, and if no marine mammals are seen by the observer in that time it may be assumed that the animal has moved beyond the safety zone. This 15-minute criterion is based on scientific evidence that harbor seals in SFB dive for a mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994). However, due to the limitations of monitoring from a boat, there can be no assurance that the zone will be devoid of all marine mammals at all times.
Once the pile driving of a segment begins it cannot be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If pile driving stops and then resumes, it would potentially have to occur for a longer time and at increased energy levels. In sum, this would simply amplify impacts to marine mammals, as they would endure potentially higher SPLs for longer periods of time. Pile segment lengths and wall thickness have been specially designed so that when work is stopped between segments (but not during a single segment), the pile tip is never resting in highly resistant sediment layers. Therefore, because of this operational situation, if seals or sea lions enter the safety zone after pile driving of a segment has begun, pile driving will continue and marine mammal observers will monitor and record marine mammal numbers and behavior. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously in this document.
Although marine mammals will be protected from Level A harassment by establishment of an air-bubble curtain and marine mammal observers monitoring a 190-dB safety zone for pinipeds and 180-dB safety zone for gray whales, mitigation may not be 100 percent effective at all times in locating marine mammals. Therefore, in order to provide additional protection to marine mammals near the project area by allowing marine mammals to vacate the area prior to receiving a potential injury, CALTRANS will also “soft start” the hammer prior to operating at full capacity. CALTRANS typically implements a “soft start” with several initial hammer strikes at less than full capacity (i.e., approximately 40-60 percent energy levels) with no less than a 1- minute interval between each strike. Similar levels of noise reduction are expected underwater. Therefore, the contractor will initiate hammering of both the 500-kJ and the 1,700-kJ hammers with this procedure in order to allow pinnipeds in the area to voluntarily move from the area which should expose fewer animals to loud sounds both underwater and above water noise. This would also ensure that
To mitigate noise levels and, therefore, impacts to California sea lions, Pacific harbor seals, and gray whales, all construction equipment will comply as much as possible with applicable equipment noise standards of the U.S. Environmental Protection Agency, and all construction equipment will have noise control devices no less effective than those provided on the original equipment.
Since the start of the large-diameter pile driving in the Bay nearly two years ago, CALTRANS has completed pile driving of 105 piles inside cofferdams and 39 piles in open water (with the use of a bubble curtain) for a total of 144 piles. Monitoring teams were on-site for all open water pile driving and during driving of “tops” (last section of the piles, which drives the pile deeper into the substrate) inside cofferdams where underwater SPLs reached 190 dB or greater. During 76 days of monitoring, both within and outside the marine mammal safety zone, a single startle behavior from a California sea lion was observed.
The following monitoring measures are required under the IHA to reduce impacts to marine mammals to the lowest extent practicable.
The area-wide baseline monitoring and the aerial photo survey to estimate the fraction of pinnipeds that might be missed by visual monitoring have been completed under the current IHA and do not need to be continued.
Safety zone monitoring will be conducted during driving of all open-water, permanent piles without cofferdams and with cofferdams when underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped and cetacean safety zones will be conducted by a minimum of three qualified NMFS-approved observers for each safety zone. One three-observer team will be required for the safety zones around each pile driving site, so that multiple teams will be required if pile driving is occurring at multiple locations at the same time. The observers will begin monitoring at least 30 minutes prior to startup of the pile driving. Observers will most likely conduct the monitoring from small boats, as observations from a higher vantage point (such as the SF-OBB) is not practical. Pile driving will not begin until the safety zone is clear of marine mammals. However, as described in the Mitigation section, once pile driving of a segment begins, operations will continue uninterrupted until the segment has reached its predetermined depth. However, if pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated safety zone prior to commencement of pile driving, the observer(s) must notify the Resident Engineer (or other authorized individual) immediately and follow the mitigation requirements as outlined previously (see Mitigation). Monitoring will continue through the pile driving period and will end approximately 30 minutes after pile driving has been completed. When necessary, biological observations will be made using binoculars during daylight hours.
In addition to monitoring from boats, during open-water pile driving, monitoring at one control site (harbor seal haul-out sites and the waters surrounding such sites not impacted by the East Span Project's pile driving activities, i.e., Mowry Slough) will be designated and monitored for comparison. Monitoring will be conducted twice a week at the control site whenever open-water pile driving is being conducted. Data on all observations will be recorded and will include items such as species, numbers, behavior, details of any observed disturbances, time of observation, location, and weather. The reactions of marine mammals will be recorded based on the following classifications that are consistent with the Richmond Bridge Harbor Seal survey methodology (for information on the Richmond Bridge authorization, see 68 FR 66076, November 25, 2003): (1) No response, (2) head alert (looks toward the source of disturbance), (3) approach water (but not leave), and (4) flush (leaves haul-out site). The number of marine mammals under each disturbance reaction will be recorded, as well as the time when seals re-haul after a flush.
Airborne noise level measurements have been completed and underwater environmental noise levels will continue to be measured as part of the East Span Project. The purpose of the underwater sound monitoring is to establish the safety zone of 190 dB re 1 micro-Pa RMS (impulse) for pinnipeds and the safety zone of 180 dB re 1 micro-Pa RMS (impulse) for gray whales. Monitoring will be conducted during the driving of the last half (deepest pile segment) for any given open-water pile. One pile in every other pair of pier groups will be monitored. One reference location will be established at a distance of 100 m (328 ft) from the pile driving. Sound measurements will be taken at the reference location at two depths (a depth near the mid-water column and a depth near the bottom of the water column but at least 1 m (3 ft) above the bottom) during the driving of the last half (deepest pile segment) for any given pile. Two additional in-water spot measurements will be conducted at appropriate depths (near mid water column), generally 500 m (1,640 ft) in two directions (either west, east, south or north) of the pile driving site and at the same two depths as the reference location measurements. In cases where such measurements cannot be obtained due to obstruction by land mass, structures or navigational hazards, measurements will be conducted at alternate spot measurement locations. Measurements will be made at other locations either nearer or farther as necessary to establish the approximate distance for the safety zones. Each measuring system shall consist of a hydrophone with an appropriate signal conditioning connected to a sound level meter and an instrument grade digital audiotape recorder. Overall SPLs shall be measured and reported in the field in dB re 1 micro-Pa RMS (impulse). An infrared range finder will be used to determine distance from the monitoring location to the pile. The recorded data will be analyzed to determine the amplitude, time history and frequency content of the impulse.
Under the previous IHA, CALTRANS submitted weekly marine mammal monitoring reports and in June, 2004, CALTRANS submitted its Marine Mammal and Acoustic Monitoring for the Eastbound Structure. This annual report is available by contacting NMFS (see
Under the 2005 IHA, coordination with NMFS will occur on a weekly basis, or more often as necessary. During periods with open-water pile driving activity, weekly monitoring reports will be made available to NMFS and the public at
In addition, CALTRANS will provide NMFS' Southwest Regional Administrator with a draft final report within 90 days after completion of the
In November, 2003, NMFS prepared an Environmental Assessment (EA) and, on November 4, 2003 made a Finding of No Significant Impact (FONSI). Therefore, preparation of an environmental impact statement on this action is not required. A copy of the EA and FONSI are available upon request (see
On October 30, 2001, NMFS completed consultation under section 7 of the ESA with the Federal Highway Administration (FHWA) on the CALTRANS' construction of a replacement bridge for the East Span of the SF-OBB in California. The finding contained in the Biological Opinion was that the CALTRANS action at the East Span of the SF-OBB is not likely to jeopardize the continued existence of listed anadromous salmonids, or result in the destruction or adverse modification of designated critical habitat for these species. Listed marine mammals are not expected to be in the area of the action and thus would not be affected. The issuance of this IHA to CALTRANS constitutes an agency action that authorizes an activity that may affect ESA-listed species and, therefore, is subject to section 7 of the ESA. However, as the effects of the underlying activities on listed salmonids were analyzed during a formal consultation between the FHWA and NMFS, and as the underlying action has not changed from that considered in the consultation, the discussion of effects that are contained in the Biological Opinion issued to the FHWA on October 30, 2001, pertains also to this action. In conclusion, NMFS has determined that issuance of an IHA for this activity does not lead to any effects to listed species apart from those that were considered in the consultation on FHWA's action.
For the reasons discussed in this document and in previously identified supporting documents, NMFS has determined that the impact of pile driving and other activities associated with construction of the East Span Project should result, at worst, in the Level B harassment of small numbers of California sea lions, Pacific harbor seals and potentially gray whales that inhabit or visit SFB in general and the vicinity of the SF-OBB in particular. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within SFB and haul-out sites (including pupping sites) and feeding areas within the Bay has led NMFS to preliminarily determine that this action will have a negligible impact on California sea lion, Pacific harbor seal, and gray whale populations along the California coast.
In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document.
For the reasons previously discussed, NMFS has issued an IHA for a 1-year period, for the potential incidental harassment of small numbers of harbor seals, California sea lions and California gray whales incidental to construction of a replacement bridge for the East Span of the San Franciso-Oakland Bay Bridge in California, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. NMFS has determined that the construction activity would result in the harassment of only small numbers of harbor seals, California sea lions and possibly California gray whales and will have no more than a negligible impact on these marine mammal stocks.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before March 14, 2005.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet
Requests for additional information or copies of the information collection instrument and instructions should be directed to Clifton Beck, NTIA, Room H-4888, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet
The purpose of the Technology Opportunities Program (TOP), is to promote the use of advanced telecommunications and information technologies in the non-profit and public sectors. These projects encourage the deployment of broadband infrastructure, services, and applications throughout the Nation. TOP projects demonstrate how digital networks support lifelong learning for all Americans, help public safety officials protect the public, assist in the delivery of health care and public health services, and foster communication, resource-sharing, and economic development.
Since 1994, the National Telecommunications and Information Administration (NTIA), in administering TOP, has awarded 610 grants, in all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands totaling $233.5 million and leveraging $313.7 million in local
In order to ensure TOP's ability to assess the performance of its grants program and to comply with the Government Performance and Results Act, NTIA will collect and analyze quantitative and qualitative data relating to start-up documentation, quarterly and annual progress, and close-out documentation on TOP-funded projects.
NTIA seeks a mechanism whereby it can evaluate the impacts of its projects on an ongoing basis, monitor grants more efficiently and effectively, and provide timely technical assistance to grant recipients. To enable the Program to monitor and to analyze the impacts of the funded projects, TOP seeks to incorporate standardized quantitative and qualitative data elements into an online structured reporting system. The reporting system will include a set of core data elements that apply to all projects.
NTIA is interested in the effects that the funded projects are having at the local level and, over the long term, at the national level. It is NTIA's intention to understand the nature and degree of those effects on the organizations implementing the projects, other organizations that are involved with the projects, the individuals who are served by the projects, and the community as a whole.
Data will be collected through the use of automated collection techniques. The information collection instrument to be used for this study will include a web-based structured reporting system for both quantitative and qualitative project information.
Comments submitted in response to this notice will be summarized and/or included in the request of OMB approval of the information collection; they also become a matter of public record.
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner, Bureau of Customs and Border Protection retroactively increasing 2004 limits by 4%.
January 12, 2005.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Bureau of Customs and Border Protection website (http://www.cbp.gov), or call (202) 344-2650. For information on embargoes and quota re-openings, refer to the Office of Textiles and Apparel website at http://otexa.ita.doc.gov.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
In recognition of the continuing efforts of Cambodia to improve working conditions in the textile and apparel sector, including internationally recognized core labor standards, through the application of Cambodian labor law, and in response to the Second Labor Consultation of 2004, the U.S. Government is providing an increase of 4% of the base level quotas retroactively to 2004 adjusted limits. Goods exported on and after January 1, 2005 are not subject to textile and apparel import limits.
In the letter published below, the Chairman of CITA directs the Commissioner, Bureau of Customs and Border Protection to adjust the 2004 limits.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: You are directed, effective on January 12, 2005, to increase the restraint limits established in the directive dated December 4, 2003 for textile products in the following categories, produced or manufactured in Cambodia and exported during the twelve-month period which began on January 1, 2004 and extended through December 31, 2004, to reflect the continuing efforts of the Royal Government of Cambodia to improve working conditions in the textile and apparel sector, and in response to the Second Labor Consultation of 2004:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
United States Air Force; Federal Aviation Administration.
Notice of intent.
Pursuant to the National Environmental. Policy Act (NEPA) of 1969, as amended (42 United States Code 4321,
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 February 11, 2005.
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,
Responses: 10,518.
Burden Hours: 7,889.
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 Kathy Axt at her
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 March 14, 2005.
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.
Responses: 341.
Burden Hours: 2,378.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at his e-mail address
The Department is not bound by any estimates in this notice.
This priority is:
The applicant must be a “novice applicant” as defined in 34 CFR 75.225(a).
The regulations in 34 CFR part 86 apply to Institutions of Higher Education only.
The Department is not bound by any estimates in this notice.
1.
2.
1.
The application package also can be obtained electronically at the following address:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative (Part III), including titles, headings, footnotes, quotations, references, and captions. However, you may single space all text in charts, tables, figures, and graphs. Charts, tables, figures, and graphs presented in the application narrative count toward the page limit.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Appendices must be limited to 15 pages and may include the following: resumes, job descriptions, letters of support, bibliography, and information on prior experience if relevant.
The page limits described in this notice do not apply to the following sections of the application: Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract. However, you must include all of the application narrative in Part III.
Our reviewers will not read any pages of your application that—
• Exceed the page limit if you apply these standards; or
• Exceed the equivalent of the page limit if you apply other standards.
3.
Applications Available: January 12, 2005.
Deadline for Transmittal of Applications: March 14, 2005.
Applications for grants under this competition may be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants system, or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV.6. Other Submission Requirements in this notice.
We do not consider an application that does not comply with the deadline requirements.
Deadline for Intergovernmental Review: May 12, 2005.
4.
5.
6.
If you submit your application to us electronically, you must use e-Application available through the Department's e-Grants system, accessible through the e-Grants portal page at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• Your participation in e-Application is voluntary.
• You must complete the electronic submission of your grant application by 4:30 p.m., Washington, DC time, on the application deadline date. The e-Application system will not accept an application for this competition after 4:30 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the e-Grants Web site are 6 a.m. Monday until 7 p.m. Wednesday; and 6 a.m. Thursday until midnight Saturday, Washington, DC time. Please note that the system is unavailable on Sundays, and between 7 p.m. on Wednesdays and 6 a.m. on Thursdays, Washington, DC time, for maintenance. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You must submit all documents electronically, including the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgement that will include a PR/Award number (an
• Within three working days after submitting your electronic application, fax a signed copy of the ED 424 to the Application Control Center after following these steps:
1. Print ED 424 from e-Application.
2. The applicant's Authorizing Representative must sign this form.
3. Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the ED 424.
4. Fax the signed ED 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
1. You are a registered user of e-Application and you have initiated an electronic application for this competition; and
2. (a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time between 3:30 p.m. and 4:30 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgement of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
Extensions referred to in this section apply only to the unavailability of the Department's e-Application system. If the e-Application system is available, and, for any reason, you are unable to submit your application electronically or you do not receive an automatic acknowledgement of your submission, you may submit your application in paper format by mail or hand delivery in accordance with the instructions in this notice.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must send the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
1. A legibly dated U.S. Postal Service postmark;
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service;
3. A dated shipping label, invoice, or receipt from a commercial carrier; or
4. Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
1. A private metered postmark, or
2. A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you submit your application in paper format by hand delivery, you (or a courier service) must hand deliver the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA Number 84.149A, 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
1. You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
2. The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgement within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
The Secretary will award points for prior experience based on information contained in documents such as annual performance reports, project evaluation reports, site visit reports, and the previously approved application.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
All grantees will be required to submit an annual performance report documenting their success in addressing these performance measures.
Mary L. Suazo, U.S. Department of Education, Office of Elementary and Secondary Education, Office of Migrant Education, 400 Maryland Avenue, SW., room 3E227, Washington, DC 20202-6135. Telephone Number: (202) 260-1396, or by e-mail:
The application package also can be obtained electronically at the following address:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO) toll free at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
The Department is not bound by any estimates in this notice.
This priority is:
The applicant must be a “novice applicant” as defined in 34 CFR 75.225(a).
The regulations in 34 CFR part 86 apply to Institutions of Higher Education only.
The Department is not bound by any estimates in this notice.
1.
2.
1.
The application package also can be obtained electronically at the following address:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (
2.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative (Part III), including titles, headings, footnotes, quotations, references, and captions. However, you may single space all text in charts, tables, figures, and graphs. Charts, tables, figures, and graphs presented in the application narrative count toward the page limit.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Appendices must be limited to 15 pages and may include the following: resumes, job descriptions, letters of support, bibliography, and information on prior experience if relevant.
The page limits described in this notice do not apply to the following sections of the application: Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract. However, you must include all of the application narrative in Part III.
Our reviewers will not read any pages of your application that—
• Exceed the page limit if you apply these standards; or
• Exceed the equivalent of the page limit if you apply other standards.
3.
Applications Available: January 12, 2005.
Deadline for Transmittal of Applications: March 14, 2005.
Applications for grants under this competition may be submitted electronically using the Electronic Grant Application System (e-Application) accessible through the Department's e-Grants system, or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV.6. Other Submission Requirements in this notice.
We do not consider an application that does not comply with the deadline requirements.
Deadline for Intergovernmental Review: May 12, 2005.
4.
5.
6.
If you submit your application to us electronically, you must use e-Application available through the Department's e-Grants system, accessible through the e-Grants portal page at:
While completing your electronic application, you will be entering data online that will be saved into a database. You may not e-mail an electronic copy of a grant application to us.
Please note the following:
• Your participation in e-Application is voluntary.
• You must complete the electronic submission of your grant application by 4:30 p.m., Washington, DC time, on the application deadline date. The e-Application system will not accept an application for this competition after 4:30 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the application process.
• The regular hours of operation of the e-Grants Web site are 6 a.m. Monday until 7 p.m. Wednesday; and 6 a.m. Thursday until midnight Saturday, Washington, DC time. Please note that the system is unavailable on Sundays, and between 7 p.m. on Wednesdays and 6 a.m. on Thursdays, Washington, DC time, for maintenance. Any modifications to these hours are posted on the e-Grants Web site.
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• You must submit all documents electronically, including the Application for Federal Education Assistance (ED 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• Your electronic application must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After you electronically submit your application, you will receive an automatic acknowledgement that will include a PR/Award number (an identifying number unique to your application).
• Within three working days after submitting your electronic application, fax a signed copy of the ED 424 to the Application Control Center after following these steps:
1. Print ED 424 from e-Application.
2. The applicant's Authorizing Representative must sign this form.
3. Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the ED 424.
4. Fax the signed ED 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
1. You are a registered user of e-Application and you have initiated an electronic application for this competition; and
2. (a) The e-Application system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) The e-Application system is unavailable for any period of time between 3:30 p.m. and 4:30 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting you an extension. To request this extension or to confirm our acknowledgement of any system unavailability, you may contact either (1) the person listed elsewhere in this notice under
Extensions referred to in this section apply only to the unavailability of the Department's e-Application system. If the e-Application system is available, and, for any reason, you are unable to submit your application electronically or you do not receive an automatic acknowledgement of your submission, you may submit your application in paper format by mail or hand delivery in accordance with the instructions in this notice.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must send the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
1. A legibly dated U.S. Postal Service postmark;
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service;
3. A dated shipping label, invoice, or receipt from a commercial carrier; or
4. Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
1. A private metered postmark, or
2. A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you submit your application in paper format by hand delivery, you (or a courier service) must hand deliver the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: CFDA Number 84.141A, 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
1. You must indicate on the envelope and—if not provided by the Department—in Item 4 of the ED 424 the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
2. The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgement within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
The Secretary will award points for prior experience based on information contained in documents such as annual performance reports, project evaluation reports, site visit reports, and the previously approved application.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
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4.
All grantees will be required to submit an annual performance report documenting their success in addressing these performance measures.
Mary L. Suazo, U.S. Department of Education, Office of Elementary and Secondary Education, Office of Migrant Education, 400 Maryland Avenue, SW., room 3E227, Washington, DC 20202-6135. Telephone Number: (202) 260-1396, or by e-mail:
The application package also can be obtained electronically at the following address:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO) toll free at 1-888-293-6498; or in the Washington, DC area at (202) 512-1530.
The official version of this document is the document published in the
On August 9, 2004, as amended on August 10, 2004, September 16, 2004 and November 19, 2004, the American Electric Power Service Corporation, on behalf of AEP Power Marketing, Inc., AEP Service Corporation, CSW Power Marketing, Inc., CSW Energy Services, Inc., and Central and South West Services, Inc. (collectively, AEP) submitted for filing generator power market screens in compliance with the Commission's orders issued April 14, 2004, and July 8, 2004.
On December 17, 2004, the Commission issued an order addressing these filings in Docket Nos. ER96-2495-020,
The refund effective date in Docket No. EL04-131-000, established pursuant to section 206(b) of the Federal Power Act will be 60 days following publication of this notice in the
Calpine Bethpage 3, LLC (Calpine Bethpage) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy and capacity at market-based rates. Calpine Bethpage also requested waiver of various Commission regulations. In particular, Calpine Bethpage requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Calpine Bethpage.
On January 3, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Calpine Bethpage should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004).
Notice is hereby given that the deadline for filing motions to intervene or protest, is February 2, 2005.
Absent a request to be heard in opposition by the deadline above, Calpine Bethpage is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Calpine Bethpage, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Calpine Bethpage's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on December 30, 2004, Columbia Gas Transmission Corporation (Columbia) tendered for filing a penalty revenue crediting report pursuant to section 19.6 of the General Terms and Conditions (GTC) of its FERC Gas Tariff, Second Revised Volume No. 1.
Columbia states that it is providing the attached penalty revenue crediting report for the 2003-2004 contract year.
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
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 December 30, 2004, Crossroads Pipeline Company (Crossroads) its Penalty Revenue Crediting Report pursuant to section 19.6 of the General Terms and Conditions (GTC) of its FERC Gas Tariff, First Revised Volume No. 1. Crossroads states that it is providing the attached Penalty Revenue Crediting Report for the 2003-2004 contract year.
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 December 22, 2004, Eastern Shore Natural Gas Company, (Eastern Shore), 417 Bank Lane, Dover, Delaware 19904, filed in Docket No. CP03-80-001 an application pursuant to section 7(c) of the Natural Gas Act (NGA), for a certificate of public convenience and necessity to amend the certificate issued in Docket No. CP03-80-000 by a Commission order dated October 8, 2003. Eastern Shore explains that its instant application seeks to modify its proposal to construct and operate certain pipeline facilities in Delaware and Pennsylvania in order to provide additional firm transportation capacity on its system. Eastern Shore states that its customers have re-evaluated their needs for the winter of 2005 and have determined that they will need an additional 7,450 Dth per day of capacity on Eastern Shore's system above that previously contracted for. Therefore, Eastern Shore requests authority to construct and operate 20.98 miles of pipeline looping and extensions on its system. This filing may be viewed on the Commission's Web site at
Any questions regarding the application may be directed to Eric M. Pearson, Manager of Engineering, Eastern Shore Natural Gas Company, 417 Bank Lane, Dover, Delaware 19904, at (302) 734-6710, ext. 6506.
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 385.211 and 385.214) 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. Comments and protests may be filed electronically via the internet in lieu of paper.
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 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 environmental documents, and will be able to participate in meetings associated with the Commission's environmental review process. Commenters will not be required to serve copies of filed documents on all other parties. However, Commenters will not receive copies of all documents filed by other parties or issued by the Commission, and will not have the right to seek rehearing or appeal the Commission's final order to a Federal court.
The Commission will consider all comments and concerns equally, whether filed by commenters or those requesting intervener status.
Take notice that on December 30, 2004, Great Lakes Gas Transmission Limited Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, to become effective February 1, 2005:
Great Lakes states that these tariff sheets are being filed to clarify that Great Lakes may offer a variable MDQ service option under its firm and limited firm transportation services on a not unduly discriminatory basis. Great Lakes states that none of the proposed changes will affect any of Great Lakes' currently effective rates and charges.
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
Mankato Energy Center, LLC (Mankato) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy, capacity, and ancillary services at market-based rates. Mankato also requested waiver of various Commission regulations. In particular, Mankato requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Mankato.
On December 30, 2004, the Commission granted the request for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Mankato should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004).
Notice is hereby given that the deadline for filing motions to intervene or protest, is January 31, 2005.
Absent a request to be heard in opposition by the deadline above, Mankato is authorized to issue securities and assume obligations or liabilities as a guarantor, endorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Mankato, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be
Copies of the full text of the Commission's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
MeadWestvaco Energy Services, L.L.C. (MWES) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy, capacity, and ancillary services at market-based rates. MWES also requested waiver of various Commission regulations. In particular, MWES requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by MWES.
On December 20, 2004, the Commission granted the request for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by MWES should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004). MeadWestvaco Energy Services, L.L.C., 109 FERC 61,290 (2004).
Notice is hereby given that the deadline for filing motions to intervene or protest, is January 19, 2005.
Absent a request to be heard in opposition by the deadline above, MWES is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of MWES, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of MWES's issuances of securities or assumptions of liability.
Copies of the full text of the Commission's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on December 30, 2004, Midwestern Gas Transmission Company (Midwestern) tendered for filing an Agreement, and as part of its FERC Gas Tariff, Third Revised Volume No. 1, Eleventh Revised Sheet No. 273 tariff sheets, with an effective date of December 31, 2004.
Midwestern states the Agreement is being submitted for the Commission's review and information and has been listed on the appropriate tariff sheet as a non-conforming agreement. Midwestern also states that minor housekeeping change also was made to reflect a change in the name of the operator of Midwestern.
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
On December 18, 2002, Mosinee Paper Corporation, licensee for the Mosinee Project No. 2207, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2207 is located on the Wisconsin River in Marathon County, Wisconsin.
The license for Project No. 2207 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2207 is issued to Mosinee Paper Corporation for a period effective January 1, 2005 through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to Section 15 of the FPA, notice is hereby given that Mosinee Paper Corporation is authorized to continue operation of the Mosinee Project No. 2207 until such time as the Commission acts on its application for subsequent license.
Take notice that on December 30, 2004, National Fuel Gas Supply Corporation (National) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1, Seventy Second Revised Sheet No. 9, to become effective January 1, 2005.
National states that Article II, Sections 1 and 2 of the settlement provide that National will recalculate the maximum Interruptible Gathering (IG) rate semi-annually and monthly. National further states that section 2 of Article II provides that the IG rate will be the recalculated monthly rate, commencing on the first day of the following month, if the result is an IG rate more than 2 cents above or below the IG rate as calculated under Section 1 of Article II. National indicates that the recalculation produced an IG rate of $0.76 per dth. In addition, National explains that Article III, section 1 states that any overruns of the Firm Gathering service provided by National shall be priced at the maximum IG rate.
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
On December 8, 2004, ISO New England Inc. (ISO) filed a motion for an extension of time to file the intra-zone deliverability compliance filing required by the Commission's order issued November 8, 2004, in the above-docketed proceeding. 109 FERC ¶ 61,155 (2004). In the motion, the ISO requests that the compliance filing date be extended to allow New England Power Pool stakeholders to reach a consensus concerning a workable methodology for determining eligibility for locational installed capacity payments.
Upon consideration, notice is hereby given that an extension of time for filing the intra-zone deliverability compliance
Take notice that on December 30, 2004, Northwest Pipeline Corporation (Northwest) tendered for filing and acceptance the following tariff sheets as part of its FERC Gas Tariff, Third Revised Volume No. 1, to be effective February 1, 2005:
Northwest states that the purpose of this filing is to change the name of the shipper for 26 service agreements listed as non-conforming service agreements in Northwest's tariff due to the permanent release of these service agreements.
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 December 23, 2004, Northwest Pipeline Corporation (Northwest) tendered for filing and acceptance five Rate Schedule TF-1 service agreements. Northwest also tendered the following tariff sheets as part of its FERC Gas Tariff, Third Revised Volume No. 1, to be effective January 23, 2005:
Northwest states that the purpose of this filing is to: (1) Submit a nonconforming negotiated rate service agreement and four other non-conforming service agreements for Commission acceptance for filing; and (2) submit tariff sheets listing these agreements in Northwest's tariff.
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
On December 23, 2002, Oakdale and South San Joaquin Irrigation Districts, licensees for the Beardsley/Donnells Project No. 2005, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2005 is located on the Middle Fork of the Stanislaus River in Tuolumne County, California.
The license for Project No. 2005 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2005 is issued to Oakdale and South San Joaquin Irrigation Districts for a period effective January 1, 2005, through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Oakdale and South San Joaquin Irrigation Districts are authorized to continue operation of the Beardsley/Donnells Project No. 2005 until such time as the Commission acts on their application for subsequent license.
On December 23, 2002, Oakdale and South San Joaquin Irrigation Districts, licensees for the Tulloch Project No. 2067, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2067 is located on the Stanislaus River in Tuolumne and Calaveras Counties, California.
The license for Project No. 2067 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensees of such project have filed an application for a subsequent license, the licensees may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on their application. If the licensees of such a project have not filed an application for a subsequent license, then they may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2067 is issued to Oakdale and South San Joaquin Irrigation Districts for a period effective January 1, 2005 through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Oakdale and South San Joaquin Irrigation Districts are authorized to continue operation of the Tulloch Project No. 2067 until such time as the Commission acts on their application for subsequent license.
On December 26, 2002, Pacific Gas and Electric Company, licensee for the Donnells-Curtis Transmission Line Project No. 2118, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2118 is located in Tuolumne County, California.
The license for Project No. 2118 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2118 is issued to Pacific Gas and Electric Company for a period effective January 1, 2005, through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Pacific Gas and Electric Company is authorized to continue operation of the Donnells-Curtis Transmission Line Project No. 2118 until such time as the Commission acts on its application for subsequent license.
On December 26, 2002, Pacific Gas and Electric Company, licensee for the Spring Gap-Stanislaus Project No. 2130, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. Project No. 2130 is located on the South and Middle Forks of the Stanislaus River in Calaveras and Tuolumne Counties, California.
The license for Project No. 2130 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2130 is issued to Pacific Gas and Electric Company for a period effective January 1, 2005 through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Pacific Gas and Electric Company is authorized to continue operation of the Spring Gap-Stanislaus Project No. 2130 until such time as the Commission acts on its application for subsequent license.
On December 27, 2002, Portland General Electric Company and Blue Heron Paper Company, licensees for the Willamette Falls Project No. 2233, filed an application for a new or subsequent license pursuant to the Federal Power Act (FPA) and the Commission's regulations thereunder. On November 17, 2003, the Commission issued an order approving the transfer of the project license from Portland General Electric Company and Blue Heron Paper Company to Portland General Electric Company effective August 15, 2003. Project No. 2233 is located on the Willamette River in Oregon City and West Linn, Oregon.
The license for Project No. 2233 was issued for a period ending December 31, 2004. Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year to year an annual license to the then licensee under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on Section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2233 is issued to Portland General Electric Company for a period effective January 1, 2005, through December 31, 2005, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before January 1, 2006, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Portland General Electric Company is authorized to continue operation of the Willamette Falls Project No. 2233 until such time as the Commission acts
Take notice that on November 23, 2004, Public Utility District No. 1 of Douglas County, Washington (Douglas PUD), the Confederated Tribes of the Colville Reservation (Tribe), and the Wells Power Purchasers (Puget Sound Energy, Inc., Portland General Electric Company, PacificCorp, and Avista Corporation, collectively) filed with the Commission: (1) A request for approval of a settlement agreement between Douglas PUD and the Tribe resolving all claims involving annual charges under Section 10(e) of the Federal Power Act (FPA), 16 U.S.C. 803(e), for use of Indian land for Douglas PUD's Wells Project No. 2149; and (2) an application for approval of a contract for the sale of power from the project extending beyond the term of the project license, which expires on May 31, 2012. The project is located on the Columbia River in Chelan, Douglas, Kittitas, Grant, Yakima, and Benton Counties, Washington.
Under the settlement agreement Douglas PUD and the Tribe agree to a lump-sum payment to the Tribe, in the form of cash and real property and a share in the power output of project in fulfillment of all annual charge obligations to the Tribe for the term of the current license and any new license for the Wells Project issued to Douglas PUD. The settlement agreement by its terms would terminate if Douglas PUD is not granted a new license for the project. Both parties assert that the settlement is fair and serves the public interest by satisfying the purposes of section 10(e) of the FPA without the necessity of time-consuming and costly litigation over annual charge claims.
Section 22 of the FPA, 16 U.S.C. 815, provides that contracts for the sale and delivery of power for periods extending beyond the termination date of a license may be entered into upon the joint approval of the Commission and the appropriate state public service Commission or other similar authority in the state in which the sale or delivery of power is made. Douglas PUD and the Tribe have pursuant to the settlement agreement submitted for Commission approval a power sales contract providing the Tribe a share of the project's output that would extend beyond the term of the current project license. The tribe would acquire 4.5 percent of the output of the project through 2018 and 5.5 percent thereafter for as long as Douglas PUD holds any license for the Wells Project. The power would be bought by the Tribe at cost. The parties assert that approval of the submitted contract is in the public interest because the contract is part of the global settlement of issues addressed by the settlement and because of the special relationship of the Tribe to the Wells Project as result of the geographic proximity of the Tribe's reservation to the project.
Comments on the settlement agreement and the request for approval of the power sales contract or motions to intervene may be filed with the Commission no later than January 19, 2005, and replies to comments no later than January 25, 2005. 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.
All documents (an original and eight copies) must be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Please put the project name “Wells Project No. 2149” on the first page of all documents.
Comments 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
A copy of the settlement agreement is available for review in the Commission's Public Reference Room or may be viewed on the Commission's Web site
You may also register online at
Take notice that on December 27, 2004, Questar Pipeline Company (Questar) tendered for filing a liquids revenue crediting report. Questar states that the report documents the revenues and costs pertaining to the Kastler Plant for the time period August 2001 through October 31 2004.
Questar states that it is filing the report pursuant to a November 26, 2004 Commission order following technical conference and on rehearing. Questar explains that the Order requires Questar to provide an accounting of all revenues received from the sale of liquids at the Kastler Plant, and to credit these past revenues to transmission customers within 30 days of the Commission Order.
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 on or before the date as indicated below. 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 December 27, 2004, Rendezvous Gas Services, L.L.C. (Rendezvous), 1050 17th Street, Suite 500, Denver, Colorado 80265, filed an application pursuant to section 7(c) of the Natural Gas Act and part 157 of the Commission's regulations requesting: (1) A limited-jurisdiction certificate of public convenience and necessity authorizing Rendezvous (a) to construct and operate a 20.8-mile, 20-inch pipeline, providing a direct connection between a gas processing plant in Uinta County, Wyoming and Kern River Gas Transmission Company in Lincoln County, Wyoming, and (b) to transport gas gathered by Rendezvous, a gathering company, and its owners, Questar Gas Management Company (QGM) and Mountain Gas Resources, Inc. (MGR), also gathering companies; (2) a part 157, Subpart F blanket certificate to undertake a variety of routine jurisdictional activities; and (3) waivers of reporting requirements (including Form 2), the Uniform System of Accounts, and part 154 requirements for filing and maintaining tariffs and rate schedules. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any questions regarding this application should be directed to Perry Richards, Rendezvous Gas Services Company, L.L.C., 1050 17th Street, Suite 500, Denver, Colorado 80265, phone: (303) 672-6986, Fax: (303) 308-3610.
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. A party must submit 14 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. 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 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. 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.
Protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Take notice that on December 21, 2004, Southern Star Central Gas Pipeline, Inc. (Southern Star) tendered for filing as part of its FERC Gas Tariff, Volume No. 1, the following tariff sheets, to become effective December 1, 2004:
Southern Star states this filing is being made to place into effect interim reduced rates in lieu of the motion rates currently effective and subject to refund. Southern Star also states that the interim reduced rates will be billed on a month-to-month basis pending the filing of a settlement in the above referenced proceeding and the Commission's approval of such settlement. Southern Star further states that it reserves the right, and requests authority, to withdraw such interim reduced rates and to prospectively reinstate the motion rates at any time by filing with the Commission to withdraw such interim reduced rates. Southern Star indicates that the filing is expressly conditioned upon receipt of such authority to reinstitute the motion rates.
Southern Star states that copies of the tariff sheets are being mailed to Southern Star's jurisdictional customers and interested state commissions, in addition to all parties appearing on the official service list of this docket.
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 on or before the date as indicated below. 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 December 30, 2004, Tennessee Gas Pipeline Company (Tennessee), 1001 Louisiana St., Houston, Texas 77002, filed an application in Docket No. CP05-42-000 pursuant to section 7(b) and 7(c) of the Natural Gas Act (NGA) and part 157(A) of the Commission's Regulations, for authorization to abandon two Solar Centaur T-3002R (Centaur T-3002R) turbines that drive centrifugal compressors at its Compressor Station 325 in Liberty County, New Jersey, and replace them with two Solar Centaur 40-4700S (Centaur 40) turbines that drive centrifugal compressors to comply with the Clean Air Act Amendments of 1990, 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
Tennessee explains that upon direction of the Environmental Protection Agency (EPA), the New Jersey Department of Environmental Protection revised its regulations in April 2004 eliminating the open market emission trading program which had allowed owners and operators to use discrete emission reduction credits to comply with the EPA NO
Any questions regarding this application should be directed to Susan T. Halbach, Senior Counsel, 1001 Louisiana, Houston, Texas 77002, at (713) 420-5751.
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. 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.
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 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. 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 on December 30, 2004, Texas Eastern Transmission, LP (Texas Eastern) tendered for filing as part of its FERC Gas Tariff, Seventh Revised Volume No. 1 and First Revised Volume No. 2, revised tariff sheets, as listed on Appendix B to the filing, to become effective February 1, 2005.
Texas Eastern states that these revised tariff sheets are filed pursuant to section 15.1, Electric Power Cost (EPC) Adjustment, of the General Terms and Conditions of Texas Eastern's FERC Gas Tariff, Seventh Revised Volume No. 1.
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
Walden Energy, L.L.C. (Walden) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy and capacity at market-based rates. Walden also requested waiver of various Commission regulations. In particular, Walden requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Walden.
On January 3, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-South, granted the request for blanket approval under part 34, subject to the following:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Walden should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004).
Notice is hereby given that the deadline for filing motions to intervene or protest, is February 2, 2005.
Absent a request to be heard in opposition by the deadline above, Walden is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Walden, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Walden's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on December 28, 2004, Indiana Michigan Power Company (I&M) tendered a compliance filing, pursuant to the Commission's June 3, 1992, Opinion No. 373 and Order on Initial Decision, 59 FERC ¶61,260, which addressed, among other things, the appropriateness of periodic reviews of nuclear decommissioning costs and funding.
I&M states that copies of the filing were served upon its current jurisdictional customers, the Indiana Utility Regulatory Commission, and the Michigan Public Service Commission.
Take notice that on December 3, 2004, Carolina Power & Light Company d/b/a Progress Energy Carolinas, Inc., submitted a compliance filing consisting of two refund reports pursuant to the Commission's Order issued May 21, 2003 in Docket No. ER01-1807-005,
Carolina Power & Light Company states that copies of the filing were served upon the North Carolina Utilities Commission and the South Carolina Public Service Commission.
Take notice that, on December 27, 2004 Dominion Resources Services on behalf of Armstrong Limited Energy Partnership, LLP, Dominion Energy Marketing, Inc., Dominion Nuclear Connecticut, Inc., Dominion Nuclear Marketing I, Inc., Dominion Nuclear Marketing II, Inc., Dominion Nuclear Marketing III, Inc., Dresden Energy, LLC, Elwood Energy, LLC, Fairless Energy, LLC, Kincaid Generation, LLC, Pleasants Energy, LLC, State Line Energy, LLC, Troy Energy, LLC and Virginia Electric & Power Company submitted its response to the Commission's May 13, 2004 Order Implementing New Generation Market Power Analysis and Mitigation Procedures, 107 FERC 61,168.
Take notice that, on December 28, 2004, the Midwest Independent Transmission System Operator, Inc. (Midwest ISO) filed certain cost information pertaining to transmission-related services performed for the Midwest ISO by GridAmerica LLC in compliance with the Commission's December 19, 2002 Order,
The Midwest ISO requested waiver of the service requirements set forth in 18 CFR 385.2010. Midwest ISO states that it has electronically served a copy of this filing, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, as well as all state commissions within the region. In addition, Midwest ISO states that the filing has been electronically posted on the Midwest ISO's Web site at
Take notice that on December 30, 2004, Pacific Gas and Electric Company (PG&E) submitted a compliance filing pursuant to Ordering Paragraph E of the Commission's Order issued November 30, 2004, in Docket Nos. ER04-415-000, 001 and 002, 109 FERC 61,242 (2004).
PG&E states that copies of this filing have been served on Berry Tannehill, Berry University, Big Creek, the California Independent System Operator Corporation, California Public Utilities Commission, and the parties in Docket No. ER04-415.
Take notice that on December 20, 2004, Illinois Power Company (Illinois Power) submitted revised sheets to it Open Access Transmission Tariff pursuant to the Commission's Order issued November 19, 2004 in Docket Nos. ER04-1239-000 and ER04-1254-000, 109 FERC 61,185. Illinois Power requested an October 1, 2004 effective date for the revised sheets.
Take notice that on December 27, 2004, Geysers Power Company, LLC (Geysers Power) submitted substitute revised rate schedule sheets to Geysers Power Company's Rate Schedule FERC No. 5 to correct inadvertent errors in its November 23, 2004 filing in Docket No. ER05-523-000.
Geysers Power states that copies of the filing were served upon the official service list.
Take notice that on December 22, 2004, Upper Peninsula Power Company (Upper Peninsula) submitted an application pursuant to section 204 of the Federal Power Act seeking authorization to issue short-term debt in an amount not to exceed $20 million at any time.
Upper Peninsula also requests a waiver of 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 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
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR part 380 (Order No. 486, 52 FR 47879), the Office of Energy Projects has reviewed the application for a new license for the Lake Wallenpaupack Hydroelectric Project, located on the Wallenpaupack Creek and Lackawaxen River, in Pike and Wayne Counties, Pennsylvania, and has prepared an Environmental Assessment (EA). In the EA, Commission staff analyze the potential environmental effects of relicensing the project and conclude that issuing a new license for the project, with appropriate environmental measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
Any comments should be filed within 30 days from the issuance date of this notice, and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please affix “Wallenpaupack Project No. 487” to all comments. Comments may be filed electronically via Internet in lieu of paper. The Commission strongly encourages electronic filings.
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.
k.
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.
Requests for cooperating agency status 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 (
l. This application is not ready for environmental analysis at this time.
m.
The applicant requests the Commission to first review the application for a small hydroelectric power project exemption from licensing, in which the applicant would increase the project's generating capacity to 3,650 kW by installing a second turbine/generator. If the project with the proposed capacity increase does not qualify for an exemption, the applicant requests that this application be considered an application for a new license, under which the applicant would continue to operate the existing turbine/generator with a 3,150-kW capacity and would not install a second unit.
n. 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
o. With this notice, we are initiating consultation with the Colorado State Historic Preservation Officer (SHPO), as required by (106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
p.
Issue acceptance or deficiency letter: February 2005.
Request additional information: February 2005.
Issue acceptance letter: May 2005.
Notice soliciting terms and conditions: May 2005.
Notice of the availability of the EA: September 2005.
Ready for Commission's decision on the application: April 2006.
Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice soliciting terms and conditions.
As announced in the Notice of Technical Conference issued on December 3, 2004, the Commission Staff will convene a technical conference on Wednesday, January 12, 2005, at 9 a.m. (e.s.t.), at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC. Based on the response to Staff's request for alternative proposals to the CAISO's proposed self-certification process, continuing this conference through Thursday, January 13, 2005, will not be necessary. The purpose of the conference is to discuss with the California Independent System Operator Corporation (CAISO) and interested parties how best to achieve the CAISO's objective of ensuring that ancillary services bids are backed by a physical resource based on the presentation of proposals at the technical conference.
Please take notice of the conference agenda below:
I. Opening remarks by Commission staff.
II. Presentation by the CAISO on the proposed self-certification process.
III. Presentation by Powerex on its alternative proposal to institute a tagging procedure to verify ancillary services commitments.
IV. Comments from staff.
The technical conference will be held at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC, in Room 3M-2B. FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
For more information about the conference, please contact: Marion Whitaker at (202) 502-8264 or at
On Thursday, January 13, 2005, the staff of the Federal Energy Regulatory Commission (FERC) will conduct a site visit to view components of the Line AD Expansion Project in Caddo, Grady and Hughes counties, Oklahoma. We will meet at 8 a.m. (CST) at The Best Western Inn of Chickasha, 2101 South 4th Street, Chickasha, Oklahoma and proceed to the proposed Hinton Compressor Station site in Caddo County, and then to the two other compressor station sites. Interested persons may attend, but must provide their own transportation.
For additional information about the site visit, please contact the FERC's Office of External Affairs at 1-866-208-3372.
Take notice that the Commission staff will convene a technical conference on Wednesday, January 26, 2005, from 10 a.m. to 5 p.m. (e.s.t.), in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The purpose of the conference is to address the negative deferred fuel account balance and surplus gas on Enbridge Pipelines (KPC) (Enbridge KPC). The Commission directed its staff to convene this technical conference in a December 22, 2004 order on rehearing and establishing technical conference.
This case began on October 1, 2003, as a result of revised tariff sheets submitted by Enbridge KPC to adjust its fuel reimbursement percentages to reflect changes in its fuel usage and lost and unaccounted for gas (L&U). The revised tariff sheets proposed, among other things, a decrease in the fuel reimbursement percentages (FRPs) that became effective November 1, 2003. Enbridge KPC should be prepared to further explain its proposal, and address the concerns raised in the December 1, 2003, request for rehearing of Kansas Corporation Commission (KCC) and its October 27, 2004, response to Staff's August 27, 2004, data request.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All interested persons are permitted to attend.
On January 5, 2005, Commission staff, in response to the filing of a notice of study dispute by the U.S. Department of the Interior on December 17, 2004, convened a three-person Dispute Resolution Panel pursuant to 18 CFR 5.14(d).
The Panel will hold a technical conference at the time and place noted below. All interested individuals, organizations, and agencies are invited to attend the technical conference. The Panel will provide an opportunity to hear from the disputing agency, potential applicant, and other participants who have an interest in the outcome of the dispute. The Panel may also request information or clarification on written submissions as necessary to understand the matters in dispute. The Panel will limit all input that it receives to the specific studies or information in dispute and will focus on the applicability of such studies or information to the study criteria stipulated in 18 CFR 5.9(b). If the number of participants wishing to speak creates time constraints, the Panel may, at its discretion, limit the speaking time for each participant. A court reporter will be present to provide a written record of the technical conference.
Environmental Protection Agency (EPA).
Notice of opportunity for public hearing and request for public comment.
The California Air Resources Board (CARB), has requested EPA authorization, under section 209(e) of the Clean Air Act (Act), for CARB to enforce California's Marine Spark Ignition Engine regulations for outboard marine engines, personal watercraft, and inboard and sterndrive marine engines, and to enforce California's Off-Road Large Spark Ignition Engine regulations. As the Act requires, EPA is announcing the opportunity for a public hearing and requesting public comment on each of these CARB requests.
EPA has tentatively scheduled a public hearing for the Marine Engine regulations request on February 28, 2005 commencing at 9:30 a.m., and a public hearing for the Large Spark Ignition Engine regulations on February 28, 2005 commencing at 1:30 p.m. EPA will hold each hearing only if a party notifies EPA by February 2, 2005 expressing its interest in presenting oral testimony regarding either (or both) of CARB's requests. By February 2, 2005, any person who plans to attend either hearing should contact Robert M. Doyle (see contact information below) to learn if the hearing will be held. Regardless of whether or not a hearing is held on either request, any party may submit written comments regarding CARB's request by or before March 14, 2005.
Parties wishing to present oral testimony at either public hearing should provide written notice to Robert M. Doyle, Attorney-Advisor, Certification and Compliance Division, (6403J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. If EPA receives a request for a public hearing, EPA will hold the public hearing in the first floor conference room at 1310 L Street, NW., Washington, DC. Parties wishing to send written comments should provide them to Mr. Doyle at the above address. EPA will make available for public inspection at the Air and Radiation Docket all written comments received from interested parties, in addition to any testimony given at the public hearing. The EPA Docket Center Public Reading Room is open during working hours from 8:30 a.m. to 4:30 p.m. at Room B102, 1301 Constitution Avenue, NW., Washington, DC. The telephone number for the Public Reading Room is (202) 566-1744 The reference number for the Marine Spark Ignition Engines regulations request docket is OAR-2004-0403, and the reference number for the Off-Road Large Spark Ignition Engines regulations request docket is OAR-2004-0404.
Robert M. Doyle, Attorney-Advisor, Certification and Compliance Division, (6403J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (U.S. mail), 1310 L Street, NW., Room 340 Washington, DC 20005(courier mail). Telephone: (202) 343-9258, Fax: (202) 343-2804, e-mail:
EPA makes available an electronic copy of this Notice on the Office of Transportation and Air Quality (OTAQ) homepage (
Additionally, an electronic version of the public docket is available through EPA's electronic public docket and comment system. You may use EPA dockets at
Section 209(e)(1) of the Act addresses the permanent preemption of any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain new nonroad engines or vehicles.
No State or any political subdivision thereof shall adopt or attempt to enforce any standard or other requirement relating to the control of emissions from either of the following new nonroad engines or nonroad vehicles subject to regulation under this Act—(A) New engines which are used in construction equipment or vehicles or used in farm equipment or vehicles and which are smaller than 175 horsepower.
(B) New locomotives or new engines used in locomotives. Subsection (b) shall not apply for purposes of this paragraph.
Section 209(e)(2) requires the Administrator, after notice and opportunity for public hearing, to authorize California to enforce standards and other requirements relating to emissions control of new engines not listed under section 209(e)(1).
40 CFR part 85, subpart Q, § 85.1605 provides:
(a) The Administrator shall grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.
(b) The authorization shall not be granted if the Administrator finds that:
(1) The determination of California is arbitrary and capricious;
(2) California does not need such California standards to meet compelling and extraordinary conditions; or
(3) California standards and accompanying enforcement procedures are not consistent with section 209.
As stated in the preamble to the section 209(e) rule, EPA has interpreted the requirement that EPA cannot find “California standards and accompanying enforcement procedures are not consistent with section 209” to mean that California standards and accompanying enforcement procedures must be consistent with section 209(a), section 209(e)(1), and section 209(b)(1)(C), as EPA has interpreted that subsection in the context of motor vehicle waivers.
§ 85.1603 provides in applicable part:
(a) For equipment that is used in applications in addition to farming or construction activities, if the equipment is primarily used as farm and/or construction equipment or vehicles, as defined in this subpart, it is considered farm or construction equipment or vehicles. (b) States are preempted from adopting or enforcing standards or other requirements relating to the control of emissions from new engines smaller than 175 horsepower, that are primarily used in farm or construction equipment or vehicles, as defined in this subpart.
§ 85.1602 provides definitions of terms used in § 85.1603 and states in applicable part:
Finally, because California's nonroad standards and enforcement procedures must be consistent with section 209(b)(1)(C), EPA will review nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Under section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if he finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. As previous decisions granting waivers of Federal preemption for motor vehicles have explained, State standards are inconsistent with section 202(a) if there is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time period or if the Federal and State test procedures impose inconsistent certification requirements.
With regard to enforcement procedures accompanying standards, EPA must grant the requested authorization unless it finds that these procedures may cause the California standards, in the aggregate, to be less protective of public health and welfare than the applicable Federal standards promulgated pursuant to section 213(a), or unless the Federal and California certification test procedures are inconsistent.
While inconsistency with section 202(a) includes technological feasibility, lead time, and cost, these aspects are typically relevant only with regard to standards. The aspect of consistency with 202(a) which is of primary applicability to enforcement procedures (especially test procedures) is test procedure consistency.
Once California has received an authorization for its standards and enforcement procedures for a certain group or class of nonroad equipment engines or vehicles, it may adopt other conditions precedent to the initial retail sale, titling or registration of these engines or vehicles without the necessity of receiving an additional authorization.
If California acts to amend a previously authorized standard or accompanying enforcement procedure, the amendment may be considered within the scope of a previously granted authorization provided that it does not undermine California's determination that its standards in the aggregate are as protective of public health and welfare as applicable Federal standards, does not affect the consistency with section 209 of the Act, and raises no new issues
CARB has submitted to EPA three separate but related requests to authorize various marine SI engine regulations. EPA will consider these requests together in our review of the requests to enforce CARB's marine SI engine emissions regulation program. These requests are summarized in order below.
(1) By letter dated April 4, 2000, CARB requested EPA authorization to enforce California's marine SI regulations affecting outboard marine engines. The CARB regulations set emission standards for these marine engines commencing with model year 2001 for both certification and in-use standards. The first tier of the CARB regulations basically adopted the standards equivalent to the EPA 2006 marine SI engines. CARB also adopted a second tier of outboard engine regulations, commencing in model year 2004 equivalent to 80% of the EPA 2006 standards, and a third tier, commencing in 2008, equivalent to 35% of the EPA 2006 standard. Manufacturers are permitted to meet the standards directly or on a corporate average basis, where some engine families may emit more than the emission standard if they are offset by engines which emit sufficiently less than the standard. To accompany the new standards, CARB also adopted regulations requiring manufacturer production line testing (along with CARB authority to conduct Selective Enforcement Audits), manufacturer demonstration of in-use compliance, emission warranties, permanent emission certification labels for covered engines, and special “hang tags” for consumer/environmental awareness of clean technology engines.
(2) By letter dated June 5, 2002, CARB extended the earlier authorization request to include regulations for marine SI engines in personal watercraft (PWC)
(3) By letter dated March 2, 2004, CARB extended the earlier requests by requesting authorization to enforce California's marine SI regulations affecting inboard and sterndrive engines for model years 2003 and beyond.
By letter dated February 15, 2000, CARB requested EPA authorization to enforce California's Off-Road Large Spark Ignition Engine (LSI) regulations.
To accompany the new standards, CARB also adopted regulations requiring manufacturer production line testing (along with CARB authority to conduct Selective Enforcement Audits), manufacturer required in-use testing, an in-use emission credit program, permanent emission labels, and emission warranties. CARB also adopted provisions to provide relief to small volume manufacturers (annual production under 2000 engines) basically by delaying the time when they must comply with in-use standards until 2004.
If a public hearing is held on either request, any party desiring to make an oral statement on the record should file ten (10) copies of its proposed testimony and other relevant material with Robert Doyle at the address listed above no
In recognition that a public hearing is designed to give interested parties an opportunity to participate in this proceeding, there are no adverse parties as such. Statements by participants will not be subject to cross-examination by other participants without special approval by the presiding officer. The presiding officer is authorized to strike from the record statements that he or she deems irrelevant or repetitious and to impose reasonable time limits on the duration of the statement of any participant.
If a hearing is held on either request, the Agency will make a verbatim record of the proceedings. Interested parties may arrange with the reporter at the hearing to obtain a copy of the transcript at their own expense. Regardless of whether a public hearing is held, EPA will keep the record open until March 14, 2005. Upon expiration of the comment period, the Administrator will render a decision on CARB's request based on the record of the public hearing, if any, relevant written submissions, and other information that she deems pertinent. All information will be available for inspection at EPA Air Docket, in Docket OAR-2004-0403 (the Marine Spark Ignition Engines regulations request), and Docket OAR-2004-0404 (the Off-Road Large Spark Ignition Engines regulations request).
Persons with comments containing proprietary information must distinguish such information from other comments to the greatest possible extent and label it as “Confidential Business Information” (CBI). If a person making comments wants EPA to base its decision in part on a submission labeled CBI, then a nonconfidential version of the document that summarizes the key data or information should be submitted for the public docket. To ensure that proprietary information is not inadvertently placed in the docket, submissions containing such information should be sent directly to the contact person listed above and not to the public docket. Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed and by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies the submission when EPA receives it, EPA will make it available to the public without further notice to the person making comments.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be tranferred to DLT Solutions, Inc. and its subcontractor, Oracle Corp., in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). DLT Solutions, Inc. and its subcontractor, Oracle Corp., have been awarded a contract to perform work for OPP, and access to this information will enable DLT Solutions, Inc. and its subcontractor, Oracle Corp., to fulfill the obligations of the contract.
DLT Solutions, Inc. and its subcontractor, Oracle Corp., will be given access to this information on or before January 18, 2005.
Erik R. Johnson, FIFRA Security Officer, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-0521; e-mail address:
This action applies to the public in general. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Under Contract No. GS-35F-4543G-4W-0910-NBSX, DLT Solutions, Inc. and its subcontractor, Oracle Corp., shall provide to the Office of Pesticide Programs the following:
• Technical support to upgrade the Oracle Relational Database Management System;
• Develop a project plan that demonstrates their understanding of the statement of work;
• Prepare written procedures for upgrading the OPPIN production server;
• Provide recommendations and analysis of the best practices of the use of the Oracle framework;
• Design, develop and enhancement existing OPPIN database and the OPPIN software;
• Maintain existing software, including reports, menus, screens and other programs; and
• Correct software problems identified at all phases of testing.
The EPA has determined that access by DLT Solutions, Inc. and its subcontractor, Oracle Corp., to information on all pesticide chemicals is necessary for the performance of this contract.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA under sections 3, 4, 6, and 7 of FIFRA and under sections 408 and 409 of FFDCA.
In accordance with the requirements of 40 CFR 2.307(h)(2), the contract with DLT Solutions, Inc. and its subcontractor, Oracle Corp., prohibits use of the information for any purpose not specified in the contract; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency (EPA).
Notice.
This notice announces that pesticide related information submitted to EPA's Office of Pesticide Programs (OPP) pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), including information that may have been claimed as Confidential Business Information (CBI) by the submitter, will be tranferred to Systalex Corp. in accordance with 40 CFR 2.307(h)(3) and 2.308(i)(2). Systalex Corp. has been awarded multiple contracts to perform work for OPP, and access to this information will enable Systalex Corp. to fulfill the obligations of the contract.
Systalex Corp. will be given access to this information on or before January 18, 2005.
Erik R. Johnson, FIFRA Security Officer, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-0521; e-mail address:
This action applies to the public in general. As such, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Under number 4D-5318-NBSX, the contractor will:
• Provide software development and related support services to meet the requirements of the Pesticide Registration Improvement Act of 2004.
• Develop a project plan demonstrating their understanding of the statement of work.
• Preform testing of all delivered software using personnel other than those developing the software being tested prior to delivery. Quality assurance activities included in this testing must demonstrate software performs to specifications outlined in the written instructions.
• The modifications have caused no problems in parts of the system which were not changed.
• The software is reliable.
This contract involves no subcontractors.
The OPP has determined that the contracts described in this document involve work that is being conducted in connection with FIFRA, in that pesticide chemicals will be the subject of certain evaluations to be made under this contract. These evaluations may be used in subsequent regulatory decisions under FIFRA.
Some of this information may be entitled to confidential treatment. The information has been submitted to EPA
In accordance with the requirements of 40 CFR 2.307(h)(3), the contracts with Systalex Corp., prohibits use of the information for any purpose not specified in these contracts; prohibits disclosure of the information to a third party without prior written approval from the Agency; and requires that each official and employee of the contractor sign an agreement to protect the information from unauthorized release and to handle it in accordance with the
Environmental protection, Business and industry, Government contracts, Government property, Security measures.
Environmental Protection Agency (EPA).
Notice.
Under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2 (Public Law 92-463), EPA gives notice of a 3-day meeting of the National Pollution Prevention and Toxics Advisory Committee (NPPTAC). The purpose of the NPPTAC is to provide advice and recommendations to EPA regarding the overall policy and operations of the programs of the Office of Pollution Prevention and Toxics (OPPT).
The meeting will be held on February 8, 2005, from 8 a.m. to 10:45 a.m., on February 9, 2005, from 8 a.m. to 10 a.m., and on February 10, 2005, from 9 a.m. to 4:30 p.m.
Registration to attend the meeting, identified by docket ID number OPPT-2002-0001, must be received on or before February 3, 2005. Registration will also be accepted at the meeting.
Requests to provide oral comments at the meeting, identified as NPPTAC February 2005 meeting, must be received in writing on or before January 21, 2005.
Written comments, identified as NPPTAC February 2005 meeting, may be submitted at any time. Written comments received on or before January 21, 2005, will be forwarded to the NPPTAC members prior to or at the meeting.
Meetings of the four Work Groups of the Committee will take place as follows. The High Production Volume (HPV) Work Group will meet on February 8, 2005, from 11 a.m. to 6 p.m., to discuss activities related to EPA's HPV Challenge Program. The Pollution Prevention (P2) Work Group will meet on February 8, 2005, from 11 a.m. to 6 p.m., to discuss activities related to EPA's Pollution Prevention Programs. The Tribal Issues Work Group will meet on February 9, 2005, from 10:15 a.m. to 5:30 p.m., to discuss activities related to EPA's coordination with Tribes and Tribal Organizations. The Broader Issues Work Group will meet on February 9, 2005, from 10:15 a.m. to 5:30 p.m., to discuss activities related to EPA's New Chemicals and Existing Chemicals Programs.
The meeting will be held at the Hilton Arlington and Towers, 950 N. Stafford Street, Arlington, VA 22203.
For address information concerning registration, the submission of written comments, and requests to present oral comments, refer to Unit I. of the
This action is directed to the public in general, and may be of particular interest to those persons who have an interest in or may be required to manage pollution prevention and toxic chemical programs, individuals, groups concerned with environmental justice, children's health, or animal welfare, as they relate to OPPT's programs under the Toxic Substances Control Act (TSCA) and the Pollution Prevention Act (PPA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in the activities of the NPPTAC. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number OPPT-2002-0001, NPPTAC February meeting in the subject line on the first page of your comment.
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The proposed agenda for the NPPTAC meeting includes: The High Production Volume Challenge Program; Pollution Prevention; Risk Assessment; Risk Management; Risk Communication; and Coordination with Tribes and other stakeholders. The meeting is open to the public.
You may request to attend the meeting by filling out the registration form according to the instructions listed under Unit I.A. Please note that registration will assist in planning adequate seating; however, members of the public can register the day of the meeting. Therefore, all seating will be available on a first come, first serve basis.
1. To register to attend the meeting: Pre-registration for the February 2005 NPPTAC meeting and requests for special accommodations may be made by visiting the NPPTAC web site at:
2. To request an opportunity to provide oral comments: You must register first in order to request an opportunity to provide oral comments at the February 2005 NPPTAC meeting. To register, visit the NPPTAC web site at:
3. Written comments. You may submit written comments to the docket listed under Unit I.B.1. Written comments can be submitted at any time. If written comments are submitted on or before January 21, 2005, they will be provided to the NPPTAC members prior to or at the meeting. If you provide written comments at the meeting, 35 copies will be needed.
Do not submit any information that is considered CBI.
Environmental protection, NPPTAC, Pollution prevention, Toxics, Toxic chemicals, Chemical health and safety.
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public teleconference and a public face-to-face meeting of the SAB Perfluorooctanoic Acid Risk Assessment (PFOA) Review Panel.
The public teleconference will take place via telephone only. The public face-to-face meeting of the SAB PFOA Review Panel will be held at the SAB Conference Center located at the Woodies Building, 1025 F Street, NW., Room 3705, Washington, DC, 20004.
Members of the public who wish to obtain the call-in number and access code to participate in the teleconference may contact Dr. Sue Shallal, EPA Science Advisory Board Staff (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone/voice mail: (202) 343-9977 or via e-mail at
The purpose of the upcoming teleconference is for the SAB PFOA Review Panel to review available advisory and background materials, identify additional information needs, discuss the draft charge questions to the SAB and plan for a face-to-face meeting. The purpose of the face-to-face meeting is to conduct a review of the PFOA risk assessment and prepare a response to the charge questions.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's revised risk assessments for the phenoxy herbicide, 2,4-dichlorophenoxyacetic acid (2,4-D). In addition, this notice releases and starts a public comment period on the Agency's preliminary risk reduction options for 2,4-D. The public also is encouraged to suggest risk management ideas or proposals to address the risks identified. EPA is developing a Reregistration Eligibility Decision (RED) for 2,4-D through the full, 6-Phase public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through these programs, EPA is ensuring that all pesticides meet current health and safety standards.
Comments, identified by docket identification (ID) number OPP-2004-0167, must be received on or before March 14, 2005.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Katie Hall, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0166; fax number: (703) 308-8041; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper,
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is making available the Agency's revised risk assessments, initially issued
2,4-D is a phenoxy herbicide used for selective control of broadleaf weeds in numerous agriculture, forestry, aquatic, and turf applications. Drinking water risk could potentially be of concern from direct application of 2,4-D to water for aquatic weed control unless it can be demonstrated that the 2,4-D concentration in the water is less than 70 parts per billion (ppb) at the time of drinking water diversion. Risk to recreational swimmers maybe of concern for direct aquatic applications of 2,4-D. Preliminary risk reduction options for managing proposal potential drinking water risk and swimmers risk are detailed in the preliminary mitigation proposal document available in the Docket. The primary ecological risk concern for terrestrial use of 2,4-D is to non-target plants, mammals, and birds. The use of 2,4-D for aquatic weed control presents potential risk to aquatic organisms and aquatic plants.
EPA is providing an opportunity, through this notice, for interested parties to provide risk management proposals or otherwise comment on risk management for 2,4-D. Considering EPA's preliminary risk reduction options, such comments and proposals should further discuss ways to manage 2,4-D's potential drinking water and ecological risks resulting from its aquatic and terrestrial use, as discussed in the Agency's risk assessments.
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
All comments should be submitted using the methods in Unit I. of the
Section 4(g)(2) of FIFRA as amended directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Section 408(q) of the FFDCA, 21 U.S.C. 346a(q), requires EPA to review tolerances and exemptions for pesticide residues in effect as of August 2, 1996, to determine whether the tolerance or exemption meets the requirements of section 408(b)(2) or (c)(2) of FFDCA. This review is to be completed by August 3, 2006.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of an application 524-EUP-96 from Monsanto Company requesting an experimental use permit (EUP) for the ZMIR39 x MON810 combined insecticidal trait stacked corn hybrids along with ZMIR39 and MON810 corn hybrids;
Comments, identified by docket identification (ID) number OPP-2004-0393, must be received on or before February 11, 2005.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Mike Mendelsohn, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8715; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the notice.
7. Make sure to submit your comments by the deadline in this document.
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
In the
Following the review of the Monsanto Company application and any comments and data received in response to this notice, EPA will decide whether to issue or deny the EUP request for this EUP program, and if issued, the conditions under which it is to be conducted. Any issuance of an EUP will be announced in the
The Agency's authority for taking this action is under FIFRA section 5.
Environmental protection, Experimental use permits.
Environmental Protection Agency (EPA).
Notice.
EPA is correcting certain language that was inadvertently changed from the March 16, 1978, TSCA Section 8(e) Statement of Interpretation and Enforcement Policy; Notification of Substantial Risk (1978 TSCA Section 8(e) Policy Statement) when the Agency issued its TSCA Section 8(e); Notification of Substantial Risk; Policy Clarification and Reporting Guidance (2003 guidance document) on June 3, 2003. The 2003 guidance document clarified certain aspects of TSCA section 8(e) reporting guidance and included a re-publication of major portions of the Agency's 1978 TSCA Section 8(e) Policy Statement. This notice merely re-inserts, verbatim, certain language from the 1978 TSCA Section 8(e) Policy Statement into the June 3, 2003, guidance document. This notice also clarifies the applicability date of the June 3, 2003 guidance document, and announces the addition of questions and answers on the reportability of environmental releases to the Q&A section of the TSCA section 8(e) web page (
You may be affected by this action if you manufacture, process, import, or distribute in commerce chemical
• Chemical manufacturers, processors, and distributors (NAICS 325)
• Petroleum refiners and distributors (NAICS 324)
• Manufacturers of plastic parts and components (NAICS 325211)
• Paints and coatings and adhesive manufacturing (NAICS 3255)
• Cleaning compounds and similar products manufacturing (NAICS 3256)
• Electronics manufacturing (NAICS 334 and 335)
• Automobiles manufacturing (NAICS 3361)
• Aircraft manufacturing (NAICS 336411)
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed could also be affected. The North American Industry Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
These corrections are necessary to maintain the accuracy of the 1978 TSCA Section 8(e) Policy Statement (43 FR 11110) where certain changes appearing in the 2003 guidance document (68 FR 33129) (FRL-7287-4) were made in error. As noted in the June 3, 2003,
In the 2003 guidance document, Unit VIII. entitled
Note that: (i) The effects outlined below should not be reported if the respondent has actual knowledge that the Administrator is already informed of them. (ii) Information respecting these effects can be obtained either directly, by observation of their occurrence, or inferred from designed studies as discussed in Part VI. Nature and Sources of Information Which “Reasonably Supports Conclusion” of Substantial Risk.
Also in Unit VIII. of the 2003 guidance document, Part VIII. entitled
(a) Any information reviewed after January 1, 1977, including not only written reports, memoranda and other documents examined after January 1, 1977, but also information referred to in discussions and conferences in which the person participated after January 1, 1977;
All other text contained in the June 3, 2003
In addition to the corrections discussed herein, this notice also clarifies the effective and applicability date of the 2003 TSCA Section 8(e) Policy Clarification and Reporting Guidance. The June 3, 2003
The best reading of the Guidance is that it is effective upon publication. For instance, the summary statement of the notice describes it as “finalizing revisions” to the earlier policy statement, and “republishing the policy statement...both those portions of the policy statement that are revised and those portions that are not affected by any revisions.” (68 FR 33129 (emphases added)). Unit II.A. of the notice is entitled
Under the auspices of the Agency's TSCA Section 8(e) Compliance Audit Program (“CAP”), a one-time enforcement initiative that took place between 1991 and 1996 regarding pre-1991 TSCA section 8(e) reporting requirements, the Agency had announced that, “EPA . . . intends to publish a question and answer document to illustrate application of the
The June 3, 2003
The Agency has now made a question and answer document available. It can be found on the OPPT's TSCA section 8(e) internet site:
EPA hopes and expects that the guidance has been, and will continue to be, useful to manufacturers (including importers), processors, and distributors of chemical substances and mixtures in fulfilling their responsibilities under TSCA section 8(e).
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on January 13, 2005, from 9 a.m. until such time as the Board concludes its business.
Jeanette C. Brinkley, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
This meeting of the Board will be open to the public (limited space available). In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
Federal Communications Commission.
Notice.
This document announces an immediate freeze on the filing of certain requests by analog and digital television broadcast stations for changes to existing DTV and analog TV service areas and channels. This freeze will assist the Commission in the process of implementing a channel election and repacking process that will assign to eligible television broadcasters a post-transition DTV channel in the core television spectrum (
The Freeze became effective on August 3, 2004.
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Kim Matthews, Policy Division, Media Bureau, Federal Communications Commission, (202) 418-2120.
Beginning immediately, and until further notice, the Commission will not accept for filing certain requests by analog and digital television broadcast stations for changes to existing DTV and analog TV service areas and channels. Specifically, until further notice, the Commission will not accept for filing the following:
• Petitions for rulemaking to change DTV channels within the DTV Table of Allotments.
• Petitions for rulemaking for new DTV allotment proceedings.
• Petitions for rulemaking to swap in-core DTV and NTSC channels.
• Applications to change DTV channel allotments among two or more licensees.
• Petitions for rulemaking by licensees/permittees to change NTSC channels or communities of license.
• Television modification applications that would increase a station's DTV service area in channels 2-51 in one or more directions beyond the combined area resulting from the station's parameters as defined in the following: (1) The DTV Table of Allotments; (2) Commission authorizations (license and/or construction permit); and (3) applications on file with the Commission prior to release of the freeze public notice; and television modification applications that would increase a station's analog service area in channels 2-51 in one or more directions beyond the combined area resulting from the station's parameters as defined in the following: (1) Commission authorizations (license and/or construction permit) and (2) applications on file with the Commission prior to release of the freeze public notice. The Bureau may consider, on a case by case basis and consistent with the public interest, amendments to those applications to, for example, resolve interference with other stations or pending applications or to resolve mutual exclusivity with other pending applications. In earlier public notices, we have frozen maximization applications for channels 52-59 and 60-69.
• Class A station displacement applications and applications for coverage changes that would serve any area that is not already served by that Class A station's authorized facilities. As an exception to this freeze, on-air Class A stations demonstrating that they face imminent disruption of service may
Notwithstanding this freeze, licensees will not be prevented from filing modification applications when the application would resolve international coordination issues or when a broadcast station seeks a new tower site due to the events of September 11, 2001.
The Commission is in the process of developing a channel election and repacking process that will assign to eligible television broadcasters a post-transition DTV channel in the core television spectrum (
The Bureau will consider, on a case-by-case basis, requests for waiver of this freeze when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site. As with any request for waiver of our rules, a request for waiver of the freeze imposed in the freeze public notice will be granted only upon a showing of good cause and when grant of the waiver will serve the public interest.
The decision to impose this freeze is procedural in nature and therefore the freeze is not subject to the notice and comment and effective date requirements of the Administrative Procedure Act.
This action is taken by the Chief, Media Bureau pursuant to authority delegated by § 0.283 of the Commission's rules.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may obtain copies of agreements by contacting the Commission's Office of Agreements at 202-523-5793 or via e-mail at
By Order of the Federal Maritime Commission.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may obtain copies of agreements by contacting the Commission's Office of Agreements at 202-523-5793 or via e-mail at
By Order of the Federal Maritime Commission.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, effective on the corresponding date shown below:
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel—Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Notice is hereby given that the Orders revoking the following licenses are being rescinded by the Federal Maritime Commission pursuant to sections 14 and 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
Notice is hereby given that the following Ocean Transportation Intermediary licenses have been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act of 1998 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
Board of Governors of the Federal Reserve System.
11:30 a.m., Tuesday, January 18, 2005.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, N.W., Washington, D.C. 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle A. Smith, Director, Office of Board Members; 202-452-2955.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Board of Governors of the Federal Reserve System, January 10, 2005.
9 a.m. (EST), January 19, 2005.
4th Floor Conference Room, 1250 H Street, NW., Washington, DC.
Parts will be open to the public and parts closed to the public.
1. Approval of the minutes of the December 20, 2004, Board member meeting.
2. Thrift Savings Plan activity report by the Executive Director.
3. Investment policy quarterly review.
4. Procurement.
5. Personnel matters.
Thomas J. Trabucco, Director, Office of External Affairs, (202) 942-1640.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay, Contact Representative or Renee Hallman, Case Management Assistant, Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By direction of the Commission.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by March 14, 2005.
Submit electronic comments on the collection of information to:
Karen Nelson, Office of Management Programs (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-1482.
Under the PRA, (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
FDA regulations require the distribution of Medication Guides for certain prescription human drug and biological products used primarily on an outpatient basis that pose a serious and significant public health concern requiring distribution of FDA-approved patient medication information. These Medication Guides inform patients about the most important information they should know about these products in order to use them safely and effectively. Included is information such as the drug's approved uses, contraindications, adverse drug
The regulations contain the following reporting requirements that are subject to the PRA, and the estimates for the burden hours imposed by the following regulations are listed in table 1 of this document:
21 CFR 208.20—Applicants must submit draft Medication Guides for FDA approval according to the prescribed content and format.
21 CFR 314.70(b)(3)(ii) and 21 CFR 601.12(f)—Application holders must submit changes to Medication Guides to FDA for prior approval as supplements to their applications.
21 CFR 208.24(e)—Each authorized dispenser of a prescription drug product for which a Medication Guide is required, when dispensing the product to a patient or to a patient's agent, must provide a Medication Guide directly to each patient unless an exemption applies under 21 CFR 208.26.
21 CFR 208.26 (a)—Requests may be submitted for exemption or deferral from particular Medication Guide content or format requirements.
Request for generic clearance to collect public comments on the proposed standards of care for chimpanzees in the federally supported chimpanzee sanctuary system.
Under the provisions of section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Center for Research Services, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval the information collection listed below. The National Institutes of Health may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995 unless it displays a currently valid OMB control number.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the NIH Advisory Board for Clinical Research.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(6), title 5 U.S.C., as amended for discussion of personal qualifications and performance, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the meeting of the President's Cancer Panel.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B), Title 5 U.S.C., as amended, because the premature disclosure of information and the discussions would likely to significantly frustrate implementation of recommendations.
This meeting is being published less than 15 days prior to the meeting due to scheduling conflicts.
Any interested person may file written comments with the committee by forwarding the comments to the Contact Person listed on this notice. The comments should include the name, address, telephone number and, when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, January 25, 2005, 9 a.m. to January 25, 2005, 5 p.m., Bethesda North Marriott Hotel & Conference Center, Montgomery County Conference Center Facility, 5701 Marinelli Road, North Bethesda, MD 20852 which was published in the
The meeting will be held on the same date from 1 p.m. to 4 p.m. as a telephone conference call at the Neuroscience Center, 6001 Executive Blvd., Rockville, MD. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of person privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Advisory Council on Aging.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications
In the interest of security, NIH has instituted stringent procedures for entrance into the building by non-government employees. Persons without a government I.D., will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S. C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed information collection activities. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The mission of SAMHSA's Center for Substance Abuse Prevention (CSAP) is to decrease substance use and abuse and related problems among the American public. CSAP accomplishes this through field-testing scientifically defensible programs; disseminating comprehensive, culturally appropriate prevention strategies, policies, and systems; and building capacity in states and community-based providers. Data are collected from CSAP grants and contracts where participant outcomes are assessed. The analysis of these data helps determine whether progress is being made in achieving CSAP's mission.
The primary purpose of this proposed data activity is to promote the use among CSAP grantees and contractors of common National Outcome Measures recommended by CSAP as a result of extensive examination and recommendations, using consistent
SAMHSA does not intend to continue collecting all the information items currently approved by OMB. Consistent with request for comments on minimizing burden, SAMHSA wants to reduce burden on participants in the PRNS program (States, communities, and projects) by limiting information collection to outcome measures that are directly relevant to the National Outcome domains that have been identified by SAMHSA.
However, because OMB approval for SAMHSA's collection of data on these and other measures expires on January 31, 2005, we are asking for an extension of OMB approval for the currently approved measures for CSAP's PRNS programs so that we can continue to collect GPRA data until we finalize the National Outcome Measures for Substance Abuse Prevention.
At this time, SAMHSA is considering the following National Outcome Measures for Substance Abuse Prevention and would like comment on them, including recommended sources. Shaded items require development; for others, as indicated, there is general agreement on candidate measures, with the final measures to be selected from the choices listed based on availability and accuracy.
CSAP
The annual burden estimated is that for the grantees to extract the necessary data from their files and provide it to CSAP's Data Coordinating Center. The table below summarizes the maximum estimated time,
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1045, 1 Choke Cherry Road, Rockville, MD 20850. Written comments should be received by March 14, 2005.
Coast Guard, DHS.
Notice of application submission deadline; request for comments.
Under the Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990, the Coast Guard may certify, on an annual basis, an alternative voluntary advisory group in lieu of a Regional Citizens’ Advisory Council for Prince William Sound. The current certification for Prince William Sound Regional Citizens’ Advisory Council (PWSRCAC) will expire February 28, 2005. This notice announces the procedures governing PWSRCAC's recertification for the period March 1, 2005 through February 28, 2006. This period falls under the comprehensive submission provision of 67 FR 58440. Accordingly, PWSRCAC must construct their submission in a format that both follows the order of, and answers the information specified in 57 FR 62600 guidelines.
Public comments on PWSRCAC's recertification application must reach the Seventeenth Coast Guard District on or before February 1, 2005.
Comments should be mailed to the Seventeenth Coast Guard District (mor), P.O. Box 25517, Juneau, AK 99802-5517. Or, hand carried documents may be delivered to the Juneau Federal Building, 709 West 9th Street, Room 753, Juneau, AK between 8 a.m. and 4 p.m., Monday through Friday, except federal holidays.
The Seventeenth Coast Guard District maintains the public docket for this recertification process. The application and comments regarding recertification will become part of this docket and will be available for inspection or copying at the Juneau Federal Building, 709 West 9th Street, Room 753.
A copy of the application will also be available for inspection at the PWSRCAC offices at 3709 Spenard Road, Anchorage, AK and 154 Fairbanks Drive, Valdez, AK between the hours of 8 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number in Anchorage is (907) 277-7222, Valdez (907) 835-5957.
For questions on viewing or submitting material to the docket, contact LT Andy Vanskike, Seventeenth Coast Guard District (mor), (907)463-2818.
The Coast Guard encourages interested persons to submit written data, views, or arguments. We solicit comments from interested groups including oil terminal facility owners and operators, owners and operators of crude oil tankers calling at terminal facilities, and fishing, aqua cultural, recreational and environmental citizens groups, concerning the recertification application of PWSRCAC. Persons submitting comments should include their names and addresses, identify this
The Coast Guard plans no public hearing. Persons may request a public hearing by writing to Commander (m), Seventeenth Coast Guard District, P.O. Box 25517, Juneau, AK 99802-5517. The request should include reasons why a hearing would be beneficial. If there is sufficient evidence to determine that oral presentations will aid this recertification process, the Coast Guard will hold a public hearing at a time and place announced by a later notice in the
The Coast Guard published guidelines on December 31, 1992 (57 FR 62600) to assist groups seeking recertification under the Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990 (33 U.S.C. 2732)(the Act). The Coast Guard issued a policy statement on July 7, 1993 (58 FR 36504) to clarify the factors that the Coast Guard would be considering in making its determination as to whether advisory groups should be certified in accordance with the Act; and the procedures which the Coast Guard would follow in meeting its certification responsibilities under the Act. Most recently, on September 16, 2002 (67 FR 58440) the Coast Guard changed its policy on recertification procedures for RCACs by requiring applicants to provide comprehensive information every three years. For the two years in between, applicants only submit information describing substantive changes to the information provided at the last triennial recertification.
At the conclusion of the comment period, February 1, 2005, the Coast Guard will review all application materials and comments received and will take one of the following actions:
(a) Recertify the advisory group under 33 U.S.C. 2732(o).
(b) Issue a conditional recertification for a period of 90 days, with a statement of any discrepancies, which must be corrected to qualify for recertification for the remainder of the year.
(c) Deny recertification of the advisory group if the Coast Guard finds that the group is not broadly representative of the interests and communities in the area or is not adequately fostering the goals and purposes of 33 U.S.C. 2732.
The Coast Guard will notify PWSRCAC by letter of the action taken on their respective applications. A notice will be published in the
Fish and Wildlife Service, Interior.
Notice of issuance of permits for endangered species and/or marine mammals.
The following permits were issued.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax (703) 358-2281.
Division of Management Authority, telephone (703) 358-2104.
Notice is hereby given that on the dates below, as authorized by the provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
Fish and Wildlife Service, Interior.
Notice of availability; receipt of application.
This notice advises the public that Westlake Ranch LLC and Randy and Tasha Curs (Applicants) have applied to the Fish and Wildlife Service (Service) for an incidental take permit (ITP), pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The requested 50-year permit would authorize the incidental take of the threatened Oregon silverspot butterfly (
We are requesting comments on the permit application and on whether the proposed Habitat Conservation Plan (HCP) qualifies as a “low effect” HCP, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. We explain the basis for this possible determination in a draft Environmental Action Statement (EAS), which is also available for public review.
Written comments must be received by 5:00 p.m. on February 11, 2005.
Comments should be addressed to Kemper McMaster, State Supervisor, Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, Oregon 97266, fax number (503) 231-6195 (for further information and instruction on the reviewing and commenting process, see Public Review and Comment section below).
Richard Szlemp, Fish and Wildlife Biologist, Fish and Wildlife Service (
Individuals wishing copies of the application, proposed HCP, or EAS, should contact the Service by telephone (
Section 9 of the Act (16 U.S.C. 1531
Proposed covered activities under this HCP include development of 75 residential lots on approximately 165 acres by Westlake Ranch LLC and Randy and Tasha Curs. Incidental take of the butterfly would be likely only in areas containing its larval host plant, the early blue violet (
The proposed minimization and mitigation measures include setting aside a 6.5 acre area in perpetuity that contains a 0.5 acre patch of violets and a 0.55 acre patch of dune goldenrod (
Approval of the HCP may qualify as a categorical exclusion under NEPA, as provided by the Departmental Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1) and as a “low effect” plan as defined by the Habitat Conservation Planning Handbook (Service, November, 1996). Determination of low effect HCPs is based upon the plan having: minor or negligible effects on federally-listed, proposed, or candidate species and their habitats; minor or negligible effects on other environmental values or resources; and, impacts that considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects would not result, over time, in cumulative effects to the environmental values or resources which would be considered significant. If it is found to qualify as a low-effect HCP, further NEPA documentation would not be required.
If you wish to comment on the permit application, draft Environmental Action Statement, or the proposed HCP, you may submit your comments to the address listed in the
The Service provides this notice pursuant to section 10(c) of the Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6).
Fish and Wildlife Service, Interior.
Notice.
Deleta Earle (Applicant) requests an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 (U.S.C. 1531
The Applicant's Habitat Conservation Plan (HCP) describes the mitigation and minimization measures proposed to address the effects of the Project to the Florida scrub-jay. These measures are outlined in the
Written comments on the ITP application and HCP should be sent to the Service's Regional Office (see
Persons wishing to review the application and HCP may obtain a copy by writing the Service's Southeast Regional Office, Atlanta, Georgia. Please reference permit number TE090970-0 in such requests. Documents will also be available for public inspection by appointment during normal business hours at the Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or Field Supervisor, Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310, Jacksonville, Florida 32216-0912.
Mr. David Dell, Regional HCP Coordinator, (see
If you wish to comment, you may submit comments by any one of several methods. Please reference permit number TE090970-0 in such comments. You may mail comments to the Service's Regional Office (see
The Florida scrub-jay (scrub-jay) is geographically isolated from other species of scrub-jays found in Mexico and the western United States. The scrub-jay is found exclusively in peninsular Florida and is restricted to xeric uplands (predominately in oak-dominated scrub). Increasing urban and agricultural development have resulted in habitat loss and fragmentation which has adversely affected the distribution and numbers of scrub-jays. The total estimated population is between 7,000 and 11,000 individuals.
The decline in the number and distribution of scrub-jays in east-central Florida has been exacerbated by tremendous urban growth in the past 50 years. Much of the historic commercial and residential development has occurred on the dry soils which previously supported scrub-jay habitat. Based on existing soils data, much of the historic and current scrub-jay habitat of coastal east-central Florida occurs proximal to the current shoreline and larger river basins. Much of this area of Florida was settled early because few wetlands restricted urban and agricultural development. Due to the effects of urban and agricultural development over the past 100 years, much of the remaining scrub-jay habitat is now relatively small and isolated. What remains is largely degraded due to the exclusion of fire which is needed to maintain xeric uplands in conditions suitable for scrub-jays.
The applicant's residential construction will take place within Section 5, Township 29 South, Range 37 East, Palm Bay, Brevard County, Florida. Lot 21, Block 340, Port Malabar Unit 9, is within 438 feet of locations where scrub-jays were sighted during surveys for this species from 1999 to 2002. Scrub-jays using the subject residential lot and adjacent properties are part of a larger complex of scrub-jays located in a matrix of urban and natural settings in areas of southern Brevard and northern Indian River Counties. Within the City of Palm Bay, 20 families of scrub-jays persist in habitat
The subject residential parcel lies within a “high density” urban setting, and the corresponding territory size of the resident scrub-jays has been estimated to range from 5.2 to 10.8 acres based on average territory sizes of scrub-jay in other urban areas. Data collected from 12 scrub-jay families within the city limits of Palm Bay during the 2000 and 2001 nesting seasons provided information about survival and reproductive success of scrub-jays, but did not attempt to estimate territory sizes. This information indicated that territory boundaries tended to shift from year to year, making calculations of territory size difficult. Similarly, point data do not reliably indicate occupied habitat over time since birds in urban settings tend to move within and between years. Thus, using known territory boundaries and point data to delineate occupied habitat likely underestimates areas occupied by scrub-jays.
To assess whether the Applicant's parcel was within occupied scrub-jay habitat, we calculated the maximum average “shift” in territory locations between 2000 and 2001. Based on these estimates, we calculated a maximum average shift of 438 feet between years. We subsequently used the 438 feet as a buffer to surround known territory boundaries and point locations for scrub-jays. We reasoned that 438 feet represented a biologically-based buffer, within which scrub-jays were likely to occur. Application of the 438-foot buffer to known territories and point locations provides a quantitative method to delineate occupied scrub-jay habitat in highly urbanized areas within the city limits of Palm Bay.
The Applicant's residential lot falls within the 438-foot buffer established for known scrub-jay territories and/or point data. The lot provides habitat for foraging, sheltering, and possibly nesting. Accordingly, loss of this habitat due to residential construction will result in the destruction of scrub-jay habitat.
The Applicant agrees to avoid construction during the nesting season if active nests are found onsite, but no other on-site minimization measures are proposed to reduce take of scrub-jays. The lot encompasses about 0.23 acre and the footprint of the home, infrastructure, and landscaping preclude retention of scrub-jay habitat. On-site minimization is not considered to be a biologically viable alternative due to increasing negative demographic effects caused by urbanization.
The Applicant proposes to mitigate for the loss of 0.23 acre of scrub-jay habitat by contributing $3,082 to the Florida Scrub-jay Conservation Fund administered by the National Fish and Wildlife Foundation. Funds in this account are ear-marked for use in the conservation and recovery of scrub-jays and may include habitat acquisition, restoration, and/or management. The $3,082 is sufficient to acquire and perpetually manage 0.46 acre of suitable occupied scrub-jay habitat based on a replacement ratio of two mitigation acres per one impact acre. The cost is based on previous acquisitions of mitigation lands in southern Brevard County at an average $5,700 per acre, plus a $1,000 per acre management endowment necessary to ensure future management of acquired scrub-jay habitat.
The Service has determined that the HCP is a low-effect plan that is categorically excluded from further NEPA analysis, and does not require the preparation of an environmental assessment or environmental impact statement. This preliminary determination may be revised due to public comment received in response to this notice. Low-effect HCPs are those involving: (1) minor or negligible effects on federally listed or candidate species and their habitats, and (2) minor or negligible effects on other environmental values or resources. The Applicant's HCP qualifies as a low-effect plan for the following reasons:
1. Approval of the HCP would result in minor or negligible effects on the Florida scrub-jay population as a whole. The Service does not anticipate significant direct or cumulative effects to the Florida scrub-jay population as a result of the construction project.
2. Approval of the HCP would not have adverse effects on known unique geographic, historic or cultural sites, or involve unique or unknown environmental risks.
3. Approval of the HCP would not result in any significant adverse effects on public health or safety.
4. The project does not require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or the Fish and Wildlife Coordination Act, nor does it threaten to violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment.
5. Approval of the Plan would not establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.
The Service has determined that approval of the Plan qualifies as a categorical exclusion under NEPA, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). Therefore, no further NEPA documentation will be prepared.
The Service will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If it is determined that those requirements are met, the ITP will be issued for the incidental take of the Florida scrub-jay. The Service will also evaluate whether issuance of the section 10(a)(1)(B) ITP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of this consultation, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP.
Pursuant to the June 10, 2004, order in
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered marine mammals.
Written data, comments or requests must be received by February 11, 2005.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, Virginia 22203; fax 703/358-2281.
Division of Management Authority, telephone 703/358-2104.
The public is invited to comment on the following applications for a permit to conduct certain activities with endangered marine mammals. The applications were submitted to satisfy requirements of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The applicant requests a permit to acquire blood and tissue samples from captive held Florida manatees (
Concurrent with the publication of this notice in the
Notice is hereby given that on January 3, 2005, a proposed Consent Decree in
In this action the United States sought to recover from Weyerhaeuser environmental response costs in connection with a landfill and paper mill at the Allied Paper/Portage Creek/Kalamazoo River Superfund Site in Kalamazoo and Portage Counties, Michigan (the “Site”). In addition, the United States sought a judgment declaring that the Defendant is liable for any further response costs that the United States may incur as a result of releases or threatened releases of hazardous substances at the landfill and paper mill. The Consent Decree provides that Weyerhaeuser shall,
The Department of Justice will receive for a period of fifteen (15) 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, Western District of Michigan, 5th Floor, The Law Building, 330 Iona Ave., Grand Rapids, MI 49503, and at the offices of the U.S. Environmental Protection Agency, Region 5, 77 W. Jackson Blvd., Chicago, IL 60604. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site,
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of
Requests for copies must be received in writing on or before February 28, 2005. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means: Mail: NARA (NWML), 8601 Adelphi Road, College Park, MD 20740-6001.E-mail:
Paul M. Wester, Jr., Director, Life Cycle Management Division (NWML), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-3120. E-mail:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of the Army, Agency-wide (N1-AU-03-10, 5 items, 4 temporary items). Records relating to research on the effects of potential chemical agents and/or antidotes on various species, including humans. Included are proposed research plans, studies, reports, and personal data on human volunteer subjects. Also included are electronic copies of documents created using electronic mail and word processing. Proposed for permanent retention are research studies on the effects of LSD on human subjects. This schedule also authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium. Records relating to research studies that require a signed consent form from participants will be retained for 75 years.
2. Department of the Army, Agency-wide (N1-AU-05-1, 2 items, 2 temporary items). Family Advocacy Program records relating to preventive activities. Included are such records as family background information, screening forms, family service plans, progress notes, assessments, referrals, and evaluations. Also included are electronic copies of documents created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
3. Department of Energy, Bonneville Power Administration (N1-305-04-1, 6 items, 6 temporary items). Records relating to engineering and technical support matters. Included are such records as work orders, project data, and records that relate to the design and construction of static volt-ampere reactive compensation systems. Electronic copies of records created using electronic mail and word processing are also included.
4. Department of Energy, Bonneville Power Administration (N1-305-04-2, 6 items, 6 temporary items). Records relating to personal safety matters, including injuries, fatalities, and safety measures. Included are such records as safety incident investigations and reports as well as audits, studies, tests, and inspection reports pertaining to safety conditions and hazards at agency facilities. Electronic copies of records created using electronic mail and word processing are also included.
5. Department of Transportation, Bureau of Transportation Statistics (N1-398-04-22, 3 items, 3 temporary items.) Office directors' correspondence relating to work accomplishments, personnel needs, and other routine activities. Also included are routine non-controlled Congressional correspondence, other incoming letters, and electronic copies of records created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
6. Department of Transportation, Bureau of Transportation Statistics (N1-398-04-28, 3 items, 3 temporary items). Copies of Congressional correspondence referred to agency program offices for reply. Also included are electronic copies of records created using electronic mail and word processing. This schedule authorizes the agency to apply the proposed disposition instructions to any recordkeeping medium.
7. Department of Transportation, Bureau of Transportation Statistics (N1-398-04-36, 3 items, 3 temporary items). Records of periodic audits of air carriers, including reports, correspondence, and memorandums. Also included are electronic copies of
8. Environmental Protection Agency, Office of Solid Waste and Emergency Response (N1-412-04-8, 5 items, 2 temporary items). Software and inputs of the National Resource Conservation and Recovery Act Information System, an electronic system used to record and track information provided by the regulated community concerning the generation, shipment, treatment, and disposal of hazardous wastes. Proposed for permanent retention are the system data, system documentation, and biennial reports.
9. Executive Office of the President, Office of the United States Trade Representative (N1-364-00-2, 21 items, 17 temporary items). Electronic records and systems used throughout the agency, including such records as calendars and spreadsheets, a legislative referral tracking system, phone system listings, public reading room logs, the Section 301 Trade Act violations system, and a travel system. Also included are electronic copies created using word processing. Proposed for permanent retention are trade negotiation databases and a correspondence tracking system relating to other permanent records, along with related system documentation.
10. National Skill Standards Board, Agency-wide (N1-220-04-9, 3 items, 1 temporary item). Electronic copies of records created using electronic mail and word processing that relate to the Board's efforts regarding the development of a uniform system of voluntary workplace standards for American industries. Records proposed for permanent retention include recordkeeping copies of committee files, conference and presentation files, the Executive Deputy Director's subject files, hearings records, publications, web page records, organization and budget files, and video recordings of meetings, hearings, and press conferences.
11. U.S. Chemical Safety and Hazard Investigation Board, Office of General Counsel (N1-220-04-8, 19 items, 14 temporary items). Litigation files, records relating to investigations, rulemaking dockets, chronological files, procurement solicitation reviews, inter-agency agreements, annual Freedom of Information Act reports, and other records accumulated by the General Counsel's office. Also included are electronic copies of records created using electronic mail and word processing. Recordkeeping copies of such records as legal opinions, orders issued by the Board, and voting records of Sunshine Act meetings are proposed for permanent retention. The agency will notify NARA of potentially permanent investigation and litigation files, which will be appraised on a case-by-case basis.
Carolina Power & Light Company (CP&L), now doing business as Progress Energy Carolinas, Inc., has submitted an application for renewal of Facility Operating Licenses, DPR-71 and DPR-62, for an additional 20 years of operation at the Brunswick Steam Electric Plant, Units 1 and 2 (BSEP). BSEP is located in Brunswick County in southeastern North Carolina, near the mouth of the Cape Fear River. The operating licenses for BSEP, Units 1 and 2, expire on September 8, 2016, and December 27, 2014, respectively. The application for renewal was received on October 20, 2004, pursuant to Title 10 of the Code of Federal Regulations Part 54 (10 CFR Part 54). A notice of receipt and availability of the application, which included the environmental report (ER), was published in the
In accordance with 10 CFR 51.53(c) and 10 CFR 54.23, CP&L submitted the ER as part of the application. The ER was prepared pursuant to 10 CFR Part 51 and is available for public inspection at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852, or from the Publicly Available Records component of NRC's Agencywide Documents Access and Management System (ADAMS). ADAMS is accessible at
This notice advises the public that the NRC intends to gather the information necessary to prepare a plant-specific supplement to the Commission's “Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants,” (NUREG-1437) in support of the review of the application for renewal of the BSEP operating licenses for an additional 20 years. Possible alternatives to the proposed action (license renewal) include the no action alternative and reasonable alternative energy sources. The NRC is required by 10 CFR 51.95 to prepare a supplement to the GEIS in connection with the renewal of an operating license. This notice is being published in accordance with the National Environmental Policy Act of 1969 (NEPA) and the NRC's regulations found in 10 CFR Part 51.
The NRC will first conduct a scoping process for the supplement to the GEIS and, as soon as practicable thereafter, will prepare a draft supplement to the GEIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the supplement to the GEIS will be used to accomplish the following:
a. Define the proposed action which is to be the subject of the supplement to the GEIS;
b. Determine the scope of the supplement to the GEIS and identify the significant issues to be analyzed in depth;
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant;
d. Identify any environmental assessments and other EISs that are being or will be prepared that are related to, but are not part of the scope of the supplement to the GEIS being considered;
e. Identify other environmental review and consultation requirements related to the proposed action;
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule;
g. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the supplement to the GEIS to the NRC and any cooperating agencies; and
h. Describe how the supplement to the GEIS will be prepared, and include any contractor assistance to be used.
The NRC invites the following entities to participate in scoping:
a. The applicant, Carolina Power & Light Company, now doing business as Progress Energy Carolinas, Inc;
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved, or that is authorized to develop and enforce relevant environmental standards;
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards;
d. Any affected Indian tribe;
e. Any person who requests or has requested an opportunity to participate in the scoping process; and
f. Any person who has petitioned or intends to petition for leave to intervene.
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC has decided to hold public meetings for the BSEP license renewal supplement to the GEIS. The scoping meetings will be held at the Southport City Hall, 201 E. Moore Street, Southport, North Carolina 28461, on Thursday, January 27, 2005. There will be two sessions to accommodate interested parties. The first session will convene at 1:30 p.m. and will continue until 4:30 p.m., as necessary. The second session will convene at 7 p.m. with a repeat of the overview portions of the meeting and will continue until 10 p.m., as necessary. Both meetings will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the supplement to the GEIS, and the proposed review schedule; and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the supplement to the GEIS. No formal comments on the proposed scope of the supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meetings or in writing, as discussed below. Persons may register to attend or present oral comments at the meetings on the scope of the NEPA review by contacting Mr. Richard L. Emch, Jr., by telephone at 1-800-368-5642, extension 1590, or by e-mail to the NRC at
Members of the public may send written comments on the environmental scope of the BSEP license renewal review to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
At the conclusion of the scoping process, the NRC will prepare a concise summary of the determination and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process. The summary will also be available for inspection in ADAMS at
Information about the proposed action, the supplement to the GEIS, and the scoping process may be obtained from Mr. Emch at the aforementioned telephone number or e-mail address.
For the Nuclear Regulatory Commission.
Pursuant to its authority under section 5051 of Pub. L. 100-203, Nuclear Waste Policy Amendments Act of 1987, the U.S. Nuclear Waste Technical Review Board will meet in Las Vegas, Nevada, on Wednesday, February 9, and in Caliente, Nevada, on Thursday, February 10, 2005. Technical and scientific issues pertinent to the Department of Energy's (DOE) efforts to develop a repository at Yucca Mountain in Nevada will be discussed on Wednesday in Las Vegas. The meeting in Caliente on Thursday will focus on transportation planning issues and on the development of a rail spur from Caliente to the proposed repository site at Yucca Mountain. Final meeting agendas will be available approximately one week before the meeting dates. They can be obtained from the Board's Web site at
On Wednesday, the meeting is scheduled to begin at 8 a.m. and to continue until approximately 5:30 p.m. It will be held at the Alexis Park Hotel; 375 Harmon Avenue; Las Vegas, NV 89109; 702-796-3300 or 800-582-2228; fax 702-796-3354. On Thursday, the meeting will begin at 10 a.m. and continue until approximately 4:30 p.m. It will be held at the Caliente Youth Center; Highway 93, North #4; Caliente, Nevada 89008.
The meeting on Wednesday will include DOE program and project updates for fiscal year 2005. Updates on technical and scientific topics also will be presented, including the DOE's efforts to integrate elements within the waste management system, the DOE's approach to integrating total system performance assessment with repository design, and the DOE's thermal management strategy for a Yucca Mountain repository.
On Thursday, the meeting will begin with discussions of DOE plans for a national program for transporting spent nuclear fuel and high-level radioactive waste from reactor and defense facilities to the proposed repository and of efforts to integrate transportation activities with waste acceptance and repository operations. After the lunch break, information will be presented on the planning and development of the proposed Nevada rail spur. Local, state, and tribal representatives will present their views on these activities.
Time will be set aside at the end of both days for public comments. Those wanting to speak are encouraged to sign the “Public Comment Register” at the check-in table. A time limit may have to be set on individual remarks, but written comments of any length may be submitted for the record. Interested parties also will have the opportunity to submit questions in writing to the Board. As time permits, submitted questions relevant to the discussion may be asked by Board members.
Transcripts of the meetings will be available on the Board's Web site, by e-mail, on computer disk, and on a library-loan basis in paper format from Davonya Barnes of the Board's staff, beginning on March 18, 2005.
A block of rooms has been reserved at the Alexis Park Hotel for meeting participants. When making a reservation, please state that you are attending the Nuclear Waste Technical Review Board meeting. Reservations should be made by January 14, 2005, to ensure receiving the meeting rate.
For more information, contact Karyn Severson, NWTRB External Affairs; 2300 Clarendon Boulevard, Suite 1300; Arlington, VA 22201-3367; 703-235-4473; fax 703-235-4495.
On December 10, 2004, microHelix, Inc., an Oregon corporation (“Issuer”), filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
On September 16, 2004, the Board of Directors (“Board”) of the Issuer approved a resolution to withdraw the Issuer's Securities from listing and registration on the BSE. The Issuer states that the following reasons factored into the Board's decision to withdraw the Securities: (i) The nature and extent of trading in the Issuer's Securities on the BSE is limited; (ii) the market value the public markets are applying to the Issuer's Securities; (iii) the lack of institutional investor interest and securities analyst coverage of the Issuer; and (iv) the costs associated with maintaining a listing on the BSE. The Issuer states that the Securities currently trade on the OTC Bulletin Board.
The Issuer states in its application that it has complied with BSE procedures for delisting by complying with all applicable laws in effect in the State of Oregon, the state in which it is incorporated. The Issuer's application relates solely to withdrawal of the Securities from listing on the BSE and from registration under section 12(b) of the Act,
Any interested person may, on or before February 2, 2005, comment on the facts bearing upon whether the application has been made in accordance with the rules of the BSE, and what terms, if any, should be imposed by the Commission for the protection of investors. All comment letters may be submitted by either of the following methods:
• Send an e-mail to rule-comments@sec.gov. Please include the File Number 1-16781 or; Paper Comments:
• 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 1-16781. This file number should be included on the subject line if e-mail is used. To help us 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, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On December 16, 2004, the Procter & Gamble Company, an Ohio corporation (“Issuer”) filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Board of Directors (“Board”) of the Issuer approved a resolution on December 14, 2004 to withdraw the Issuer's Security from listing and registration on the NSX. The Board states that the following reasons factored into its decision to withdraw the Issuer's Security from the NSX; (i) the Security will remain listed on the New York Stock Exchange, Inc. (“NYSE”), which accounts for considerably higher trading volume than the NSX; (ii) maintenance of multiple listings requires significant time and expense in ensuring compliance with the rules and disclosure requirements of both exchanges; and (iii) the benefits of continued listing on the NSX do not outweigh the incremental cost and administrative burden.
The Issuer stated in its application that it has complied with the NSX's rules governing an issuer's voluntary withdrawal of a security from listing and registration.
The Issuer's application relates solely to the withdrawal of the Security from listing on the NSX, and shall not affect its continued listing on the NYSE or its registration under section 12(b) of the Act.
Any interested person may, on or before February 2, 2005, comment on the facts bearing upon whether the application has been made in accordance with the rules of the NSX, and what terms, if any, should be imposed by the Commission for the protection of investors. All comment letters may be submitted by either of the following methods:
• 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 1-00434. This file number should be included on the subject line if e-mail is used. To help us 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, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
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 Amex proposes to amend the Amex Equity and Exchange Traded Funds and Trust Issued Receipts Fee Schedules (“Amex Fee Schedules”) to extend the suspension of customer transactions charges for the trading of
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 had received on the proposed rule change. The text of these statements may be examined at the places specified in item III below. The Amex has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Effective December 1, 2004, the Nasdaq-100 Index Tracking Stock® listed on the Nasdaq Stock Market, Inc. It trades on Nasdaq under the symbol QQQQ. The Amex trades the QQQQ on an unlisted trading privileges basis. The Amex amended the Amex Fee Schedules to provide that the customer transaction charges in QQQQ will be $.0015 per share ($.15 per 100 shares), capped at $100 per trade. The Amex, however, has suspended these customer transaction charges for the first month of trading the QQQQ. The Amex is now proposing to extend the suspension of customer transaction charges to January 31, 2005. The Exchange believes that this fee suspension would encourage competition among markets trading QQQQ and enhance the Amex's competitiveness in trading this security.
The Amex believes the proposed rule change is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change would impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
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-2004-111. 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 (
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder, applicable to a national securities exchange.
The Amex has requested that the Commission find good cause for approving the proposed rule change prior to the thirtieth day after publication of notice thereof in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Amex proposes to amend the Amex Equity and Exchange Traded Funds and Trust Issued Receipts Fee Schedules (“Amex Fee Schedules”) to extend the temporary suspension of the specialist's and registered traders' transaction charges for the trading of Nasdaq-100 Index Tracking Stock
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 Amex has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Effective December 1, 2004, the Nasdaq-100 Index Tracking Stock
The Amex believes the proposed rule change is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change establishes or changes a due, fee, or other charge imposed by the Exchange, and, therefore, has become effective pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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-2004-110. 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.
On April 28, 2004, the American Stock Exchange LLC (“Amex” or “Exchange”) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The original Act gave the Commission the authority to regulate “floor trading”
The Commission shall prescribe such rules and regulations as it deems necessary or appropriate in the public interest or for the protection of investors, (1) to regulate or prevent floor trading by members of national securities exchanges, directly or indirectly for their own account or for discretionary accounts, and (2) to prevent such excessive trading on the exchange but off the floor by members, directly or indirectly for their own account, as the Commission may deem detrimental to the maintenance of a fair and orderly market. It shall be unlawful for a member to effect any transaction in a security in contravention of such rules and regulations, but such rules and regulations may make such exemptions for arbitrage transactions, for transactions in exempted securities, and within the limitations of subsection (b) of this section, for transactions by odd-lot dealers and specialists, as the Commission may deem necessary or appropriate in the public interest or for the protection of investors.
Shortly after the adoption of SEC Rule 11a-1, the Exchange submitted a floor trading plan (“Plan”).
Generally, Amex Rule 110 prohibits any member from initiating transactions while on the floor for an account in which such member has an interest unless such member is registered as a “Registered Trader.” Registered Traders are limited in the transactions they may initiate on the floor under Amex Rule 111. For example, Registered Traders must meet stabilization tests, may not act as a broker for off-floor orders in stocks in which such Registered Trader has initiated transactions for his own account, and may not retain priority over off-floor orders when establishing or increasing positions in his own account. Amex Rule 111(f)(1) through (6) exempts certain member transactions from the Registered Trader requirements set forth in Amex Rules 110 and 111 and reflects the exemptions from Rule 11a-1(b)(1) through (6). For example, transactions by registered specialists in their specialty stock, transactions by odd-lot dealers, and bona fide arbitrage transactions of members are not subject to the restrictions set forth in Amex Rules 110 and 111.
In 1975, Congress substantially amended Section 11(a) of the Act
The Exchange proposes to amend Amex Rule 111 to conform it to the 1975 amendments to section 11(a) of the Act by allowing members registered as options specialists and registered options traders (“ROTs”) to initiate, while on the Amex floor, bona fide hedging transactions for their accounts in Amex listed securities and to allow members registered as equity specialists to initiate, while on the Amex floor, bona fide hedging transactions for their accounts in options traded on Amex. Currently, as noted above, Amex members can execute transactions on the floor for accounts in which they have an interest only if they are Registered Traders. The proposed rule change would permit equity specialists, options specialists, and ROTs to initiate bona fide hedge transactions without having to register as Registered Traders and without being subject to the limitations set forth in Amex Rules 110 and 111.
Under the Exchange's proposed rule change, options specialists and ROTs could give an order for their account directly to an Amex broker on the floor for a security underlying an option in which they are registered for the purpose of acquiring or liquidating a bona fide hedge position through a trade on the Exchange. Similarly, Amex proposes to permit equity specialists (subject to Amex Rule 175, which regulates option transactions by equity specialists) to give an order for their account directly to an Amex broker on the floor for a security overlying an equity in which they are registered for the purpose of acquiring or liquidating a bona fide hedge position through a trade on the Exchange.
The proposed rule would exempt bona fide hedge transactions in securities underlying options by option specialists and ROTs from the requirements of Amex Rule 110, and paragraphs (a) through (e) of Amex Rule 111. Likewise, the proposed rule would exempt bona fide hedge transactions in options overlying securities by equity specialists from the requirements of Amex Rules 110, 111, and 958 (which regulates the transactions of ROTs).
The Exchange also proposes under Amex Rule 111(i) to add a definition of “bona fide hedge” which shall have the meaning found in SEC Rule 11a1-3(T) and in pages 33-35 of the release adopting that rule.
Brokers who receive orders from equity specialists, options specialists or ROTs would be required to prepare a record of any bona fide hedge order given to them,
After careful consideration, 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,
Specifically, Amex proposes to allow its members to effect a certain type of proprietary transaction on the Amex floor that is currently permitted under the Act. Section 11(a)(1)(D) of the Act allows members of a national securities exchange to engage in “any bona fide hedge transaction involving a long or short position in an equity security and a long or short position in a security entitling the holder to acquire or sell such equity security.”
Amex has proposed to adopt the Commission's definition of bona fide hedge set forth in the 1979 Release and in Rule 11a1-3(T). Accordingly, the Commission believes that Amex's proposed definition is consistent with the requirements of the Act. As noted above, the Commission's definition is specific as to the types and sizes of transactions that can be considered bona fide hedges, the timing of executing hedge transactions and liquidating hedge positions. Amex must ensure that the bona fide hedge transactions executed by specialists and ROTs comply with these requirements for Section 11(a) exemption purposes.
The Commission notes that the Exchange's proposed rule change does not alter the general prohibition on side-by-side trading
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 Fee Schedule to make permanent its Customer Large Trade Discount Program (“Program”) and to lower the contract volume cap beyond which customer transaction fees for its Dow Jones index options would not be assessed. The text of the proposed rule change, as amended, is available at the Office of the Secretary, CBOE and at the Commission.
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. The CBOE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In July 2003, the Exchange established a six-month pilot program providing a customer large trade discount in the form of a cap on the quantity of customer contracts that are assessed transaction fees for most CBOE index options.
The Exchange also proposes lowering the contract volume fee cap for options on the Dow Jones Industrial Average (including options on the Diamonds) to 5,000 from 7,500, to encourage larger orders be sent to the Exchange in these products. Otherwise, all other terms of the Program would remain unchanged. The Exchange intends to implement the lower contract volume fee cap for the Dow Jones index options on January 1, 2005.
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, would impose any burden on competition that is not necessary or appropriate in furtherance of purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change, as amended, has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay.
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 the 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-CBOE-2004-88. 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 a SizeQuote Mechanism for the execution of large-sized orders in open outcry. The text of the proposed rule change is below. Proposed new language is in
(a)-(e) No change.
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 IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
CBOE rules impose several obligations upon floor brokers (“FBs”), including the requirement in paragraph (a) of CBOE Rule 6.73, “Responsibilities of Floor Brokers,” that a FB handling an order use due diligence in executing that order at the best price(s) available. CBOE Rule 6.73.01 supplements this general requirement by requiring FBs to ascertain whether a better price than those currently displayed in the limit order book is available in the trading crowd. In order to assist FBs in their exercise of due diligence, the Exchange believes it would be beneficial to adopt new procedures governing the execution of certain large-sized orders, which by virtue of their large size often require specialized handling. The purpose of this rule filing, therefore, is to adopt on a one-year pilot basis a trading procedure mechanism called the SizeQuote Mechanism for use by FBs in their representation of large-sized orders in open outcry.
The SizeQuote Mechanism is a process by which a FB, in his/her exercise of due diligence to execute orders at the best price(s), may execute and facilitate large-sized orders in open outcry. For purposes of this rule, the minimum qualifying order size is 250 contracts
A FB holding an order for at least 250 contracts must specifically request a SizeQuote from in-crowd market participants (“ICMPs”).
After the conclusion of time during which interested ICMPs have been given the opportunity to provide their indications, the FB will execute the SizeQuote Order he is holding with ICMPs or with a facilitation order, or both, in accordance with the following procedures:
The Exchange also proposes to adopt new paragraph (iv) to explicitly state that it will be a violation of a FB's duty of best execution to its customer if it were to cancel a SizeQuote Order to avoid execution of the order at a better price. The availability of the SizeQuote Mechanism does not alter a FB's best execution duty to get the best price for its customer. A SizeQuote request can be canceled prior to the receipt by the FB of responses to the SizeQuote request. Once the floor broker receives a response to the SizeQuote request, if he/she were to cancel the order and then subsequently attempt to execute the order at an inferior price to the previous SizeQuote response, there would be a presumption that the FB did so to avoid execution of its customer order in whole or in part by others at the better price.
The Exchange represents that it will provide to the Commission at the end of the pilot period a report summarizing the effectiveness of the SizeQuote program. Pending a report that indicates that the SizeQuote program has been successful, the Exchange anticipates submitting a rule filing that either requests extension of the SizeQuote program or permanent approval of the pilot.
The Exchange believes that the SizeQuote proposal provides a well-balanced mechanism that enhances the trading crowd's ability to quote competitively and participate in open outcry trades while at the same time it creates a process that gives greater certainty to FBs in the execution of large orders. Under the proposal, ICMPs not only will have priority at the price of the quote they give in response to a SizeQuote request, but they also will have priority, if they want it, at a price that is one trading increment better than their quote. FBs will now have more certainty in that ICMPs will have one opportunity to respond with a quote response and if they do not, they will not participate in the trade. Moreover, once an ICMP gives his/her best price (
The Exchange also believes that the proposal enhances an ICMP's incentive to quote competitively by giving complete priority at not only his/her price but also at one trading increment better than his/her SizeQuote response. For these reasons, CBOE believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of section 6(b) of the Act.
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.
The Exchange neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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-2004-72. 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 Exchange Rule 17.10(d)—Review of Decision Not to Initiate Charges by transferring the authority to review the Exchange's Business Conduct Committee's (“BCC”) decision to decline to authorize the issuance of a Statement of Charges from the President of the Exchange to the Regulatory Oversight Committee (“ROC”) and by changing the time to assess such a review from 30 days to 45 days. The text of the proposed rule change is available at the Office of the Secretary, CBOE and at 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 those 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.
Exchange Rule 17.10(d) provides a “check and balance” process to ensure that in situations where the BCC declines to authorize the issuance of a Statement of Charges that is recommended by the Exchange staff, the President of the Exchange has an opportunity to review the BCC's decision and refer the matter to the Board of Directors.
The Exchange is seeking two specific modifications to this rule. First, the Exchange seeks to shift the review authority from the President of the Exchange to the Exchange's ROC. Given the ROC's oversight of regulation, the Exchange believes that it is appropriate to shift the reviewing authority from the President to the ROC. Additionally, the Exchange believes that this amendment will reduce the appearance of any conflict of interest. As a result, the Exchange believes that this transfer of reviewing authority from the President to the ROC further enhances the independence of CBOE's regulatory structure.
Second, the Exchange seeks to amend and clarify the time frame of review from 30 to 45 days, commencing from the date the Exchange serves the subject of the alleged violation with notice of a decision by the Business Conduct Committee pursuant to Exchange Rule 17.4(a) not to initiate the charges that have been recommended by Exchange staff. The Exchange believes that in transferring this review authority to the ROC, additional time may be needed to accommodate the busy schedules of the members of the ROC and to provide the members of the ROC with greater scheduling flexibility.
The Exchange believes that by transferring the reviewing authority from the President to the ROC and by
CBOE believes the proposed rule change is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
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-CBOE-2004-82. 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.
On March 18, 2004, the Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) and on April 16, 2004, amended proposed rule change SR-FICC-2004-06 pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”).
The purpose of the proposed rule change is to institute at the MBSD (i) fines for the late payment of cash obligation items and margin deficits and (ii) informal procedures for disputed MBSD fines.
The MBSD has for some time imposed fees in order to promote greater compliance with its cash obligation and margin payment deadlines.
The rules of the MBSD currently contain procedures whereby a participant can dispute any fine
FICC will also make parallel changes with respect to the fine dispute process to the MBSD's EPN rules.
In addition, FICC proposed certain technical changes to the MBSD's Schedules of Charges to (i) delete references to “MBSCC” and replace them with references to “MBSD” and (ii) eliminate obsolete fees which are no longer being charged by the MBSD.
Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to remove impediments to the perfection of a national system for the prompt and accurate clearance and settlement of securities transactions.
On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular section 17A of the Act and the rules and regulations thereunder.
For the Commission by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASD is proposing to amend Rule 7010(k) to terminate the Bond Trade Dissemination Service (“BTDS”) Professional Delayed-Time Data Display Fee pilot program and the BTDS Non-Professional Real-Time Data Display fee, relating to Trade Reporting and Compliance Engine (“TRACE”) transaction data fees, and to amend the implementation date of certain amendments to NASD Rule 6250, relating to TRACE transaction data dissemination and approved by the SEC in SR-NASD-2004-094 (designated as “Stage Two” of the implementation of SR-NASD-2004-094) from February 1, 2005 to February 7, 2005. Below is the text of the proposed rule change. Proposed new language is in
(a) through (j) No change.
(k) Trade Reporting and Compliance Engine
The following charges shall be paid by participants for the use of the Trade Reporting and Compliance Engine (“TRACE”):
(1) through (2) No change.
Professionals and non-professionals may subscribe to receive Real-Time and Delayed-Time TRACE data disseminated by NASD in one or more of the following ways for the charges specified,
Professionals may subscribe for the following:
(i) No change.
(ii)
(iii) through (iv) No change.
[The charge to be]
(C) through (D) No change.
(l) through (u) 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 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.
NASD is proposing to amend Rule 7010(k) to terminate the BTDS Professional Delayed-Time Data Display Fee pilot program and the BTDS Non-Professional Real-Time Data Display fee. Both fees are for TRACE transaction information. In addition, NASD is proposing to change the implementation date of Stage Two of SR-NASD-2004-094. Implementation of Stage Two will make operative certain amendments to NASD Rule 6250 that provide for the delayed dissemination of information on designated transactions in TRACE-eligible securities.
NASD currently has in place a pilot program that charges for TRACE transaction information provided to professionals on a delayed basis. The charge for this pilot program is the BTDS Professional Delayed-Time Data Display Fee of $15 per month and is imposed per terminal for each interrogation or display device receiving the delayed data. The pilot program commenced on February 1, 2004.
NASD has recently begun a comprehensive review of TRACE fees. As part of this review, NASD has determined to terminate the BTDS Professional Delayed-Time Data Display Fee and service because the demand for the service was limited.
NASD currently charges a minimal fee of $1.00 per month/per terminal for its BTDS Non-Professional Real-Time Data Display service, which allows non-professionals to view TRACE data on a real-time basis.
Wider distribution of TRACE data is a cornerstone of a broader effort to better educate individual investors about the corporate bond market. NASD proposes to eliminate the fee to remove any financial barriers to the broad-based distribution of TRACE data and encourage Web sites and other media outlets to widely redistribute real-time data to individual investors.
NASD proposes to amend the implementation date of Stage Two of SR-NASD-2004-094. Stage Two requires the implementation of certain amendments to NASD Rule 6250 that provide for the delayed dissemination of information on designated transactions in TRACE-eligible securities.
NASD proposes to change the implementation date of Stage Two from February 1, 2005, to February 7, 2005. Specifically, NASD will implement on February 7, 2005: (1) Rule 6250(a)(1) and (2); (2) the portion of Rule
The implementation date for Stage Two of SR-NASD-2004-094 will be February 7, 2005. NASD will announce all implementation dates of the proposed rule change in
NASD believes that the proposed rule change is consistent with the provisions of section 15A(b)(5) of the Act,
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the proposed rule change: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days from December 28, 2004, the date on which it was filed, and NASD provided the Commission with written notice of its intent to file the proposed rule change at least five business days prior to the filing date, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
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 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-2004-189. 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.
On December 21, 2004, the Department of State certified, pursuant to Section 609 of Public Law 101-162 (“Section 609”), that Venezuela has adopted a program to reduce the incidental capture of sea turtles in its shrimp fisheries comparable to the program in effect in the United States. On December 21, 2004, the Department of State withdrew certification for Trinidad and Tobago and for Panama pursuant to Section 609 because neither country's program for protecting sea turtles in its shrimp fisheries is determined to be comparable to the program in effect in the United States.
January 12, 2005.
James Story, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State, Washington, DC 20520-7818; telephone: (202) 647-2335.
Section 609 of Public Law 101-162 prohibits imports of certain categories of shrimp unless the President certifies to the Congress not later than May 1 of each year either: (1) That the harvesting nation has adopted a program governing the incidental capture of sea turtles in its commercial shrimp fishery comparable to the program in effect in the United States and has an incidental take rate comparable to that of the United States; or (2) that the fishing environment in the harvesting nation does not pose a threat of the incidental taking of sea turtles. The President has delegated the authority to make this certification to the Department of State. Revised State Department guidelines for making the required certifications were published in the
On December 21, 2004, the Department certified Venezuela on the basis that its sea turtle protection program is comparable to that of the United States. This country joins 14 others certified by the Department in 2004 on the same basis. On December 21, 2004, the Department withdrew certification for Trinidad and Tobago and for Panama because the sea turtle protection program in place for commercial shrimp trawl fisheries in these nations is not comparable in effectiveness to that of the United States.
The Department of State has communicated the certification of Venezuela under Section 609, and the withdrawal of certification for Panama and Trinidad and Tobago, to the Office of Trade Program of Customs and Border Protection, as well as to the governments of the affected nations.
Federal Aviation Administration, Department of Transportation.
Notice of Request to Release Airport Land.
The Federal Aviation Administration (FAA) proposes to rule and invites public comment on the release of approximately 49.90 acres of airport property at San Bernardino International Airport, San Bernardino, California, from all restrictions of the surplus property agreement since the land is not needed for airport purposes. Reuse of the land for commercial/light industrial purposes represents a compatible land use. Disposal of the property will provide an opportunity to acquire additional land that is needed to enhance safety and meet airport design standards.
Comments must be received on or before February 11, 2005.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Federal Aviation Administration, Airports Division, Federal Register Comment, 15000 Aviation Blvd., Lawndale, CA 90261. In addition, one copy of the comment submitted to the FAA must be mailed or delivered to Donald L. Rogers, Interim Executive Director, San Bernardino International Airport Authority, Inland Valley Development Agency, 294 S. Leland Norton Way, Suite 1, San Bernardino, CA 92408-0131.
Tony Garcia, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, 15000 Aviation Blvd., Lawndale, California 90261, telephone (310) 725-3634 and FAX (310) 725-6849. The request to release airport property may be reviewed in person by appointment at this same location or at San Bernardino International Airport, San Bernardino, California.
In accordance with the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), Pub. L. 10-181 (Apr. 5, 2000; 114 Stat. 61), this notice must be published in the
The following is a brief overview of the request:
The San Bernardino International Airport Authority (SBIAA) requested a release from surplus property agreement obligations for approximately 49.90 acres of airport land consisting of five parcels at San Bernardino International Airport, San Bernardino, California, originally granted to them for airport purposes by the United States Air Force due to the closure of the former Norton Air Force Base. Three of the parcels are located on the west side, the fourth parcel is located northwest of the airfield and the fifth parcel is located on the east side of the airport property. The parcels are not contiguous or easily accessible to the airfield and are not required for aeronautical purposes. The property's redevelopment for non-aeronautical purposes will comply with local zoning and compatible land-use requirements. The parcels will be disposed of at fair market value based on the land's appraised value. The value of the land will be used to acquire additional land, which is needed for approach and encroachment protection, to enhance airport safety, and to comply with airport design standards. The land disposal and acquisition will provide a direct benefit to the airport and civil aviation.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its determination that the noise exposure maps (NEM) submitted by the airport director for King County International Airport under the provisions of 49 U.S.C. 47501
The effective date of the FAA's determination on the noise exposure maps and of the start of its review of the associated noise compatibility program is December 23, 2004. The public comment period ends February 21, 2005.
Dennis Ossenkop, Federal Aviation Administration, Airports Division, 1601 Lind Ave. SW., Renton, WA 98055-4056, telephone (425) 227-2611. Comments on the proposed noise compatibility program should also be submitted to the above office.
This notice announces that the FAA finds that the noise exposure maps submitted for King County International Airport are in compliance with applicable requirements of part 150, effective December 23, 2004. Further, the FAA is reviewing a proposed noise compatibility program for that airport which will be approved or disapproved on or before June 21, 2005. This notice also announces the availability of this program for public review and comment.
Under 49 U.S.C., section 47503 (the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”), an airport operator may submit to the FAA noise exposure maps which meet applicable regulations and which depict non-compatible land uses as of the date of submission of such maps, a description of projected aircraft operations, and the ways in which such operations will affect such maps. The Act requires such maps to be developed in consultation with interested and affected parties in the local community, government agencies, and persons using the airport.
An airport operator who has submitted noise exposure maps that are found by the FAA to be in compliance with the requirements of Federal Aviation Regulations (FAR) part 150, promulgated pursuant to the Act, may submit a noise compatibility program for FAA approval which sets forth the measures the operator has taken or proposes to take to reduce existing non-compatible uses and prevent the introduction of additional non-compatible uses.
The director of the King County International Airport submitted to the FAA on November 2, 2004, noise exposure maps, descriptions and other documentation that were produced during the King County International Airport FAR Part 150 Study dated March 2002 and a Supplemental Report dated July 2004. It was requested that the FAA review this material as the noise exposure maps, as described in section 47503 of the Act, and that the noise mitigation measures, to be implemented jointly by the airport and surrounding communities, be approved as a noise compatibility program under section 47504 of the Act.
The FAA has completed its review of the noise exposure maps and related descriptions submitted by the director of the King County International Airport. The specific documentation determined to constitute the noise exposure maps includes the following from the
• Figure S1 at page S.6, Revised Existing Noise Exposure Map, 2003;
• Figure S3 at page S11 Revised Future Noise Exposure Map, 2008;
• Table S1 at page S.2 Summary of Airport Planning Forecasts 2003-2023 and additional aviation activity data, Table S2 at page S.3;
• Table S4 at page S.5 Existing Noise Exposure Map with Existing Land Use 2003 presents estimates of the number of persons residing with the DNL 55 through 75 noise contours;
• Figures C12 through C15 at pages C.37 through C.40 present Flight Tracks;
• Figures C10 and C11 at pages C.28 and C.29 present Noise Measurement Locations;
• Table S6 at page S.10 Future Noise Exposure Map with Existing Land Use, 2008, presents estimates of the number of persons residing with the DNL 55 through 75 noise contours;
• Pages S.37 through S.47 present the Consultation Process during the study; Appendix F presents Revised Consultation; and
• The potential exists for numerous properties to be eligible for inclusion in the National Register of Historic Places. Consultation with the State Historic Preservation Office has indicated that it is not necessary to perform a detailed evaluation of potential eligible properties at this stage of planning. Detailed evaluation will occur during the preparation of environmental documents required prior to implementation of the program.
The FAA has determined that these maps for King County International Airport are in compliance with applicable requirements. This determination is effective on December 23, 2004. The FAA's determination on an airport operator's noise exposure maps is limited to a finding that the maps were developed in accordance with the procedures contained in appendix A of FAR Part 150. Such determination does not constitute approval of the applicant's data, information or plans, or constitute a commitment to approve a noise compatibility program or to fund the implementation of that program.
If questions arise concerning the precise relationship of specific properties to noise exposure contours depicted on a noise exposure map submitted under section 47503 of the Act, it should be noted that the FAA is not involved in any way in determining the relative locations of specific properties with regard to the depicted noise contours, or in interpreting the noise exposure maps to resolve questions concerning, for example, which properties should be covered by the provisions of section 47506 of the Act. These functions are inseparable from the ultimate land use control and planning responsibilities of local government. These local responsibilities are not changed in any way under part 150 or through the FAA's review of noise exposure maps. Therefore, the responsibility for the detailed overlaying of noise exposure contours onto the map depicting properties on the surface rests exclusively with the airport operator that submitted those
The FAA has formally received the noise compatibility program for King County International Airport, also effective on December 23, 2004. Preliminary review of the submitted material indicates that it conforms to the requirements for the submittal of noise compatibility programs, but that further review will be necessary prior to approval or disapproval of the program. The formal review period, limited by law to a maximum of 180 days, will be completed on or before June 21, 2005.
The FAA's detailed evaluation will be conducted under the provisions of 14 CFR part 150, section 150.33. The primary considerations in the evaluation process are whether the proposed measure may reduce the level of aviation safety, create an undue burden on interstate or foreign commerce, or be reasonably consistent with obtaining the goal of reducing existing non-compatible land uses and preventing the introduction of additional non-compatible land uses.
Interested persons are invited to comment on the proposed program with specific reference to these factors. The FAA will consider all comments, other than those properly addressed to local land use authorities, to the extent practicable. Copies of the noise exposure maps, the FAA's evaluation of the maps, and the proposed noise compatibility program are available for examination at the following locations:
Questions may be directed to the individual named above under the heading
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 February 1, 2005.
You may submit comments identified by DOT DMS Docket Number FAA-2004-19708 or FAA-2004-19885 by any of the following methods:
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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 Aviation Administration (FAA), DOT.
Notice of disposition of prior petition.
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 the disposition of certain petitions previously received. 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.
Madeleine Kolb (425-227-1134), Transport Airplane Directorate (ANM-113), Federal Aviation Administration, 1601 Lind Ave., SW., Renton, WA 98055-4056; or John Linsenmeyer (202-267-5174), 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.
To permit relief from the requirement for firm handholds along each aisle and additional passenger areas and from prohibition of the installation of interior doors between passenger compartments in the executive interior of a Boeing Model 747-400 airplane in private use.
To permit relief from the requirement for firm handholds along each aisle and additional passenger areas and from prohibition of the installation of interior doors between passenger compartments in the executive interior of a Boeing Model 767-300ER airplane in private use.
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 a certain petition 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 February 1, 2005.
You may submit comments identified by DOT DMS Docket Number FAA-2004-19983 by any of the following methods:
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Follow the instructions for submitting comments on the DOT electronic docket site.
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Susan Lender (202) 267-8029 or John Linsenmeyer (202) 267-5174, 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 Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 172 meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 172: Future Air-Ground Communications in the VHF Aeronautical Data Band (118-137 MHz).
The meeting will be held January 25-27, from 9 a.m. to 5 p.m.
The meeting will be held at RTCA, Inc., 1828 L St., NW., Suite 805, Washington, DC 20036.
RTCA Secretariat, 1828 L Street, NW., Washington, DC, 20036; telephone (202) 833-9339; fax (202) 833-9435; Web site
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 172 meeting. The agenda will include:
• January 25:
• Opening Plenary Session (Welcome and Introductory Remarks, Review of Agenda, Review Summary of Previous Meeting).
• Convene Working Group-2.
• Review Working Papers.
• Draft DO-22-224B revision 1, Signal-in-Space Minimum Aviation System Performance Standard (MASPS) for Advanced VHF Digital Data Communications Including Compatibility and Digital Voice Status incorporating approved working papers.
• Forward Appendix, Standard and Recommended Practices (SARPS) to DO-224B cross-reference.
• Review Action Items.
• January 26:
• Convene Working Group-3.
• Continue work on DO-281, Rev. A. Minimum Operational Performance Standards for Aircraft VDL Mode 2 Physical, Link and Network Layer.
• Changes needed due to International Civil Aviation Organization (ICAO) Amendment Proposals.
• DO-186a/ED23B difference resolution.
• Reconvene Plenary.
• Review relevant activities.
• ICAO aeronautical Mobile Communications Panel Work.
• FAA NEXCOM activities.
• EUROCAE WG-47 status and issues.
• Others as appropriate.
• Future work for SC-172.
• Closing Plenary Session (Other Business, Date and Place of Next Meeting, Adjourn).
• Re-Convene WG-2 per above to continue review of available working papers.
• January 27:
• Re-convene WG-2 as necessary, per above to complete review of available working papers.
• Adjourn.
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for comments.
This notice announces FMCSA's plans to request the Office of Management and Budget (OMB) to renew its approval of the information collection described below. This information collection requires Mexico-domiciled for-hire and private motor carriers who wish to register to transport property only within municipalities in the United States on the U.S.-Mexico international border or within the commercial zones of such municipalities to file Form OP-2. Under the Paperwork Reduction Act, the FMCSA is required to publish this notice.
Please submit your comments by March 14, 2005.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at
Ms. Joy Dunlap (202-493-0219), Information Systems Division (MC-RIS), Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., EST., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended; 49 U.S.C. 13902(c); and 49 CFR 1.73.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for comments.
This notice announces FMCSA's plans to request the Office of Management and Budget (OMB) to renew its approval of the information collection described below. This information collection is for the application forms used by for-hire motor carriers of regulated commodities, freight forwarders, property brokers, and certain Mexican motor carriers to register their operations with the FMCSA. This notice is required by the Paperwork Reduction Act.
Please submit your comments by March 14, 2005.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at
Ms. Joy Dunlap, (202) 493-0219, Information Systems Division (MC-RIS), Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., e.s.t., Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, as amended; 49 U.S.C. 13902, 13903 and 13904; and 49 CFR 1.73.
Pursuant to Title 49 Code of Federal Regulations (CFR) part 235 and 49 U.S.C. 20502(a), the following railroad has petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR part 236 as detailed below.
CSX Transportation (CSXT) seeks approval to extend the temporary discontinuance of the traffic control system (TCS), for a period not to exceed one year, on a portion of the LH&StL Subdivision, Louisville Division between Louisville, Kentucky, milepost HR 6.8 and Doyle, Kentucky, milepost HR 110.9. The request is associated with the July 31, 2004-catastrophic event in
The reason given for the proposed changes is that appropriated funds have been approved to eliminate the remaining pole line between milepost HR 6.8 and milepost HR 110.9, through the installation of electronic-coded track circuits for vital control, and satellite/frame relay circuitry for non-vital controls. The work is currently in progress, but an extension for the temporary discontinuance is needed for completion of the scope of work, within CSXT's submitted time line.
Any interested party desiring to protest the granting of an application shall set forth specifically the grounds upon which the protest is made, and include a concise statement of the interest of the party in the proceeding. Additionally, one copy of the protest shall be furnished to the applicant at the address listed above.
All communications concerning this proceeding should be identified by the docket number and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, Room PL-401 (Plaza Level), 400 7th Street, SW., Washington, DC 20590-0001. Communications received within 45 days of the date of this notice will be considered by the FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the internet at the docket facility's Web site at
FRA wishes to inform all potential commenters that 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
FRA expects to be able to determine these matters without an oral hearing. However, if a specific request for an oral hearing is accompanied by a showing that the party is unable to adequately present his or her position by written statements, an application may be set for public hearing.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be received on or before February 11, 2005.
Carlita Ballard at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs, (NVS-131), 202-366-0307, 400 Seventh Street, SW., Room 5320, Washington, DC 20590.
National Highway Traffic Safety Administration.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: NHTSA Desk Officer.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be received on or before February 11, 2005.
Deborah Mazyck at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs, (NVS-131), 400 Seventh Street, SW., Room 5320, Washington, DC 20590. Ms. Mazyck's telephone number is 202-366-4809.
National Highway Traffic Safety Administration
The standard was amended in August 1978 by extending its applicability to additional classes of motor vehicles and by specifying the use of a 30-year, 17-character Vehicle Identification Number (VIN) for worldwide use. The standard was amended in May 1983 by deleting portions of FMVSS No. 115 and reissuing those portions as a general agency regulation, Part 565. Subsequently, the standard was amended again in June 1996 transferring the text of the FMVSS No. 115 to Part 565, without making any substantive changes to the VIN requirements as a result of the proposed consolidation. The provision of the Part 565 (amended) regulation requires vehicle manufacturers to assign a unique VIN to each new vehicle and to inform NHTSA of the code used in forming the VIN. These regulations apply to all vehicles: passenger cars, multipurpose passenger vehicles, trucks, buses, trailers, incomplete vehicles, and motorcycles.
The Motor Vehicle Information and Cost Savings Act was amended by the Anti-Car Theft Act of 1992 (Pub.L. 102-519.) The enacted Theft Act requires specified parts of high-theft vehicle to be marked with vehicle identification numbers. In a final rule published on April 6, 2004, the Federal Motor Vehicle Theft Prevention Standard was extended to include all passenger cars and multipurpose passenger vehicles with a gross vehicle weight rating of 6,000 pounds or less, and to light duty trucks with major parts that are interchangeable with a majority of the covered major parts of multipurpose passenger vehicles. Each major component part must be either labeled or affixed with the VIN and its replacement component part must be marked with the DOT symbol, the letter (R) and the manufacturers' logo. The final rule becomes effective September 1, 2006.
This part specifies the format, content and physical requirements for a VIN system and its installation to simplify vehicle identification information retrieval and to increase the accuracy and efficiency of vehicle recall campaigns.
This part specifies the content and location of, and other requirements for, the certification label or tag to be affixed to motor vehicles and motor vehicle equipment. Specifically, the VIN is required to appear on the certification label. Additionally, this certificate will provide the consumer with information to assist him or her in determining which of the Federal Motor Vehicle Safety Standards are applicable to the vehicle or equipment, and its date of manufacturer.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th street, NW., Washington, DC 20503, Attention: NHTSA Desk Officer.
A Comment to OMB is most effective if OMB receives it within 30 days of publication.
The Surface Transportation Board has received a request from Zuckert Scoutt & Rasenberger on behalf of the Norfolk Southern Railway Company (WB568-4—12/30/2004) for permission to use certain data from the Board's 2003 Carload Waybill Sample. A copy of the requests may be obtained from the Office of Economics, Environmental Analysis, and Administration.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics, Environmental Analysis, and Administration within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Denver Terminal Railroad Company, d/b/a Denver Rock Island Railroad (DRIR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to lease from Union Pacific Railroad Company (UP) and operate a line of railroad, known as the Stock Yard Lead. The line of railroad consists of Track 12 extending from a point of connection with a UP main line north of East 58th Avenue in unincorporated Adams County, CO, to a point of connection with existing DRIR trackage at or near Race Court in the City of Denver, Denver County, CO, a distance of 5,750 feet, or 1.09 miles, plus the following auxiliary tracks: Track 12A (450 feet); Track 12B (750 feet); Track 12C (1,767 feet); and Track 12D (1,845 feet), for a total distance of 10,562 feet, or 2 miles.
DRIR certifies that its projected revenues as a result of this transaction will not result in the creation of a Class II or Class I rail carrier. The transaction was scheduled to be consummated no sooner than December 24, 2004, the effective date of the exemption (7 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34637, 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: Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604-1112.
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 8896, Low Sulfur Diesel Fuel Production Credit.
Written comments should be received on or before March 14, 2005 to be assured of consideration.
Direct all written comments to Paul Finger, Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at (202) 622-6665, or at Internal Revenue Service, room 6516, 1111 Constitution Avenue NW., Washington, DC 20224, 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.
An Open Meeting of the Area 1 Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, February 2, 2005.
Marisa Knispel at 1-888-912-1227 (toll-free), or 718-488-3557 (non toll-free).
An open meeting of the Area 1 Taxpayer Advocacy Panel will be held Wednesday, February 2, 2005 from 11:30 a.m. e.t. to 12:30 p.m. e.t. via a telephone conference call. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 718-488-3557, or write Marisa Knispel, TAP Office, 10 MetroTech Center, 625 Fulton Street, Brooklyn, NY 11201. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Marisa Knispel. Ms. Knispel can be reached at 1-888-912-1227 or 718-488-3557, or post comments to the Web site:
The agenda will include various IRS issues.
Internal Revenue Service (IRS); Treasury.
Notice.
An open meeting of the Area 6 committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel (TAP) is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. The TAP will use citizen input to make recommendations to the Internal Revenue Service.
The meeting will be held Wednesday, February 2, 2005.
Dave Coffman at 1-888-912-1227, or 206-220-6096.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 6 Taxpayer Advocacy Panel will be held Wednesday, February 2, 2005 from 2 p.m. Pacific time to 3 p.m. Pacific time via a telephone conference call. The public is invited to make oral comments. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 206-220-6096, or write to Dave Coffman, TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174 or you can contact us at
The agenda will include the following: various IRS issues.
Internal Revenue Service (IRS); Treasury.
Notice.
An open meeting of the Ad Hoc Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The TAP will be discussing issues pertaining to lessoning the burden for individuals. Recommendations for IRS systemic changes will be developed.
The meeting will be held Monday, February 7, 2005.
Mary O'Brien at 1-888-912-1227, or 206 220-6096.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Ad Hoc Committee of the Taxpayer Advocacy Panel will be held Monday, February 7, 2005 from 1 p.m. eastern time to 2 p.m. eastern time via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 206-220-6096, or write to Mary O'Brien, TAP Office, 915 2nd Avenue, MS W-406, Seattle, WA 98174 or you can contact us at
The agenda will include the following: various IRS issues.
Internal Revenue Service (IRS) Treasury.
Notice.
As open meeting of the Small Business/Self Employed—Taxpayer Burden Reduction Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The TAP will be discussing issues pertaining to increasing compliance and lessening the burden for Small Business/Self Employed individuals.
Marisa Knispel at 1-888-912-1227 or 718-488-3557.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Small Business/Self Employed—Taxpayer Burden Reduction Committee of the Taxpayer Advocacy Panel will be held Thursday, February 3, 2005, from 3 p.m. e.t. to 4:30 p.m. e.t. via telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 718-488-3557, or write to Marisa Knispel, TAP Office, 10 Metro Tech Center, 625 Fulton Street, Brooklyn, NY 11201. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Marisa Knispel. Ms. Knispel can be reached at 1-888-912-1227 or 718-488-3557, or post comments to Web site:
The agenda will include the following: various IRS issues.
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Aaron Santa Anna, Assistant General Counsel for Regulations, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410-0500, telephone (202) 708-3055 (this is not a toll-free number). Persons with hearing-or speech-impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the third quarter of calendar year 2004.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). This notice covers waivers of regulations granted by HUD from July 1, 2004, through September 30, 2004. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the third quarter of calendar year 2004) before the next report is published, HUD will include any additional waivers granted for the third quarter as well as those that occur during the fourth quarter of calendar year 2004 (October 1, 2004 through December 31, 2004).
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
More information about the granting of these waivers, including a copy of the waiver request and approval, may be obtained by contacting the person whose name is listed as the contact person directly after each set of regulatory waivers granted.
The regulatory waivers granted appear in the following order:
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Fish and Wildlife Service, Interior.
Notice of a 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding for three petitions to list the greater sage-grouse (
The finding announced in this document was made on January 6, 2005. Although further listing action will not result from this finding, we request that you submit new information concerning the status of or threats to this species whenever it becomes available.
Comments and materials received, as well as supporting documentation used in the preparation of this 12-month finding, will be available for inspection, by appointment, during normal business hours at the Wyoming Ecological Services Field Office, U.S. Fish and Wildlife Service, 4000 Airport Parkway, Cheyenne, Wyoming 82001. Submit new information, materials, comments, or questions concerning this species to the Service at the above address.
The Wyoming Field Office (see
Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
On July 2, 2002, we received a petition from Craig C. Dremann requesting that we list the greater sage-grouse (
This status review of the greater sage-grouse does not address our prior finding with regard to the Columbia Basin distinct population segment (DPS). On May 7, 2001, we published a 12-month finding on a petition to list the Washington population of the western subspecies of the greater sage-grouse as a distinct population segment (DPS) (66 FR 22984). Our finding included a summary of the historic distribution of what we then considered to be the western subspecies of the greater sage-grouse (see “Species Information” below regarding taxonomy). In our finding we determined that the population segment that remains in central Washington met the requirements of our policy for recognition as a distinct population segment (61 FR 4722) and that listing the DPS was warranted but precluded by other higher priority listing actions. Because the population in central Washington occurs entirely within the historic distribution of sage-grouse within the Columbia Basin ecosystem, we referred to it as the Columbia Basin DPS (66 FR 22984; May 7, 2001). In subsequent candidate notices of review (CNORs), including the most recent one published in the
We received 889 responses to our request for additional information in our 90-day finding for the greater sage-grouse (69 FR 21484). Those responses which contained new, updated, or additional information were thoroughly considered in this 12-month finding. We received a large number of identical or similar comments. We consolidated the comments into several categories, and provide responses as follows.
In addition to the comments received, two Information Quality Act challenges were submitted. The challenge received from the Partnership for the West was addressed through a response directly to that organization. The second challenge from the Owyhee County Commissioners (Idaho) primarily stated that we failed to conduct an exhaustive search of all scientific literature, and other information in the completion of our 90-day finding. Section 4(b)(3)(A) of the Act only requires that the petitions present “substantial scientific or commercial information indicating that the petitioned action may be warranted.” The Act does not require an exhaustive search of all available information at that time. Other concerns identified in the Owyhee County Commissioner's challenge are addressed in our comment responses above, and an overall summary regarding the steps we have taken to ensure conformance with our Information Quality Guidelines is provided below.
The Service's Information Quality Guidelines define quality as an encompassing term that includes utility, objectivity, and integrity. Utility refers to the usefulness of the information to its intended users, including the public. Objectivity includes disseminating information in an accurate, clear, complete, and unbiased manner and ensuring accurate, reliable, and unbiased information. If data and analytic results have been subjected to formal, independent, external peer review, we generally will presume that the information is of acceptable objectivity. Integrity refers to the security of information—protection of the information from unauthorized access or revision, to ensure that the information is not compromised through corruption or falsification.
The Service conducted a thorough pre-dissemination review of the data it is relying on to make this 12-month finding. In particular, the Service used the information in the WAWFA Conservation Assessment, which is a peer-reviewed science document. The WAWFA assessment was based on data provided by the states, provinces, land management agencies, as well as data in published, peer-reviewed manuscripts and other verified sources available to the authors of the assessment. The draft final assessment was reviewed by State agency wildlife biologists to ensure that data submitted by each State were presented accurately and completely. The assessment also was peer reviewed by an independent group of scientists selected by the Ecological Society of America. These reviewers were experts from academia, government, and non-governmental organizations, and included researchers as well as wildlife managers.
The WAWFA Conservation Assessment assembles in one place almost all of the available pertinent data that addresses the current biological and ecological condition of the sage-grouse and its habitat. This compilation of material allows the public to see a large body of information all in one document, making the information more useful than the many separate sources of information would be. Since the document has been subject to an independent, external peer review, the Service believes it is of acceptable objectivity. For these reasons the Service believes this information meets our Information Quality Guidelines.
Section 4(b)(1)(A) of the Act requires us to consider the best scientific and commercial data available as well as efforts being made by States or other entities to protect a species when making a listing decision. To meet this standard we systematically collected information on the greater sage-grouse, its habitats, and environmental factors affecting the species, from a wide array of sources. The scientific literature on greater sage-grouse and sagebrush habitats is extensive. In addition we received a substantial amount of unpublished information from other Federal agencies, States, private industry and individuals. We also solicited information on all Federal, State, or local conservation efforts currently in operation or planned for either the greater sage-grouse or its habitats.
The current distribution of greater sage-grouse and sagebrush habitat encompasses parts of 11 states in the western United States and 2 Canadian provinces (Figure 1). This large geographical scale combined with major ecological differences in sagebrush habitat and myriad of activities occurring across this large area required that the Service employ a structured analysis approach. Given the very large body of information available to us for our decision, structuring our analysis ensured we could explicitly assess the relative risk of changes occurring across the range of the sage-grouse, and integrate those individual assessments, be they regional or rangewide in nature, into an estimate of the probability that sage-grouse would go extinct at defined timeframes in the future. Using such extinction risk analysis to frame listing decisions under the Act has been recommended (National Research Council 1995), and was adopted by the Service as an important component of a structured analysis of the status review of the greater sage-grouse.
As part of the structuring of this status review, the Service compiled from the best scientific and commercial data available a summary of the changes or impacts occurring to the sagebrush ecosystem that could potentially affect the sage-grouse directly or indirectly. This summary, or synthesis of biological information, was one of many sources of information provided to a panel of seven experts, who, through a two-day facilitated process discussed threats to the species and each generated an estimate of extinction risk for the greater sage-grouse at different timeframes in the future. This information and all other available information were then considered by Service biologists and managers to frame a listing recommendation, and ultimately the decision reported in this finding.
Expert panels are not a required component of structured analysis but are used to help inform decision makers when there is uncertainty (National Research Council 1995). Typically, this uncertainty is due to a lack of information. While the scientific information on greater sage-grouse and their habitats is extensive, substantial gaps and uncertainty remain in the scientific community's knowledge of all the factors that may affect sage-grouse populations across such a wide geographical range encompassing major ecological differences in sagebrush habitats. Further, scientific knowledge of how the species may respond to those factors over time is incomplete. For these reasons, we requested input from scientific experts outside the Service to help us make a reasonable projection of the species' potential extinction risk. The panel consisted of experts in sage-grouse biology and ecology, sagebrush community ecology, and range ecology and management.
The organization of this finding reflects this basic approach. We first describe in more detail the structured process; present a summary of the threats to the species organized according to the 5 listing factors in the Act; then we present results from the facilitated expert panel process, including estimates of extinction risk; and finally present how a team of Service biologists and managers interpreted the extinction risk analysis, the threat ranking of the expert panelists, and other available information in the context of a listing decision under the Act. In order to ensure that the process we used to reach our finding is transparent, discussion of the biological significance of each threat listed under the 5 listing factors, and the geographical scale at which they affect sage-grouse is based on results of the expert panel and decision support team process. A thorough description of this process and its results is presented later in the finding along with the decision support team's evaluation of the threats in the context of a listing decision under the Act. However, we felt it was important to include a brief discussion of the spatial and biological significance of each threat as they are presented by listing factor.
Following compilation of the best available scientific and commercial information, which is summarized in other sections of this finding and available in full in our administrative record, we conducted three phases of information synthesis and evaluation. First, the information on individual planned conservation efforts was evaluated under PECE to determine which efforts met the following standard in PECE: “To consider that a formalized conservation effort(s) contributes to forming a basis for not listing a species or listing a species as threatened rather than endangered, we must find that the conservation effort is sufficiently certain to be implemented and effective so as to have contributed to the elimination or adequate reduction of one or more threats to the species identified through the section 4(a)(1) analysis” (
For the PECE analysis, we received and reviewed 27 plans, or conservation strategies, outlining more than 300 individual efforts. Most of the plans were from States, but we also received information from the Department of Energy (DOE), Bureau of Land Management (BLM), U.S. Forest Service (USFS), Department of Defense (DOD), Natural Resources Conservation Service (NRCS), Western Governor's Association (WGA), and the North American Grouse Partnership (NAGP).
Each effort within each plan was evaluated under PECE, which provides a framework and criteria for evaluating conservation efforts that have not yet been implemented or have not yet demonstrated whether they are effective at the time of a listing decision. Recognizing that the certainty of implementation and effectiveness of various efforts within a conservation plan, strategy, or agreement may vary, PECE requires that we evaluate each effort individually, and the policy provides criteria to direct our analysis. PECE specifies that “Those conservation efforts that are not sufficiently certain to be implemented and effective cannot contribute to a determination that listing is unnecessary or a determination to list as threatened rather than endangered” (
The expert panelists participated together in a series of facilitated exercises and discussions addressing first the species' inherent biological vulnerability and resilience, then the potential, relative influence of extrinsic or environmental factors on populations, and finally the experts' projections of extinction risk at different geographical scales both with and without the 20 planned conservation efforts from the PECE analysis. The Service would only consider the effect of the conservation efforts that met PECE in our decision if our review of the best available scientific and commercial data revealed that listing the greater sage-grouse under the Act was warranted. The experts participated only in the assessment of biological and environmental factors and related extinction risk without any consideration or discussion of the petition or regulatory classification of
In the final status review stage, following the compilation of biological information, PECE analysis of conservation efforts, and the facilitated extinction risk assessment by the expert panel, Service biologists and managers met and conducted a separate facilitated process to assess whether or not the threats to the greater sage-grouse described in this finding were significant enough at this time to meet the definition of a threatened or endangered species under the Act. Specific results from both the facilitated risk analysis stage of the status review and the facilitated risk management stage of the status review are presented later in the finding to clarify how the Service reached its decision. The Service's finding considered all of the available information on record.
The sage-grouse is the largest North American grouse species. Adult males range in length from 66 to 76 centimeters (cm) (26 to 30 inches (in)) and weigh between 2 and 3 kilograms (kg) (4 and 7 pounds (lb)). Adult females range in length from 48 to 58 cm (19 to 23 in) and weigh between 1 and 2 kg (2 and 4 lb). Males and females have dark grayish-brown body plumage with many small gray and white speckles, fleshy yellow combs over the eyes, long pointed tails, and dark green toes. Males also have blackish chin and throat feathers, conspicuous phylloplumes (specialized erectile feathers) at the back of the head and neck, and white feathers forming a ruff around the neck and upper belly. During breeding displays, males exhibit olive-green apteria (fleshy bare patches of skin) on their breasts (Schroeder
In 2000, the species was separated into 2 distinct species, the greater sage-grouse (
Although the American Ornithological Union (AOU) recognizes two subspecies of the greater sage-grouse, the eastern (
Sage-grouse depend on a variety of shrub-steppe habitats throughout their life cycle, and are considered obligate users of several species of sagebrush (
During the spring breeding season, male sage-grouse gather together to perform courtship displays on display areas called leks. Areas of bare soil, short-grass steppe, windswept ridges, exposed knolls, or other relatively open sites may serve as leks (Patterson 1952; Connelly
Sage-grouse typically select nest sites under sagebrush cover, although other shrub or bunchgrass species are sometimes used (Klebenow 1969; Connelly
Sage-grouse clutch size ranges from 6 to 13 eggs (Schroeder
Hens rear their broods in the vicinity of the nest site for the first 2 to 3 weeks following hatching (Connelly
Sage-grouse move from sagebrush uplands to more mesic areas during the late brood-rearing period (3 weeks post-hatch) in response to summer desiccation of herbaceous vegetation (Connelly
As vegetation continues to desiccate through the late summer and fall, sage-grouse shift their diet entirely to sagebrush (Schroeder
Many populations of sage-grouse migrate between seasonal ranges in response to habitat distribution (Connelly
Sage-grouse typically live between 1 and 4 years, but individuals up to 10 years of age have been recorded in the wild (Schroeder
Prior to settlement of the western North America by European immigrants in the 19th century, greater sage-grouse lived in 13 States and 3 Canadian provinces—Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Colorado, Utah, South Dakota, North Dakota, Nebraska, Arizona, British Columbia, Alberta, and Saskatchewan (Schroeder
Estimates of current total sage-grouse abundance vary, but are all much lower than the historical estimates of a million or more birds. Braun (1998) estimated that the 1998 rangewide spring population numbered about 142,000 sage-grouse, derived from numbers of males counted on leks. The Service estimated the rangewide abundance of sage-grouse in 2000 was at least 100,000 (taken from Braun (1998)) and up to 500,000 birds (based on harvest data from Idaho, Montana, Oregon and Wyoming, with the assumption that 10 percent of the population is typically harvested) (65 FR 51578). Survey intensity has increased markedly in recent years and, in 2003, more than 50,000 males were counted on leks (Connelly
Periods of historical decline in sage-grouse abundance occurred from the late 1800s to the early-1900s (Hornaday 1916; Crawford 1982; Drut 1994; Washington Department of Fish and Wildlife 1995; Braun 1998; Schroeder
Following review of published literature and anecdotal reports, Connelly
According to Connelly
Sagebrush is the most widespread vegetation in the intermountain lowlands in the western United States (West and Young 2000). Scientists recognize many species and subspecies of sagebrush (Connelly
All species of sagebrush produce large ephemeral leaves in the spring, which persist until soil moisture stress develops in the summer. Most species also produce smaller, over-wintering leaves in the late spring that last through summer and winter. Sagebrush have fibrous, tap root systems, which allow the plants to draw surface soil moisture, but also access water deep within the soil profile when surface water is limiting (West and Young 2000). Most sagebrush flower in the fall. However, during years of drought or other moisture stress, flowering may not occur. Although seed viability and germination are high, seed dispersal is limited. Additionally, for unknown reasons, sagebrush seeds do not persist in seed banks beyond the year of their production (West and Young 2000).
Sagebrush are long-lived, with plants of some species surviving up to 150 years (West 1983). They produce allelopathic chemicals that reduce seed germination, seedling growth and root respiration of competing plant species and inhibit the activity of soil microbes and nitrogen fixation. Sagebrush has resistance to environmental extremes, with the exception of fire and occasionally defoliating insects (
Sagebrush is typically divided into two groups, big sagebrush and low sagebrush, based on their affinities for different soil types (West and Young 2000). Big sagebrush species and subspecies are limited to coarse-textured and/or well-drained sediments, whereas low sagebrush subspecies typically occur where erosion has exposed clay or calcified soil horizons (West 1983; West and Young 2000). Reflecting these soil differences, big sagebrush will die if surfaces are saturated long enough to create anaerobic conditions for 2 to 3 days (West and Young 2000). Some of the low sagebrush are more tolerant of occasionally supersaturated soils, and many low sage sites are partially flooded during spring snowmelt. None of the sagebrush taxa tolerate soils with high salinity (West and Young 2000). Both groups of sagebrush are used by sage-grouse.
The response of sagebrush and sagebrush ecosystems to natural and human-influenced disturbances varies based on the species of sagebrush and its understory component, as well as abiotic factors such as soil types and precipitation. For example, mountain big sagebrush can generally recover more quickly and robustly following disturbance than Wyoming big sagebrush (Miller and Eddleman 2000), likely due to its occurrence on moist, well drained soils, versus the very dry soils typical of Wyoming big sagebrush communities. Soil associations have also resulted in disproportionate levels of habitat conversion across different sagebrush communities. For example, basin big sage is found at lower elevations, in soils that retain moisture two to four weeks longer than in well drained, but dry and higher elevation soils typical of Wyoming big sagebrush locations. Therefore, sagebrush communities dominated by basin big sagebrush have been converted to agriculture more extensively than have communities on poorer soil sites (Winward 2004).
The effects of disturbance to sagebrush are not constant across the range of the sage-grouse. Connelly
Section 4 of the Act (16 U.S.C. 1531) and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Federal endangered and threatened species list. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. These factors and their application to the greater sage-grouse are as follows:
Sagebrush is estimated to have covered roughly 120 million ha (296 million ac; Schroeder
In some States, the loss of sagebrush shrub-steppe habitats through conversion to agricultural crops has been dramatic. This impact has been
Development of irrigation projects to support agricultural production, in some cases conjointly with hydroelectric dam construction, has resulted in additional sage-grouse habitat loss (Braun 1998). The reservoirs formed by these projects impacted native shrub-steppe habitat adjacent to the rivers in addition to supporting the irrigation and direct conversion of shrub-steppe lands to agriculture. The projects precipitated conversion of large expanses of upland shrub-steppe habitat in the Columbia Basin for irrigated agriculture (August 24, 2000; 65 FR 51578). The creation of these reservoirs also inundated hundreds of kilometers of riparian habitats used by sage-grouse broods (Braun 1998). However, other small and isolated reclamation projects (4,000 to 8,000 ha [10,000 to 20,000 ac]) were responsible for three-fold localized increases in sage-grouse populations (Patterson 1952) by providing water in a semi-arid environment which provided additional insect and forb food resources (
Although conversion of shrub-steppe habitat to agricultural crops impacts sage-grouse through the loss of sagebrush on a broad scale, some studies report the use of agricultural crops (
Sagebrush removal to increase herbaceous forage and grasses for domestic and wild ungulates is a common practice in sagebrush ecosystems (Connelly
The extent to which mechanical and chemical removal or control of sagebrush currently occurs is not known, particularly with regard to private lands. However, the BLM has stated that with rare exceptions, they no longer are involved in actions that convert sagebrush to other habitat types, and that mechanical or chemical treatments in sagebrush habitat on BLM lands currently focus on improving the diversity of the native plant community, reducing conifer encroachment, or reducing the risk of a large wildfire (BLM 2004a).
Greater sage-grouse response to herbicide treatments depends on the extent to which forbs and sagebrush are killed. Chemical control of sagebrush has resulted in declines of sage-grouse breeding populations through the loss of live sagebrush cover (Connelly
Mechanical treatments are designed to either remove the aboveground portion of the sagebrush plant (mowing, roller chopping, and rotobeating), or to uproot the plant from the soil (grubbing, bulldozing, anchor chaining, cabling, railing, raking, and plowing; Connelly
While many square miles of sagebrush habitat has been lost during the past 150 years to conversion of sagebrush habitat to agriculture, this conversion occurs at such relatively low levels today, that we do not consider it a threat to the greater sage-grouse on a rangewide basis.
This section considers the various natural and anthropogenic forces that influence sage-grouse habitat and can result in habitat fragmentation. Habitat fragmentation is the separation or splitting apart of previously contiguous, functional habitat components of a species. Fragmentation can result from direct habitat losses that leave the remaining habitat in non-contiguous patches, or from alteration of habitat areas that render the altered patches unusable to a species (
Sagebrush communities exhibit a high degree of variation in their resistance and resilience to change, beyond natural variation. Resistance (the ability to withstand disturbing forces without changing) and resilience (the ability to recover once altered) generally increase with increasing moisture and decreasing temperatures, and can also be linked to soil characteristics (Connelly
Fragmentation of sagebrush habitats has been cited as a primary cause of the decline of sage-grouse populations since the species requires large expanses of contiguous sagebrush (Patterson 1952; Connelly and Braun 1997; Braun 1998; Johnson and Braun 1999; Connelly
Power grids were first constructed in the United States in the late 1800s. The public demand for electricity has grown as human population and industrial activities have expanded (Manville 2002), resulting in more than 804,500 km (500,000 mi) of transmission lines (lines carrying ≥ 115,000 volts/115kV) by 2002 within the United States (Manville 2002). A similar estimate is not available for distribution lines (lines carrying ≤ 69,000 volts/69kV), and we are not aware of data for Canada. Within their analysis area (
Powerlines can directly affect greater sage-grouse by posing a collision and electrocution hazard (Braun 1998; Connelly
In areas where the vegetation is low and the terrain relatively flat, power poles provide an attractive hunting and roosting perch, as well as nesting stratum for many species of raptors (Steenhof
Linear corridors through sagebrush habitats can facilitate the spread of invasive species, such as cheatgrass (
Powerlines are common to nearly every type of anthropogenic habitat use, except perhaps some forms of agricultural development (
Within sage-grouse habitats, 9,510 new communication towers have been constructed within recent years (Connelly
Fences are used to delineate property boundaries and for livestock management (Braun 1998; Connelly
Sage-grouse frequently fly low and fast across sagebrush flats and new fences can create a collision hazard (Call and Maser 1985). Thirty-six carcasses of sage-grouse were found near Randolph, Utah, along a 3.2 km (2 mi) fence within three months of its construction (Call and Maser 1985). Twenty-one incidents of mortality through fence collisions near Pinedale, Wyoming, were reported in 2003 to the BLM (Connelly
Impacts from roads may include direct habitat loss, direct mortality, create barriers to migration corridors or seasonal habitats, facilitation of predators and spread of invasive vegetative species, and other indirect influences such as noise (Forman and Alexander 1998). Interstates and major paved roads cover approximately 14,272 km
Roads can provide corridors for predators to move into previously unoccupied areas. For some mammalian species, dispersal along roads has greatly increased their distribution (Forman and Alexander 1998; Forman 2000). Corvids also use linear features such as primary and secondary roads as travel routes, expanding their movements into previously unused regions (Connelly
The presence of roads also increases human access and their resulting disturbance effects in remote areas (Forman and Alexander 1998; Forman 2000; Connelly
The expansion of road networks has been documented to contribute to exotic plant invasions via introduced roadfill, vehicle transport, and road maintenance activities (Forman and Alexander 1998; Forman 2000; Gelbard and Belnap 2003; Knick
Additional indirect effects of roads may result from birds' behavioral avoidance of road areas because of noise, visual disturbance, pollutants, and predators moving along a road. The absence of screening vegetation in arid and semiarid regions further exacerbates the problem (Suter 1978). Male sage-grouse depend on acoustical signals to attract females to leks (Gibson and Bradbury 1985; Gratson 1993). If noise interferes with mating displays, and thereby female attendance, younger males will not be drawn to the lek and eventually leks will become inactive (Amstrup and Phillips 1977; Braun 1986). Dust from roads and exposed roadsides can damage vegetation through interference with photosynthetic activities; the actual amount of potential damage depends on winds, wind direction, the type of surrounding vegetation and topography (Forman and Alexander 1998). Chemicals used for road maintenance, particularly in areas with snowy or icy precipitation, can affect the composition of roadside vegetation (Forman and Alexander 1998). We were unable to find any data relating these potential effects to impacts on sage-grouse population parameters.
In a study on the Pinedale Anticline in Wyoming, sage-grouse hens that bred on leks within 3 km (1.9 mi) of roads associated with oil and gas development traveled twice as far to nest as did hens bred on leks greater than 3 km (1.9 mi) from roads. Nest initiation rates for hens bred on leks “close” to roads were also lower (50 vs 65 percent) affecting population recruitment (33 vs. 44 percent) (Lyon 2000; Lyon and Anderson 2003). Lyon and Anderson (2003) suggested that roads may be the primary impact of oil and gas development to sage-grouse, due to their persistence and continued use even after drilling and production have ceased. Braun
Railroads presumably have the same potential impacts to sage-grouse as do roads since they create linear corridors within sagebrush habitats. Railways were primarily responsible for the initial spread of cheatgrass in the intermountain region (Connelly
The effects of infrastructure, particularly as related to energy development and urbanization, were identified by some members of the expert panel as an important factor contributing to the extinction risk for greater sage-grouse, particularly in the eastern part of the species range (Montana, Wyoming and Colorado). Across the entire range of the greater sage-grouse, infrastructure ranked second as an extinction risk factor by the expert panel.
Bison, antelope and other ungulates grazed lands occupied by sage-grouse prior to European immigrant settlement of the western United States in the mid to late 1800s. With settlement, from 1870 to the early 1900s, the numbers of cattle, sheep, and horses rapidly increased, peaking at the turn of the century (Oliphant 1968, Young
Few studies have directly addressed the effect of livestock grazing on sage-grouse (Beck and Mitchell 2000, Wamboldt
It has been demonstrated that the reduction of grass heights due to livestock grazing of sage-grouse nesting and brood-rearing areas negatively affects nesting success by reducing cover necessary for predator avoidance (Gregg
Other consequences of grazing include several related to livestock trampling. Outright nest destruction by livestock trampling does occur and the presence of livestock can cause sage-grouse to abandon their nests (Rasmussen and Griner 1938, Patterson 1952, Call and Maser 1985, Crawford
Livestock grazing may also compete directly with sage-grouse for rangeland resources. Cattle are grazers, feeding mostly on grasses, but they will make seasonal use of forbs and browse species like sagebrush (Vallentine 2001). Domestic sheep are intermediate feeders making high use of forbs, but also use a large volume of grass and browse species like sagebrush (Vallentine 2001). Pedersen
Some effects of livestock grazing may have positive consequences for sage-grouse. Evans (1986) found that sage-grouse used grazed meadows significantly more during late summer than ungrazed meadows because grazing had stimulated the regrowth of forbs. Klebenow (1981) noted that sage-grouse sought out and used openings in meadows created by cattle grazing in northern Nevada. Finally both sheep and goats have been used to control invasive weeds (Mosely 1996 as cited in Connelly
Although there are few studies which directly examine the effects of livestock grazing on greater sage-grouse, and no studies on a rangewide scale, the expert panel ranked grazing as a potential extinction risk factor. This ranking incorporates not only the direct effects of grazing, but all associated activities, such as vegetation management, fencing, overuse of riparian habitats by domestic livestock, etc. The expert panel also noted that the recovery of greater sage-grouse populations from the 1930s to the 1950s occurred during a period of a reduction in livestock grazing as well as a change in weather resulting in wetter conditions. However, the panel also noted that proper grazing management may be a beneficial tool for enhancing greater sage-grouse habitats where maintenance and enhancement of these habitats is identified as an objective, although this has not been rigorously tested.
Free-roaming horses and burros have been a component of sagebrush and other arid communities since they were brought to North America at the end of the 16th century (Wagner 1983; Beever 2003). About 31,000 wild horses occur in 10 western States, with herd sizes being largest in States with the most extensive sagebrush cover (Nevada, Wyoming, and Oregon; Connelly
Sagebrush removal to increase herbaceous forage and grasses for domestic and wild ungulates is a common practice in sagebrush ecosystems (Connelly
Water developments for the benefit of livestock on public lands are common (Connelly
Development of mines within the distribution of the sage-grouse began before 1900 (Robbins and Ward 1994,
Mined land reclamation is required by either the Federal or State governments in the greater sage-grouse states and Canada (Smyth and Dearden 1998). Due to the relatively recent nature of federal coal and Canadian regulation (27 and 41 years, respectively; Smyth and Dearden 1998) there is limited long-term monitoring data. The laws generally allow for a change in post-mining land use from pre-mining conditions, and restoration of pre-mining sagebrush habitat may not occur if the surface owner determines an alternative habitat type is preferable. However, Federal coal reclamation requires restoration of diversity and density standards if the private landowner agrees. Early efforts to restore sage-grouse habitats on mined lands focused on creating artificial leks, which was largely unsuccessful (Tate
New vegetation types including exotic species may become established on mined areas (Moore and Mills 1977), altering their suitability for sage-grouse. Temporary habitat loss can stem from intentional planting to minimize erosion or for nurse crops (those crops planted to create suitable microhabitat conditions for the desired vegetative species). The length of this temporary conversion depends on the life of the mine, the success of reclamation, and whether or not reclamation is concurrent with mining disturbance. If reclamation plans call for the permanent conversion of the mined area to a different habitat type (
In Wyoming and Montana an estimated 38,833 ha (96,000 ac) of disturbed Federal and non-Federal surface are associated with existing coal mining operations (Kermit Witherbee, Bureau of Land Management, pers. comm. 2004). Over the next ten years, it has been estimated that approximately 20,243 ha (50,000 ac) will be disturbed for coal mining activities. This is less than 1 percent of the Connelly
Mining infrastructure, such as roads, railroads, powerlines, etc., may impact sage-grouse, although those effects are not expected to be different than previously described. Presumably, direct habitat loss will not be as large from subsurface mining. However, the amount of supporting infrastructure and indirect effects may be similar as for surface mines (Thomas and Leistritz 1981). Other indirect effects from mining can include reduced air quality from gaseous emissions and fugitive dust, degradation of surface water quality and quantity, changes in vegetation, topography, land-use practices, and disturbance from noise, ground shock and human presence, and mortality from collision with mining equipment (Moore and Mills 1977; Brown and Clayton 2004). Gaseous emissions, created from the operation of heavy equipment, trains, etc., are usually quickly dissipated in the windy, open areas typical of sagebrush. Fugitive dust could affect local vegetative and insect resources through coating important respiratory surfaces. In extreme cases, plant photosynthesis may be restricted (Moore and Mills 1977). This may result in reduced food and cover resources for sage-grouse. Fugitive dust may also affect sage-grouse through direct irritation of mucus membranes and/or exposure to toxic minerals that are otherwise trapped in the soils (Moore and Mills 1977). Most large surface mines are required to control fugitive dust, so these impacts are probably limited.
Water quality can generally be reduced through increased sediment loads, leaching of toxic compounds or elements from exposed ore, waste rock and overburden, introduction of excess nutrients from blasting and fertilizers, or introduction of pathogens from septic systems and waste disposal associated with mining activity (Moore and Mills 1977). Contamination of water supplies through toxic elements can result in either direct mortality to wildlife, or long-term chronic health problems. Pathogens can also have a similar detrimental effect on wildlife. Water supplies may decline either through direct removal of wetlands from mining activity or reduction from use for fugitive dust suppression. Remaining wetlands may subsequently receive increased use from other wildlife or domestic livestock, resulting in habitat degradation. In Nevada, extensive de-watering of ground water results from open pit gold mining (Kevin Kritz, U.S. Fish and Wildlife Service, pers. comm. 2004). The actual impact of these effects on sage-grouse is unknown. Since sage-grouse do not require free water (Schroeder
If blasting is necessary for removal of overburden or the target mineral, ground shock may occur. The full effects of ground shock on wildlife are unknown, but given its temporary duration and localized impact area, impacts are considered minimal (Moore and Mills 1977). One possible exception is the repeated use of explosives during lekking or nesting, which could potentially result in nest and/or lek abandonment (Moore and Mills 1977).
Mining can also impact sage-grouse through the increased presence of human activity, either through avoidance of suitable habitat adjacent to mines or through collisions with vehicles associated with mining operations (Moore and Mills 1977; Brown and Clayton 2004). An increased human population in an area, as a result of mine extraction activities, may result in increased hunting pressure, both legal and poaching (Moore and Mills 1977). Although these effects have not been quantified on sage-grouse populations, the State of Wyoming requires coal operators to educate their employees about wildlife regulations when they are hired. Sage-grouse may also be at increased risk for collision with vehicles simply due to the increased traffic associated with mining activities and transport (Moore and Mills 1977; Brown and Clayton 2004). However, we were unable to find any information regarding increased mortality of sage-grouse near mines as a result of this effect.
We were only able to locate a few studies that specifically examined the effects of coal mining on greater sage-grouse (Tate
Braun (1998) concluded that surface coal mining and all associated activities have negative short-term impacts on sage-grouse numbers and habitats near the mines. Sage-grouse will reestablish on mined areas once mining has ceased, but there is no evidence that population levels will reach their previous size. Additionally, the time span for population re-establishment may be 20 to 30 years (Braun 1998). Hayden-Wing Associates (1983) concluded that the loss of one or two leks in a regional area from coal mining was likely not limiting to local populations in their study on the Caballo Rojo Mine in northeastern Wyoming. However, if several leks are affected, local population numbers may decline (Hayden-Wing Associates 1983).
Hard rock mining impacts greater sage-grouse at the local level. The expert panel identified hard rock mining as a threat of relatively low importance compared to other threats. The effect of hard rock mining, when considered independently of other threats to the species, is likely of relatively low importance to the status of the species range-wide.
Non-renewable energy development (petroleum products, coal) has been occurring in sage-grouse habitats since the late 1800s (Connelly
The development of oil and gas resources requires surveys for economically recoverable reserves, construction of well pads and access roads, subsequent drilling and extraction, and transport of oil and gas, typically through pipelines. Ancillary facilities can include compressor stations, pumping stations and electrical facilities (Connelly
Connelly
Potential impacts to sage-grouse and sagebrush habitats from the development of oil and gas resources include direct habitat loss, habitat fragmentation from vegetation removal, roads, powerlines and pipeline corridors, noise, gaseous emissions, changes in water availability and quality, and increased human presence (Suter 1978; Aldridge 1998; Braun 1998; Aldridge and Brigham 2003; Knick
Direct habitat losses result from construction of well pads, roads, pipelines, powerlines, and potentially through the crushing of vegetation during seismic surveys. For example, coal-bed methane development in the Powder River Basin of Wyoming is expected to result in the loss of an additional 21,711 ha (53,626 ac) of sagebrush habitat by 2011 (BLM 2003a). This is less than 1 percent of the Connelly
Connelly
Reclamation of areas disturbed by oil and gas development can be concurrent with field development. As disturbed areas are reclaimed, sage-grouse may repopulate the area. However, there is no evidence that populations will attain their previous size, and re-population may take 20 to 30 years, as habitat conditions are not immediately restored (Braun 1998). For most developments, return to pre-disturbance population levels is not expected due to a net loss and fragmentation of habitat (Braun
Habitat fragmentation impacts to sage-grouse resulting from vegetation removal, roads, powerlines and pipeline corridors are similar to those described previously. Fragmentation resulting from oil and gas development and the associated introduced infrastructure may have more effects on greater sage-grouse than the associated direct habitat losses, which may not be extensive. For example, of the total 904,109 ha (2,234,103 ac) project area in the Powder River Basin, an estimated 23,735 ha (58,625 ac) of habitat will be directly disturbed by well construction (BLM 2003a). However, up to 8,579 km (5,311 mi) of powerlines, 28,572 km (17,754 mi) of roads, and 33,548 km (20,846 mi) of pipelines are also proposed for this project. The presence of these ancillary facilities may preclude sage-grouse from using suitable adjacent habitats (see previous discussion). As previously discussed, roads associated with oil and gas development were suggested to be the primary impact to greater sage-grouse due to their persistence and continued use even after drilling and production has ceased (Lyon and Anderson 2003).
Noise can drive away wildlife, cause physiological stress and interfere with auditory cues and intraspecific communication, as discussed previously. Aldridge and Brigham (2003) reported that, in the absence of stipulations to minimize the effects, mechanical activities at well sites may disrupt sage-grouse breeding and nesting activities. Hens bred on leks within 3 km (1.9 miles) of oil and gas development in the upper Green River Basin of Wyoming selected nest sites with higher total shrub canopy cover and average live sagebrush height than hens nesting away from disturbance (Lyon 2000). The author hypothesized that exposure to road noise associated with oil and gas drilling may have been one cause for the difference in habitat selection. However, noise could not be separated from the potential effects of increased predation resulting from the presence of a new road. Above-ground noise is typically not regulated to mitigate effects to sage-grouse or other wildlife (Connelly
Water quality and quantity may be affected in oil and gas development areas. The impacts are similar relative to the contamination of water supplies by toxic elements and pathogens (see previous discussion), with the addition of potential oil contamination in settling and/or condensate ponds. In many large field developments, water produced during the gas dehydration process is stored in tanks, removing this potential threat. Where oil contamination of open water pits has occurred, no sage-grouse mortalities are known (Pedro Ramirez, U.S. Fish and Wildlife Service, pers. comm. 2004). Water may also be depleted from natural sources for drilling or dust suppression purposes. Remaining wetlands may subsequently receive increased use from other wildlife or domestic livestock, resulting in habitat degradation. Since, sage-grouse do not require free water (Schroeder
Water produced by coal-bed methane drilling may benefit sage-grouse through expansion of existing wetland and riparian areas, and creation of new areas (BLM 2003a). These habitats could provide additional brood rearing and summering habitats for sage-grouse. However, based on the recent discovery of West Nile virus in the Powder River Basin, and the resulting mortalities of sage-grouse (Naugle
Increased human presence resulting from oil and gas development can also impact sage-grouse either through avoidance of suitable habitat, disruption of breeding activities, or increased hunting and poaching pressure (Aldridge and Brigham 2003; Braun
Only a few studies have examined the effects of oil and gas development on sage-grouse. While each of these studies reported sage-grouse population declines, specific causes for the negative impacts were not determined. In Alberta, Canada, the development of well pads and associated roads in the mid-1980s resulted in the abandonment of three lek complexes within 200 m (220 yd) of these features (Braun
Of particular relevance to estimating oil and gas development impacts is the fidelity of sage-grouse hens to nesting and summer brood rearing areas demonstrated by Lyon and Anderson (2003). Hens that have successfully nested will return to the same areas to nest every year. If these habitats are affected by oil and gas development, there is a strong potential that previously successful hens will return but not initiate nests (Lyon 2000). Depending on the number of hens affected, local populations could decline.
Over 200 known leks occur within the coal-bed methane development area in Powder River Basin of northeastern Wyoming. Those leks have been affected by direct habitat losses, higher human activity, and powerlines (Braun
In the Jonah natural gas field in southwestern Wyoming, 10 of 24 leks in or near the project area are no longer active, although data collection has not been consistent on 4 of those leks (BLM 2004d). Two leks were destroyed by the placement of well pads on the leks, and re-establishment of those leks at that location is not anticipated (BLM 2004d). Based on nest initiation and habitat fidelity results, Lyon and Anderson (2003) concluded that impacts occur greater than 0.4 km (0.25 mi) from well pads, thus current no-surface-occupancy buffers around active sage-grouse based on that distance may not be adequate to avoid adverse effects. However, to our knowledge no information exists concerning whether leks are subsequently re-established.
Protective wildlife stipulations are typically placed on individual oil and gas leases at the time of sale, including seasonal and temporal restrictions around important sage-grouse habitats (Connelly
On June 22, 2004, BLM issued an Instruction Memorandum (IM) establishing policy that BLM field offices consider Best Management Practices (BMPs) for oil and gas and other fluid mineral operations as part of NEPA documents. The purpose of the BMPs is to mitigate anticipated effects to surface and subsurface resources, and to encourage operators to consider BMPs during the application process for permits to drill (BLM 2004e). BLM expects that wells drilled using BMPs will have fewer impacted acres of sagebrush habitat than has been estimated in EISs (
The Forest Service can place additional seasonal or temporal stipulations to protect sage-grouse on oil and gas developments on lands they manage (Forest Service in litt. 2004). Development of oil and gas resources on private lands does not always require mitigation (Braun 1998; Connelly
Renewable energy resources, such as windpower and geothermal energy, require many of the same features for construction and operation as do non-
Fifteen thousand wind turbines were projected to be operational in the United States by the end of 2001, not including the wind turbines located in California (Erickson
Development of hydropower energy may impact sage-grouse through direct habitat losses, and increases in human traffic and activity if a resulting reservoir provides recreational resources. During construction, there may also be additional impacts of fugitive dust, gaseous emissions, road construction, increased traffic, and increased poaching activities. We do not anticipate that the potential for impacts from these activities to sage-grouse are different from those discussed previously for infrastructure issues. During the mid-1900s, a number of hydroelectric dams were developed on the Columbia and Snake Rivers in Washington and Oregon. More than 400 dams were constructed on the Columbia River system alone. The irrigation projects formed by these reservoirs precipitated conversion of large expanses of upland shrub-steppe habitat in the Columbia Basin for irrigated agriculture adjacent to the rivers as discussed previously in the Agriculture section (65 FR 51578). The creation of these reservoirs also directly inundated hundreds of kilometers of riparian habitats used by sage-grouse broods (Braun 1998). We were unable to find any information regarding the amount of sage-grouse habitat affected by hydropower projects in other areas of the species range beyond the Columbia Basin. We do not anticipate that future dam construction will result in large losses of sagebrush habitats. Although dam removal has been proposed for some areas, upland restoration goals, and the potential benefit to sage-grouse, are unknown.
The development of geothermal energy requires intensive human activity during field development (Suter 1978). Toxic gases may be released, and the type and effect of these gases depends on the geological formation in which drilling occurs. The amount of water necessary for drilling and condenser cooling may be high (Suter 1978). Therefore, water depletions may be a concern if such depletions result in the loss of limiting brood-rearing habitats (
We were unable to find any information regarding the commercial development of solar energy. We anticipate the effects from this resource will be those associated with direct habitat loss, fragmentation, roads, powerlines, increased human presence, and disturbance during facility construction, where solar energy development occurs.
Energy development was identified by the expert panel as the most significant extinction risk to the greater sage-grouse in the eastern portion of its range (Colorado, Wyoming and Montana). Their primary concern was the rapidity of development and the persistent demand for petroleum products. On a rangewide scale, however, energy development alone (not including the infrastructure associated with it—see Roads and Railroads above) ranked as the sixth most important extinction risk factor. To better understand the actual mechanism by which energy development affects greater sage-grouse, the panel suggested excluding some areas from extraction activities so that comparative analyses could be conducted.
The effects of fire on sagebrush habitats vary according to the species of sagebrush present, other plant species present (
In general, fire tends to extensively reduce the sagebrush component within the burned areas. Big sagebrush (
A characteristic of natural fire in sagebrush stands is the incomplete burning that leaves areas of unburned sagebrush (sometimes referred to as islands of habitat) (Huff and Smith 2000). Huff and Smith (2000) noted that these unburned islands appear to be important to the future recolonization of the sagebrush community by providing sources of sagebrush seed. Prior to settlement by European immigrants, fire patterns in sagebrush communities were patchy, particularly in Wyoming big sagebrush, due to the discontinuous and limited fuels and unburned islands that remained after a fire (Miller and Eddleman 2000).
Connelly
In parts of the Great Basin (Nevada, Oregon and Utah) a decline in fire occurrence since the late 1800s has been reported in several studies, which coincides with fire suppression and reduction of fuels by introducing livestock (Touchan
Wildfires have removed extensive areas of sagebrush habitat in recent years. For example, 30 to 40 percent of the sage-grouse habitat in southern Idaho was destroyed in a 5-year period (1997-2001) due to range fires (Signe Sather-Blair, U.S. Bureau of Land Management, quoted in Healy 2001). The largest contiguous patch of sagebrush habitat in southern Idaho occupied approximately 283,000 ha (700,000 ac), (Michael Pellant, U.S. Bureau of Land Management, quoted in Healy 2001). Of that total area, about 202,000 ha (500,000 ac) burned in the years 1999 to 2001; half of the acres that burned for the first 3 to 5 years post fire, but accompanying forbs and surviving grasses increased biomass production. In another study, productivity of perennial herbs had increased by the second year post-burn to an average 2.2 times higher on burned verses control areas (Cook
A variety of techniques have been attempted at re-establishing sagebrush post-fire, with mixed success (Cadwell
A clear positive response of greater sage-grouse to fire has not been demonstrated (Braun 1998). Call and Maser (1985) noted that fires could cause adverse conditions where cover is limited. Studies of prescribed fire in mountain big sagebrush at Hart Mountain National Antelope Refuge demonstrate short-term benefits in certain forbs, but the reduction in sagebrush cover potentially rendered habitat less suitable for nesting and brood rearing (Rowland and Wisdom 2002). Similarly, Nelle
The expert panel ranked wildfire as the second most important extinction risk factor for the greater sage-grouse in western portions of its range (the Great Basin—Utah, Idaho, Nevada, eastern Oregon), primarily due to the subsequent establishment of invasive species such as cheatgrass (see following discussion). Since invasive species has not become the problem in the eastern part of the greater sage-grouse range, the expert panel did not rank wildfire as high in that area. Across the species range, wildfire was identified as the third most important extinction risk factor by the expert panel.
Invasive species have been defined as those that are not native to an ecosystem and whose introduction causes, or is likely to cause, economic or environmental harm or harm to human health (Executive Order 13112, 1999). A wide variety of plants are considered invasive within the range of sagebrush ecosystems that the greater sage-grouse occupies (Wamboldt
Young
Large areas of habitat in the western distribution of the greater sage-grouse have already been converted to cheatgrass (Connelly
We could not find any studies that document or attempted to document a direct relationship between cheatgrass expansion and sage-grouse population declines. Yet the available evidence is clear that cheatgrass has invaded extensive areas in western parts of greater sage-grouse range, supplanting sagebrush plants upon which sage-grouse depend. Although there is a lack of evidence documenting that cheatgrass invasion causes sage-grouse declines, Connelly
Invasive species was ranked as the primary extinction risk factor for the greater sage-grouse by the expert panel. This concern was based on the ability of invasive species to outcompete sagebrush, the inability to effectively control invasives once they become established, and the ease with which invasive species are spread through other factors on the landscape, such as wildfire and infrastructure construction. Additionally, one member of the panel indicated that once invasive species become established, the ecology of the system can be changed, resulting in increased opportunities for other invasive species to establish, and subsequently, permanent habitat loss. Although cheatgrass has been identified as the primary invasive species resulting in sagebrush habitat conversion, the expert panel also cautioned that many other invasive species (
There has been an unprecedented expansion of pinyon-juniper woodlands, a native habitat type dominated by pinyon pine (
Connelly
Pinyon-juniper expansion into sagebrush habitats, with subsequent replacement of sagebrush shrub communities by woodland has been documented (Miller
Low densities of indigenous peoples have been present for more than 12,000 years in the historical range of sage-grouse. By 1900, Connelly
Urban development has eliminated some sage-grouse habitat (Braun 1998). Interrelated effects from urban/suburban development include construction of associated infrastructure (roads, powerlines, and pipelines) and predation threats from the introduction of domestic pets and increases in predators subsidized by human activities (
Municipal solid waste landfills (landfills) have been shown to contribute to increases in common raven populations (Knight
Loss of sagebrush and greater sage-grouse habitat has been occurring since arrival of European settlers in the 1800s, as evidenced by the change in the sage-grouse's distribution and loss of local populations (Schroeder
Based on the information gathered through the scientific literature, industry, public comments and State and Federal agencies, as well as the opinions of the expert panel, Service biologists determined that the principal habitat-related threats are not proceeding at a rate that will threaten the continued existence of the species within the foreseeable future. In addition, the wide distribution of the species, presence of large “core” populations, recent population trends in some areas throughout the species range (indicating that populations are stable and/or increasing), and large blocks of sagebrush habitat are all factors that contributed to the determination that the greater sage-grouse is not in danger of extinction within the foreseeable future. Thus, based on the best available scientific and commercial data, we have concluded that present or threatened destruction, modification, or curtailment of the sage-grouse's habitat or range is not a factor that threatens or endangers the species over all or a significant portion of its range. In reaching this conclusion, we did identify that continued efforts to conserve sagebrush ecosystems and address habitat threats are important to long-term persistence of the greater sage-grouse.
Presently, there is no commercial trade in greater sage-grouse, and under State and Federal laws the sale of sage-grouse meat, feathers and body parts is illegal. Historically, the greater sage-grouse was heavily exploited by commercial and sport hunting in the late 1800s and early 1900s (Patterson 1952; Autenrieth 1981). Hornaday (1916) and others alerted the public to the risk of extinction to the species as a result of this overharvest. In response, many States closed sage-grouse hunting seasons by the 1930s (Patterson 1952, Autenrieth 1981). The impacts of hunting on greater sage-grouse during those historical decades may have been exacerbated by impacts from human expansion into sagebrush-steppe habitats (Girard 1937). With the increase of sage-grouse populations by the 1950s, limited hunting seasons were again allowed in most portions of the species range (Patterson 1952, Autenrieth 1981).
Greater sage-grouse are currently legally sport-hunted in 10 of 11 States where they occur (Connelly
Relatively few studies have addressed the effect of recreational hunting on sage-grouse populations. These studies suggest that hunting may be compensatory (
Hunting seasons that are managed so as to evenly distribute mortality across all age and sex classes are less likely to negatively affect subsequent breeding populations (Braun 1998). Connelly
All 10 States that allow gun hunting of sage-grouse also allow falconers to hunt sage-grouse, although no falconers are currently hunting sage-grouse in South and North Dakota (John Wrede, South Dakota Game, Fish and Parks, pers. comm. 2004; Gerald Kobriger, North Dakota Game and Fish Dept., pers. comm. 2004). Montana (Rick Northrup, Montana Dept. Fish, Wildl. Parks, pers. comm. 2004), Oregon (Dave Budeau, Oregon Dept. Fish and Wildlife, pers. comm. 2004), and Idaho (Tom Hemker, Idaho Dept. Fish and Game, pers. comm. 2004) indicated that they do not have data on the level of harvest through falconry, but believe such harvest is low due to the few numbers of falconers and their dispersed activities. Wyoming reported a take of 63 sage-grouse by falconers. We are not aware of any studies that demonstrate that falconry take of greater sage-grouse influences population trends.
We surveyed the State fish and wildlife agencies within the range of greater sage-grouse to determine what information they had on illegal harvest (poaching) of the species. Two states, South Dakota and North Dakota indicated that they had no known incidents of poaching (John Wrede, South Dakota Game, Fish and Parks, pers. comm. 2004; Gerald Kobriger, North Dakota Game and Fish Dept., pers. comm. 2004). None of the remaining States had any quantitative data on the level of poaching in their States. Based on these results, illegal harvest of greater sage-grouse poaching appears to occur at low levels. We are not aware of any studies or other data that demonstrate that poaching has contributed to sage-grouse population declines.
Some Native American tribes harvest sage-grouse as part of their religious or ceremonial practices. In Wyoming, Native American hunting occurs on the Wind River Indian Reservation, with about 20 males per year taken off of leks in the spring (Tom Christiansen, Wyoming Game and Fish Dept., pers comm. 2004), and a harvest of 30 males in the fall (U.S. Fish and Wildlife Service, in litt. 2004). No harvest by Native Americans for religious or ceremonial purposes occurs in South Dakota, North Dakota, Colorado, Washington, or Oregon (John Wrede, South Dakota Game, Fish and Parks affiliation pers. comm. 2004; Gerald Kobriger North Dakota Game and Fish Dept., pers. comm. 2004; Anthony Apa, Colorado Div. Wildl., pers. comm. 2004; Michael Schroeder, Washington Dept. Fish and Wildlife, pers. comm. 2004; and Dave Budeau, Oregon Dept. Wildl., pers. comm. 2004).
Greater sage-grouse are the subject of many scientific research studies and some of these field studies include the capture and handling of the species. Of the 11 western States where sage-grouse occur, all except South Dakota and North Dakota (John Wrede, South Dakota Game, Fish and Parks, pers. comm. 2004; Gerald Kobriger, North Dakota Game and Fish Dept., pers. comm. 2004) reported some type of field studies on sage-grouse between 1999 to 2004 that included the capture, handling, and subsequent banding, or banding and radio-tagging of sage-grouse. For these 9 States, 2,491 birds were captured and processed over six years, of which 68 birds (about 2.7 percent of handled birds) died due to capture, handling, or radio-tagging processes. We are not aware of any studies that document that this level of taking has affected any sage-grouse population trends.
Greater sage-grouse have been translocated in several States and the Province of British Columbia (Reese and Connelly 1997). Reese and Connelly (1997) documented the translocation of over 7,200 birds between 1933 and 1990, and additional translocation efforts have taken place since 1990. Only 5 percent of the translocation efforts documented by Reese and Connelly (1997) were considered to be successful in producing sustained, resident populations at the translocation sites. In 2004 the State of Nevada supplied the State of Washington with greater sage-grouse to increase the genetic diversity of geographically isolated populations. No information is available at this time regarding the success or effectiveness of this translocation. Given the low numbers of birds that have been used for translocation spread over many decades it is unlikely that the removals from source populations have contributed to greater sage-grouse declines, while the limited success of translocations has also likely had nominal impact on rangewide population trends.
Greater sage-grouse are also subject to a variety of non-consumptive uses such as bird watching or tour groups visiting leks, general wildlife viewing, and photography. Daily human disturbances on sage-grouse leks could cause a reduction in mating, and some reduction in total production (Call and Maser 1985). Only a few leks in each state receive regular viewing use visitation by humans during the strutting season, and most States report no known impacts from this use (John Wrede, South Dakota Game, Fish and
The expert panel did not identify hunting as a primary threat factor for the greater sage-grouse. In their discussion of extrinsic threat factors, the expert panel identified that hunting occurs within a limited timeframe and at a time of the year when productivity is unlikely to be affected significantly. In addition, they noted that hunting is a regulated management technique that can be quickly adjusted to changing conditions. No data were collected suggesting that poaching, non-consumptive use, or scientific use limit greater sage-grouse populations rangewide. Based on the best scientific and commercial data available, including input from the expert panel, we have concluded that overutilization for commercial, recreational, scientific, or educational purposes is not a factor that endangers or threatens the sage-grouse throughout all or a significant portion of its range.
There have been few systematic surveys for parasites or infectious diseases of the greater sage-grouse, and therefore, their role in population declines is unknown for this species (Connelly
Sage-grouse are hosts to many parasites (Connelly
Other parasites which have been documented in the greater sage-grouse include,
Greater sage-grouse host many external parasites, including lice, ticks, and dipterans (midges, flies, mosquitoes, and keds) (Connelly
Greater sage-grouse are also subject to a variety of bacterial, fungal, and viral pathogens. The bacteria
Viral diseases could cause serious diseases in grouse species and potentially influence population dynamics (Petersen 2004). However, prior to 2003 only avian infectious bronchitis (caused by a coronavirus) had been identified in the greater sage-grouse. No clinical signs of the disease were observed.
West Nile virus (WNv;
Greater than 300 serum samples taken from live-captured wild grouse in known WNv infected areas were negative for WNv antibodies, indicating that these animals had not been exposed to the virus (Todd Cornish, U. Wyoming, pers. comm. 2004). The lack of birds with antibodies suggests that sage-grouse do not survive a WNv infection because if any were surviving, at least some of the birds sampled from the exposed areas should be survivors with antibodies (Connelly
Late-summer habitat requirements of sage-grouse potentially increase their exposure to WNv. Sage-grouse hens and broods congregate in mesic habitats in the mid- to late summer, thereby placing them in the same potential habitats as the WNv mosquito vector when the mosquitoes are likely to be active. Surface water sources that have been created for agricultural, livestock, and oil and gas activities may increase the contact between sage-grouse and the mosquito vector (Naugle
Predation is the most commonly identified cause of direct mortality for sage-grouse (Schroeder
Adult male greater sage-grouse are most susceptible to predation during the mating season as they are very conspicuous while performing their mating display. And, because leks are attended daily, predators may be attracted to these areas during the breeding season (Braun in litt. 1995). However, given the greater sage-grouse's breeding system, where only a few males are selected by all the females for mating, loss of some adult males on the lek is not likely to have significant population effects (Braun in litt. 1995).
Adult female greater sage-grouse are most susceptible to predators while on the nest or during brood-rearing when they are with young chicks (Schroeder and Baydack 2001). Autenrieth (1981), referencing annual predator losses, concluded that predation of eggs was the most important population constraint in Idaho at that time.
Juvenile grouse are susceptible to predation from badgers, red foxes, coyotes, weasels, American kestrels (
Nesting success is positively correlated with the presence of big sagebrush and relatively thick grass and forb cover (Schroeder and Baydack 2001). Losses of nesting adult hens and nests appear to be related to the amount of herbaceous cover surrounding the nest (Braun in litt. 1995; Braun 1998; Coggins 1998, Connelly
Agricultural development, landscape fragmentation, and human populations have the potential to increase predation pressure by forcing birds to nest in marginal habitats, by increasing travel time through habitats where they are vulnerable to predation, and by increasing the diversity and density of predators (Ritchie
Research conducted to determine nest success and greater sage-grouse survival has concluded that predation typically does not limit greater sage-grouse numbers (Connelly and Braun 1997, Connelly
The expert panel did not identify disease or predation as primary extinction risk factors for the greater sage-grouse. The experts expressed concerns about the potential effects of future WNv outbreaks, but were unable to draw any definitive conclusions about extinction risk to sage-grouse posed by this disease because insufficient information is available to do so. Connelly
Although we have relatively poor understanding of the actual effects of disease or parasites on sage-grouse populations, since systematic surveys have never been conducted, we continue to be concerned about the potential effects of WNv on greater sage-grouse. We will closely monitor future infections and observed population effects to the greater sage-grouse. Predation has also not been identified as a limiting factor to sage-grouse populations, except in areas of habitat degradation and loss. Thus, based on the best scientific and commercial data available, we have concluded that disease and predation are not factors that endanger or threaten the sage-grouse throughout all or a significant portion of its range at this time.
Approximately 27 percent of the sagebrush land in the United States is privately owned (Connelly
In the United States, greater sage-grouse are managed by State wildlife agencies on all lands within the State as resident native game birds (Connelly
Each State agency bases its hunting regulations on local population information and peer-reviewed scientific literature regarding the impacts of hunting on the greater sage-grouse (Bohne in litt., Wyoming Game and Fish Department 2003). Hunting seasons are reviewed annually by each State, and they implement adaptive management based on harvest and population data (U.S. Fish and Wildlife Service 2004; 69 FR 21484; Montana Sage Grouse Work Group (MSGWG) 2004).
State agencies directly manage 5 percent of the total landscape dominated by sagebrush in the United States and various State laws and regulations identify the need to conserve wildlife habitat (Connelly
Alternatively, some States have laws that directly address the management of certain State lands and require that it be based on maximizing financial returns. For example, under a provision of the State Constitution (Article IX-Section 8), the Idaho Department of Lands (IDL) is directed to manage approximately 2.4 million acres of state endowment lands “in such a manner as to secure the maximum long-term financial return to the beneficiary institution to which granted.” The IDL can take measures that protect or enhance wildlife habitat subject to their fundamental
All States within the extant range of the greater sage-grouse have, or are developing, conservation plans for the species and its habitats. These efforts are in addition to current research and monitoring efforts for the greater sage-grouse conducted by State agencies. The conservation plans are focused on addressing local sage-grouse or sagebrush habitat concerns through a variety of mechanisms (
The greater sage-grouse is not covered or managed under the provisions of the Migratory Bird Treaty Act (16 U.S.C. 703-712). Federal agencies in the United States are responsible for managing 66 percent of the sagebrush landscape (Connelly
The BLM estimates that about 46 percent of greater sage-grouse habitat is on BLM-administered land, with approximately 78.3 million acres of BLM-administered lands falling within the range currently occupied by the greater sage-grouse (BLM 2004a). The Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701
BLM policy and guidance for species of concern occurring on BLM managed land is addressed under BLM Manual 6840—Special Status Species Management (BLM 2001). In 1998 the greater sage-grouse was State-listed as a threatened species in Washington (Stinson
Land use plans are the basis for all actions and authorizations involving BLM-administered lands and resources: they establish allowable resource uses, resource condition goals and objectives to be attained; program constraints and general management practices needed to attain the goals and objectives; general implementation sequences; and intervals and standards for monitoring and evaluating the plan to determine its effectiveness and the need for amendment or revision (43 CFR 1601.0-5(k)). According to a draft Report provided to the Service by BLM, there are 98 land use plans that involve sage-grouse habitat (BLM 2004a). Based on information provided by BLM field offices, 13 of the 98 plans do not contain any direction that specifically pertains to the greater sage-grouse or its habitat (BLM 2004a). The other 85 plans contain standards and/or prescriptions that “contribute positively to on-the-ground sage-grouse habitat conservation” and/or “contribute positively to on-the-ground sagebrush conservation.” Examples include fencing areas with value to sage-grouse, and applying distance stipulations around leks (BLM 2004a). However, the BLM does not provide or describe the criteria or process used to determine that the standards and/or prescriptions listed in this report contribute positively to sage-grouse habitat or sagebrush conservation (BLM 2004a).
Land use plans provide a framework and programmatic guidance for implementation (activity) plans, which are site-specific plans written to implement decisions made in a land use plan. Examples include allotment management plans (AMPs) that address livestock grazing, oil and gas field development, travel management, and wildlife habitat management. Implementation/activity plan decisions normally require additional planning and NEPA analysis. With regard to special status species, BLM Manual
On November 16, 2004, BLM Instruction Memorandum (IM) No. 2005-024 transmitted information to all BLM field and Washington Office officials regarding the development of a National BLM Sage-grouse Habitat Conservation Strategy for BLM-administered lands. This strategy is described as the framework to address the conservation of sage-grouse and risk to sagebrush habitats on lands and activities administered by the BLM. It commits the BLM to work with States and local interests on this issue. The IM instructed BLM State Directors to develop a process and schedule to update deficient land use plans to adequately address sage-grouse and sagebrush conservation needs no later than April 1, 2005. Implementation plans are also covered by this IM.
BLM has the regulatory authority for oil and gas leasing, as provided at 43 CFR 3100
In developing stipulations for oil and gas the BLM considers the best available scientific information, including, but not limited to, the sage-grouse population and habitat management guidelines developed by the Western States Sage and Columbian Sharp-tailed Grouse Technical Committee under the direction of the Western Association of Fish and Wildlife Agencies, as published by Connelly
The oil and gas leasing regulations authorize BLM to modify or waive lease terms and stipulations if the authorized officer determines that the factors leading to inclusion of the term or stipulation have changed sufficiently to no longer justify protection, or if proposed operations would not cause unacceptable impacts (43 CFR 3101.1-4). The Service does not have information on the type or number, or the basis for, exceptions, modifications, or waivers of stipulations pertaining to the greater sage-grouse and/or their habitat that have been granted by BLM.
The Energy Policy and Conservation Act (EPCA) of 2000 included provisions requiring the Secretary of the Interior to conduct a scientific inventory of all onshore Federal lands to identify oil and gas resources underlying these lands and the nature and extent of any restrictions or impediments to the development of such resources (U.S.C. Title 42, Chapter 77, section 6217(a)). On May 18, 2001, the President signed Executive Order 13212—Actions to Expedite Energy-Related Projects (E.O. 13212) (66 FR 28357, May 22, 2001), which states that it is the Administration's policy that the executive departments and agencies shall take appropriate actions, to the extent consistent with applicable law, to expedite projects that will increase the production, transmission, or conservation of energy. The Executive Order specifies that this includes expediting review of permits or taking other actions as necessary to accelerate the completion of projects, while maintaining safety, public health, and environmental protections. The BLM has responded to these declarations with the issuance of several IM to their staff that may influence sage-grouse conservation during these actions, including providing guidance for land use planning relative to oil and gas operations and focusing efforts for resource recovery in seven areas, six of which are within occupied greater sage-grouse habitats ((IM 2003-137, April 3, 2003; IM No. 2003-233, July 28, 2003).
As discussed previously, BLM land use plans and implementation plans may include BMPs, which are defined as “a suite of techniques that guide, or may be applied to, management actions to aid in achieving desired outcomes. IM 2004-194 (June 22, 2004) addresses the integration of Best Management Practices (BMPs) into Application for Permit to Drill (APD) approvals and associated rights-of-way. This IM states that BLM Field Offices “shall incorporate appropriate BMPs into proposed APDs and associated on and off-lease rights-of-way approvals after appropriate NEPA evaluation. The wildlife management criteria are broadly stated. For example, one BMP is: “To minimize habitat loss and fragmentation, re-establish as much habitat as possible by maximizing the area reclaimed during well production operations. In many cases, this “interim” reclamation can cover nearly the entire site. It is OK to set up well workover operations or park on the restored vegetation. Just repair the damage when you are done.” Another example is: “Consider drilling multiple wells from a single well pad to reduce the footprint of oil and gas activity on wildlife habitat.” The Service has no information regarding the results of BLM monitoring and evaluation of the effectiveness of these or similar BMPs that may have been adopted previously in BLM planning documents or as part of other, more site-specific planning decisions.
BLM regulatory authority for grazing management is provided at 43 CFR part 4100 (Regulations on Grazing Administration Exclusive of Alaska). Livestock grazing permits and leases contain terms and conditions determined by BLM to be appropriate to achieve management and resource condition objectives on the public lands and other lands administered by the BLM, and to ensure that habitats are, or are making significant progress toward being, restored or maintained for BLM special status species (43 CFR 4180.1(d)). Grazing practices and activities subject to standards and guidelines include the development of grazing related portions of implementation/activity plans, establishment of terms and conditions of permits, leases and other grazing authorizations, and range improvement activities such as vegetation manipulation, fence construction, and development of water.
The State or regional standards for grazing administration must address habitat for endangered, threatened, proposed, candidate, or special status species, and habitat quality for native plant and animal populations and communities (43 CFR 4180.2(d)(4) and (5). The guidelines must address restoring, maintaining or enhancing habitats of BLM special status species to promote their conservation, and maintaining or promoting the physical and biological conditions to sustain native populations and communities (43 CFR 4180.2(e)(9) and (10). BLM is required to take appropriate action not later than the start of the next grazing year upon determining that existing grazing practices or levels of grazing use are significant factors in failing to achieve the standards and conform with the guidelines (43 CFR 4180.2(c)). BLM agreed to work with their Resource Advisory Councils to expand the rangeland health standards required under 43 CFR part 4180 so that there are public land health standards relevant to all ecosystems, not just rangelands, and that they apply to all BLM actions, not just livestock grazing (BLM Manual 4180.06.A). All States within the range of greater sage-grouse have a resource advisory council, except Wyoming.
The BLM states that 89 percent of lands are meeting standards, or are not meeting standards but appropriate actions have been implemented to ensure significant progress towards the standards (BLM 2004a). The remaining 11 percent are not meeting standards due to either livestock grazing or other causes. We have no information on how these rangeland health categories affect sage-grouse habitats.
On December 8, 2003, BLM issued a proposed rule (68 FR 68452) that would modify the current grazing management regulation in two ways: (1) It provides that assessment and monitoring standards are needed to support a determination that livestock grazing significantly contributes to not meeting a standard or conforming with a guideline; and (2) It requires BLM to analyze, formulate and propose appropriate action within 24 months of the determination (rather than “before the start of the next grazing year”). This proposed rule has not been finalized.
The Forest Service (USFS) has management authority for 8 percent of the sagebrush habitat in the United States (Connelly
The 1982 NFMA implementing regulation for land and resource management planning (1982 rule, 36 CFR part 219), under which all existing forest plans were prepared, requires the Forest Service to manage habitat to maintain viable populations of existing native vertebrate species on National Forest System lands (1982 rule, 36 CFR 219.19). Management indicator species were used to estimate the effects of each alternative on fish and wildlife populations, and were selected because their population changes are believed to reflect the effects of management activities (1982 rule, 36 CFR 219.19(a)). The regulation requires that during the planning process, each alternative considered needed to establish objectives for the maintenance and improvement of habitat for management indicator species, to the degree consistent with overall multiple use objectives of the alternative (1982 rule, 36 CFR 219.19(a)). Fourteen National Forests identified greater sage-grouse as a Management Indicator Species, including Beaverhead National Forest, Little Missouri National Grassland, Thunder Basin National Grassland, Buffalo Gap National Grassland, White River National Forest, Ashley National Forest, Boise National Forest, Caribou National Forest, Curlew National Grassland, Humboldt National Forest, Toiyabe National Forest, Sawtooth National Forest, Inyo National Forest, and Modoc National Forest.
Revisions to the planning regulations adopted on November 9, 2000 (65 FR 67514) did not retain the management indicator species requirement, but rather stated: “Plan decisions affecting species diversity must provide for ecological conditions that the responsible official determines provide a high likelihood that those conditions are capable of supporting over time the viability of native and desired non-native species well distributed throughout their ranges within the plan area * * *” (65 FR 67514). Further revisions have been proposed (67 FR 72770; December 6, 2002) but a final rule has not been promulgated. Until such time a rule is completed, officials responsible for planning decisions may use the management indicator provisions.
As part of our status review process, the members of the expert panel and the Service's decision support team of senior Service biologists and managers were provided with information regarding NFMA and related regulations, including the 1982 and 2000 planning regulations and the recent interpretive rule, along with information explaining that the Forest Service had proposed, but not promulgated, changes to the 2000 regulation. Since the meeting by the expert panel and the Service's decision support team, the Forest Service has promulgated a final planning rule at 36 CFR 219 and eliminated the 2000 planning rule. The new Forest Service planning regulation became effective when it was published in the
As described by the Forest Service, plans developed under the new regulation will be more strategic and less prescriptive in nature than those developed under the 1982 planning rule (which has guided the development of all forest plans to date). For instance, plans previously might have included standards for a buffer for activities near the nest sites of birds sensitive to disturbance during nesting, whereas under the new rule a desired condition description and guidelines will be provided, rather than a set of prescriptive standards that would apply to projects. Planning and decisions for projects and activities will address site-specific conditions and identify appropriate conservation measures to take for each project or activity.
Under the new rule, the purpose of forest plans is to establish goals and to set forth guidance to follow in pursuit of those goals. The rule calls for five components of plans: desired conditions, objectives, guidelines, suitability of areas, and special areas (36 CFR 219.7(a)(2)). The rule states that these components are intended to provide general guidance and goals or other information to be considered in subsequent project and activity decisions, and that none of these components are commitments or final decisions approving projects and activities (36 CFR 219.7(a)(2)). Approval of a plan, plan amendment, or plan revision comprised of these five components may be categorically
The new rule requires that an environmental management system (EMS) be established for each unit of the National Forest System and the EMS may be established independently of the planning process (36 CFR 219.5). Plan development, amendment, or revision must be completed in accordance with direction at 36 CFR 219.14 and with the EMS. The EMS must conform to the standard developed by the International Organization for Standardization (ISO), specifically ISO 14001: Environmental Management Systems—Specification With Guidance for Use (36 CFR 219.5)(b)).
The new rule requires maintenance of three types of evaluation reports: (1) Comprehensive evaluation of current social, economic, and ecological conditions and trends that contribute to sustainability (to be updated at least every five years); (2) evaluation for a plan amendment, which must analyze issues relevant to the purposes of the amendment; and (3) annual evaluation of monitoring information (36 CFR 191.6). The rule specifies that the plan must describe the monitoring program for the plan area, and describes general categories of items to be provided for in the monitoring program (
The new planning regulation does not include provisions regarding habitat for species viability. Rather, with regard to ecological sustainability, plans are to provide a framework to contribute to sustaining native ecological systems by providing ecological conditions to support diversity of native plants and animal species in the plan area (36 CFR 219.10 (b)). Ecosystem diversity is described as being the primary means by which a plan contributes to sustaining ecological systems (36 CFR 219.10 (b)), and the Forest Service states that this focus is expected to conserve most species. If the Responsible Official determines that provisions in plan components, beyond those addressing ecosystem diversity, are needed “to provide appropriate ecological conditions for specific threatened and endangered species, species-of-concern, and species-of-interest, then the plan must include additional provisions for these species, consistent with the limits of agency authorities, the capability of the plan area, and overall multiple use objectives” (36 CFR 219.10(b)(2)). The rule defines species-of-concern as “Species for which the Responsible Official determines that management actions may be necessary to prevent listing under the Endangered Species Act” and defines species-interest as “Species for which the Responsible Official determines that management actions may be necessary or desirable to achieve ecological or other multiple use objectives” (36 CFR 219.16).
The new rule does not include Management Indicator Species. It specifies that for national forest system units with plans developed, amended, or revised using the 1982 planning regulations, compliance with any obligations relating to management indicator species may be achieved by considered data and analysis relating to habitat (as compared to the 1982 regulation that required population trend data) unless the plan specifically requires population monitoring or population surveys for the species, and also specifies that site-specific monitoring or survey of a proposed project or activity area (pertaining to such species) is not required in relation to such species (36 CFR 219.14(f)).
For each unit of the National Forest System, the transition period for the new rule is three years or at the unit's establishment of an EMS, whichever comes first (36 CFR 219.14). A document approving a plan developed, revised, or amended using the new regulation must include a description of the effects of the plan on existing, permits, contracts, or other instruments implementing approved projects and activities (36 219.8(a)). If not expressly excepted, approved projects and activities must be consistent with the applicable plan components, subject to provisions in 36 219.8(e) that provide options for addressing a use, project or activity that is not consistent with the applicable plan.
The supplementary information provided with the new rule states that the Forest Service is developing planning directives (
The greater sage-grouse is designated as a USFS sensitive species in Regions 1 (Northern Region—northern ID, MT, ND, and northern SD), 2 (Rocky Mountain Region—CO, WY), 4 (Intermountain Region—southern ID, southwestern WY, UT, NV, eastern CA), 5 (Pacific Southwest Region—CA), and 6 (Pacific Northwest Region—OR, WA) (USDA Forest Service, in litt. 2004). These regions encompass the entire range of the species in the United States (USDA Forest Service, in litt. 2004).
Many forests within the range of sage-grouse provide important seasonal habitats for the species, particularly the Thunder Basin National Grassland and the Humboldt-Toiyabe National Forest (USDA Forest Service, in litt. 2004). While the 1982 planning regulation, including its provision for population viability, was used in the development of the existing Forest Plans, no information has been provided to the Service regarding specific implementation of the above regulations and policies for the greater sage-grouse. Also, we have no information regarding the results of sage-grouse population monitoring for those National Forests that identified it as a management indicator species, and thus were subject to the requirement in the 1982 rule to monitor population trends and determine relationships to habitat changes.
Of the 34 National Forests within greater sage-grouse range, approximately half do not specifically address sage-grouse in their Forest Plans (USDA Forest Service, in litt. 2004). Reasons for this include lack of species occurrence, incidental use of the National Forest System lands by sage-grouse, or the Forest Plan pre-dated concern for sage-grouse conservation (pre-2000; USDA Forest Service, in litt. 2004). Direction for the conservation of sage-grouse and their habitats (at least indirectly) was provided in 15 plans relative to minerals management, 18 plans for fire and fuels management, 24 for livestock grazing actions, 10 for realty actions, 15 for recreation activities, 8 for recreation, and 20 for vegetation management (USDA Forest Service, in litt. 2004). The effectiveness of these efforts for sage-grouse and their habitats was not reported to us by the USFS (USDA Forest Service, in litt. 2004).
The USFS incorporates conservation measures for sage-grouse protection at the project level through site-specific
Other Federal agencies in the U.S. Department of Defense, U.S. Department of Energy, and the U.S. Department of Interior (including the Bureau of Indian Affairs, Fish and Wildlife Service, and National Park Service) are responsible for managing less than 5 percent of sagebrush lands within the United States (Connelly
The National Wildlife Refuge System Administration Act (16 U.S.C. 668dd-668ee) provides guidelines and directives for administration and management of all areas in the National Wildlife Refuge system. This includes wildlife refuges, areas for the protection and conservation of fish and wildlife that are threatened with extinction, wildlife ranges, game ranges, wildlife management areas, or waterfowl production areas. Relatively few units within the Refuge system have habitat for the greater sage-grouse. Refuges are managed for species conservation, consistent with direction in the National Wildlife Refuge System Administration Act, as amended, and related Service polices and guidance.
The Department of the Army has developed Integrated Natural Resources Management Plans for their facilities within sage-grouse habitats. These plans “reflect the mutual agreement of the facility, the Fish and Wildlife Service and the appropriate State fish and wildlife agency on the conservation, protection and management of fish and wildlife resources” (Department of the Army, in litt. 2004). Six Army facilities have confirmed sage-grouse presence, and integrated plans have been developed for all. While some agencies have developed site-specific plans for conserving sage-grouse habitats on their lands (
In 1992, we entered into a voluntary Conservation Agreement with the Army and the WADFW for sage-grouse occurring at the Yakima Training Center (66 FR 22984) in Washington. The Conservation Agreement expired April 30, 2000 (66 FR 22984). Efforts to update and implement a revised Conservation Agreement for sage-grouse throughout Washington are ongoing (66 FR 22984). In our 2003 Candidate Notice of Review we concluded that the Army is implementing conservation measures and considerably less-than-planned training activities in Yakima and Kittitas Counties, the location of the sage-grouse that are part of the Columbia Basin DPS of the greater sage-grouse (69 FR 24875).
The Natural Resources Conservation Service (NRCS) of the U.S. Department of Agriculture assists farmers, ranchers, and other private landowners in reducing threats to sage-grouse habitat by providing technical assistance and financial resources to support management and habitat restoration efforts; helping farmers and ranchers maintain and improve habitat as part of larger management efforts; and developing technical information to assist NRCS field staff with sage-grouse considerations when working with private landowners. The United States Congress recently appropriated $5 million for NRCS to use in 2005 to fund sage-grouse conservation efforts on public and private lands across the range of the greater sage-grouse (PL 108-447). One example of these conservation efforts is found in Douglas County, Washington, the site of the northern subpopulation of the Columbia Basin DPS. Large areas of privately-owned lands are currently withdrawn from crop production and planted to native and non-native cover under the NRCS' Conservation Reserve Program (CRP) (69 FR 24875).
Executive Order 13112 on Invasive Species (64 FR 6183) was signed on February 3, 1999. It seeks to prevent the introduction of invasive species and provide for their control and minimize their impacts through better coordination of federal agency efforts under a National Invasive Species Management Plan to be developed by an interagency Invasive Species Council. The Order directs all federal agencies to address invasive species concerns as well as refrain from actions likely to increase invasive species problems (E.O. 13112).
Executive Order 13112 requires the National Invasive Species Council (Council) to produce a National Management Plan (NMP) for Invasive Species every two years (E.O. 13112). In January 2001, the Council released the first NMP, which serves as a blueprint for all federal action on invasive species. It provides goals and objectives for invasive species management, research needs, and measures to minimize the risk of species introductions. Although individual States have regulations regarding invasive species, we were unable to determine if these regulations will affect sage-grouse habitats.
Greater sage-grouse are cooperatively managed by Provincial and Federal governments in Canada. The species is afforded Federal legal protection under schedule 1 of the Species at Risk Act (SARA; Canada Gazette, Part III, Chapter 29, Vol. 25, No. 3, 2002). Passed in 2002, the Species at Risk Act is similar to the Endangered Species Act and allows for habitat regulations to protect sage-grouse (Aldridge and Brigham 2003). The purpose of the SARA is to prevent the extinction or extirpation of any indigenous Canadian wildlife species, subspecies or distinct population segment. SARA also provides for the recovery of endangered or threatened wildlife and encourages the management of other species to prevent them from becoming species at risk (Connelly
Greater sage-grouse are classified as resident wildlife by the Provinces (Connelly
Various regulatory mechanisms that guide the protection and conservation of the greater sage-grouse are in place. The members of the expert panel and the Service's decision support team were provided with more detailed information than we have summarized above regarding regulatory mechanisms pertaining to the greater sage-grouse. Based on the best scientific and commercial data available we have concluded that existing regulatory mechanisms do not endanger or threaten the greater sage-grouse throughout all or a significant portion of its range. Based on the current status of the greater sage-grouse and the fact that the lands administered by the Forest Service comprise a relatively small percentage of sagebrush habitat (approximately 8 percent) in the United States, the new Forest Planning regulation does not result in a change in our conclusion regarding the adequacy of existing regulatory mechanisms.
Few studies have examined the effects of pesticides to sage-grouse, but at least one has documented direct mortality of greater sage-grouse as a result of ingestion of alfalfa sprayed with organophosphorus insecticides (Blus
Game birds that ingested sub-lethal levels of pesticides have been observed exhibiting abnormal behavior that may lead to a greater risk of predation (Dahlen and Haugen 1954, McEwen and Brown 1966, Blus
A reduction in insect population levels resulting from insecticide application can potentially affect nesting sage-grouse females and chicks (Willis
Three approved insecticides, carbarayl, diflubenzuron, and malathion, are applied across the extant range of sage-grouse as part of implementation of the Rangeland Grasshopper and Mormon Cricket Suppression Control Program, under the direction of the Animal and Plant Health Inspection Service (APHIS) (APHIS 2004). Carbaryl is applied as bait, while the others are sprayed. Application rates are in compliance with U.S. Environmental Protection Agency regulations. APHIS has general guidelines for buffer zones around sensitive species habitats. These pesticides are applied wherever grasshopper and Mormon cricket control are requested by private landowners (APHIS 2004). We were unable to find any information regarding the effects these pesticide applications may have on sage-grouse.
Herbicide applications can kill sagebrush and forbs important as food sources for sage-grouse (Carr 1968 as cited in Call and Maser 1985). The greatest impact resulting from a reduction of either forbs or insect populations is for nesting females and chicks due to the loss of potential protein sources that are critical for successful egg production and chick nutrition (Schroeder
In summary, pesticides can result in direct mortality of individuals, and can also reduce the availability of food sources, which in turn could contribute to mortality of sage-grouse. Despite these potential effects we could find no information to indicate that the use of pesticides, at current levels, negatively affects greater sage-grouse populations (
Across the range of the greater sage-grouse exposure to various types of environmental contaminants either occur, or may potentially occur, as a result of a variety of human activities, including agricultural and rangeland management practices, mining, energy development and pipeline operations, nuclear energy production and research, and transportation of materials along highways and railroads. Many of these potential exposures and their effects have been discussed above. In addition, numerous gas and oil pipelines occur across the range of the species. Exposure to oil or gas from spills or leaks could impact sage-grouse and cause mortalities or morbidity. Similarly, given the extensive network of highways and railroad lines that occur throughout the range of the greater sage-grouse there is some potential for exposure to contaminants resulting from hazardous materials spills or leaks along these transportation corridors. However these types of spills occur infrequently in only small portions of sage-grouse range and we could not locate any documented occurrences of impacts to sage-grouse from them.
There are no nuclear power plants within the area of current distribution of the greater sage-grouse and there is only one that occurs in range formerly occupied by the species (Nuclear Energy Institute Web page
Indirect effects of contaminants on greater sage-grouse include loss of habitat components, such as food or cover. The indirect effects of contaminants from agriculture, mining operations, energy development and distribution, or hazardous waste spills along roads and railroad lines, can result in the killing of plants or insects that provide food for sage-grouse. Although the expert panel identified contaminants in the list of extinction risk factors for sage-grouse, it received the lowest ranking of relative importance.
Studies have determined that non-consumptive recreational activities can degrade wildlife resources, water, and the land by distributing refuse, disturbing and displacing wildlife, increasing animal mortality, and simplifying plant communities (Boyle and Samson 1985). Sage-grouse response to disturbance may be influenced by the type of activity, recreationist behavior, predictability of activity, frequency and magnitude, activity timing, and activity location (Knight and Cole 1995). Examples of recreational activities in sage-grouse habitats include hiking, camping, pets, and off-highway vehicle (OHV) use. Although we have not located any published literature concerning recreational effects on sage-grouse, they could disturb sage-grouse on leks and in nesting areas. Baydack and Hein (1987) reported displacement of male sharp-tailed grouse at leks from human presence resulting in loss of reproductive opportunity during the disturbance period. Female sharp-tailed grouse were observed at undisturbed leks while absent from disturbed leks during the same time period (Baydack and Hein 1987). Disturbance of incubating female sage-grouse could cause displacement from nests, increased predator risk, or loss of nests. Disruption of sage-grouse during vulnerable periods at leks, or during nesting or early brood rearing, however, could affect reproduction or survival (Baydack and Hein 1987). However, we were unable to find any published information regarding effects to sage-grouse as a result of these factors. The presence of pets in proximity to sage-grouse can result in sage-grouse mortality or disturbance, and increases in garbage from human recreators can attract sage-grouse predators and help maintain their numbers at increased levels.
Indirect effects to sage-grouse from recreational activities include impacts to vegetation and soils, and facilitating the spread of invasive species. Payne
We are unaware of scientific reports documenting direct mortality of greater sage-grouse through collision with off-road vehicles. Similarly, we did not locate any scientific information documenting instances where snow compaction as a result of snowmobile use precluded greater sage-grouse use, or affected their survival in wintering areas. Off-road vehicle or snowmobile use in winter areas may increase stress on birds and displace sage-grouse to less optimal habitats. However, there is no empirical evidence available documenting these effects on sage-grouse, nor could we find any scientific data supporting the possibility that stress from vehicles during winter is limiting greater sage-grouse populations.
The expert panel identified human activities within greater sage-grouse habitats as an extinction risk factor. However, this factor ranked relatively low.
Drought is a common occurrence throughout the range of the greater sage-grouse (Braun 1998). Drought reduces vegetation cover (Milton
Sage-grouse populations declined during the 1930s period of drought (Patterson 1952; Willis
Short-term climatic cycles over timescales of decades can affect plant community dynamics, potentially resulting in a shift in successional stage (Connelly
One expert panelist identified climate change as the primary extinction risk factor for the greater sage-grouse. While the other panelists did not score this factor as highly, most acknowledged that long-term ongoing climate change will result in changes within the sagebrush ecosystem that may be negative for the greater sage-grouse.
Sage-grouse have comparatively low reproductive rates and high annual survival (Schroeder
Sage-grouse have one of the most polygamous mating systems observed among birds (Deibert 1995). Asymmetrical mate selection (where only a few of the available members of one sex are selected as mates) should result in reduced effective population sizes (Deibert 1995), meaning the actual amount of genetic material contributed to the next generation is smaller than predicted by the number of individuals present in the population. With only 10 to 15 percent of sage-grouse males breeding each year (Aldridge and Brigham 2003), the genetic diversity of sage-grouse would be predicted to be low. However, in a recent survey of 16 greater sage-grouse populations, only the Columbia Basin population in Washington showed low genetic diversity, likely as a result of long-term population declines, habitat fragmentation, and population isolation (Benedict
Aldridge and Brigham (2003) estimated that up to 5,000 individual sage-grouse may be necessary to maintain an effective population size of 500 birds. Their estimate was based on individual male breeding success, variation in reproductive success of males that do breed, and the death rate of juvenile birds. We were unable to find any other published estimates of minimal population sizes necessary to maintain genetic diversity and long-term population sustainability in sage-grouse.
In our 90-day petition finding, we identified several other natural or manmade factors (
One expert panelist identified climate change, and resultant habitat changes from invasive species establishment, as the most significant threat factor for the sagebrush ecosystem. However, the imminent threats to this ecosystem were not thought to be sufficient to endanger or threaten the greater sage-grouse within the defined foreseeable future. Thus, based on the best scientific and commercial data available, including input from the expert panel, we have concluded that other natural and manmade factors do not endanger or threaten the sage-grouse throughout all or a significant portion of its range.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species. We reviewed the three petitions, information available in our files, other published and unpublished information, and comments submitted to us during the public comment period following our 90-day petition finding, and we consulted with recognized experts and other resource agencies. On the basis of the best scientific and commercial information available, we find that the petitioned action to list the greater sage-grouse is not warranted at this time. Although sagebrush habitat continues to be lost and degraded in parts of the greater sage-grouse's range (albeit at a lower rate than historically observed), from what we know of the current range and distribution of the sage-grouse, its numbers are well represented. As a result, we find that the species is not in danger of extinction, nor is it likely to become endangered in the foreseeable future. We are encouraged that sage-grouse and sagebrush conservation efforts will moderate the rate and extent of habitat loss for the species in the future. We strongly encourage the continuation of these efforts.
As described earlier in this document (
Prior to estimating the risk of extinction in the risk analysis stage, the expert panel agreed on the 19 most important threats to sage-grouse across its range. To better understand the impact of these threats to the survival of the species, each expert assigned a relative rank to each threat within each of three different geographical distinctions. These included the eastern and western portion of the range of the greater sage-grouse and the whole range of the species (Figure 1). Dividing the range of the species into an eastern and western region for the purposes of the expert panel exercises was intentional to help Service biologists and managers and the expert panelists understand the importance of the various threats to the species at different geographical scales. The relative rankings of the identified threats reflect that some threats are regional in nature while others express themselves across the whole range of the species. Threats that ranked low on a regional and rangewide basis were considered to operate at the local or site-specific level where they occurred.
In reaching these rankings the expert panelists reviewed an initial list of threats that was generated from the synthesis of biological information the Service had prepared, and through a discussion among the panelists held in front of the Service's decision support team, added to that list and modified it before agreeing to a list of the most important threats. Ranking of the relative importance of those threats occurred in two stages. First, each panelist was asked to anonymously rank the 19 threats from most to least significant. After an initial scoring by the experts occurred, the ranks were presented to the expert panel by a facilitator in front of the decision support team and the experts discussed
The threat ranking component of the structured process was important for three reasons: (1) It provided an informed, science based, ranking of the threats to the species, (2) the discussions that occurred in formulating the threat list and the discussions among the experts after their initial scoring played a critical role in helping the Service's decision support team understand the magnitude of a threat and the geographical scale at which a threat operated, and (3) it provided via the threat ranking and the discussion among experts, the foundation for the expert panel to conduct an extinction risk analysis.
The highest ranking threats exert their influence primarily through habitat loss. Thus, our structured analysis process revealed that at this time habitat loss appears to be the most important threat to the greater sage-grouse, a conclusion consistent with the available biological information and our 90-day finding.
It is clear there are various threats to the sagebrush steppe ecosystems upon which the greater sage-grouse depends. However, we are aware of no quantitative projections of extinction risk for the greater sage-grouse in the face of these rangewide, regional and local threats. This information gap is important because the Act's definitions of threatened and endangered are closely tied to risk of extinction. We therefore elicited quantitative estimates of time to extinction from the expert panelists. Besides their own expertise, the panelists prepared for estimating future risk by reading a wide variety of background materials, and they participated in two days of discussions of relevant sage-grouse life history attributes, threats (summarized above), the land ownerships and allocations, the regulatory setting and management challenges currently existing across the landscape, the size and distribution of the major sage-grouse population centers, and state by state indices of population status. After these deliberations, the expert panelists were asked to quantitatively express their beliefs about when the greater sage-grouse might go extinct.
Panelists expressed their beliefs about most likely time to extinction on score sheets where the future was broken down into the following time intervals: 1-20, 21-40, 41-60, 61-80, 81-100, 101-200 and more than 200 years. Panelists expressed biological uncertainty about the most likely time to extinction by spreading 100 points over the various time intervals. The experts were not uniform in their estimates of the most likely time to extinction although five of the seven panelists believed that the sage-grouse would not face extinction for at least 100 years. One panelist, for example, believed the most likely time to extinction is in the time period 61 to 80 years from present, one believed the most likely time is 81 to 100 years from present, 2 panelists believed the most likely time to extinction is in the period 101 to 200 years from present, 1 panelist split points equally between the 101 to 200 year and 200+ year categories, and 2 panelists believed the most likely time to extinction was in the 200+ year category. Most of the panelists, for example spread points over several time intervals, from a period less than 100 years in the future to the greater than 200 years category, expressing individual uncertainty about the most likely time to extinction. On one count the experts performed very uniformly; no points were allocated by any panelist for the two time intervals within 40 years of present.
In their deliberations about the most likely time to extinction, the experts engaged in wide-ranging discussions of future risk which included West Nile virus, management advances in addressing threats, the expectation that there will still be some vast areas of sagebrush habitat at least 100 years in the future, looking into the past to help predict the future, the difficulty of controlling invasive annual plants, the major native perennial grass communities and their resiliency in the eastern versus the western part of the range, the role and geographic extent of infrastructure development, role of population subdivision for population vulnerability, plant community oscillations, climate oscillations, limited role of predators, and the elusiveness of cause-effect relationships for sage-grouse population trends, especially the increases seen in the most recent sampling (1993 to 2003).
After the extinction risk estimate exercise was completed the experts were asked to describe data gaps that, if resolved, could reduce uncertainty in their scores or even change their estimates. This question generated a wide-ranging discussion of uncertainty and data gaps. In some cases research programs were proposed. Areas of uncertainty discussed by the experts included: systematic relationships among various grouse species; underlying mechanisms by which sage-grouse populations respond to habitat changes; how to scale grouse habitat preference up to the level at which federal land is managed; lack of studies across the range limits inferences; effects of invasive plants; application of grazing techniques to favor sagebrush habitat; underutilization of the case study approach for sage-grouse management; future gas and oil development impacts; future advances in horticulture and fire suppression; the role of crested wheatgrass in sagebrush management; and the effectiveness of CRP program. No attempt was made to rank the effects of these and other areas of uncertainty on the estimates of future risk.
This list of data gaps and uncertainties helps explain some of the biological uncertainty that limits our understanding of future risk to the greater sage-grouse. The Service, however, must make its decision about whether this species qualifies as threatened or endangered under the Act based on the best available scientific and commercial data, even if there is uncertainty. To help increase the chances of making an optimal decision about whether or not to list, the decision support team of senior Service biologists and managers (described above—
The basic question facing the decision support team was whether the factors influencing the greater sage-grouse and its habitat place it in danger of extinction or whether they are likely to
The Service decision support team discussed the extinction risk threshold concept generally, and discussed previous Service applications. With regard to the foreseeable future, team members agreed by consensus that given all of the uncertainties, a reasonable timeframe for “foreseeable future” for the threatened definition is approximately 30 to 100 years (about 10 greater sage-grouse generations to 2 sagebrush habitat regeneration cycles). The decision support team reflected on the “significant portion of the range” term, and discussed previous applications by the Service. The team reviewed the findings of the risk analysis phase and found that while different threats are asserting themselves at different rates in different parts of the range, it is difficult to find major variation in risk over significant portions of the range. Discussions by the expert panel in the risk analysis phase indicated that if the species continues to decline, the most likely scenario would include some combination of losses around the edges of some portions of the range, some localized losses and fragmentation of larger core areas, but these projected losses are geographically unknown at this time and difficult to predict. Thus, in the absence of major geographical variation in projected extinction risk, or any measure of the spatial extent or location of projected future losses, it was decided by consensus that there was not a significant portion of the range in which threats to sage-grouse are greater than range-wide threats.
To help further inform the Service's finding, the decision support team's final exercise assessed their beliefs about what the appropriate petition finding should be: not-warranted, threatened, or endangered. The team had read the compiled background materials, observed the two-day risk assessment discussions of the expert panelists, which included explicit measures of uncertainty, and participated in general and specific discussions about the application of the Act's definitions of the threatened and endangered categories.
None of the decision support team assigned any of their 100 points to the endangered category; however, all decision support team members placed some of their points in the threatened category. The average number of points assigned to the not-warranted and threatened categories were, respectively, 74 (range 50-85) and 26 (range 15-50). The fact that all decision support team members placed some of their points in the threatened category reflects a degree of biological uncertainty associated with making scientific decisions. Nevertheless, the “not warranted” finding was based on the best scientific and commercial information available at the time of their recommendation.
The best available scientific and commercial information, as summarized within this finding and in the Conservation Assessment of Greater Sage-Grouse and Sagebrush Habitats prepared by WAFWA, clearly reflect that there are a myriad of changes occurring within the sagebrush ecosystem that can impact sage-grouse. Our structured analysis process not only confirmed that many of these changes are indeed threats to the sage-grouse but it clarified the relative importance of these threats at different geographical scales which is an important factor when making a listing determination of such a widely dispersed species. The results reflect the opinion of the expert panelists that some threats are clearly important across the range of the sage-grouse while others are important on a regional scale.
In determining that the greater sage-grouse does not warrant protection under the Act, the Service biologists and managers who participated in the structured analysis process acknowledged that there are real threats to the sage-grouse and its habitat. However, in formulating their recommendation, these biologists and managers noted that there is uncertainty in how these threats will impact the grouse in the future and that there were reasons to be encouraged by current assessments of grouse population status, trends and distribution.
The higher ranking threats, while rangewide and regional in scale, are to a large degree prospective in nature (
It is clear that the number of greater sage-grouse rangewide has declined from historically high levels, with well documented declines between 1960 and 1985. However, the most recent data reflect that overall declines have slowed, stabilized or populations have increased. These data and the fact that 92% of the known active leks occur in 10 core populations across 8 western states, and that 5 of these populations “were so large and expansive that they were subdivided into 24 subpopulations to facilitate analysis” (Connelly
Although the decision support team referenced the prospective nature of the higher ranking threats in reaching their recommendation, they also acknowledged and considered the fact that these threats were currently occurring at some level across the range of the sage-grouse or in smaller regions within the range. However, because of the relatively long projected risk of extinction, in many cases greater than 200 years, which was minimally 100 years beyond the foreseeable future the Service considered in this case, combined with considering the variety of sources of information generated for and during the risk analysis phase, including the expert panel deliberations and the Conservation Assessment from WAFWA, the decision support team found that the levels of these existing threats, although very real, when considered against the status, trends and distribution of the current population, were not sufficient to result in the greater sage-grouse becoming an endangered species in the next 40 to 100 years.
Other factors cited by the managers as most important for their beliefs about the appropriate listing category included, the large size of the current range, the slow pace with which some of the threat factors are exerting themselves, synergistic effects between threats, large blocks of existing sagebrush habitat, expected range contractions, relative stability of core population areas, expected increases in
Factors contributing most to uncertainty among the decision support team members included the prospective nature of some of the threats, uncertainty about how pending threats will be managed, and uncertainty about how and if leks can persist in the presence of disturbances.
Since the publication of our 90-day finding we have compiled additional materials and information on the greater sage grouse. We believe we have a fairly complete compilation of the existing relevant information and much of it is summarized above. We also convened a panel of experts and conducted a structured analysis of risk. A decision support team of Service biologists and managers read selected background materials and observed the deliberations of the expert panel. To further inform the Service's final petition response, the decision support team participated in a structured analysis of the optimal listing category where they assessed whether the greater sage grouse qualifies as threatened or endangered. After considering the compiled information, the risk assessment, the applicable conservation actions, and the assessment of the decision support team, we find that the petitioned actions are not warranted at this time.
We will continue to monitor the status of the greater sage-grouse and sagebrush ecosystems, and to accept additional information and comments from all governmental agencies, the scientific community, industry, or any other interested party concerning this finding.
A complete list of references used in the preparation of this finding is available upon request from the Wyoming Field Office (see
The primary author of this document is Wyoming Field Office, U.S. Fish and Wildlife Service, Cheyenne, Wyoming (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of Personnel Management.
Notice.
This gives a consolidated notice of all positions excepted under Schedules A, B, and C as of June 30, 2004, as required by Civil Service Rule VI, Exceptions from the Competitive Service.
Contact Quasette Crowner, (202) 606-1579.
Civil Service Rule VI (5 CFR 6.1) requires the Office of Personnel Management (OPM) to publish notice of all exceptions granted under Schedules A, B, and C. Title 5, Code of Federal Regulations, § 213.103(c), further requires that a consolidated listing, current as of June 30 of each year, be published annually as a notice in the
The following exceptions were current on June 30, 2004:
(a) Positions of Chaplain and Chaplain's Assistant.
(b) (Reserved).
(c) Positions to which appointments are made by the President without confirmation by the Senate.
(d) Attorneys.
(e) Law clerk trainee positions. Appointments under this paragraph shall be confined to graduates of recognized law schools or persons having equivalent experience and shall be for periods not to exceed 14 months pending admission to the bar. No person shall be given more than one appointment under this paragraph. However, an appointment that was initially made for less than 14 months may be extended for not to exceed 14 months in total duration.
(f) (Reserved).
(g) (Reserved).
(h) Positions in Federal mental institutions when filled by persons who have been patients of such institutions and have been discharged and are certified by an appropriate medical authority thereof as recovered sufficiently to be regularly employed but it is believed desirable and in the interest of the persons and the institution that they be employed at the institution.
(i) Temporary and less-than-full time positions for which examining is impracticable. These are:
(1) Positions in remote/isolated locations where examination is impracticable. A remote/isolated location is outside of the local commuting area of a population center from which an employee can reasonably be expected to travel on short notice under adverse weather and/or road conditions which are normal for the area. For this purpose, a population center is a town with housing, schools, health care, stores and other businesses in which the servicing examining office can schedule tests and/or reasonably expect to attract applicants. An individual appointed under this authority may not be employed in the same agency under a combination of this and any other appointment to positions involving related duties and requiring the same qualifications for more than 1,040 working hours in a service year. Temporary appointments under this authority may be extended in 1-year increments, with no limit on the number of such extensions, as an exception to the service limits in § 213.104.
(2) Positions for which a critical hiring needs exists. This includes both short-term positions and continuing positions that an agency must fill on an interim basis pending completion of competitive examining, clearances, or other procedures required for a longer appointment. Appointments under this authority may not exceed 30 days and may be extended up to an additional 30 days if continued employment is essential to the agency's operations. The appointments may not be used to extend the service limit of any other appointing authority. An agency may not employ the same individual under this authority for more than 60 days in any 12-month period.
(3) Other positions for which OPM determines that examining is impracticable.
(j) Positions filled by current or former Federal employees eligible for placement under special statutory provisions. Appointments under this authority are subject to the following conditions:
(1)
(ii) Executive branch employees (other than employees of intelligence agencies) who are entitled to placement under § 353.110, but who are not eligible for reinstatement or noncompetitive appointment under the provisions of part 315 of this chapter.
(iii) Legislative and judicial branch employees and employees of the intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are entitled to placement assistance under § 353.110.
(2)
(3)
(4)
(ii) Individuals who are eligible for placement under § 353.110 based on a time-limited appointment will be given appointments for a time period equal to the unexpired portion of their previous appointment.
(k) Positions without compensation provided appointments thereto meet the requirements of applicable laws relating to compensation.
(l) Positions requiring the temporary or intermittent employment of
(m) (Reserved).
(n) Any local physician, surgeon, or dentist employed under contract or on a part-time or fee basis.
(o) Positions of a scientific, professional or analytical nature when filled by bona fide members of the faculty of an accredited college or university who have special qualifications for the positions to which appointed. Employment under this provision shall not exceed 130 working days a year.
(p)-(q) (Reserved).
(r) Positions established in support of fellowship and similar programs that are filled from limited applicant pools and operate under specific criteria developed by the employing agency and/or a non-Federal organization. These programs may include: internship or fellowship programs that provide developmental or professional experiences to individuals who have completed their formal education; training and associate ship programs designed to increase the pool of qualified candidates in a particular occupational specialty; professional/industry exchange programs that provide for a cross-fertilization between the agency and the private sector to foster mutual understanding, an exchange of ideas, or to bring experienced practitioners to the agency; residency programs through which participants gain experience in a Federal clinical environment; and programs that require a period of Government service in exchange for educational, financial or other assistance. Appointment under this authority may not exceed 4 years.
(s) Positions with compensation fixed under 5 U.S.C. 5351-5356 when filled by student-employees assigned or attached to Government hospitals, clinics or medical or dental laboratories. Employment under this authority may not exceed 4 years.
(t) Positions when filled by mentally retarded persons who have been certified by state vocational rehabilitation agencies as likely to succeed. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing instruction issued by the Office.
(u) Positions when filled by severely physically handicapped persons who: (1) under a temporary appointment have demonstrated their ability to perform the duties satisfactorily; or (2) have been certified by counselors of State vocational rehabilitation agencies or the Veterans Administration as likely to succeed in the performance of the duties. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive status under the provisions of Executive Order 12125 and implementing regulations issued by OPM.
(v)-(w) (Reserved).
(x) Positions for which a local recruiting shortage exists when filled by inmates of Federal, District of Columbia, and State (including the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands) penal and correctional institutions under work-release programs authorized by the Prisoner Rehabilitation Act of 1965, the District of Columbia Work Release Act, or under work-release programs authorized by the States. Initial appointments under this authority may not exceed 1 year. An initial appointment may be extended for one or more periods not to exceed 1 additional year each upon a finding that the inmate is still in a work-release status and that a local recruiting shortage still exists. No person may serve under this authority longer than 1 year beyond the date of that person's release from custody.
(y) (Reserved).
(z) Not to exceed 30 positions of assistants to top-level Federal officials when filled by persons designated by the President as White House Fellows.
(aa) Scientific and professional research associate positions at GS-11 and above when filled on a temporary basis by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and their agencies. Appointments are limited to persons referred by the National Research Council under its post-doctoral research associate program, may not exceed 2 years, and are subject to satisfactory outcome of evaluation of the associate's research during the first year.
(bb) Positions when filled by aliens in the absence of qualified citizens. Appointments under this authority are subject to prior approval of OPM except when the authority is specifically included in a delegated examining agreement with OPM.
(cc)-(ee) (Reserved).
(ff) Not to exceed 25 positions when filled in accordance with an agreement between OPM and the Department of Justice by persons in programs administered by the Attorney General of the United States under Public Law 91-452 and related statutes. A person appointed under this authority may continue to be employed under it after he/she ceases to be in a qualifying program only as long as he/she remains in the same agency without a break in service.
(gg) Positions when filled by persons with psychiatric disabilities who have demonstrated their ability to perform satisfactorily under a temporary appointment [such as one authorized in 213.3102(i)(3)] or who are certified as likely to be able to perform the essential functions of the job, with or without reasonable accommodation, by a State vocational rehabilitation counselor, a U.S. Department of Veterans Affairs Veterans Benefits Administration or Veterans Health Administration psychologist, vocational rehabilitation counselor, or psychiatrist. Upon completion of 2 years of satisfactory service under this authority, the employee can be converted, at the discretion of the agency, to competitive status under the provisions of Executive Order 12125 as amended by Executive Order 13124.
(hh) (Reserved).
(ii) Positions of Presidential Intern, GS-9 and 11, in the Presidential Management Intern Program. Initial appointments must be made at the GS-9 level. No one may serve under this authority for more than 2 years, unless extended with OPM approval for up to 1 additional year. Upon completion of 2 years of satisfactory service under this authority, the employee may qualify for conversion to competitive appointment under the provisions of Executive Order 12364, in accordance with requirements published in the Federal Personnel Manual.
(jj-kk) (Reserved).
(ll) Positions as needed of readers for blind employees, interpreters for deaf employees and personal assistants for handicapped employees, filled on a full-time, part-time, or intermittent basis.
(a)
(b)
(c)
(d)-(f) (Reserved).
(g)
(h)
(i)
(a)
(2) One position of Museum Curator (Arts), in the Office of the Under Secretary for Management, whose incumbent will serve as Director, Diplomatic Reception Rooms. No new appointments may be made after February 28, 1997.
(b)
(c)-(f) (Reserved).
(g)
(h)
(2) One position of the Director, Art in Embassies Program, GM-1001-15.
(3) Up to 250 time-limited positions within the Department of State in support of the June 2004 Economic Summit of Industrial Nations. No new appointments may be made under this authority after June 30 2004.
(a)
(2) Not to exceed 20 positions, which will supplement permanent staff involved in the study and analysis of complex problems in the area of domestic economic and financial policy. Employment under this authority may not exceed 4 years.
(3) Not to exceed 50 positions in the Office of the Under Secretary (Enforcement).
(b)
(2)-(8) (Reserved).
(9) Not to exceed 25 positions of Customs Patrol Officers in the Papago Indian Agency in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(d)
(e)
(f) (Reserved).
(g)
(2) One non-permanent Senior Level (SL) Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson).
(a)
(6) One Executive Secretary, US-USSR Standing Consultative Commission and Staff Analyst (SALT), Office of the Assistant Secretary of Defense (International Security Affairs).
(b)
(2) Positions in attaché 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3) Positions of clerk-translator, translator, and interpreter overseas.
(4) Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5) Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense, when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6) Positions in overseas installations of the Department of Defense when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than 2 months following the transfer from the area or separation of a dependent's sponsor: Provided, that (i) a school employee may be permitted to complete the school year; and (ii) an employee other than a school employee may be permitted to serve up to 1 additional year when the military department concerned finds that the additional employment is in the interest of management.
(7) Twenty secretarial and staff support positions at GS-12 or below on the White House Support Group.
(8) Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9) Positions engaged in the reconstruction of Iraq for hiring non-U.S. citizens when there is a severe shortage of candidates with U.S. citizenship. This authority is limited to appointments made on or before July 1, 2004, and is subject to any restrictions set forth in the Department of Defense FY 2002 Appropriations Act.
(c) (Reserved).
(d)
(2) Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical or technical sciences to intelligence work; and professional as well as intelligence technician positions in which a majority of the incumbent's time is spent in advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information or in the planning, programming, and management of intelligence resources.
(e)
(2) Positions established to perform work on projects funded from grants.
(f)
(g)
(h)
(i)
(j)
(a)-(c) (Reserved).
(d)
(e)-(f) (Reserved).
(g)
(h) Army War College, Carlisle Barracks, PA. (1) Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i) (Reserved).
(j)
(k)
(a)
(15) Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16) All positions necessary for the administration and maintenance of the official residence of the Vice President.
(b)
(c)
(d)
(e)
(f) (Reserved).
(g)
(a)
(b)
(2) One hundred forty positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(c) Not to exceed 20 professional positions, GS-11 through GS-15, in Detachments 6 and 51, SM-ALC, Norton and McClellan Air Force Bases,
(d)
(2) Positions of Professor, Associate Professor, Assistant Professor, and Instructor, in the Dean of Faculty, Commandant of Cadets, Director of Athletics, and Preparatory School of the United States Air Force Academy.
(e) (Reserved).
(f)
(g) Not to exceed eight positions, GS-12 through 15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special Activities, Wright-Patterson Air Force Base, Ohio, which will provide logistic support management staff guidance to classified research and development projects.
(h) Air University, Maxwell Air Force Base, Alabama. (1) Positions of Professor, Instructor, or Lecturer.
(i)
(j)
(k) One position of Supervisory Logistics Management Specialist, GS-346-15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(l) One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland.
(a)
(2) Positions at GS-15 and below on the staff of an office of a special counsel. (3)-(5) (Reserved).
(6) Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed 2 years, but may be extended in one-year increments for the duration of the in-country program.
(b)
(2) Not to exceed 500 positions of interpreters and language specialists, GS-1040-5/9.
(3) Not to exceed 25 positions, GS-15 and below, with proficiency in speaking, reading, and writing the Russian language and serving in the Soviet Refugee Processing Program with permanent duty location in Moscow, Russia.
(c)
(2) Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS-132 series, grades GS-9 through GS-15.
(3) Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS-7/11.
(d)
(a) Up to 50 positions at the GS-5 through 15 grade levels at the Department of Homeland Security. No new appointments may be made under this authority after September 30, 2005.
(b) Ten positions for over site policy and direction of sensitive law enforcement activities.
(a)
(2) All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3) Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4) Temporary, intermittent, or seasonal field assistants at GS-7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5) Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6) Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7) All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8) Temporary, intermittent, or seasonal positions at GS-7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9) Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10) Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11) Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the Interior. Employment under this authority shall not exceed 11 weeks a year except with prior approval of OPM.
(12) Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(b) (Reserved).
(c)
(d) (Reserved).
(e)
(2) Not to exceed four positions of Territorial Management Interns, grades
(3) (Reserved).
(4) Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(f)
(2) Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95-565.
(3) Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95-250.
(4) One Special Representative of the Director.
(5) All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(g)
(h)
(a)
(2)-(4) (Reserved).
(5) Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS-7 and WG-10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph may not exceed 180 working days in a service year:
(6)-(7) (Reserved).
(b)-(c) (Reserved).
(d)
(2) Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent (WAE) positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for 1 year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(e)
(2) County committeemen to consider, recommend, and advise with respect to the Rural Development program.
(3)-(5) (Reserved).
(6) Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(f)
(2) Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-11 and below in the cotton, raisin, and processed fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS-5 and below; Clerk-Typists at grades GS-4 and below; and, under the Federal Wage System, High Volume Instrumentation (HVI) Operators and HVI Operator Leaders at WG/WL-2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG-10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS-5, may be employed as trainees for the first appointment for an initial period of 6 months for training without regard to the service year limitation.
(3) Milk Market Administrators.
(4) All positions on the staffs of the Milk Market Administrators.
(g)-(k) (Reserved).
(l)
(3) Positions of meat and poultry inspectors (veterinarians at GS-11 and below and non-veterinarians at appropriate grades below GS-11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(m)
(n)
(a)
(3) Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing.
(b)-(c) (Reserved).
(d)
(2) Current Program Interviewers employed in the field service.
(e)-(h) (Reserved).
(i)
(2) (Reserved).
(3) Not to exceed 15 positions in grades GS-12 through GS-15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period of not to exceed 2 years and may, with prior approval of OPM, be extended for an additional period of 2 years.
(j)
(3) All civilian positions on vessels operated by the National Ocean Service.
(4) Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed 8 months in any 1 calendar year.
(k) (Reserved).
(l)
(a)
(2) Chairman and eight members, Benefits Review Board.
(b)-(c) (Reserved).
(d)
(a)
(b)
(2) Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3) (Reserved).
(4) Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(5)-(6) (Reserved).
(7) Not to exceed 50 positions associated with health screening programs for refugees.
(8) All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9) (Reserved).
(10) Health care positions of the National Health Service Corps for employment of any one individual not to exceed 4 years of service in health manpower shortage areas.
(11)-(14) (Reserved).
(15) Not to exceed 200 staff positions, GS-15 and below, in the Immigration Health Service, for an emergency staff to provide health related services to foreign entrants.
(c)-(e) (Reserved).
(f)
(a) Positions concerned with problems in education financed and participated in by the Department of Education and a cooperating State educational agency, or university or college, in which there is joint responsibility for selection and supervision of employees, and at least one-half of the expense is contributed by the cooperating agency in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work.
(a) All positions.
(a)
(b) Not to exceed 400 positions of rehabilitation counselors, GS-3 through GS-11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(c)
(2) Positions, GS-15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(d) Not to exceed 600 positions at grades GS-3 through GS-11, involved in
(a)
(a) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in the area under the Small Business Act, as amended. Service under this authority may not exceed 4 years, and no more than 2 years may be spent on a single disaster. Exception to this time limit may only be made with prior Office approval. Appointments under this authority may not be used to extend the 2-year service limit contained in paragraph (b) below. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(b) When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in that area under the Small Business Act, as amended. No one may serve under this authority for more than an aggregate of 2 years without a break in service of at least 6 months. Persons who have had more than 2 years of service under paragraph (a) of this section must have a break in service of at least 8 months following such service before appointment under this authority. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(a)-(b) (Reserved).
(c) Temporary positions located at closed banks or savings and loan institutions that are concerned with liquidating the assets of the institutions, liquidating loans to the institutions, or paying the depositors of closed insured institutions. New appointments may be made under this authority only during the 60 days immediately following the institution's closing date. Such appointments may not exceed 1 year, but may be extended for not to exceed 1 additional year.
(a) (Reserved).
(b) Positions when filled by member-residents of the Home.
(a) State Directors.
(a) One hundred and fifty alien scientists having special qualifications in the fields of aeronautical and space research where such employment is deemed by the Administrator of the National Aeronautics and Space Administration to be necessary in the public interest.
(a) Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(b) Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(c) Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts).
(a) Up to 7 positions established in the President's Crime Prevention Council office created by the Violent Crime Control and Law Enforcement Act of 1994. No new appointments may be made under this authority after March 31, 1998.
(a) (Reserved).
(b) Seven positions of either Chemical Incident Investigators or Chemical Safety Recommendation Specialists, in the Office of Investigations and Safety Programs. No new appointments may be made under this authority after October 15, 2002, or until the seventh person (who was given an offer of employment on September 13, 2002, and is waiting a physical examination clearance) is appointed, whichever is later.
(a) All positions, except for the Director, established to create the Court Services and Offender Supervision Agency of the District of Columbia. No new appointments may be made under this authority after March 31, 2004.
(a) (Reserved).
(b) All positions located in Panama which are part of or which support the Smithsonian Tropical Research Institute.
(c) Positions at GS-15 and below in the National Museum of the American Indian requiring knowledge of, and experience in, tribal customs and culture. Such positions comprise approximately 10 percent of the Museum's positions and, generally, do not include secretarial, clerical, administrative, or program support positions.
(a) One Asian Studies Program Administrator, one International Security Studies Program Administrator, one Latin American Program Administrator, one Russian Studies Program Administrator, one West European Program Administrator, one Environmental Change & Security Studies Program Administrator, one United States Studies Program Administrator, two Social Science Program Administrators, and one Middle East Studies Program Administrator.
(a) All positions in the Fund and positions created for the purpose of establishing the Fund's operations in accordance with the Community Development Banking and Financial Institutions Act of 1994, except for any positions required by the Act to be filled by competitive appointment. No new appointments may be made under this authority after September 23, 1998.
(a) Executive Director.
(a)
(a) One Enterprise Development Fund Manager. Appointment authority is limited to four years unless extended by the Office.
(a)-(c) (Reserved).
(d) Part-time and intermittent positions of test examiners at grades GS-8 and below.
(a)
(2) Lamplighters.
(3) Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the Coast Guard Academy, New London, Connecticut.
(b)-(d) (Reserved).
(e)
(3) All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration.
(4)-(5) (Reserved).
(6) U.S. Merchant Marine Academy, positions of: Professors, Instructors, and Teachers, including heads of Departments of Physical Education and Athletics, Humanities, Mathematics and Science, Maritime Law and Economics, Nautical Science, and Engineering; Coordinator of Shipboard Training; the Commandant of Midshipmen, the Assistant Commandant of Midshipmen; Director of Music; three Battalion Officers; three Regimental Affairs Officers; and one Training Administrator.
(7) U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant.
(a) Field positions at grades GS-15 and below, or equivalent, which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency. Persons may not be employed under this authority for long-term duties or for work not directly necessitated by the emergency response effort.
(b) Not to exceed 30 positions at grades GS-15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency, or for long-term duties or work not directly necessitated by the emergency response effort. No one may be reappointed under this authority for service in connection with a different emergency unless at least 6 months have elapsed since the individual's latest appointment under this authority.
(c) Not to exceed 350 professional and technical positions at grades GS-5 through GS-15, or equivalent, in Mobile Emergency Response Support Detachments (MERS).
Positions on the staffs of temporary organizations, as defined in 5 U.S.C. 3161(a). Appointments may not exceed 3 years, but temporary organizations may extend the appointments for 2 additional years if the conditions for extension are related to the completion of the study or project.
(a)
(i) High School Diploma or General Equivalency Diploma (GED);
(ii) Vocational/Technical certificate;
(iii) Associate degree;
(iv) Baccalaureate degree;
(v) Graduate degree; or
(vi) Professional degree
[The remaining text of provisions pertaining to the Student Temporary Employment Program can be found in 5 CFR 213.3202(a).]
(b)
(A) High school diploma or General Equivalency Diploma (GED);
(B) Vocational/Technical certificate;
(C) Associate degree;
(D) Baccalaureate degree;
(E) Graduate degree; or
(F) Professional degree.
(ii) Student participants in the Harry S. Truman Foundation Scholarship Program under the provision of Public Law 93-842 are eligible for appointments under the Student Career Experience Program.
[The remaining text of provisions pertaining to the Student Career Experience Program can be found in 5 CFR 213.3202(b).]
(c)-(i) (Reserved).
(j) Special executive development positions established in connection with Senior Executive Service candidate development programs which have been approved by OPM. A Federal agency may make new appointments under this authority for any period of employment not exceeding 3 years for one individual.
(k)-(l) (Reserved).
(m) Positions when filled under any of the following conditions:
(1) Appointment at grades GS-15 and above, or equivalent, in the same or a different agency without a break in service from a career appointment in the Senior Executive Service (SES) of an individual who:
(i) Has completed the SES probationary period;
(ii) Has been removed from the SES because of less than fully successful executive performance or a reduction in force; and
(iii) Is entitled to be placed in another civil service position under 5 U.S.C. 3594(b).
(2) Appointment in a different agency without a break in service of an
(3) Reassignment, promotion, or demotion within the same agency of an individual appointed under this authority.
(n) Positions when filled by preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of continuous active service and who, in accordance with 5 U.S.C. 3304(f) (Pub. L. 105-339), applied for these positions under merit promotion procedures when applications were being accepted by the agency from individuals outside its own workforce. These veterans may be promoted, demoted, or reassigned, as appropriate, to other positions within the agency but would remain employed under this excepted authority as long as there is no break in service. No new appointments may be made under this authority after November 30, 1999.
(o)
(2)
[The remaining text of provisions pertaining to the Federal Career Intern Program can be found in 5 CFR 213.3202(o).]
(a) (Reserved).
(b)
(a)-(c) (Reserved).
(d) Fourteen positions on the household staff of the President's Guest House (Blair and Blair-Lee Houses).
(e) (Reserved).
(f) Scientific, professional, and technical positions at grades GS-12 to GS-15 when filled by persons having special qualifications in foreign policy matters. Total employment under this authority may not exceed 4 years.
(a) Positions of Deputy Comptroller of the Currency, Chief National Bank Examiner, Assistant Chief National Bank Examiner, Regional Administrator of National Banks, Deputy Regional Administrator of National Banks, Assistant to the Comptroller of the Currency, National Bank Examiner, Associate National Bank Examiner, and Assistant National Bank Examiner, whose salaries are paid from assessments against national banks and other financial institutions.
(b)-(c) (Reserved).
(d) Positions concerned with the protection of the life and safety of the President and members of his immediate family, or other persons for whom similar protective services are prescribed by law, when filled in accordance with special appointment procedures approved by OPM. Service under this authority may not exceed: (1) A total of 4 years; or (2) 120 days following completion of the service required for conversion under Executive Order 11203, whichever comes first.
(e) Positions, grades GS-5 through 12, of Treasury Enforcement Agent in the Bureau of Alcohol, Tobacco, and Firearms; and Treasury Enforcement Agent, Pilot, Marine Enforcement Officer, and Aviation Enforcement Officer in the U.S. Customs Service. Service under this authority may not exceed 3 years and 120 days.
(a)
(2) Professional positions at GS-11 through GS-15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller).
(3)-(4) (Reserved).
(5) Four Net Assessment Analysts.
(b)
(2) Eight positions, GS-15 or below, in the White House Military Office, providing support for airlift operations, special events, security, and/or administrative services to the Office of the President.
(c)
(d)
(2) Acquisition positions at grades GS-5 through GS-11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(e)
(f)
(g)
(a)
(a)
(b) All civilian faculty positions of professors, instructors, and teachers on the staff of the Armed Forces Staff College, Norfolk, Virginia.
(c) One Director and four Research Psychologists at the professor or GS-15 level in the Defense Personnel Security Research and Education Center.
(d) All civilian professor positions at the Marine Corps Command and Staff College.
(e) One position of Staff Assistant, GS-301, whose incumbent will manage the Navy's Executive Dining facilities at the Pentagon.
(f) One position of Housing Management Specialist, GM-1173-14, involved with the Bachelor Quarters Management Study. No new appointments may be made under this authority after February 29, 1992.
(a) Not to exceed four interdisciplinary positions for the Air Research Institute at the Air University, Maxwell Air Force Base, Alabama, for employment to complete studies proposed by candidates and acceptable to the Air Force. Initial appointments are made not to exceed 3 years, with an option to renew or extend the appointments in increments of 1, 2, or 3 years indefinitely thereafter.
(b)-(c) (Reserved).
(d) Positions of Instructor or professional academic staff at the Air University, associated with courses of instruction of varying durations, for employment not to exceed 3 years, which may be renewed for an indefinite period thereafter.
(e) One position of Director of Development and Alumni Programs, GS-301-13, with the U.S. Air Force Academy, Colorado.
(a) Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS-5 through 11. Service under the authority may not exceed 4 years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(b) (Reserved).
(c) Not to exceed 400 positions at grades GS-5 through 15 assigned to regional task forces established to conduct special investigations to combat drug trafficking and organized crime.
(d) (Reserved).
(e) Positions, other than secretarial, GS-6 through GS-15, requiring knowledge of the bankruptcy process, on the staff of the offices of United States Trustees or the Executive Office for U.S. Trustees.
(a)
(b)
(2) Not to exceed 55 Executive Director positions, GM-301-14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative.
(a)
(2) Not to exceed 50 Community Services Specialist positions at the equivalent of GS-5 through GS-12.
(3) (Reserved).
(b)-(c) (Reserved).
(d)
(a) Chair and a maximum of four additional Members, Administrative Review Board.
(b) (Reserved).
(c)
(a) Seventy-five positions, not in excess of GS-13, of a professional or analytical nature when filled by persons, other than college faculty members or candidates working toward college degrees, who are participating in mid career development programs authorized by Federal statute or regulation, or sponsored by private nonprofit organizations, when a period of work experience is a requirement for completion of an organized study program. Employment under this authority shall not exceed 1 year.
(b) Fifty positions, GS-7 through GS-11, concerned with advising on education policies, practices, and procedures under unusual and abnormal conditions. Persons employed under this provision must be bona fide elementary school and high school teachers. Appointments under this authority may be made for a period of not to exceed 1 year, and may, with the prior approval of the Office of Personnel Management, be extended for an additional period of 1 year.
(a) Not to exceed 800 principal investigatory, scientific, professional, and technical positions at grades GS-11 and above in the medical research program.
(b) Not to exceed 25 Criminal Investigator (Undercover) positions, GS-1811, in grades 5 through 12, conducting undercover investigations in the Veterans Health Administration supervised by the VA, Office of Inspector General. Initial appointments shall be greater than 1 year, but not to exceed 4 years and may be extended indefinitely in 1-year increments.
(a) (Reserved).
(b) Director, Health Care Services; Director, Member Services; Director, Logistics; and Director, Plans and Programs.
(a) Executive Director, National Historical Publications and Records Commission.
(a) Not to exceed 40 positions of Command Pilot, Pilot, and Mission Specialist candidates at grades GS-7 through 15 in the Space Shuttle Astronaut program. Employment under this authority may not exceed 3 years.
(a) Temporary and time-limited positions in the Ticket to Work and Work Incentives Advisory Panel. No employees may be appointed after November 17, 2007.
(a) (Reserved).
(b)
(a) Two Program Coordinators.
(a)
(a) (Reserved).
(b)
(a) Not to exceed eight positions of Associate Director at the Executive Seminar Centers at grades GS-13 and GS-14. Appointments may be made for any period up to 3 years and may be extended without prior approval for any individual. Not more than half of the authorized faculty positions at any one Executive Seminar Center may be filled under this authority.
(b) Twelve positions of faculty members at grades GS-13 through 15, at the Federal Executive Institute. Initial appointments under this authority may be made for any period up to 3 years and may be extended in 1-, 2-, or 3-year increments indefinitely thereafter.
DHGS00034 Executive Assistant to the Principal Deputy Assistant Secretary for Health
5 U.S.C. 3301 and 3302; E.O.10577, 3 CFR 1954-1958 Comp., p. 18.
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
Public Law 95-105 requires that at 3-year intervals following January 1, 1981, minimal value for reporting foreign gifts be redefined by the Administrator of General Services, after consultation with the Secretary of State, to reflect changes in the Consumer Price Index for the immediately preceding 3-year period. The required consultation has been completed and the minimal value has been increased to mean $305 or less as of January 1, 2005.
The Regulatory Secretariat, Room 4035, GS Building, Washington, DC, 20405, (202) 208-7312, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Robert Holcombe, Director, Personal Property Management Policy Division at (202) 501-3828. Please cite FMR case 2004-102-8, Amendment 2005-1.
The General Services Administration (GSA) has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866.
This final rule is not required to be published in the
The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Excess government property, Government property management.
40 U.S.C. 121; 5 U.S.C. 7342.
(1) Nondiscriminatory trade treatment (normal trade relations treatment) shall be extended to the products of Armenia, which shall no longer be subject to chapter 1 of title IV of the 1974 Act.
(2) The extension of nondiscriminatory treatment to products of Armenia shall be effective as of the date of signature of this proclamation.
(3) All provisions of previous proclamations and executive orders that are inconsistent with the actions taken in this proclamation are superseded to the extent of such inconsistency.
(b) The President shall designate one member of the Advisory Panel to serve as Chair and one member to serve as Vice Chair.
(b) The Chair of the Advisory Panel shall convene and preside at the meetings of the Advisory Panel, determine its agenda after consultation with the Vice Chair, and direct its work. The Advisory Panel shall have a staff headed by an Executive Director who shall be selected by the President and report to the Chair.
(c) Members of the Advisory Panel shall serve without compensation for their work on the Advisory Panel. Members of the Advisory Panel who are not officers or employees in the executive branch, while engaged in the work of the Advisory Panel, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701 through 5707), consistent with the availability of funds.
(d) Consistent with applicable law, heads of executive departments and agencies shall provide to the Advisory Panel such assistance, including assignment or detail of personnel, and information as may be necessary for the Advisory Panel to perform its functions.
(e) The Advisory Panel may conduct meetings in appropriate locations throughout the United States to obtain information and advice from Americans of diverse backgrounds and experience and from a diverse range of
(f) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the “Act”), may apply to the Advisory Panel, any functions of the President under that Act, except for those in section 6 of that Act, shall be performed by the Secretary of the Treasury in accordance with the guidelines that have been issued by the Administrator of General Services.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.