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Federal Election Commission.
Final rules.
The Federal Election Commission is amending its rules to revise the method by which State, district and local party committees (collectively “State party committees”) may pay salaries and wages of employees who spend 25 percent or less of their compensated time in a month on Federal election activity or activity in connection with Federal elections (“Federal-related activity” or “Federal-related activities”). These final rules implement the decision of the U.S. Court of Appeals for the District of Columbia Circuit in
Effective Date: These rules are effective on January 19, 2006.
Ms. Mai T. Dinh, Assistant General Counsel, or Mr. Anthony T. Buckley, Attorney, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002) (“BCRA”), amended the Federal Election Campaign Act of 1971, as amended (the “Act”), 2 U.S.C. 431
In
On July 15, 2005, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the District Court's ruling on this regulation, but on different grounds. The Court of Appeals held that the regulations addressing the salaries and wages of covered employees survived both steps of the
Before the Court of Appeals decision, the Commission issued a Notice of Proposed Rulemaking to determine the appropriate mix of Federal and non-Federal funds that State party committees must use to pay the salaries and wages of covered employees.
After the hearing, the Commission reopened the comment period until September 29, 2005. In reopening the comment period, the Commission noted that it was doing so “to allow all interested persons to submit information or comments that may be useful in this rulemaking in light of the Court of Appeals opinion.”
Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate and publish them in the
The Court of Appeals' decision allows the Commission to attempt to justify the
Several commenters urged the Commission to retain the rules allowing State party committees to pay the salaries and wages of covered employees with 100% non-Federal funds. They argued that there is no evidence of abuse or circumvention of BCRA by dividing Federal-related activities among many employees who each devote no more than 25% of their time to Federal races. In fact, one commenter testified that wealthy donors interested in Federal elections would not give a penny if apprised that no more than 25% of their donation would be used for these purposes. This commenter also urged the Commission to retain these rules for party committees that have under seven employees because it would be difficult for such small committees to engage in the kind of evasion that concerned the District Court.
Thus, the record developed during this rulemaking, including the comments submitted by the State and local party committees or their representatives, suggests that, in general, State party committees may face practical obstacles in trying to use the rule to circumvent BCRA in the way the court feared. However, as explained below, the Commission has an alternative to the former rules that addresses the Court of Appeals' concerns about circumvention and has the virtues of familiarity, relative ease of administration, and a reasonable relationship to the State party committees' level of Federal-related activities. Consequently, the Commission is not retaining the former rules. Instead, it is amending 11 CFR 106.7 and 300.33 to require State party committees to allocate the salaries and wages of covered employees between their Federal and non-Federal accounts as administrative costs.
The NPRM presented three options for allocating the salaries and wages of covered employees. The first proposal would adopt an allocation method that would establish a fixed minimum of 25 percent that a State party committee would be required to allocate to its Federal account. The NPRM contained proposed rules only for this approach. The second proposal in the NPRM would adopt an allocation percentage directly proportional to the amount of compensated time an employee spent on Federal-related activities in a given month in relation to all compensated time in that same month. This proposal would have resulted in different ratios for different employees.
The third proposal would follow the pre-BCRA rules by treating salaries and wages of covered employees as administrative costs. This proposal would subject the salaries and wages at issue to the allocation ratios at 11 CFR 106.7(d)(2) that were developed as part of the BCRA soft money rulemaking. For the reasons stated below, the Commission is adopting this allocation method for the salaries and wages of covered employees.
The Commission is amending 11 CFR 106.7(c)(1) and adding new 11 CFR 300.33(d)(1)-(3),
Allocation ratios for administrative costs in 11 CFR 106.7(d)(2)(i) through (iv) were modified during the BCRA soft money rulemaking.
The Commission has concluded that the use of these ratios will prevent circumvention of the soft money rules, even though the ratios do not track precisely the number of hours worked by employees. In addition, State party committees already use these allocation ratios for a variety of administrative costs and they allocated their employees' salaries and wages as administrative costs prior to BCRA's effective date. Thus, their familiarity and experience with the administrative costs allocation method will ease the transition and implementation of the new rules regarding the salaries and wages of covered employees.
The Commission received comments supporting partial application of the administrative cost allocation method. These commenters favored using the administrative costs ratios in election cycles other than Presidential election cycles. They argued that it would be inappropriate to apply Presidential election cycle allocation ratios of 28% and 36% because they would apply to employees who spend no more than 25% of their compensated time in a given month on Federal-related activities. The Commission disagrees that such an application would be inappropriate.
Requiring a Federal allocation percentage that is higher than the corresponding percentage of Federal-related activity is not inconsistent with BCRA. Under 2 U.S.C. 431(20)(A)(iv), Congress mandated that a person who
Another commenter objected to requiring allocation of covered employees' salaries as administrative costs, maintaining that there is no rational relationship between the time actually spent by employees on Federal-election activities and the amount of Federal money required to be used to fund those employees. Neither FECA nor BCRA requires that the allocation ratios be precisely proportional to the amount of time spent on Federal-related activities. It is sufficient that the administrative costs allocation ratios generally reflect the overall level of State party committees' Federal activity based on the percentage of Federal candidates on the ballot.
Other commenters who opposed the administrative costs allocation method were concerned that not enough Federal funds would be used to pay employees who spend 25% of their compensated time per month on Federal-related activities during any year in which no Presidential or Senatorial candidate is on the ballot. They argued that the 15% administrative costs allocation ratio for those years would allow State party committees to pay the remaining 10% of the employees' compensated time spent on Federal-related activities with non-Federal funds. According to these commenters, this approach is inconsistent with Congress' overall scheme of requiring Federal-related activities to be paid for with Federal funds.
The Commission disagrees that using the administrative costs allocation ratios is inconsistent with Congressional intent. The average of the allocation ratios of 15%, 21%, 28% and 36% is 25%, and the weighted average based on the frequency that State party committees would use the various ratios over a number of election cycles is over 26%. Moreover, when there is a Presidential candidate on the ballot, State party committees must pay the salaries and wages of covered employees with at least 28% or 36% Federal funds, depending on whether there is a Senatorial candidate on the ballot. Because the administrative costs allocation ratios for State party committees will average at least 25% over time, the allocation ratios will achieve one of the goals of the fixed minimum 25% allocation ratio—ensuring that over time, State party committees will use sufficient Federal funds to pay for employee time that is spent on Federal-related activities—without imposing a new allocation regime on State party committees.
Furthermore, the Court of Appeals suggested its approval of this approach when it noted that “the salary rule appears particularly irrational given the FEC's recognition that costs for voter registration, get-out-the-vote drives, and generic party advertising—all matters, like salaries, that the FEA definition specifically addresses—may require allocation even when the activities ‘do not qualify’ as FEA.
In addition to the changes to 11 CFR 106.7(c)(1) and 300.33(d), corresponding changes are being made to two other regulations. Section 106.7(d)(1)(i) is being revised to state that these salaries and wages must be paid wholly from the Federal account, or allocated as administrative costs. Similarly, section 106.7(c)(5) is being amended to make clear that the salaries and wages of covered employees are not exempt from allocation but rather are subject to allocation as administrative expenses. Conforming changes are also being made to 11 CFR 100.57(b), 106.7(e)(2) and 300.36(b)(2)(ii).
An alternative in the NPRM's proposed rule text would have required State party committees either (1) to allocate at least 25% of salaries and wages of covered employees to a Federal account, or (2) to pay those salaries and wages entirely with funds from a Federal account.
Some commenters supported this proposal. They asserted that setting a fixed allocation ratio has the advantage of providing a clear and readily administered rule that would minimize the burdens of compliance on State party committees and simplify enforcement for the Commission. Other commenters supported this proposal only for election cycles when a Presidential candidate appears on the ballot. For election cycles in which there is no Presidential race, these commenters believed that it was more appropriate to use the same allocation ratio as is used for administrative costs.
In contrast, some commenters objected to this proposal in its entirety. One commenter argued that a fixed 25% allocation would introduce another step into an already complex process and required additional rules for determining how to manage payroll operations over and above what is already required for administrative expense allocation. Another commenter stated that the proposed 25% allocation sweeps too broadly and unjustifiably interferes with the type of money State and local committees may use to compensate their employees who work substantially on non-Federal issues.
Although a fixed minimum 25% allocation ratio on its face appears to be the simplest, most straightforward method for allocating salaries and wages of covered employees, it is not, given the other regulations that govern how State party committees pay for their disbursements and experience with past allocation methods. State party committees are already required to apply an allocation scheme to their administrative costs if they do not use 100% Federal funds. Moreover, before BCRA's enactment, State party committees were required to allocate their employees' salaries and wages as administrative costs if they did not use entirely Federal funds. By including the salaries and wages of covered employees as administrative costs, State party committees will use an allocation scheme with which they are familiar and have experience applying. The fixed minimum 25% allocation method would subject State party committees to an additional and different allocation ratio that would apply to only one category of their disbursements for which they would have to monitor, maintain records and report on a different form. To avoid creating yet another allocation method for State party committees to apply, the Commission is not adopting a fixed allocation ratio of 25% for salaries and wages of covered employees.
This proposal would adopt an allocation percentage for salaries and wages of covered employees directly proportional to the amount of compensated time these employees spend on Federal-related activities in a given month in relation to all compensated time in that same month. This proposal would probably have required State parties to use different percentages for different employees in a given month. The percentages would also be expected to vary for each employee from month to month.
Most commenters agreed that a direct proportionality allocation scheme would be complicated, would require additional recordkeeping that could be burdensome, and would be difficult to track, report, and enforce. The commenters who supported this method only did so to the extent that this method would be an optional method available to State party committees in lieu of another allocation method adopted by the Commission.
State party committees must maintain logs of employee time spent on Federal-related activities under current 11 CFR 106.7(d)(1). These same logs could serve as the basis for allocating these employees salaries and wages between Federal and non-Federal funds. While in most cases such a method could be expected to produce an allocation that most closely matches the proportion of employees' time spent on Federal-related activities, it suffers from a number of practical deficiencies. Under the current system, the logs only serve to distinguish covered employees from those over the 25% threshold. This division has legal consequences, while the particular percentage does not.
It would also introduce into the allocation scheme for State party committees the problems with computing complicated allocation ratios that the Commission sought to eliminate for SSFs and nonconnected committees when it amended the allocation regulations in 11 CFR 106.6.
Based on the comments and Commission experience with allocation methods, an allocation method directly proportional to the amount of time worked would be complex and likely to engender confusion, and would be unduly burdensome to State party committees. For these reasons, the Commission is not adopting this allocation method.
In the NPRM, the Commission stated that it is continuing to interpret BCRA as allowing committees to pay the salaries and wages of employees who spend no time in a given month on Federal-related activities entirely with non-Federal funds. All commenters who addressed this issue supported this interpretation. Some of these commenters recommended that the Commission incorporate this interpretation into its regulations, as some committees might otherwise interpret the Commission's regulations as requiring them to allocate such salaries and wages. Consequently, the Commission is adding new 11 CFR 106.7(d)(1)(iii), which states that, notwithstanding section 106.7(d)(1)(i), salaries and wages paid for employees who spend none of their compensated time in a given month on Federal election activities or activities in connection with a Federal election may be paid entirely with non-Federal funds.
The NPRM also sought comment on whether the methods for allocating salaries and wages should be applied to fringe benefits of employees. Specifically, the NPRM sought comment on whether the rules should be amended to permit, but not require, State party committees to use the same allocation rules for fringe benefits as are used for salaries and wages, instead of allocating fringe benefits as administrative costs. In Advisory Opinion (“AO”) 2003-11, the Commission advised a State party committee that it may pay the costs of fringe benefits for covered employees with non-Federal funds. Fringe benefits were described by the State party committee as medical, dental, and prescription drug insurance coverage; coverage for short-term disability (wage loss) and long-term disability insurance benefits; coverage for life insurance benefits; and employer matching contributions to the 401(k) retirement plan. The Commission determined in AO 2003-11 that amounts spent on fringe benefits fell into the category of compensated time, and thus concluded that the State party committee could use entirely non-Federal funds to pay for the fringe benefits under the rules for payment of salaries and wages that were in effect at that time.
Some commenters urged the Commission to give State party committees the option of treating fringe benefits as administrative costs, while other commenters urged the Commission to treat fringe benefits as compensated time.
Because the salaries and wages of covered employees are treated as administrative costs under the revised rules at 11 CFR 106.7(c)(1) and (d)(1)(i), and fringe benefits are a form of compensation, it is appropriate for State party committees to treat fringe benefits for covered employees as administrative costs. Accordingly, State party committees must now treat fringe benefits as they would salaries and wages, depending on the time spent per month on Federal-related activities: Either by paying for them entirely from the Federal account, or by allocating the costs of the fringe benefits as administrative costs. Consistent with the new rules' approach to salaries and wages, the fringe benefits of employees who spend no time in a month on Federal-related activity may be paid with funds that comply with State law. Revised 11 CFR 106.7(c)(1) and 106.7(d)(1), and new 11 CFR 300.33(d) reflect that salaries, wages, and fringe benefits are treated the same. AO 2003-11 is hereby superseded to the extent it stated that State party committees may pay for fringe benefits of covered employees entirely with non-Federal funds.
The NPRM sought comment on whether to amend 11 CFR 106.7(c)(4) to clarify that Federal funds raised through a joint fundraising activity or a joint fundraiser (collectively “joint fundraiser”) may be used for Federal election activity.
Some commenters supported amending the rule to reflect the interpretation in AO 2004-12. These commenters argued that the current regulation, strictly interpreted, would have required State party committees to pay all of their fundraising expenses with Federal dollars in order to use the Federal funds raised at a fundraiser to pay for Federal election activities. These commenters asserted that such a result was unduly burdensome for, and unfair to, State party committees. Other commenters who opposed any revision argued that the regulation “captures one of the essential elements of BCRA: to provide for clear separation between hard money and soft money for the funds to be used by state parties for Federal election activities.” They asserted that 2 U.S.C. 441i(c) mandates such a rule and interpretation.
The Commission disagrees that 2 U.S.C. 441i(c) requires this construction. The Commission interprets the statute to require only that the costs of raising Federal funds to pay for Federal election activities must be paid for with Federal funds. Allocation and the use of the funds received method accomplish this because they ensure that Federal funds are used to raise Federal funds. Indeed, with respect to the funds received method, the Commission has previously noted that it “provides the most accurate basis for division of [fundraising] costs.”
Further, interpreting 2 U.S.C. 441i(c) to mandate special fundraising rules when raising Federal funds for Federal election activity would result in an anomalous treatment of Federal funds raised at joint fundraisers. Under this interpretation, State party committees could not use Federal funds raised at a joint fundraiser to pay for Federal election activities directly, but they could transfer the Federal funds to the national party committee to pay for Federal election activities in their own states; they could also transfer Federal funds to other State party committees to pay for their Federal election activities.
Furthermore, this interpretation of 2 U.S.C. 441i(c) would create a new class of Federal funds that must be used to pay for Federal election activity. This new class of Federal funds would be subject to fundraising restrictions that would not be applicable to other Federal funds including those used to make direct contributions to Federal candidates. The Commission does not believe that Congress intended these anomalous results.
In order to avoid any confusion concerning fundraising costs, the Commission is amending 11 CFR 106.7(c)(4) to state specifically that State party committees may allocate the direct costs of joint fundraising between their Federal and non-Federal accounts according to the funds received method described in 11 CFR 106.7(d)(4). All other statements in section 106.7(c)(4) suggesting otherwise are being deleted.
Corresponding changes are being made to other Commission regulations. Section 106.7(e)(4) and the contents of section 300.33(c)(3) are being removed, because neither indicates that direct costs of fundraising may be allocated. Also, section 300.32(a)(3) is being amended to state that State party committees that raise Federal and non-Federal funds at a joint fundraiser, where the Federal funds raised are to be used for Federal election activity, must either pay the direct costs of the fundraiser entirely with Federal funds, or must allocate the costs according to the funds received method. That rule is also being revised to state explicitly that if a State party committee raises only Federal funds at a fundraising activity it must pay the entire direct costs of the fundraising activity with Federal funds. The language in amended section 300.32(a)(3) closely tracks the new language at section 106.7(c)(4).
The Commission is also amending the description in 11 CFR 106.7(c)(4) of what is included in the direct costs of fundraising to conform to the descriptions at 11 CFR 106.6(b)(1)(ii) and 300.32(a)(3). This amendment is not a substantive change; rather, the Commission seeks to avoid any potential confusion by having two different descriptions of “direct costs of fundraising” in its regulations.
A commenter urged the Commission to address three issues not discussed in the NPRM. These issues are: (1) Establishing a payroll holding account into which both Federal and non-Federal funds are deposited for the sole purpose of transmitting payroll through a payroll company; (2) permitting allocation of fundraising costs among Federal, non-Federal and Levin accounts; and (3) providing guidance on how State party committees should remedy a situation in which they make a mistake in estimating the amount of time an employee spends on Federal-related activities. The first two issues are beyond the scope of this rulemaking.
Regarding the third issue, the commenters noted that some State party committees are required to pay their salaries, wages, and fringe benefits in advance because of their vendor contracts or payroll systems. Thus, these State party committees must estimate whether particular employees will spend more or less than 25 percent of their compensated time on Federal-related activity, and that these estimates are sometimes wrong. As a result, salaries, wages, and fringe benefits for employees may sometimes be prepaid with an allocable mix of Federal and non-Federal funds (under the new rule), when they should be prepaid entirely with Federal funds. Conversely, the salaries, wages, and fringe benefits for other employees might be prepaid entirely with Federal funds when they could have been paid with an allocable mix of Federal and non-Federal funds. The commenter sought guidance on how a State party committee could remedy these situations after the fact.
Commission regulations at 11 CFR 106.7(f) govern transfers from a non-Federal to a Federal account, or from Federal and non-Federal accounts to an allocation account, to cover allocable expenses. When a State party committee uses a Federal or allocation account to prepay salaries, wages, and fringe benefits and later determines that these amounts could have been paid from a non-Federal account,
The Commission certifies that the attached final rules will not have a significant economic impact on a substantial number of small entities. The basis for this certification is that the organizations affected by these final rules are State, district, and local party committees, which are not “small entities” under 5 U.S.C. 601. These not-for-profit committees do not meet the definition of “small organization,” which requires that the enterprise be independently owned and operated and not dominant in its field. 5 U.S.C. 601(4). State party committees are not independently owned and operated because they are not financed and controlled by a small identifiable group of individuals, and they are affiliated with the larger national political party organizations. In addition, the State party committees of the Democratic and Republican parties have a major controlling influence within the political arena of their State and are thus dominant in their field. District and local party committees are generally considered affiliated with the State party committees and need not be considered separately. To the extent that any State party committees representing minor political parties might be considered “small organizations,” the number affected by these final rules is not substantial.
Campaign funds, political committees and parties, reporting and recordkeeping requirements.
Campaign funds, nonprofit organizations, political committees and parties, political candidates, reporting and recordkeeping requirements.
2 U.S.C. 431, 434, and 438(a)(8).
2 U.S.C. 438(a)(8), 441a(b), 441a(g).
Revisions and additions read as follows:
(c)
(1)
(4)
(5)
(d)
(1) * * *
(i) Except as provided in paragraph (d)(1)(iii) of this section, salaries, wages, and fringe benefits paid for employees who spend 25% or less of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election must either be paid only from the Federal account or be allocated as administrative costs under paragraph (d)(2) of this section.
(ii) Salaries, wages, and fringe benefits paid for employees who spend more than 25% of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election must be paid only from a Federal account.
(iii) Salaries, wages, and fringe benefits paid for employees who spend none of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election may be paid entirely with funds that comply with State law.
2 U.S.C. 434(e), 438(a)(8), 441a(a), 441i, 453.
(a)
(3) State, district, and local party committees that raise Federal funds through an activity where only Federal funds are raised, must pay the direct costs of such fundraising only with Federal funds. State, district, and local party committees that raise Federal funds and non-Federal funds through a joint fundraising activity under 11 CFR 106.7(d)(4) or a joint fundraiser under 11 CFR 102.17, where the Federal funds are to be used, in whole or in part, for Federal election activities, must either pay the direct costs of such fundraising only with Federal funds or allocate the direct costs in accordance with the funds received method described in 11 CFR 106.7(d)(4). The direct costs of a
Revisions and additions read as follows:
(c)
(d)
(1) Except as provided in paragraph (d)(3) of this section, salaries, wages, and fringe benefits paid for employees who spend 25% or less of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election must either be paid only from the Federal account or be allocated as administrative costs under 11 CFR 106.7(d)(2).
(2) Salaries, wages, and fringe benefits paid for employees who spend more than 25% of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election must be paid only from a Federal account.
(3) Salaries, wages, and fringe benefits paid for employees who spend none of their compensated time in a given month on Federal election activities or on activities in connection with a Federal election may be paid entirely with funds that comply with State law.
Board of Governors of the Federal Reserve System.
Final rule.
The Board of Governors of the Federal Reserve System (Board) has adopted final amendments to its Regulation A to reflect the Board's approval of an increase in the primary credit rate at each Federal Reserve Bank. The secondary credit rate at each Reserve Bank automatically increased by formula as a result of the Board's primary credit rate action.
The amendments to part 201 (Regulation A) are effective December 20, 2005. The rate changes for primary and secondary credit were effective on the dates specified in 12 CFR 201.51, as amended.
Jennifer J. Johnson, Secretary of the Board (202/452-3259); for users of Telecommunication Devices for the Deaf (TDD) only, contact 202/263-4869.
The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.
The Board approved requests by the Reserve Banks to increase by 25 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 5.00 percent to 5.25 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically increased from 5.50 percent to 5.75 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes.
The 25-basis-point increase in the primary credit rate was associated with a similar increase in the target for the Federal funds rate (from 4.00 percent to 4.25 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that:
Despite elevated energy prices and hurricane-related disruptions, the expansion in economic activity appears solid. Core inflation has stayed relatively low in recent months and longer-term inflation expectations remain contained. Nevertheless, possible increases in resource utilization as well as elevated energy prices have the potential to add to inflation pressures.
The Committee judges that some further measured policy firming is likely to be needed to keep the risks to the attainment of both sustainable economic growth and price stability roughly in balance. In any event, the Committee will respond to changes in economic prospects as needed to foster these objectives.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation.
The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d).
Banks, Banking, Federal Reserve System, Reporting and recordkeeping.
12 U.S.C. 248(i)-(j), 343
(a)
(b)
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Dassault Model Falcon 2000 airplanes. This AD requires an inspection for the presence of fail-safe pins, nuts, and washers on each engine, and replacement of the fail-safe fastener assembly with a new assembly if necessary. This AD results from a report of a missing pin of a fail-safe fastener. We are issuing this AD to prevent reduced structural integrity of an engine mount due to a missing pin of a fail-safe fastener, and possible separation of an engine from the airplane during flight.
This AD becomes effective January 24, 2006.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of January 24, 2006.
You may examine the AD docket on the Internet at
Contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606, for service information identified in this AD.
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1137; fax (425) 227-1149.
You may examine the airworthiness directive (AD) docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Dassault Model Falcon 2000 airplanes. That NPRM was published in the
We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
This AD will affect about 149 airplanes of U.S. registry. The required inspection will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the inspection required by this AD for U.S. operators is $9,685, or $65 per airplane.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective January 24, 2006.
(b) None.
(c) This AD applies to Dassault Model Falcon 2000 airplanes, certificated in any category; up to and including serial number 212, excluding serial number 208.
(d) This AD results from a report of a missing pin of a fail-safe fastener. We are issuing this AD to prevent reduced structural integrity of an engine mount due to a missing pin of a fail-safe fastener, and possible separation of an engine from the airplane during flight.
(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) Before the accumulation of 3,750 total landings, or within 2 months after the effective date of this AD, whichever occurs later: Do a detailed inspection for the presence of fail-safe pins, nuts, and washers on each engine, in accordance with the Accomplishment Instructions of Dassault Service Bulletin F2000-301, dated February 2, 2005. If any component is found missing at an attachment point, before further flight, replace the fail-safe fastener assembly with a new assembly, in accordance with the service bulletin.
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.”
(g) Inspections and replacements done in accordance with Chapter 54-003, dated December 2002, of the Dassault Falcon 2000 Maintenance Manual are acceptable for compliance with the requirements of paragraph (f) of this AD.
(h) Although the service bulletin referenced in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(i)(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) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(j) French airworthiness directive F-2005-018, dated February 2, 2005, also addresses the subject of this AD.
(k) You must use Dassault Service Bulletin F2000-301, dated February 2, 2005, to perform the actions that are required by this
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Airbus Model A300 B2 series airplanes, A300 B4-103 and B4-203 airplanes, and A310-203 airplanes. This AD requires a one-time inspection for missing or incorrect rivets in the structural area affected by conversion from passenger to freight configuration, and corrective action if necessary. This AD results from a report of rivets missing from the passenger-to-freight converted area. We are issuing this AD to prevent structural failure of the main deck and main deck cargo door areas.
This AD becomes effective January 24, 2006.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of January 24, 2006.
You may examine the AD docket on the Internet at
Contact EADS Airbus GmbH, Postfach 95 01 09, 21111 Hamburg, Germany, for service information identified in this AD.
Jon Hjelm, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, suite 410, Westbury, New York 11590; telephone (516) 228-7323; fax (516) 794-5531.
You may examine the airworthiness directive (AD) docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A300 B2 series airplanes, A300 B4-103 and B4-203 airplanes, and A310-203 airplanes. That NPRM was published in the
We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We have clarified the reference to the Airbus AOT, which was cited in the NPRM as Airbus AOT M113-02-007, dated June 21, 2002. The reference to Airbus AOT M113-02-007 parallels the citation for this AOT that was given in German airworthiness directive 2002-200, dated June 27, 2002, which also addresses the subject of this AD. However, the service bulletins that are referenced as the appropriate source of service information for accomplishing the required actions refer to this same AOT with the number BWED/101/02. Therefore, we have determined that referring to this AOT as “Airbus A300 B4, A310-200 All Operator Telex BWED/101/02 (LBA Approval, Reference M113-02-007), dated June 21, 2002,” will minimize confusion.
We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.
This AD affects about 6 airplanes of U.S. registry. The actions take about 80 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $31,200, or $5,200 per airplane.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective January 24, 2006.
(b) None.
(c) This AD applies to Airbus Model A300 B2-1A, B2-1C, B2K-3C, and B2-203 airplanes; Model A300 B4-103 and B4-203 airplanes, and Model A310-203 airplanes; certificated in any category; as identified in EADS Airbus A300 Alert Service Bulletin DA-53-073, dated June 26, 2002; and EADS Airbus A310 Alert Service Bulletin DA-53-074, dated June 27, 2002; as applicable.
(d) This AD was prompted by a report of rivets missing from the structural area affected by conversion from passenger-to-freight configuration. We are issuing this AD to prevent structural failure of the main deck and main deck cargo door areas.
(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 300 flight cycles after the effective date of this AD: Do a general visual inspection for missing or incorrect rivets in the structural area affected by conversion from passenger-to-freight configuration identified in Airbus A300 B4, A310-200 All Operator Telex Airbus BWED/101/02 (LBA Approval, Reference M113-02-007), dated June 21, 2002. Do the inspections in accordance with the Accomplishment Instructions of EADS Alert Service Bulletin DA-53-073, dated June 26, 2002; or EADS Airbus A310 Alert Service Bulletin DA-53-074, dated June 27, 2002; as applicable.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(g) If any inspection required by paragraph (f) of this AD identifies a missing or incorrect rivet: Before further flight, repair according to a method approved by either the Manager, New York Aircraft Certification Office (ACO), FAA; or the Luftfahrt-Bundesamt (LBA) (or its delegated agent).
(h) Although the service bulletins referenced in this AD specify to submit certain information to the manufacturer, this AD does not include that requirement.
(i)(1) The Manager, New York 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) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(j) German airworthiness directive 2002-200, dated June 27, 2002, also addresses the subject of this AD.
(k) You must use the service information listed in Table 1 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact EADS Airbus GmbH, Postfach 95 01 09, 21111 Hamburg, Germany, for a copy of this service information. You may review copies at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., room PL-401, Nassif Building, Washington, DC; on the Internet at
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA adopts a new airworthiness directive (AD) for all Przedsiebiorstwo Doswiadczalno-Produkcyjne Szybownictwa “PZL-Bielsko” Model SZD-50-3 “Puchacz” gliders. This AD requires you to perform a visual inspection of the turnbuckle link for cracks or wear and replace if cracks or wear is found. This action only applies to those gliders where the turnbuckle is directly connected to the pedal. This AD results from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Poland. We are issuing this AD to detect and correct cracks in the turnbuckle link, which could result in failure of the rudder cable. This failure could lead to loss of control of the glider.
This AD becomes effective on January 27, 2006.
As of January 27, 2006, the Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation.
To get the service information identified in this AD, contact Allstar PZL Glider Sp. z o.o., ul.Ciexzynska 325, 43-300 Bielsko-Biala, Poland; telephone: 43 33 812 50 26; facsimile: 48 33 812 37 39; Web site:
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 20590-001 or on the Internet at
Gregory Davison, Aerospace Engineer, ACE-112, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; facsimile: (816) 329-4090.
We estimate the following costs to do any necessary replacements that would be required based on the results of this inspection. We have no way of determining the number of gliders that may need this repair/replacement:
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
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective on January 27, 2006.
(b) None.
(c) This AD affects Model SZD-50-3 “Puchacz” gliders, all serial numbers, that are certificated in any category.
(d) This AD is the result of a turnbuckle link breaking in flight. The actions specified in this AD are intended to detect and correct cracks in the turnbuckle link, which could result in failure of the rudder cable. This failure could lead to loss of control of the glider.
(e) To address this problem, you must do the following on gliders where the turnbuckle is directly connected to the pedal:
(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 Gregory Davison, Aerospace Engineer, ACE-112, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4130; facsimile: (816) 329-4090.
(g) Allstar PZL Glider Ltd. Bulletin No. BE-054/SZD-50-3/2003 “Puchacz” and Civil Aviation Office Airworthiness Directive No. SP-0012-2004-A, dated February 5, 2004, also address the subject of this AD.
(h) You must do the actions required by this AD following the instructions in Allstar PZL Glider Ltd. Bulletin No. BE-054/SZD-50-3/2003 “Puchacz,” as approved by Civil Aviation Office Airworthiness Directive No. SP-0012-2004-A, dated February 5, 2004. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To get a copy of this service information, contact Allstar PZL Glider Sp. z o.o., ul.Ciexzynska 325, 43-300 Bielsko-Biala, Poland; telephone: 43 33 812 50 26; facsimile: 48 33 812 37 39; Web site:
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
This action corrects an error in the airspace description contained in a Final Rule that was published in the
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
Federal Register Document 05-22771, Airspace Docket No. 04-AAL-06, published on Thursday, November 17, 2005 (70 FR 69646), established Class E airspace at Arctic Village, AK. An error was discovered in the airspace description that misidentified the airfield location. This action corrects that error.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Arctic Village Airport and within 3 miles each side of the 040° bearing from the Arctic Village airport extending from the 6.4-mile radius to 14.8 miles North of the airport and that airspace extending upward from 1,200 ft. above the surface within a 65-mile radius of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises Class E airspace at Koliganek, AK to provide adequate controlled airspace to contain aircraft executing two new Standard Instrument Approach Procedures (SIAPs). This rule results in revised Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Koliganek Airport, AK.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Tuesday, October 25, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise the Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Koliganek, AK (70 FR 61583). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Koliganek Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 09, original; (2) RNAV (GPS) RWY 27, original. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Koliganek Airport area is revised by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N,
This amendment to 14 CFR part 71 revises Class E airspace at Koliganek, Alaska. This Class E airspace is established to accommodate aircraft executing two new SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Koliganek Airport, Koliganek, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, section 106 describes the authority of the FAA Administrator.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Koliganek Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Koliganek Airport and that airspace extending upward from 1,200 feet above the surface within a 45-mile radius of the Koliganek airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Tok Junction, AK to provide adequate controlled airspace to contain aircraft executing two new Standard Instrument Approach Procedures (SIAPs). This rule results in new Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Tok Junction Airport, AK.
0901 UTC, February 16, 2006.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Tuesday, October 25, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Tok Junction, AK (70 FR 61587). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Tok Junction Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 07, original; (2) RNAV (GPS) RWY 25, original. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Tok Junction Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. The Notice of Proposed Rulemaking omitted an exemption to the airspace over Canada. It has been corrected in this document.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N,
This amendment to 14 CFR part 71 establishes Class E airspace at Tok Junction, Alaska. This Class E airspace is established to accommodate aircraft executing two new SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Tok Junction Airport, Tok, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of the Tok Junction Airport, and that airspace extending upward from 1,200 feet above the surface within a 64.8-mile radius of the Tok Junction Airport, excluding the airspace east of 141°00′ W.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Nondalton, AK to provide adequate controlled airspace to contain aircraft executing one new Standard Instrument Approach Procedure (SIAP) and one Departure Procedure (DP). This rule results in new Class E airspace upward from 700 feet (ft.) above the surface at Nondalton Airport, AK.
Effective Date: 0901 UTC, February 16, 2006.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Tuesday, October 25, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at Nondalton, AK (70 FR 61586). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing one new SIAP and one new DP for the Nondalton Airport. The new approach is the Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 02, original. The DP is the Iliamna One RNAV. Class E controlled airspace extending upward from 700 ft. above the surface in the Nondalton Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N,
This amendment to 14 CFR part 71 establishes Class E airspace at Nondalton, Alaska. This Class E airspace is established to accommodate aircraft executing one new SIAP and a new DP, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at Nondalton Airport, Nondalton, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Nondalton Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Nondalton Airport, and within 1 mile each side of the 214° bearing from the airport extending from the 6.3-mile radius to 9.9 miles southwest of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at New Stuyahok, AK to provide adequate controlled airspace to contain aircraft executing two new Standard Instrument Approach Procedures (SIAPs). This rule results in new Class E airspace upward from 700 feet (ft.) above the surface at New Stuyahok Airport, AK.
0901 UTC, February 16, 2006.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Tuesday, October 25, 2005, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to establish Class E airspace upward from 700 ft. above the surface at New Stuyahok, AK (70 FR 61585). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the New Stuyahok Airport. The new approaches are (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 16, original; (2) RNAV (GPS) RWY 34, original. Class E controlled airspace extending upward from 700 ft. above the surface in the New Stuyahok Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received; thus the rule is adopted as proposed. A typographical error listing an incorrect FAA Docket Number was noted in the Notice of Proposed Rulemaking. It has been corrected in this document.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9N,
This amendment to 14 CFR part 71 establishes Class E airspace at New Stuyahok, Alaska. This Class E airspace is established to accommodate aircraft executing two new SIAPs, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rule (IFR) operations at New Stuyahok Airport, New Stuyahok, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the New Stuyahok Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.2-mile radius of the New Stuyahok Airport.
Federal Aviation Administration (FAA), DOT.
Final rule; correcting amendment.
This document corrects the final rule, “Hazardous Materials Training Requirements” published in the
Effective December 20, 2005.
Janet McLaughlin, Office of Hazardous Materials, ADG-1, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone (202) 267-8434.
On October 7, 2005, the FAA published a final rule, “Hazardous Materials Training Requirements” (70 FR 58796; Oct. 7, 2005). The rule added appendix O to part 121 to prescribe the requirements for hazardous materials training under part 121, subpart Z, and part 135, subpart K. The appendix contains two tables (one for will-carry certificate holders, and the other for will-not-carry certificate holders) showing various categories of persons, defined by job function or responsibility, and the specified category they must receive. In both tables, in the entry for “Provisions for passengers and crew,” there should not have been an “X” in the column for “Shippers.”
In addition, the rule added § 145.206 Notification of hazardous materials authorizations. As explained in the preamble of that rule, sections proposed as §§ 121.801 through 121.804 (subpart Z) were renumbered as §§ 121.1001 through 121.1007 in the final rule because other rules had been added to part 121 since the NPRM was published. Section 145.206 (a) contained a cross reference that was not correctly updated. This document corrects that error.
Air carriers, Aircraft, Airmen, Aviation safety, Charter flights, Reporting and recordkeeping requirements, Safety, Transportation.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 44912, 45101-45105, 46105, 46301.
49 U.S.C. 106(g), 40113, 44701-44702, 44707, 44717.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor for a new animal drug application (NADA) for chloramphenicol capsules from Nylos Trading Co., Inc., to Pharmaceutical Ventures, Ltd.
This rule is effective December 20, 2005.
David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail:
Nylos Trading Co., Inc., P.O. Box 2, Route 202, Pomona, NY 10970, has informed FDA that it has transferred ownership of, and all rights and interest in, NADA 65-150 for Chloramphenicol Capsules to Pharmaceutical Ventures, Ltd., P.O. Box D1400, Pomona, NY 10970. Accordingly, the regulations are amended in § 520.390b (21 CFR 520.390b) to reflect this change of sponsorship and a current format. In addition, FDA is taking this opportunity to revise § 520.390b to reflect the prohibition of extralabel use of chloramphenicol in food-producing animals under 21 CFR 530.41.
Following these changes of sponsorship, Nylos Trading Co., Inc., is no longer the sponsor of an approved application. Accordingly, 21 CFR 510.600(c) is being amended to remove the entries for Nylos Trading Co., Inc.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
(a)
(b)
(1) Nos. 000069, 000185, and 050057 for capsules containing 50, 100, 250, or 500 mg chloramphenicol.
(2) No. 058034 for capsules containing 100 or 250 mg chloramphenicol.
(c)
(d)
(2)
(3)
Department of Veterans Affairs.
Final rule.
This document amends the Department of Veterans Affairs (VA) Schedule for Rating Disabilities by updating references to diagnostic codes in two regulations. These amendments are necessary to correct outdated references in the Schedule for Rating Disabilities.
Maya Ferrandino, Consultant, Compensation and Pension Service, Policy and Regulations Staff, Veterans Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-7211.
VA's Schedule for Rating Disabilities includes criteria for evaluating disabilities by analogy where there is no specific diagnostic code for the disability being evaluated. In 38 CFR 4.27 and 38 CFR 4.124a, the rating criteria reference examples of diseases that can be rated by analogy to certain specified diagnostic odes. Two of the
Section 4.27, Use of diagnostic code numbers, includes as an example: “Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded 5002-5289.” However, Diagnostic Code 5289 was removed from 38 CFR 4.71a, Schedule of ratings-musculoskeletal system, by a rulemaking published on August 27, 2003, at 68 FR 51454. Therefore, the reference to 5289 for ankylosis of the lumbar spine is outdated. We will replace the outdated reference to Diagnostic Code 5289 with the current Diagnostic Code for ankylosing spondylitis, 5240, which is a disability similar to rheumatoid arthritis.
Similarly, in § 4.124a, Schedule of ratings-neurological conditions and convulsive disorders, the paragraph discussing Mental Disorders in Epilepsies which appears after Diagnostic Code 8914 includes references to Diagnostic Codes 9304 and 9307 for dementia: “(e.g., 9304 or 9307)” and “(e.g., Diagnostic Code 9304 or 9307)”. However, Diagnostic Code 9307 was removed by a rulemaking published on October 8, 1996, at 61 FR 52695. Therefore, the reference to Diagnostic Code 9307 currently in 38 CFR 4.124a is outdated. We will remove the reference to Diagnostic Code 9307 and insert a reference to Diagnostic Code 9326, which replaced Diagnostic Code 9307.
This final rule merely replaces inaccurate examples and does not alter the content of the regulations. Accordingly, there is a basis for dispensing with prior notice and comment and the delayed effective date provisions of 5 U.S.C. 553.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Because no notice of proposed rulemaking is required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.
Disability benefits, Pensions, Veterans.
38 U.S.C. 1155, unless otherwise noted.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving the State Implementation Plan (SIP) revision submitted by the state of Iowa. This revision includes the general rulemaking that Iowa completes for the purpose of updating and clarifying various rules, and making other minor revisions as generally described in this document. EPA is also proposing approval of revisions to the Iowa Operating Permits Program for the purpose of updating and clarifying various rules included in the general rulemaking. These revisions add new definitions, as well as an administrative correction to a previously submitted rule. Approval of these revisions will ensure consistency between the state and Federally-approved rules, and ensure Federal enforceability of the State's revised air program rules.
This direct final rule will be effective February 21, 2006, without further notice, unless EPA receives adverse comment by January 19, 2006. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2005-IA-0006, by one of the following methods:
1.
2. E-mail: Heather Hamilton at
3. Mail: Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
Heather Hamilton at (913) 551-7039, or by e-mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:
What Is a SIP?
What Is the Federal Approval Process for a SIP?
What Does Federal Approval of a State Regulation Mean to Me?
What Is the Part 70 Operating Permits Program?
What Is the Federal Approval Process for an Operating Permits Program?
What Is Being Addressed in This Document?
Have the Requirements for Approval of a SIP and a Part 70 Revision Been Met?
What Action is EPA Taking?
Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.
In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.
Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.
The CAA Amendments of 1990 require all states to develop operating permits programs that meet certain Federal criteria. In implementing this program, the states are to require certain sources of air pollution to obtain permits that contain all applicable requirements under the CAA. One purpose of the part 70 operating permits program is to improve enforcement by issuing each source a single permit that consolidates all of the applicable CAA requirements into a Federally-enforceable document. By consolidating all of the applicable requirements for a facility into one document, the source, the public, and the permitting authorities can more easily determine what CAA requirements apply and how compliance with those requirements is determined.
Sources required to obtain an operating permit under this program include “major” sources of air pollution and certain other sources specified in the CAA or in our implementing regulations. For example, all sources regulated under the acid rain program, regardless of size, must obtain permits. Examples of major sources include those that emit 100 tons per year or more of volatile organic compounds, carbon monoxide, lead, sulfur dioxide, nitrogen dioxide, or PM
Revision to the state and local agencies operating permits program are
In order for state regulations to be included in the Federally-enforceable Title V operating permits program, states must formally adopt regulations consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the approved operating permits program. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.
All state regulations and supporting information approved by EPA under section 502 of the CAA, including revisions to the state program, are included in the Federally-approved operating permits program. Records of such actions are maintained in the CFR at Title 40, part 70, appendix A, entitled “Approval Status of State and Local Operating Permits Programs.”
EPA is approving the State Implementation Plan (SIP) revisions submitted by the state of Iowa which include numerous minor revisions to various rules. The revisions consist of updating references to Federal rules, clarifying emissions reduction language to permits, providing notification of ownership for construction permits, adding definitions, amending variance language, and making minor revisions to the Compliance Sampling Manual. EPA is also approving a new rule into the SIP and Operating Permits Program at 567-22.209 to set forth information with regard to change of ownership for facilities with voluntary operating permits. EPA is approving revisions to the Iowa Operating Permits Program to update CFR references, and to update information with regard to submitting Title V permit applications.
Revisions to update the CFR references were made to Iowa Administrative Code (IAC) 567-22.1(1) “b” New or reconstructed major sources of hazardous air pollutants, and, 567-20.2 definition of “Volatile Organic Compound.”
Requirements with regard to control equipment which reduces or eliminates all emissions to the atmosphere (567-22.1(2) “g”) have been changed to state that a permit must be obtained requiring emission reductions before a source may take credit for the reductions. This revision further states that if a construction permit has been previously issued, all other conditions of the permit remain in effect.
The Compliance Sampling Manual is being revised to update procedures and to clarify and correct some of the existing language in the manual. References to the CFR within the Compliance Sampling Manual have also been updated with this change.
A revision to IAC 567-20.2, as it relates to open burning of untreated wood, adds a new definition of “untreated.” The definition relates to a rule that limits citizens from burning matter that is treated and adversely affects the environment. The definition does not relax the stringency of open burning restrictions, but helps to limit emissions of pollutants which may adversely affect air quality.
Additional definitions added at IAC 567-20.2 are as follows: “biodiesel fuel,” “diesel fuel,” “number 1 fuel oil,” and “number 2 fuel oil.” Included in the definitions are references to the American Society for Testing and Material Specifications and information with regard to the Environmental Protection Agency registration.
An amendment was made to the variance language as it relates to construction permits in IAC 567-21.2(3) “a.” This provision authorizes variances from state regulatory requirements for the limited purpose of testing alternative fuels. It does not allow variances from permitting requirements for sources subject to major source permitting requirements. The revision clearly states that the Iowa Department of Natural Resources (IDNR) may not grant variances for projects subject to certain Federal requirements. Although we believe that this limited variance provision for minor sources is acceptable, we note that variances from SIP requirements and minor source permit limits issued under SIPs are not recognized by EPA and do not change the underlying requirements unless approved by EPA as revisions to the SIP.
An amendment to 567-22.1(3) “b” revises references to the Iowa Code (542B.1, and 542B.26) that provides requirements for professional licensed engineers and corporation employees submitting construction permit applications to IDNR.
Clarification has been made to IAC 567-22.3(8) (Ownership change of permitted equipment) to include the accurate mailing address of the Air Quality Bureau, Iowa Department of Natural Resources.
The state of Iowa requested a revision to the Title V Operating Permits Program approved for state rule revisions updating CFR references to the definitions located at 567-22.100 as follows: EPA reference method, existing hazardous air pollutant sources, and hazardous air pollutant. Revisions to update CFR references were also made at 567-22.101(2) Title V deferred stationary sources, and 567-22.108(17) “a”(2), reopening of Title V permits.
A revision to 567-22.105(1), Duty to apply, was made to reduce the number of copies of Title V permit applications from four to three and to clarify where the applications should be sent.
The state submission also includes an updated incorporation by reference of EPA's Acid Rain regulations. The state rules, which were effective on July 13, 2005, are not a part of the SIP or the Operating Permits Program; and, therefore, we are not acting on this revision to the Acid Rain regulations.
On May 2, 2005, a rule was published to add a comma to IAC 567-22.3(3), Conditions of Approval. A comma was inserted between fuel specifications and compliance testing to differentiate between the two conditions. This was erroneously published as a Title V revision and is being corrected with this revision.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. This revision is also consistent with applicable EPA requirements in Title V of the Clean Air Act and 40 CFR part 70.
This revision includes rules processed as “general rulemaking” that Iowa completes for the purpose of updating and clarifying various rules, and making other minor revisions as generally described in this document. Revisions to the Iowa Operating Permits Program for the purpose of updating and clarifying various rules are also included in this rulemaking. This revision adds new definitions, and a new rule that applies to change of
We are processing this revision to the Iowa State Implementation Plan and Iowa Operating Permits as a direct final action because these revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 21, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401
(h) The Iowa Department of Natural Resources submitted for program approval rules 567-22.100, 567-22.101(2), 567-22.102, 567-22.105(1), 567-22.108(17)“a”(2), 567-22.209 and 567-22.300(12) on July 18, 2005. The state effective date was July 13, 2005. These revisions to the Iowa program are approved effective February 21, 2006.
Environmental Protection Agency (EPA).
Final rule.
EPA is finalizing certain requirements associated with the Federal on-board diagnostic (OBD) system regulations. On June 17, 2003, EPA published both a direct final rule and a concurrent notice of proposed rulemaking (68 FR 35972 and 68 FR 35830 respectively) to amend and revise certain provisions of the Federal OBD regulations. EPA published the direct final rule believing that no adverse comments would be received. However, due to the receipt of an adverse comment, EPA published a partial withdrawal notice on August 14, 2003 (68 FR 48561) withdrawing two specific regulatory amendments included in the direct final rule. The direct final rule, absent those two withdrawn provisions, became effective on August 18, 2003.
The purpose of this action is to finalize the portion of the direct final rule that was withdrawn with the revisions suggested by the commenters and to clarify several smaller issues that were raised by industry during the comment period.
This final rule takes effect on February 21, 2006.
All comments and materials relevant to today's action are contained in Public Docket No. OAR-2003-0080 (old legacy docket is A-2002-20) at EPA's Air and Radiation Docket and Information Center (Air Docket) at the following address: EPA Docket Center (EPA/DC), Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460. Dockets may be inspected from 8:30 a.m. to 4:30 p.m., Monday through Friday, except on government holidays. You can reach the Air Docket by telephone at (202) 566-1742 and by facsimile at (202) 566-1741. You may be charged a reasonable fee for photocopying docket materials, as provided in 40 CFR Part 2.
Arvon Mitcham, U.S. EPA, National Vehicle and Fuels Emission Laboratory, Certification and Compliance Division, 2000 Traverwood, Ann Arbor MI 48105; telephone (734) 214-4522, e-mail “
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your product is regulated by this action, you should carefully examine the applicability criteria in § 86.005-17, § 86.1806-04 and § 86.1806-05 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular product, consult the person listed in the preceding
Today's action is available electronically on the day of publication from EPA?s
On February 19, 1993, pursuant to Clean Air Act (CAA) section 202(m), 42 U.S.C. 7521(m), EPA published a final rulemaking (58 FR 9468) requiring manufacturers of light-duty vehicles (LDVs) and light-duty trucks (LDTs) to install on-board diagnostic (OBD) systems on such vehicles beginning with the 1994 model year. The regulations promulgated in that final rulemaking require manufacturers to install OBD systems which monitor emission control components for any malfunction or deterioration causing exceedance of certain emission thresholds, and alert the vehicle operator to the need for repair. That rulemaking also requires that, when a malfunction occurs, diagnostic information must be stored in the vehicle's computer to assist the technician in diagnosis and repair.
Additionally, this original OBD regulation provided an allowance for manufacturers to satisfy federal OBD requirements through the 1998 model year by installing OBD systems satisfying the OBD II requirements promulgated by the California Air Resources Board (CARB) pertaining to those model years. On December 22, 1998 (63 FR 70681), EPA revised the federal OBD regulations such that the allowance of compliance with the
On June 17, 2003, EPA published both a direct final rule and a concurrent notice of proposed rulemaking (68 FR 35972 and 68 FR 35830 respectively) to amend and revise certain provisions of the federal OBD regulations. Among other several minor revisions, this action also updated the allowed version of the California OBD II regulations; and updated the incorporation by reference of standardized practices developed by the Society of Automotive Engineers (SAE) and the International Organization for Standardization (ISO) to incorporate recently published versions. This action also incorporated by reference a new standardized protocol developed by the International Organization for Standardization (ISO 15765-4.3) and established a future date, model year 2008, by which this protocol would be the only acceptable protocol.
EPA received comments from the Engine Manufacturers Association (EMA) and Cummins that the direct final rule did not continue to allow the use of the heavy-duty communication protocol, SAE J1939, as currently allowed under the Federal OBD and CARB OBD II requirements, beyond the 2007 model year for vehicles that are not optionally certified to CARB's 1968.2 OBD II requirements. EMA commented that the direct final rule required that 2008 and later model year heavy-duty engines and vehicles under 14,000 lbs. GVWR that are certified to the Federal OBD technical monitoring requirements must use the ISO 15765-4.3 communication protocol. EMA and Cummins commented that this is not consistent with CARB's requirements for medium duty vehicles (between 8500 and 14,000 lbs. GVWR), nor is it consistent with the existing communication protocols developed for the unique operational characteristics of heavy-duty vehicles. As a result, EPA withdrew the portion of the direct final rule establishing the requirement that by model year 2008, ISO 15765-4.3 would be the only acceptable protocol. This final action addresses the comments of EMA and Cummins and finalizes revised regulations incorporating those comments.
In addition, EPA received comments from the Alliance of Automobile Manufacturers (“the Alliance”) and the Association of International Automobile Manufacturers (AIAM) requesting clarification of certain aspects of the direct final rule. The Alliance and AIAM requested that their comments not be considered “adverse” unless their understanding of EPA's intent was incorrect. The Alliance and AIAM specifically expressed interest that EPA clarify that the new OBD requirements, as applied to Tier 2 vehicles, would be phased-in on the same schedule as CARB's LEV II program. As explained below, EPA believes it appropriate to clarify not only this phase-in requirement but also to clarify what malfunction thresholds apply when comparing LEV II and Tier 2 programs. The Alliance and AIAM also sought clarification from EPA as to whether production testing for OBD would be required and whether EPA was adopting CARB's new enforcement specific provisions relating to OBD. Because EPA is further clarifying its intent and does not disagree with commenters' understanding, EPA did not consider these comments adverse. Finally, the Alliance and AIAM requested that EPA reference the final version of CARB's OBD II regulations contained in Title 13 California Code of Regulations 1968.2 (13 CCR 1968.2)), as modified, approved and filed on April 21, 2003. At the time, EPA referenced the latest version of the CARB OBD II regulations contained in CARB Mail-Out MSCD #02-11 (October 7, 2002) to allow manufacturer OBD certification according to the optional compliance provisions in paragraph (j) of the Federal OBD Regulations. This final action will address those comments as well.
In the June 17, 2003 Direct Final Rule, EPA incorporated by reference a new, optional standardized communication protocol, ISO 15765-4.3:2001, December 14, 2001, “Road Vehicles-Diagnostics on Controller Area Network (CAN)—Part 4: Requirements for emission-related systems” at 500 kilobytes per second (kbps) baud rate, that can be used by manufacturers to design OBD systems. The standardized communication protocols provide a uniform language structure that facilitates compatibility between OBD II equipped vehicles and OBD II-related equipment. Manufacturers of light-duty vehicles and trucks are planning to implement this new protocol on vehicles, and some have done so as early as the 2003 MY, in addition to the existing communication protocols: SAE J1939, SAE J1850, ISO 9141, and ISO 14230-4.
In addition, EPA also included a provision that, commencing in the 2008 model year, would have required manufacturers to use this new communication protocol, ISO 15765-4.3 (500 kbps baud rate) for vehicles and engines below 14,000 lbs. The currently allowed communication protocols (SAE J1939, SAE J1850, ISO 9141, and ISO 14230-4) would have been eliminated for vehicles and engines below 14,000 lbs. Therefore, with the 2008 model year, the other, currently-accepted protocols: SAE J1939, SAE J1850, ISO 9141-2 and ISO 14230-4, would no longer be accepted for all vehicles and engines below 14,000 lbs. and all manufacturers of vehicles and engines below 14,000 lbs. would have been required to implement OBD systems using only ISO 15765-4.3 (500 kbps baud rate).
The Direct Final Rule did not distinguish between medium-duty vehicles (at or above 8500 and 14000 pounds GVWR) and light-duty vehicles and trucks (below 8500 pounds). While no one objected to this provision as it applied to light-duty vehicles and trucks, EMA and Cummins commented that this provision would unintentionally eliminate the use of SAE J1939 for vehicles and engines between 8500 and 14000 pounds GVWR. EPA believes that it is reasonable to allow medium-duty engine and vehicle manufacturers between 8500 and 14000 pounds GVWR to continue to use communication protocol SAE J1939 beyond the 2008 model year along with the new protocol.
Therefore, EPA is finalizing a provision requiring that the only allowable protocols will be ISO 15765-4.3 (500 kbps baud rate) for vehicles 8500 pounds GVWR and below and either SAE J1939 or ISO 15765-4.3 (500 kbps baud rate) for vehicles 8500 to 14000 pounds GVWR beginning with the 2008 MY. Accordingly, with the 2008 model year, the other currently-accepted protocols SAE J1850, ISO 9141-2 and ISO 14230-4, would no longer be accepted.
EPA received comment from the Alliance and AIAM regarding the certification of federal Tier 2 vehicles to California OBD II regulations that reference California LEV II standards. CARB's regulations phase-in additional OBD requirements to coincide with the phase-in of LEV II vehicles. Beginning
These provisions create some confusion for vehicles that are certifying to Federal emission requirements during those four years but using the option of meeting federal OBD requirements by demonstrating compliance with California's OBDII regulations. Since EPA's regulations do not reference California's LEV II regulations, the provisions of California's OBD II regulations that distinguish LEV II vehicles do not directly correspond to federal regulations; in particular, EPA's Tier 2 regulations.
The Alliance and AIAM commented that EPA's Direct Final Rule was not clear on how OBD requirements that apply only to LEV II vehicles would be applied to vehicles certified to EPA's Tier 2 emissions standards. The Alliance and AIAM further commented that it has been EPA's policy in the past to require the same OBD requirements for a specific model vehicle produced for sale outside of California as those that apply in that model year for that model vehicle in California. The Alliance and AIAM asked EPA to confirm their position on this policy and to issue guidance as appropriate to verify EPA's position.
EPA's Tier 2 standards follow a phase-in that is similar to the phase-in of LEV II controls in California. Tier 2 standards begin for all vehicles in the 2004 model year but have a phase-in of final Tier 2 vehicle emission standards of 25, 50, 75, and 100 percent in the 2004, 2005 2006 and 2007 model years, respectively, and a corresponding phase-out for interim non-Tier 2 vehicle emission standards of 75, 50, 25, and 0% over those four model years. This allows the phase-in of the new California OBD II requirements to be phased-in to the federal fleet in generally the same time frame as the California fleet, using the phase-in of the final Tier 2 standards as a general surrogate to the phase-in of LEV II standards, recognizing that there is likely to be considerable correspondence between vehicles certified to LEV II standards in California to vehicles certified to final Tier 2 standards federally.
EPA agrees with the comments made by the Alliance and AIAM that we reiterate our intentions to maintain the current policy that allows OEMs to phase-in CARB's new OBD II monitoring requirements on the same schedule for vehicles sold outside of California (for those vehicles certified by EPA to the “50 State” or “49 State” standards). Therefore, the phase-in of CARB's LEV II OBD II requirements for the monitors outlined above generally should meet the same phase-in and be phased in with the Federal Tier 2 final emission standards at 25, 50, 75, and 100 percent as specified in EPA's Tier 2 regulation over four model years and shall apply to vehicles sold outside of California. EPA recognizes that there may not be exact correspondence between the levels of LEV II vehicles sold in California and the levels of corresponding vehicles sold federally, and thus is not requiring exact correspondence to the phase-in levels for final Tier 2 standards, but EPA is expecting relatively similar levels during the phase-in years.
In reviewing the comments from the Alliance/AIAM discussed above, EPA realized that it may not be clear in some cases what the applicable OBD malfunction threshold is for Federal vehicles certifying to Federal OBD requirements by showing compliance with CARB OBD II regulations. Traditionally, OEMs certifying to EPA emissions standards but optionally complying with CARB OBD II requirements would use the applicable CARB OBD II malfunction thresholds (i.e., 1.75 times the applicable standard) as a multiplier for the applicable EPA emission thresholds. Although this optional compliance allowed manufacturers to certify a CARB OBD II system on a federal vehicle, the applicable EPA emission standards must be applied, in lieu of the California emission standards, when certifying a Federal vehicle or engine. This was possible in the past without further clarification because the relationship of the malfunction thresholds to the underlying standards under the OBD II regulations was not tied to the type of California vehicle (e.g. TLEV, LEV, ULEV, etc) being certified. However, because the revised California OBD II standards have different multiples based on the type of California LEV II vehicle being certified, and because LEV II emission bins are not identical to the emission bins for the federal Tier 2 program,
EPA is clarifying that vehicles certified to Federal Tier II emissions standards but complying with Federal OBD by showing compliance with CARB OBD II regulations are subject to all OBD monitoring requirements applicable to LEV II applications (subject to the phase-in discussed above), but shall use Tier 2 emissions standards for the purposes of determining malfunction thresholds as described below. CARB has similar provisions in their OBD II regulations contained in Title 13 CCR 1968.2 (c)(20), and (e)(18.1.3) but these provisions only relate to vehicles and engines certified for use in California (i.e., California-only or 50-state vehicles and engines).
Where the Federal standards correspond directly to California standards, this operation is simple, as the manufacture would simply use the thresholds in the OBD II regulations that correspond to the California LEV II vehicle type (e.g. ULEV, SULEV) matching the Federal bin to which the federal vehicle is certified. As noted above, there is one instance where an EPA Tier 2 bin does not have a corresponding CARB LEV II Program emissions category and the emission standards serving as the basis for calculating the malfunction thresholds are not identical. Tier 2 Bin 4 NMOG standard of 0.07 g/mi, and NO
Therefore, we are clarifying in this final rule the method and the appropriate malfunction threshold values for a vehicle or engine certified to Tier 2 Bin 4 but optionally complying with CARB OBD II which is to use the Tier 2 Bin 4 emission standards and the CARB ULEV II multiplicative factors for all pollutants except NO
In addition, there are two instances where the EPA Tier 2 and CARB LEV II emission standards for individual criteria pollutants are not identical: The NO
To resolve these issues, vehicles certified to Tier 2, Bin 3 emissions standards shall utilize the Tier 2 Bin 3 NO
The Alliance and AIAM commented that the CARB OBDII regulations require manufacturers to conduct production vehicle testing. The Alliance and AIAM requested that EPA clarify that production vehicle testing would not be required on federal vehicles certified to the CARB OBDII regulations. As an alternative, vehicle manufacturers said they would provide EPA copies of the final production vehicle evaluation reports that are provided to CARB as part of their certification process.
EPA agrees with the Alliance and AIAM comments that federal OBD regulations do not explicitly require manufacturers to conduct production vehicle testing. However, manufacturers who intend to meet the Federal OBD requirements by meeting the CARB OBDII requirements may be required to submit the same information that is submitted to CARB in order for EPA to make its own determinations of compliance. As a result, although EPA will not require the manufacturers to conduct production vehicle testing, the EPA may use the reports from the production vehicle testing program to assess in-use compliance. This is consistent with EPA policy to use all available information from the field to assess in-use compliance, of which the manufacturers are aware.
The Alliance and AIAM requested that EPA clarify that the new enforcement provisions finalized in the CARB OBDII regulations (section 1968.5) are not being adopted by EPA and that EPA will continue to conduct independent evaluations before determining enforcement actions.
EPA agrees with the Alliance and AIAM that our Direct Final Rule did not adopt the enforcement provisions enacted by CARB. EPA has no current intent to adopt such provisions. We will continue to conduct our own independent assessments and evaluations of manufacturer compliance before pursuing enforcement actions. However, EPA will continue to use all available information, including, but not limited to, any information collected by CARB in making our compliance and enforcement determinations.
The Alliance and AIAM requested that EPA reference the final version of CARB's OBD II regulations contained in Title 13 California Code of Regulations 1968.2 (13 CCR 1968.2) under paragraph (j) of the Federal OBD regulations allowing optional compliance with CARB OBD II requirements. The final version of CARB's OBD II Regulations Title 13 California Code of Regulations 1968.2 (13 CCR 1968.2) was approved by the California Office of Administrative Law (OAL) and filed with the California Secretary of State on April 23, 2003.
The EPA agrees with this recommendation and will reference CARB?s OBD II Regulations Title 13 California Code of Regulations 1968.2 (13 CCR 1968.2) (April 23, 2003) in paragraph (j) of the Federal OBD regulations in this regulatory action.
The purpose of this rulemaking is to clarify existing provisions of EPA's OBD regulations. As a result, there are no cost effectiveness issues for this action.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency is required to determine whether this regulatory action would be “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The order defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or,
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined that this rule is not a “significant regulatory action.”
Today's action does not impose any new information collection burden. The modifications noted above do not change the information collection requirements submitted to and approved by OMB in association with the OBD final rulemakings (58 FR 9468, February 19, 1993; and 59 FR 38372, July 28, 1994 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (64 FR 23906) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0104, EPA ICR number 0783.47. A copy of the OMB approved Information Collection Requests (ICR) may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The RFA generally requires an agency to prepare an initial regulatory flexibility analysis of any proposed rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) Those businesses meeting the definition provided by the Small Business Administration (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Today's action provides clarification and correct reference information and does not add new regulatory burden on small entities. Periodically EPA must update its regulations to incorporate by reference any new applicable communication protocols (including those set forth by the SAE and the ISO) to be used by the OBD system. EPA had unnecessarily deleted the allowance of a certain SAE protocol for 2007 and later model year heavy-duty vehicles in a previous rulemaking and by today's final rule that protocol is placed back into the regulation.
Second, the phase-in of the new OBD II regulations in California is tied to a phase in of their new emission standards called LEV II (the second round of low-emission vehicle standards) that commence in the 2004 model year. EPA's Tier 2 emission standards (that also commences in 2004) are phased in with a similar schedule as LEV II and therefore, based on manufacturers' request, we are clarifying that those manufacturers that choose to optionally certify their federal vehicles to CARB's OBD II regulations may do so based on the same phase-in of OBD II as allowed within California. However, because in a very few instances the emission standard levels of LEV II and Tier 2 do not completely match, we are also clarifying within the regulations what emission malfunction thresholds and emission levels apply to federal vehicles certified as meeting the OBD II regulations.
We are also adding reference to the final CARB “Mail-out” number for CARB's OBD II regulation as finalized. In addition, we have added clarification of whether EPA was adopting some of CARB's ancillary OBD II regulations such as the testing requirements on production vehicles and CARB's unique in-use testing and enforcement requirements. By today's action we are clarifying that EPA did not adopt such requirements by the direct final rule and is not otherwise doing so.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and the private sector. Under section 202 of the UMRA, we generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more for any single year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative that is not the least costly, most cost-effective, or least burdensome alternative if we provide an explanation in the final rule of why such an alternative was adopted.
Before we establish any regulatory requirement that may significantly or uniquely affect small governments, including tribal governments, we must develop a small government plan pursuant to section 203 of the UMRA. Such a plan must provide for notifying potentially affected small governments, and enabling officials of affected small governments to have meaningful and
This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nor does this rule have any Federal mandates that may result in the expenditures of $100 million or more in any year by the private sector as also defined by the provisions of Title II of the UMRA. Nothing in the rule will significantly or uniquely affect small governments.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires us to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government”.
Under section 6 of Executive Order 13132, we may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or we consult with state and local officials early in the process of developing the proposed regulation. We also may not issue a regulation that has federalism implications and that preempts state law, unless the Agency consults with state and local officials early in the process of developing the proposed regulation.
Section 4 of the Executive Order contains additional requirements for rules that preempt state or local law, even if those rules do not have federalism implications (i.e., the rules will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government). Those requirements include providing all affected state and local officials notice and an opportunity for appropriate participation in the development of the regulation. If the preemption is not based on express or implied statutory authority, we also must consult, to the extent practicable, with appropriate state and local officials regarding the conflict between state law and federally protected interests within the agency's area of regulatory responsibility.
This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule updates provisions of an earlier rule that adopted national standards relating to OBD systems and the ability of manufacturers to demonstrate Federal compliance based on demonstration of compliance with California OBD II regulations. The requirements of the rule will be enforced by the Federal government at the national level. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. Today's rule would not uniquely affect the communities of American Indian tribal governments since the motor vehicle fuel and other related requirements for private businesses in today's rule have national applicability. Furthermore, today's rule does not impose any direct compliance costs on these communities and no circumstances specific to such communities exist that will cause an impact on these communities beyond those discussed in the other sections of today's document.
This rule does not significantly or uniquely affect the communities of Indian tribal governments. As noted above, this rule will be implemented at the Federal level and imposes compliance obligations and options on private industry. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that 1) is determined to be “economically significant” as defined under Executive Order 12866, and 2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, section 5-501 of the Executive Order directs us to evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
EPA interprets E.O. 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to E.O. 13045 because it is based on technology performance and not on health or safety risks.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), section 12(d) of Public Law 104-113, directs us to use voluntary consensus standards in our regulatory activities unless it would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This final rule references technical standards adopted by us through previous rulemakings. Specifically, this rule references technical standards developed by the Society of Automotive Engineers (SAE) and the International
Statutory authority for today's final rule comes from the Clean Air Act, 42 U.S.C. 7401
Environmental Protection, Incorporation by reference, Administrative practice and procedure, Motor vehicle pollution, On-board diagnostics.
42 U.S.C. 7401-7671q.
(h) * * *
(3) Beginning with the 2008 model year and beyond, ISO 15765-4.3:2001 “Road Vehicles-Diagnostics on Controller Area Network (CAN)—Part 4: Requirements for emission-related systems”, (December 14, 2001) shall be the only acceptable protocol used for standardized on-board to off-board communications for vehicles below 8500 pounds. For vehicles 8500 to 14000 pounds ISO 15765-4.3 or the SAE J1939 series of standards (SAE J1939-11, J1939-13, J1939-21, J1939-31, J1939-71, J1939-73, J1939-81). All other standardized on-board to off-board communications protocols: SAE J1850 “Class B Data Communication Network Interface,” (Revised, May 2001) in (h)(1)(i), ISO 9141-2 “Road vehicles—Diagnostic systems—Part 2: CARB requirements for interchange of digital information,” (February 1, 1994) in (h)(2)(i), and ISO 14230-4 “Road vehicles—Diagnostic systems—KWP 2000 requirements for Emission-related systems”, (June 1, 2000) in paragraph (h)(2)(ii) of this section will at that time no longer be accepted.
(j)
(j)
(l)
(h) * * *
(3) Beginning with the 2008 model year and beyond, ISO 15765-4.3: 2001 “Road Vehicles-Diagnostics on Controller Area Network (CAN)—Part 4: Requirements for emission-related systems”, (December 14, 2001) shall be the only acceptable protocol used for standardized on-board to off-board communications for vehicles below 8500 pounds. For vehicles 8500 to 14000 pounds ISO 15765-4.3 or the SAE J1939 series of standards (SAE J1939-11, J1939-13, J1939-21, J1939-31, J1939-71, J1939-73, J1939-81). All other standardized on-board to off-board communications protocols: SAE J1850 “Class B Data Communication Network Interface,” (Revised, May 2001) in paragraph (h)(1)(i), ISO 9141-2 “Road vehicles—Diagnostic systems—Part 2: CARB requirements for interchange of digital information,” (February 1, 1994)
(j)
(m)
Department of Defense (DoD).
Final rule.
DoD is revising the name of 48 CFR Chapter 2 from “Department of Defense” to “Defense Acquisition Regulations System, Department of Defense.” This change will facilitate the Government's implementation of the Federal Document Management System, as it will permit the DoD regulations issued under 48 CFR Chapter 2 to be indexed separately from other DoD regulations.
Ms. Michele Peterson, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0311; facsimile (703) 602-0350.
Government procurement.
Department of Defense (DoD).
Final rule.
DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement to add references to DoD guidance on contracting officers' representatives and DoD purchase, travel, and fuel card programs.
Ms. Robin Schulze, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
Contracting officers may designate qualified personnel as their authorized representatives to assist in the technical monitoring or administration of a contract. Follow the procedures at PGI 201.602-2. A contracting officer's representative (COR)—
(4) Guidance on DoD purchase, travel, and fuel card programs is available at
Department of Defense (DoD).
Final rule.
DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to update text pertaining to contract financing. This rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.
December 20, 2005.
Mr. Bill Sain, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0293; facsimile (703) 602-0350. Please cite DFARS Case 2003-D043.
DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at
This final rule is a result of the DFARS Transformation initiative. The DFARS changes include—
• Relocation of text addressing general contract financing payment issues from 232.906 to 232.007.
• Deletion of unnecessary text at 232.071 on the composition and responsibilities of the DoD Contract Finance Committee, and deletion of references to the Committee at 232.070(a) and 232.617(a).
• Deletion of text at 232.108 on financial consultation, and deletion of text at 232.207 on specifying amounts to be charged to foreign military sales accounts in approvals of financing requests. These issues are adequately addressed in the FAR.
• Deletion of text at 232.206(d) on instructions for distribution of financing payments to multiple appropriations accounts. Guidance on this subject is now included in section 204.7108 of the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at
• Amendment of 232.404(a)(9) to increase, from $500 to $2,500, the dollar value at or below which the requirements of FAR Subpart 32.4, Advance Payments for Non-Commercial Items, do not apply to high school and college publications for military recruitment efforts.
• Clarification of text at 232.501-3(b) on limitation of the Government's liability when the contract price exceeds the funds obligated under the contract.
• Deletion of unnecessary text at 232.605(b) regarding integrated accounting at DoD installations.
• Relocation of text on payment due dates, from 232.905(1) and (2), to 232.904 and 232.906, respectively.
• Deletion of unnecessary text at 232.905(f)(6) on electronic notification to the payment office of Government acceptance and approval. Electronic submission and processing of payment requests is addressed in Subpart 232.70.
• Addition of text at 232.906(a)(i) to address the requirement for contracting officers to insert the standard due date for interim payments on cost-reimbursement contracts for services.
• Deletion of unnecessary text at 232.1007 on specifying amounts to be charged to foreign military sales accounts.
• Deletion of text at 232.1108 on mandatory use of the Governmentwide commercial purchase card. This issue is addressed in 213.270.
• Deletion of informational and procedural text at 232.070(c), 232.409-1, 232.410, 232.501-2, 232.606, 232.610, 232.670, and 232.671. This text has been relocated to the new DFARS companion resource, Procedures, Guidance, and Information (PGI), available at
DoD published a proposed rule at 70 FR 23827 on May 5, 2005. No comments were received in response to the proposed rule. DoD has adopted the proposed rule as a final rule, with minor editorial changes at 232.007(a) and 232.906(a)(ii).
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
Government procurement.
41 U.S.C. 421 and 48 CFR Chapter 1.
(a) DoD policy is to make contract financing payments as quickly as possible. Generally, the contracting officer shall insert the standard due dates of 7 days for progress payments, and 14 days for performance-based payments and interim payments on cost-type contracts, in the appropriate paragraphs of the respective payment clauses. For interim payments on cost-reimbursement contracts for services, see 232.906(a)(i).
(b) The contracting officer should coordinate contract financing payment terms with offices that will be involved in the payment process to ensure that specified terms can be met. Where justified, the contracting officer may insert a due date greater than, but not less than, the standard. In determining payment terms, consider—
(i) Geographical separation;
(ii) Workload;
(iii) Contractor ability to submit a proper request; and
(iv) Other factors that could affect timing of payment.
(a) The Director of Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics) (OUSD(AT&L)DPAP) is responsible for ensuring uniform administration of DoD contract financing, including DoD contract financing policies and important related procedures. Agency discretion under FAR part 32 is at the DoD level and is not delegated to the departments and agencies. Proposals by the departments and agencies, to exercise agency discretion, shall be submitted to OUSD(AT&L)DPAP.
(c) See PGI 232.070(c) for information on department/agency contract financing offices.
Follow the procedures at PGI 232.409-1 for preparation of the documents required by FAR 32.409-1(e) and (f).
If an advance payment procedure is used without a special bank account, follow the procedures at PGI 232.410.
Follow the procedures at PGI 232.501-2 for approval of unusual progress payments.
(b) The contracting officer may approve progress payments when the contract price exceeds the funds obligated under the contract, provided the contract limits the Government's liability to the lesser of—
When transferring a case to the contract financing office, follow the procedures at PGI 232.606.
When issuing a demand for payment of a contract debt, follow the procedures at PGI 232.610.
(a) The Director of Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), may exempt the contracts in FAR 32.617(a)(2) through (5) and other contracts, in exceptional circumstances, from the administrative interest charges required by this subpart.
(7) Other exceptions are—
(A) Contracts for instructions of military or ROTC personnel at civilian schools, colleges, and universities;
(B) Basic agreements with telephone companies for communications services and facilities, and purchases under such agreements; and
(C) Transportation contracts with common carriers for common carrier services.
Follow the procedures at PGI 232.670 for transferring responsibility for debt collection.
Follow the procedures at PGI 232.671 for bankruptcy reporting.
DoD policy is to assist small disadvantaged business concerns by paying them as quickly as possible after invoices are received and before normal payment due dates established in the contract (see 232.906(a)).
(d) In most cases, Government acceptance or approval can occur within the 7-day constructive acceptance period specified in the FAR Prompt Payment clauses. Government payment of construction progress payments can, in most cases, be made within the 14-day period allowed by the Prompt Payment for Construction Contracts clause. While the contracting officer may specify a longer period because the period specified in the contract is not reasonable or practical, such change should be coordinated with the Government offices responsible for acceptance or approval and for payment. Reasons for specifying a longer period include but are not limited to: the nature of the work or supplies or services, inspection or testing requirements, shipping and acceptance terms, and resources available at the acceptance activity. A constructive acceptance period of less than the cited 7 or 14 days is not authorized.
(a)(i) Generally, the contracting officer shall insert the standard due date of 14 days for interim payments on cost-reimbursement contracts for services in the clause at FAR 52.232-25, Prompt Payment, when using the clause with its Alternate I.
(ii) The restrictions of FAR 32.906 prohibiting early payment do not apply
26. Sections 232.1007 and 232.1108 are removed.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
FRA is amending a portion of the accident reporting regulations. Specifically, FRA is amending the method for calculating the monetary threshold for reporting rail equipment accidents/incidents. The amendment is necessary because, in 2001, the Bureau of Labor Statistics (BLS) ceased collecting and publishing railroad wage data used by FRA in the calculation. Consequently, FRA has had to seek a new source of publicly-available data. In the new formula, FRA uses wage data collected and maintained by the Surface Transportation Board (STB) in place of the unavailable BLS wage data. As equipment data remain available from the BLS, there is no change to the source of the equipment component of the reporting threshold. The purpose of the rule is to ensure and maintain comparability between different years of accident data by having the threshold keep pace with any increases or decreases in equipment and labor costs so that each year accidents involving the same minimum amount of railroad property damage are included in the reportable accident counts.
In addition, FRA is using the newly established formula to calculate a new accident/incident monetary reporting threshold for calendar year 2006. This final rule increases the monetary threshold for reporting rail equipment accidents/incidents from $6,700 to $7,700, and applies to accidents and incidents involving railroad property damage that occur on or after January 1, 2006.
Arnel Rivera, Staff Director, Systems Support Division, RRS-22, Mail Stop 17, FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-1331) or Roberta Stewart, Trial Attorney, Office of Chief Counsel, RCC-12, Mail Stop 10, FRA, 1120 Vermont Ave., NW., Washington, DC 20590 (telephone 202-493-6027).
FRA published a Notice of Proposed Rulemaking (NPRM) on April 19, 2005 (70 FR 20333), proposing to amend the formula for calculating the rail equipment accident/incident monetary reporting threshold, and requested comments. The NPRM proposed to substitute railroad employee wage data collected by the STB for obsolete BLS data that is no longer collected. This final rule adopts the proposed formula, and establishes a new monetary threshold for calendar year 2006.
A “rail equipment accident/incident” is a collision, derailment, fire, explosion, act of God, or other event involving the operation of railroad on-track equipment (standing or moving) that causes reportable damages greater than the reporting threshold for the year in which the event occurs to railroad on-track equipment, signals, tracks, track structures, or roadbed, including labor costs and the costs for acquiring new equipment and materials. 49 CFR 225.19(c). Each rail equipment accident/incident must be reported to FRA using the Rail Equipment Accident/Incident Report (Form FRA F 6180.54). 49 CFR 225.19(b) and (c). As revised, effective in 1997, paragraphs (c) and (e) of 49 CFR 225.19 provide that the dollar figure that constitutes the reporting threshold for rail equipment accidents/incidents will be adjusted, if necessary, every year in accordance with the procedures outlined in appendix B to part 225, to reflect any cost increases or decreases. 61 FR 30942, 30969 (June 18, 1996); 61 FR 60632, 60634 (Nov. 29, 1996); 61 FR 67477, 67490 (Dec. 23, 1996).
FRA has periodically adjusted the reporting threshold based on the prices of a market basket of railroad labor and materials. The purpose of these adjustments has been to maintain the comparability between different years of data by having the threshold keep pace with equipment and labor costs so that each year the equivalent group of accidents is included in the reportable accident counts.
Approximately three years have passed since the rail equipment accident/incident reporting threshold was last reviewed and revised. 67 FR 79533 (Dec. 30, 2002). At that time, FRA published an interim final rule carrying over the $6,700 threshold from calendar year 2002 to 2003 and subsequent years until adoption of a new threshold. 49 CFR 225.19(c). FRA last revised the monetary threshold formula in 1996. 61 FR 30940 (June 18, 1996); 61 FR 60632 (November 29, 1996). The calendar year 2002 threshold has been retained because the BLS ceased publishing certain data required to compute the wage component of the calculation,
Congress has given FRA some direction for modifying the procedure for calculating the threshold in 49 U.S.C. 20901(b): “[i]n establishing or changing a monetary threshold for the reporting of a railroad accident or incident, * * * damage cost calculations” shall be based “only on publicly available information obtained from (A) the Bureau of Labor Statistics; or (B) another department, agency or instrumentality of the United States Government if the information has been collected through objective, statistically sound survey methods or has been previously subject to a public notice and comment process in a proceeding of a Government department, agency or instrumentality.” Congress allows an exception to this general rule only if the necessary data are not available from the sources described, and only after public notice and comment.
Pursuant to this 1992 direction from Congress, FRA issued an NPRM earlier this year proposing a new method for calculation of the monetary reporting threshold. 70 FR 20333 (April 19, 2005).
Currently, the accident/incident reporting threshold adjustment is calculated utilizing two components. The first component is the average hourly earnings for Class I railroads and Amtrak workers. BLS was collecting these data and reporting them under LABSTAT Series Report, Standard Industrial Code (SIC) 4011 for Class I Railroad Average Hourly Earnings, Series ID EEU41401106, Not Seasonally Adjusted. These data are no longer available from BLS.
In order to update the reporting threshold, FRA has searched for a new source of the wage component used in the reporting threshold formula. FRA found that railroads report wage data to the STB, and proposed to use these data as an alternative to the obsolete BLS data. The Class I railroads and Amtrak report hours of service and compensation data quarterly to the STB, on Form A—STB Wage Statistics. Form A organizes hours of service and compensation by five reporting groups: Executives, Officials, and Staff Assistants (Group No. 100); Professional and Administrative (Group No. 200); Maintenance of Way and Structures (Group No. 300); Maintenance of Equipment and Stores (Group No. 400); and Transportation, other than train and engine (Group No. 500). By dividing the compensation by the corresponding hours of service, the wage rate for any reporting group can be found. In the NPRM, FRA proposed to use the average wage rate of reporting Groups No. 300 and 400 as a substitute for BLS wage data.
FRA believes that the STB wage data are a suitable substitute for several reasons. Most significantly, the data directly measure the wages for the two groups of employees whose skills are most used in repairing or replacing damaged railroad equipment. In contrast, BLS wage data were a broader measure of all Class I railroad and Amtrak employee wages. Alternative BLS wage data currently available also provide only broad measures. STB data are, additionally, consistent with Congressional requirements set forth in 49 U.S.C. 20901(b). The STB data are publicly available, although currently only in paper hardcopy, and the information is statistically sound. STB data are derived from a process that is virtually a census of Class I railroads and Amtrak (though the occasional railroad may be late in reporting) and should therefore represent a more accurate and statistically valid account of railroad wages than the BLS wage data.
To further ascertain the suitability of STB wage data as a substitute for unavailable BLS wage data, FRA recalculated the 1997 to 2002 reporting thresholds using STB data. This a posteriori comparison of STB- and BLS-based thresholds showed STB data are a reasonable substitute. The analysis also showed that weighting the wage component by 40% and the equipment component by 60%, rather than the 50/50 current weights, produced a threshold that better approximated the existing threshold. The STB-based threshold, however, does increase at a faster rate than the BLS-based threshold. With 40/60 weights on wages and equipment, the new reporting threshold formula changes to:
In applying this new formula to periodically update the reporting threshold, FRA proposed using the latest data that would be available when the threshold is updated, instead of an average based on yearly data. As the threshold is typically calculated in the second half of the calendar year, and STB wage data are due 30 days after the close of a quarter, the latest STB data available will be second-quarter data. The calculation for the 2006 threshold will use the second-quarter 2005 wage data from the STB. For equipment costs, FRA is continuing to use the corresponding BLS railroad equipment index in the equation. As the equipment index is reported monthly rather than quarterly, the average for the months of April, May, and June will be inputted into the threshold calculation. The newly calculated threshold reflects the changes in wages and equipment from the last time the threshold was updated to the present.
As proposed in the NPRM, the procedure for adjusting the threshold is shown in the formula below. Additionally, the NPRM proposed that the weights in the threshold formula be adjusted from 50% on wages and 50% on equipment, to 40% on wages and 60% on equipment. It was found that the 40/60 weights produced a better approximation of the original accident threshold when the threshold was calculated using STB wage data.
Tnew = New threshold.
Tprior = Prior threshold. With reference to the threshold, “prior” refers to the previous threshold rounded to the nearest $100, as reported in the
With reference to wages and equipment, “prior” refers to the previous wage and equipment averages used to calculate the prior threshold, Tprior. “Prior” does not necessarily refer to the wage and equipment averages for the immediately preceding year (although it may if the threshold is calculated annually). In calculating the threshold, the goal is to capture the change between the old wage and equipment prices and the new prices for these inputs.
The equation used to calculate the reporting threshold measures the changes in railroad wages and equipment costs over a period of time, and updates the previous reporting threshold by these amounts. The values for Wprior and Eprior are those that were used to calculate the 2002-2005 monetary reporting threshold.
The value for Wnew is derived from STB wage data collected on Form A—STB Wage Statistics. Railroads report earnings to the STB quarterly on this form. FRA uses second-quarter data reported for the Maintenance of Way and Structures Group (Group No. 300), and the Maintenance of Equipment and Stores Group (Group No. 400). A wage rate is calculated by dividing the compensation paid to employees in these groups by their corresponding service hours, using the “Time Worked and Paid for at Straight Times Rates” category. The wage rates for these two groups are averaged to produce a composite wage, which is then weighted by 40% in the threshold calculation.
The value for Enew is derived from BLS equipment index numbers that are used to measure changes in equipment costs. The equipment index is reported under LABSTAT Series Report, Producer Price Index (PPI) for Commodities, Series ID WPU144 for Railroad Equipment. As the index numbers are reported monthly, the index numbers for the months of April, May, and June are averaged to produce
Thus, the specific inputs to the equation are:
Using the above figures, the calculated Tnew, new threshold, is $7,744.64, which is rounded to the nearest $100 for a final new reporting threshold of $7,700. The new threshold is $1,000 more than the previous threshold, which had been last calculated for CY 2002. The equipment cost component of the reporting threshold increased the most, rising from about 136 to 160.
Appendix B is revised to show the new procedure and formula used by FRA for determining the reporting threshold. Additionally, § 225.19(e) is amended to reflect that the accident reporting threshold for calendar year 2006 is $7,700. Consistent with § 225.19(c), this reporting threshold will be adjusted annually.
No comments were received in response to the NPRM.
In this final rule, FRA is taking two steps. First, FRA is revising the method for calculating the reporting threshold and adopting a new formula, after notice and comment. Second, FRA is using that new formula to calculate the monetary reporting threshold for calendar year 2006. The new threshold, based on the revised formula, is not subject to notice and comment. FRA finds that the current cost data inserted into this adopted formula and the cost data that they replace were obtained from reliable Federal government sources. FRA also finds that this rule imposes no additional burden, but rather provides a benefit by permitting the valid comparison of accident data over time. Accordingly, FRA concludes that notice and comment procedures with respect to the recalculation of the monetary reporting threshold are impracticable, unnecessary, and contrary to the public interest. By simply inserting values derived from reliable data into a formula adopted after notice and comment, FRA is not exercising discretion in a way that could be informed by further public comment. As a consequence, FRA is proceeding directly to this final rule with respect to the recalculation of the monetary reporting threshold.
For similar reasons, there is good cause for not publishing the rule at least 30 days before its effective date as is ordinarily required by 5 U.S.C. 553(d). All interested parties have had notice of the provisions of this final rule since the publication of the NPRM on April 19, 2005 (70 FR 20333), more than 30 days prior to the effective date of this rule.
The formula to calculate the monetary accident reporting threshold is adopted as proposed. Further, FRA has gathered the necessary data, has calculated a new threshold using the adopted formula, and is establishing the revised threshold dollar amount at $7,700. This revised threshold is effective beginning January 1, 2006.
This rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979).
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule will not have a significant economic impact on a substantial number of small entities. Pursuant to Section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a final policy that formally establishes “small entities” as including railroads that meet the line-haulage revenue requirements of a Class III railroad. 49 CFR part 209, app. C. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity.
About 630 of the approximately 680 railroads in the United States are considered small entities by FRA. FRA certifies that this final rule will have no significant economic impact on a substantial number of small entities. To the extent that this rule has any impact on small entities, the impact will be neutral or insignificant. The frequency of rail equipment accidents/incidents, and therefore also the frequency of required reporting, is generally proportional to the size of the railroad. A railroad that employs thousands of employees and operates trains millions of miles is exposed to greater risks than one whose operation is substantially smaller. Small railroads may go for months at a time without having a reportable occurrence of any type, and even longer without having a rail equipment accident/incident. For example, current FRA data indicate that 2,738 rail equipment accidents/incidents were reported in 2002, with small railroads reporting 255 of them. In 2003, 2,992 rail equipment accidents/incidents were reported, and small railroads reported 271 of them. Data for 2004 show that 3,296 rail equipment accidents/incidents were reported, with small railroads reporting 309 of them. In each of those three calendar years, small railroads reported ten percent or less of the total number of rail equipment accidents/incidents. FRA notes that these data are accurate as of the date of issuance of this final rule, and are subject to minor changes due to additional reporting.
Absent this rulemaking (i.e., any increase in the monetary reporting threshold), the number of reportable accidents/incidents would increase, as keeping the 2002-2005 threshold in place would not allow it to keep pace with the increasing dollar amounts of wages and rail equipment repair costs. Therefore, this rule will be neutral in effect. Increasing the reporting threshold will slightly decrease the recordkeeping burden for railroads over time. Any recordkeeping burden would not be significant, and would affect the large railroads more than the small entities, due to the higher proportion of reportable rail equipment accidents/incidents experienced by large entities.
There are no new information collection requirements associated with this final rule. Therefore, no estimate of a public reporting burden is required.
Executive Order 13132, entitled, “Federalism,” issued on August 4, 1999, requires that each agency “in a separately identified portion of the preamble to the regulation as it is to be
FRA has evaluated this regulation in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of [$120,700,000 or more (as adjusted for inflation)] in any 1 year and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The final rule will not result in the expenditure, in the aggregate, of $120,700,000 or more in any one year, and thus preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 ( May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the
Anyone is able to search the electronic form of all our 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
Investigations, Penalties, Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301, 21302, 21311; 28 U.S.C. 2461, note; 49 CFR 1.49.
(c)
(e) The reporting threshold is $6,700 for calendar years 2002 through 2005 and $7,700 for calendar year 2006. The procedure for determining the reporting threshold for calendar years 2006 and beyond appears as paragraphs 1-8 of appendix B to part 225.
1. Wage data used in the calculation are collected from railroads by the Surface Transportation Board (STB) on Form A—STB Wage Statistics. Rail equipment data from the U.S. Department of Labor, Bureau of Labor Statistics (BLS), LABSTAT Series reports are used in the calculation. The equation used to adjust the reporting threshold has two components: (a) The average hourly earnings of certain railroad maintenance employees as reported to the STB by the Class I railroads and Amtrak; and (b) an overall rail equipment cost index determined by the
2. For the wage component, the average of the data from Form A—STB Wage Statistics for Group No. 300 (Maintenance of Way and Structures) and Group No. 400 (Maintenance of Equipment and Stores) employees is used.
3. For the equipment component, LABSTAT Series Report, Producer Price Index (PPI) Series WPU 144 for Railroad Equipment is used.
4. In the month of October, second-quarter wage data are obtained from the STB. For equipment costs, the corresponding BLS railroad equipment indices for the second quarter are obtained. As the equipment index is reported monthly rather than quarterly, the average for the months of April, May and June is used for the threshold calculation.
5. The wage data are reported in terms of dollars earned per hour, while the equipment cost data are indexed to a base year of 1982.
6. The procedure for adjusting the reporting threshold is shown in the formula below. The wage component appears as a fractional change relative to the prior year, while the equipment component is a difference of two percentages which must be divided by 100 to present it in a consistent fractional form. After performing the calculation, the result is rounded to the nearest $100.
7. The weightings result from using STB wage data and BLS equipment cost data to produce a reasonable estimation of the reporting threshold that was calculated using the threshold formula in effect immediately before calendar year 2006, a formula that assumed damage repair costs, at levels at or near the threshold, were split approximately evenly between labor and materials.
8. Formula:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the directed fishery for
Effective 0001 hours, December 18, 2005, through 2400 hours, December 31, 2005.
Don Frei, Fishery Management Specialist, 978-281-9221, fax 978-281-9135, e-mail
Regulations governing the
The 2005 specification of DAH for
Section 648.22 requires NMFS to close the directed
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correcting amendment.
NMFS issues this final rule, correcting amendment to the regulations governing the Bering Sea and Aleutian Islands crab fisheries. This action is necessary to clarify procedures and to correct discrepancies provided in a previous rulemaking. This final rule is intended to promote the goals and objectives of the Fishery Management Plan for Bering Sea/Aleutian Islands (BSAI) King and Tanner Crabs (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and other applicable law.
Effective December 20, 2005.
Patsy A. Bearden, 907-586-7008 or
In January 2004, the U.S. Congress amended section 313(j) of the Magnuson-Stevens Act through the Consolidated Appropriations Act of 2004 (Pub. L. 108-199, section 801). As amended, section 313(j)(1) requires the Secretary of Commerce to approve and implement by regulation the Crab Rationalization Program (Program), as it was approved by the North Pacific Fishery Management Council (Council) between June 2002 and April 2003, and all trailing amendments, including those reported to Congress on May 6, 2003. In June 2004, the Council consolidated its actions on the Program into the Council motion, which is contained in its entirety in Amendment 18. Additionally, in June 2004, the Council developed Amendment 19, which represents minor changes necessary to implement the Program. The Notice of Availability for these amendments was published in the
NMFS seeks to ensure the final rule (March 2, 2005; 70 FR 10174) conforms to the statutory requirements and intent of the Program, to provide clarification regarding the Program's regulatory requirements, and to correct minor technical errors.
These corrections are made to sections of the rule that do not currently conform to the statutory requirements of the Program. This correction ensures that the final rule conforms to statutory requirements.
Paragraph (a)(1) is amended by removing “June 30, 2005” and adding in its place “June 30, 2008”. This correction ensures that the final rule conforms to statutory requirements.
Paragraph (h)(5)(iv) is amended by removing “arbitration proceedings as provided” and adding in its place “arbitration proceedings except as provided”.
Paragraph (c)(4)(vi) is amended by removing “equation: Adj. Factor” and adding in its place “equation: Adj. Amount.”
These corrections are clarifications that explain regulatory changes that are more substantive than typographical/editorial type corrections.
Paragraph (a)(1)(iv)(C) is added to state that any catcher vessel that is using pot gear in the CR crab fisheries must use a combined groundfish/IFQ logbook to record all CR crab. This note was inadvertently omitted from the crab final rule. This regulatory text is found at § 680.5(a)(2)(i)(A); therefore, this is not a new requirement.
Paragraph (g)(3)(iii) is amended by removing the words “and indicate the confirmation number of the original PTR” from the last line of the paragraph. Paragraph (g)(4)(i) is revised by removing the last sentence from the paragraph. Removal of the confirmation number is necessary because in actual PTR use, NMFS discovered that the confirmation number was not needed for recordkeeping and that the confirmation number caused confusion.
The heading for paragraph (k)(1) is amended by removing “Fish or fish product other than crab onboard” and replacing it with “Fish or fish product onboard.” Early in the planning stages, the PTR was not to be used for crab. Later on, the decision was made to use the PTR to record crab product; however, this regulatory heading was inadvertently not changed.
Paragraph (b)(2) is amended by removing “An RCR must” and adding in its place “An RCR and his or her designee(s) must”.
Paragraph (b)(3) is removed and reserved. Only the RCR and his or her designees must apply for a password. The information contained in this paragraph has been included in the eLanding report (see paragraph (d)(7)). Because it is the same information, only requested in a different place, this change does not add new information.
The heading of paragraph (c)(1) is amended by removing “IERS application for user ID” and adding in its place “IERS processor registration.” The three agencies involved in the IERS determined to change the name of the form, and the changed forms subsequently posted on the Internet. This change inadvertently was not reflected in the regulatory text. This revision ensures that the regulations are uniform with the form.
Paragraph (c)(1)(i) is amended to reflect actual practice that an RCR and designee(s) of the RCR must submit an application for User ID, instead of “the crab IFQ permit holder, crab IFQ hired master, IPQ permit holder, or person who harvested Adak or CDQ crab.” In addition, the web page address and specific reference to the landing reporting system, eLandings, are added. The name of the form required to obtain a User ID is changed to read “IERS processor registration” in the heading for paragraph (c)(1) and in paragraph (c)(1)(i).
Paragraph (c)(1)(ii) is amended to clarify how the IERS processor registration information will be processed. The form must be signed and mailed to the address on the form in addition to submittal by Internet.
Changes to paragraphs (c)(1)(i) and (ii) are necessary to indicate that only the RCR and his/her designees submit landing data; therefore, only these participants are required to submit an IERS processor registration form. These changes also clarify that applicants may obtain IERS processor registration forms from the NMFS Alaska Region home page.
The heading for paragraph (c)(2) is amended by removing “Contents of IERS application for user ID” and adding in its place “Contents of IERS processor registration.”
The introductory paragraph (c)(2) is amended by removing “The IERS application for user ID” and adding in its place “The application for IERS processor registration.”
Paragraph (d)(4)(i) is amended by removing “within 6 hours of the end of each weekly reporting period” and adding in its place “by Tuesday noon after the end of each weekly reporting period.” The time limit for submitting this catcher/processor report in existing regulatory text actually means the report would need to be submitted between midnight and 6:00; this is because the weekly reporting period ends at 2400 hr, Alaska local time. In addition to the inconvenience to the regulated community, this is also difficult for NMFS, because the Internet server isn't processing return receipts during that time, and no staff are available for technical support. The original paragraph does not reflect the intent of the time limit for submitting of the crab landing report, which was intended to match the time limit for submitting the groundfish weekly production report. This revision fixes that problem.
Paragraph (d)(7)(i) is amended by removing “RCR permit number” and adding in its place “RCR permit number, IFQ permit number, and IPQ permit number, as appropriate.” The regulations currently request the IFQ permit number and IPQ permit number in paragraph (b)(3). In actual practice the IFQ and IPQ permit number are requested in the landing report. In addition, no other person than the RCR and his/her designees need to obtain a password; therefore, with this action, paragraph (b)(3) is removed and reserved.
Paragraph (d)(7)(xxi) is amended by removing “scale weight of live crab in pounds;” and adding in its place “sold weight of live crab in pounds.” This change is necessary to align the regulations with actual practice.
Paragraph (b)(4) is amended by removing “by the State in which the product is landed” and adding in its place “by a state in which CR crab is landed”. Current regulations require that a catcher/processor offload crab product and weigh that product on a scale approved by the state in which the crab is landed. Rationale for this change is as follows. In some cases, crab catcher/processors may offload product in more than one state. Because scale approval requirements are similar and adequate in all states, it does not make sense for a catcher/processor to be required to have the offload scale approved by more than one state. Regulations at § 680.23(b)(4) are revised to allow a crab catcher/processor to use a scale approved by any state where CR crab is landed.
Paragraph (b)(3)(iii) is amended by removing “QS or IFQ” and adding in its place “PQS.” This corrects an inadvertent error.
Paragraph (c)(2) is amended by removing “CPC QS used” and adding in its place “CPC IFQ used”. This corrects an inadvertent error.
Paragraph (c)(4) is amended by removing “IFQ” in two places and adding in its place “CVO or CPO IFQ.” This corrects an inadvertent error.
Figures 16 and 17 to Part 679 are removed. These figures relate to the License Limitation Program boundaries that were revised in the crab final rule. The removal of these figures clarifies potential confusion.
The following typographical and editorial corrections are made in this rule.
Paragraph (l)(1)(iii)(B) is amended by removing “Table 14” and adding in its place “Tables 14a and 14b.”
Paragraph (h)(3)(iv) is amended by removing “a crab fishery” and adding in its place “each crab fishery.” This change is necessary for clarification.
Paragraphs (a)(2)(i)(A), (B), and (C) are changed to correct inadvertent typographical errors.
Paragraph (a)(2)(i)(A) is amended by removing “2.0% = 240,00” and adding in its place “2.0% = 240,000”.
Paragraph (a)(2)(i)(B) is amended by removing “2.0% = 600,00” and adding in its place “2.0% = 600,000”.
Paragraph (a)(2)(i)(C) is amended by removing “2.0% = 120,00” and adding in its place “2.0% = 120,000”.
Paragraph (a)(3)(ii) is amended by removing “(a)(2)(i)” and adding in its place “(a)(3)(i)”.
Paragraph (a)(4)(ii) is amended by removing “(a)(2)(i)” and adding in its place “(a)(4)(i)”.
Table 9 is amended by removing “totally” from Column B for BST and adding in its place “total”.
The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this final rule is necessary for the conservation and management of the BSAI crab fisheries. The Regional Administrator also has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 553 (b)(B), the Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable, unnecessary, and contrary to the public interest. Through this action, NOAA seeks to ensure that the final rule conforms to the statutory requirements and intent of the Program, provide clarification regarding the Program's regulatory requirements and correct minor technical errors. Prior notice and an opportunity for public comment on this action would be impracticable, unnecessary, and contrary to the public interest for the following reasons.
First, corrections are necessary to ensure the rule's conformance with the Program's statutory requirements. Accordingly, NMFS has no discretion as to whether to implement them. As such, prior notice and an opportunity for public comment are unnecessary as the agency has no choice but to ensure its regulations are consistent with the statute. Second, corrections and clarifications to ensure the rules
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
The changes made by this rule are not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d). The waiver of the 30-day delay in effective date requirement of 5 U.S.C. 553(d) is necessary to provide the regulated community with timely, adequate and accurate information with which to prosecute the ongoing fisheries.
Alaska, Fisheries, Reporting and recordkeeping requirements.
16 U.S.C. 773
(a) * * *
(1) * * *
(iv) * * *
(C) Any catcher vessel that is using pot gear in the CR crab fisheries must use a combined groundfish/IFQ logbook to record all CR crab.
(g) * * *
(3) * * *
(iii) If any information on the original PTR changes prior to the first destination of the shipment, submit a revised PTR by facsimile or electronic file to OLE, Juneau, AK (907-586-7313), by 1200 hours, A.l.t., on the Tuesday following the end of the applicable weekly reporting period in which the change occurred.
(4) * * *
(i)
(k) * * *
(1)
(l) * **
(1) * * *
(iii) * * *
(B) Port of landing and port code from Tables 14a and 14b to this part;
16 U.S.C. 1862.
(b) * * *
(2) An RCR and his or her designee(s) must enter his or her authorized user ID and password to access the IERS.
(c) * * *
(1)
(ii) The user must print, sign, and submit the application to the address provided on the registration form. A user ID will be activated after a signed registration form is received. The signature of an applicant on the form means that the applicant agrees to use access privileges to the IERS for purposes of submitting legitimate fishery landing reports and to safeguard the user ID and password to prevent their use by unauthorized persons. In addition, signature of the RCR ensures that the applicant is authorized to submit landing reports for the processor permit number(s) listed.
(2)
(a) * * *
(2) * * *
(ii) * * *
Nuclear Regulatory Commission.
Petition for rulemaking; request for comment.
The Nuclear Regulatory Commission (NRC) has received a petition for rulemaking filed by the Organization of Agreement States (OAS). The petitioner is requesting that the NRC amend its regulations to require specific licensing for devices that are currently regulated by a combination of general licensing and registration, and to revise the compatibility category for 10 CFR 31.6 from “B” to “C”. The petitioner believes that these actions are needed to establish a higher national standard of regulation for higher risk generally licensed (GL) devices, and to allow retention of a tool used by Agreement States to track the location and movement of device manufacturers and service providers in their State.
This action also addresses a request filed by the Bureau of Radiation Control (BRC) of the Florida Department of Health for the NRC to change the compatibility category of 10 CFR 31.5(c)(13)(I) from category “B” to category “C”. Florida BRC believes that NRC regulations are less stringent and that assigning a compatibility category “B” will require the State to reduce its current health, safety, and security regulatory control of GL devices.
Submit comments by March 6, 2006. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
You may submit comments by any one of the following methods. Please include PRM-31-5 in the subject line of your comments. Comments submitted in writing or in electronic form will be made available to the public for inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this petition may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
Michael T. Lesar, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301 415-7163 or Toll Fee: 1-800-368-5642 or e-mail:
On December 18, 2000, (65 FR 79162), the NRC issued a final rule that amended the requirements applicable to certain generally licensed industrial devices containing byproduct material. The final rule, among other actions, included more explicit provisions for a registration and accounting program. The final rule also modified the quarterly transfer reporting requirements for manufacturers and initial distributors of these industrial devices.
Section 274b of the Atomic Energy Act (Act) provides for agreements under which the NRC relinquishes and a State assumes regulatory responsibility for the use of byproduct, source and small quantities of special nuclear material within a State. The December 18, 2000, final rule was a matter of compatibility under the Policy Statement on Adequacy and Compatibility of Agreement Statements issued September 3, 1997 (62 FR 46517). The provisions of 10 CFR 31.5 and 31.6 were designated as Category B because the provisions affected a program element with significant transboundary implications.
The petitioner believes that certain devices containing higher level of activity, which are currently regulated under a general license in 10 CFR 31.5, would be best regulated under a specific license in 10 CFR part 30. The petitioner states that multiple Agreement States have already established more stringent requirements for GL devices to address accountability problems, source melt incidents and other issues related to such devices in their States, and that the decision by the NRC to revise the compatibility category of 10 CFR 31.5 from “D” to “B” will require these Agreement States to reduce their current regulatory control of GL devices in order
The petitioner is a non-profit, voluntary, scientific and professional society incorporated in the District of Columbia. The membership of the OAS consists of State radiation control program directors and staff from the 33 Agreement States who are responsible for implementation of their respective radioactive material programs. The purpose of the OAS is to provide a mechanism for the Agreement States to work with each other and with the NRC on regulatory issues associated with their respective agreements.
The petitioner offers that Agreement States are those States that have entered into an Agreement with the NRC under section 274b. of the Act. The Agreement States regulate most types of radioactive material, including reactor fission byproducts, source material (uranium and thorium) and special nuclear materials in quantities not sufficient to form a critical mass, in accordance with the compatibility requirements of the Act. The petitioner notes that NRC periodically reviews the performance of each Agreement State to assure adequate protection of public health and safety and compatibility with its regulatory requirements.
The petitioner further states that Agreement States issue radioactive material licenses, promulgate regulations and enforce these regulations under the authority of each individual state's laws. The Agreement States exercise their licensing and enforcement programs under direction of their governors in a manner that is compatible with the licensing programs of the NRC. The 33 existing Agreement States currently license and regulate approximately 16,800 radioactive material licenses, whereas the NRC regulates approximately 4,400 licenses.
In July 1996, the joint NRC-Agreement State Working Group, approved by the Commission to evaluate problems with licensees maintaining control over and accountability for devices containing radioactive material provided their recommendations to the NRC. One of the recommendations was that the NRC establish a registration program for GL devices containing specific isotopes above certain quantity limits that posed a comparatively higher risk of exposure to the public or property damage.
The petitioner states that on December 18, 2000, the NRC issued a final rule, effective on February 16, 2001, that revised portions of 10 CFR parts 30, 31, and 32 to add new requirements for manufacturers, distributors and users of GL devices. The combined changes were called the “Generally Licensed Device Rule,” which included a revision that established a new registration program for certain GL devices in 10 CFR 31.5(c)(13) that was based on the earlier recommendations of the working group. In addition, the petitioner states the NRC changed the compatibility category for 10 CFR 31.5 from “D” to “B” and for 10 CFR 31.6 from “C” to “B”. Agreement States were given until February 16, 2004 to adopt the new regulations.
The petitioner states that in a letter dated July 28, 2004, the NRC presented the results of a survey of Agreement State compliance with adopting the new Generally Licensed Device Rule which showed that 12 of the 33 Agreement States had not adopted the new GL device requirements.
The petitioner states further that during the May 2004 National Conference on Radiation Control and the September 2004 Organization of Agreement States annual meeting, the Agreement States discussed problem areas associated with the current system of regulating certain devices under a general license. These problem areas include:
• The compatibility change from “D” to “B” in 10 CFR 31.5 limits States that choose to be more restrictive in regulating GL devices.
• The compatibility change from “C” to “B” in 10 CFR 31.6 allows device manufacturers/service providers to service devices in Agreement States for less than 180 days without obtaining reciprocity or notifying State radiation control programs at a time when State programs believe enhanced tracking is required.
• New materials security requirements have not been factored into general license device regulations.
• Low awareness of regulatory requirements by some general licensees due to high turnover in the industrial sector and minimal interaction with regulator.
The OAS proposes the following amendments to 10 CFR part 31, and changes in compatibility category.
1. Section 31.5 (a) would be revised to read as follows:
(a) A general license is hereby issued to commercial and industrial firms and research, educational and medical institutions, individuals in the conduct of their business, and Federal, State or local government agencies to acquire, receive, possess, use or transfer, in accordance with the provisions of paragraphs (b), (c) and (d) of this section, byproduct material contained in devices designed and manufactured for the purpose of detecting, measuring, gauging or controlling thickness, density, level, interface location, radiation, leakage, or qualitative or quantitative chemical composition or for producing light or an ionized atmosphere, provided each device contains less than 370 MBq (10 mCi) of cesium-137, 3.7 MBq (0.1 mCi) of strontium-90, 37 MBq (1 mCi) of cobalt-60 or 37 MBq (1 mCi) of americium-241 or any other transuranic element (
2. In § 31.5 paragraph (c)(13) would be deleted in its entirety.
3. Revise the compatibility category of § 31.6 from “B” to “C”.
OAS stated that the newly formed OAS Rulemaking and Compatibility Committee surveyed the 33 Agreement State radiation control programs to determine the reaction to the change in compatibility of 10 CFR 31.5 and 31.6 and the potential to specifically license devices currently regulated under a general license. Thirty-one States responded to the survey, as follows:
• Eighty-seven percent of the responding States disagree with the CY 2000 Commission decision to revise the compatibility category of 10 CFR 31.5 and 31.6 (27 of 31 States).
• Ninety percent of the responding States currently allow a specific license for devices that may be generally licensed (28 of 31 states).
• Ninety-seven percent of the responding States support the OAS taking action in this area (30 of 31 states).
The OAS believes that requiring specific licensing of the higher risk gauging devices identified by the 1995 NRC-Agreement State joint working group can further enhance control and
• Low awareness of regulatory requirements by general licensees.
• No routine inspection of GL devices for compliance with requirements.
• No regulatory review prior to purchase.
• Continued incidents involving loss of control of real or suspected GL devices.
OAS believes that specific licensing of higher activity GL gauging devices would provide the following advantages:
1. Allow regulatory review (through the license application process) of higher-activity device purchases prior to receipt.
2. Increase security of the higher risk gauging devices to minimize the possibility of these devices being used in malicious acts.
3. Increase licensee awareness of regulatory requirements by virtue of the specific license application process and periodic inspections.
4. Improve licensee control of devices, which may reduce the number of potential orphan sources.
The OAS understands and agrees with the desire of the Commission and device manufacturers for more uniform regulation of devices within the NRC and Agreement States. At the same time, the Agreement States' desire to assure better accountability for sources and devices that are within the states' jurisdiction. The Agreement States believe that the manufacture and distribution of the devices is best addressed uniformly by the methods described in this petition. Therefore, the OAS is proposing that 10 CFR 31.5 be amended to require specific licensing for devices that are currently regulated by a combination of general licensing and registration. This action would establish a higher national standard of regulation for identified higher risk devices. In addition, the OAS is proposing that the compatibility category for 10 CFR 31.6 be revised from “B” to “C” to allow retention of a tool used by States to track the location and movement of device manufacturers and service providers in their State. This would allow Agreement States the opportunity to assess and monitor the radiation safety programs of device manufacturer representatives working within the State. The OAS believes the NRC and Agreement States can implement the proposed changes with limited impact on regulatory agencies and licensees, resulting in improved regulation and control of radioactive materials.
In addition to requesting comment on the petition by the OAS, NRC is seeking comment on a request by the Florida BRC. The issues raised in Florida's request are closely related to those in the OAS petition, so NRC is seeking comment on both the OAS petition and the Florida request at the same time.
Florida, an Agreement State, requested that the NRC change the compatibility category of 10 CFR 31.5(c)(13)(I) from category “B” to “C”. Florida believes that the decision of whether and how to register additional types and quantities of generally (GL) devices beyond what the NRC requires should be a decision left to the State with the authority for regulating the devices. Florida states that it has had well-established requirements for the registration and regulation of GL devices for many years before the NRC adopted regulations to register certain GL devices. Florida states that NRC's decision to assign a compatibility category “B” for 10 CFR 31.5(c)(13)(I), will require it to reduce its current health, safety, and security regulatory control of GL devices in order to be compatible with the less stringent NRC regulations.
Florida states that they issue and currently regulate over 1500 radioactive material licenses, promulgate regulations and enforce these regulations under the authority of Chapter 404, Florida Statutes, and Chapter 64 E-5, Florida Administrative Code. Florida notes that the NRC periodically reviews the performance of its programs, thereby assuring compatibility with the NRC's regulatory requirements.
Florida requires registration of all GL devices with the exception of some tritium exit signs. Their program includes source registration, fees, annual inventories and inspections.
Florida is concerned that the December 18, 2000, final rule, effective on February 16, 2001, revised portions of 10 CFR parts 30, 31, and 32 to add new requirements for manufacturers, distributors and users of GL devices, and that part of the revision established a new registration program for certain GL devices in 10 CFR 31.5 ©)(13) and assigned a compatibility category of “B”. According to Florida, it has instituted a number of changes required by the rule as legally binding license conditions and also is working on promulgating rules to address these issues, with the exception of the new registration requirements that would force it to adopt less stringent registration and accountability standards for certain GL devices containing radioactive material.
Florida notes that NRC's procedures in Management Directive 5.9, for categorizing program elements or regulations, states that to be included in Category “B”, an NRC program element is to be one that applies to activities that have direct and significant effects in multiple jurisdictions (emphasis added). Examples include: transportation requirements, approval of products that are distributed nationwide, and definitions of products. Florida believes the registration of additional GL devices would not have a direct and significant effect in multiple jurisdictions.
Florida asserts that States and the NRC have had different GL requirements for years with little discussion of any transboundary problems, and that any actions concerning the registration of additional GL devices in Florida would be between the State and individuals in Florida. According to Florida, this registration process does not have any direct and significant effect on device manufacturers or distributors, the transportation of the devices, the requirements for approval, or the movement of devices into or out of Florida.
In the request, Florida cites its ability to register, inventory, and inspect all GL devices, as providing many benefits for the safety and security of its citizens and visitors and therefore to move to NRC's registration scheme would require it to cease to be able to register and account for over 1,000 radioactive sources in GL devices currently being regulated. Florida believes that its ability to continue to register all GL devices clearly meets the essential objective of NRC's Generally Licensed Device Rule.
Florida notes also that NRC's categorization criteria further states that for a program element to be included in Category “C”, it should be one that the essential objective should be adopted by an Agreement State to avoid conflicts, duplications, or gaps in the regulation of agreement material on a nationwide basis and that, if not adopted, would result in an undesirable consequence.
Florida believes that 10 CFR 31.5(c)(13)(I) meets the criteria for, and should be categorized as, compatibility category “C” in accordance with NRC Management Directive 5.9.
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 747-100, -200, and -300 series airplanes. The existing AD currently requires repetitive inspections to detect cracking of certain lower lobe fuselage frames, and repair if necessary. This proposed AD would retain all the requirements of the existing AD, and add airplanes to the applicability. This proposed AD results from reports indicating that fatigue cracks were found in lower lobe frames on the left side of the fuselage. We are proposing this AD to detect and correct fatigue cracking of certain lower lobe fuselage frames, which could lead to fatigue cracks in the fuselage skin, and consequent rapid decompression of the airplane.
We must receive comments on this proposed AD by February 3, 2006.
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.
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this proposed AD.
Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6437; 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 in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
On March 22, 1999, we issued AD 99-07-12, amendment 39-11097 (64 FR 15298, March 31, 1999), for certain Boeing Model 747-100, -200, and -300 series airplanes. That AD requires repetitive inspections to detect cracking of certain lower lobe fuselage frames, and repair if necessary. That AD resulted from reports indicating that fatigue cracks were found in lower lobe frames on the left side of the fuselage. We issued that AD to detect and correct fatigue cracking of certain lower lobe fuselage frames, which could lead to fatigue cracks in the fuselage skin, and consequent rapid decompression of the airplane.
Since we issued AD 99-07-12, the manufacturer has issued new service information that expands the applicability to include 747-400 and -400D series airplanes, line numbers 696 to 1152 inclusive.
We have reviewed Boeing Alert Service Bulletin 747-53A2408, Revision 1, dated April 4, 2002 (the original revision of that alert service bulletin, dated April 25, 1996, was referenced as the appropriate source of service information for accomplishing the required actions in AD 99-07-12). The procedures in Revision 1 of the alert service bulletin are essentially the same as the procedures in the original revision for the airplanes affected by AD 99-07-12 (identified in the service bulletin as Group 1 airplanes). These procedures include repetitive inspections to detect cracking of certain lower lobe fuselage frames, and repair if necessary. For the 747-400 and -400D series airplanes that are added to the effectivity of the service bulletin (identified as Group 2 airplanes), the service bulletin specifies contacting the manufacturer for information about how to repair frames that have crack damage.
We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 99-07-12 and would retain the requirements of the existing AD. This proposed AD also would add airplanes to the applicability and require accomplishing the actions specified in the service bulletin described previously, except as discussed under “Difference Between
The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• Using a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.
We have revised the applicability of the AD to identify the model designations as published in the most recent type certificate data sheet for the affected model.
We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.
In this proposed AD, the “detailed visual inspection” specified in the Boeing service bulletin is referred to as a “detailed inspection.” We have also changed references to a “detailed visual inspection” in the existing AD to refer to a “detailed inspection.” We have included the definition for a detailed inspection in a note in the proposed AD.
AD 99-07-12 refers to AD 93-08-12 amendment 39-8559 (58 FR 27927, May 12, 1993), in the section titled “Interim Action,” and in paragraphs (a) and (d), and Note 3 of that AD. Since we issued AD 99-07-12 we have superseded AD 93-08-12 with AD 2005-20-30 amendment 39-14327 (70 FR 59252, October 12, 2005). Therefore, this proposed AD refers to AD 2005-20-30 rather than to AD 93-08-12.
This proposed AD would retain all requirements of AD 99-07-12. Since AD 99-07-12 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:
This is considered to be interim action only until the accomplishment of AD 2005-20-30 for Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, and 747-300, and 747SR series airplanes. AD 2005-20-30 requires a detailed inspection to detect cracks in the Section 46 lower lobe frames, and repair if necessary, in accordance with Boeing Service Bulletin 747-53-2349, Revision 2, dated April 3, 2003. The initial inspection required by AD 2005-20-30 is required prior to the accumulation of 22,000 total flight cycles. We find that earlier inspection (
This is also considered to be interim action for Boeing Model 747-400 and 747-400D airplanes only until the accomplishment of an action similar to AD 2005-20-30 for these airplanes. On September 16, 2005, we issued NPRM Docket No. FAA-2005-22526 (70 FR 56860, September 29, 2005), Directorate Identifier 2005-NM-008-AD. That NPRM proposes to require repetitive inspections for cracking of certain fuselage internal structure, and repair if necessary.
There are about 681 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 99 airplanes of U.S. registry.
The actions that are required by AD 99-07-12 and retained in this proposed AD 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 both the retained and proposed actions for U.S. operators is $12,870, 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 and placed it in the AD docket. 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 Federal Aviation Administration (FAA) amends § 39.13
(a) The FAA must receive comments on this AD action by February 3, 2006.
(b) This AD supersedes AD 99-07-12.
(c) This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-300, 747-400, 747-400D, and 747SR series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2408, Revision 1, dated April 4, 2002.
(d) This AD results from reports indicating that fatigue cracks were found in lower lobe frames on the left side of the fuselage. We are issuing this AD to detect and correct fatigue cracking of certain lower lobe fuselage frames, which could lead to fatigue cracks in the fuselage skin, and consequent rapid decompression 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) For airplanes on which the initial detailed internal inspection of the Section 46 lower lobe frames required by paragraph (f)(2) or (i)(2) of AD 2005-20-30, amendment 39-14327, has not been accomplished: Perform a detailed visual inspection to detect cracking of the lower lobe fuselage frames from Body Station 1820 to Body Station 2100, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2408, dated April 25, 1996; or Boeing Alert Service Bulletin 747-53A2408, Revision 1, dated April 4, 2002; as applicable; at the later of the applicable times specified in paragraph (f)(1), (f)(2), or (f)(3) of this AD.
(1) For all airplanes: Prior to the accumulation of 15,000 total flight cycles; or
(2) For Group 1 airplanes identified in Revision 1 of the service bulletin: Within 1,500 flight cycles or 18 months after May 5, 1999 (the effective date of AD 99-07-12), whichever occurs first.
(3) For Group 2 airplanes identified in Revision 1 of the service bulletin: Within 1,500 flight cycles or 18 months after the effective date of this AD, whichever occurs first.
Paragraph (f)(2) or (i)(2) of AD 2005-20-30 requires a detailed inspection to detect cracks in the Section 46 lower lobe frames, in accordance with Boeing Service Bulletin 747-53-2349, Revision 2, dated April 3, 2003. The initial inspection is required prior to the accumulation of 22,000 total flight cycles; or within 1,000 flight cycles after June 11, 1993 (the effective date of AD 93-08-12, amendment 39-8559), or November 16, 2005 (the effective date of AD 2005-20-30), depending on previous inspections accomplished; whichever occurs 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.”
(g) If no cracking is detected during the inspection required by paragraph (f) of this AD, repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles.
(h) If any cracking is detected during any inspection required by paragraph (f) of this AD, prior to further flight, accomplish paragraphs (h)(1) and (h)(2) of this AD:
(1) Within 20 inches of the crack location on the frame, perform a detailed inspection of the adjacent structure to detect cracking. If any cracking is detected during any detailed inspection done in accordance with paragraph (f) or (h)(1) of this AD, prior to further flight, repair in accordance with paragraph (h)(1)(i) or (h)(1)(ii) of this AD, as applicable.
(i) For Group 1 airplanes: Using a method approved in accordance with the procedures specified in paragraph (j) of this AD. The Boeing 747 Structural Repair Manual, Subject 53-10-04, Figure 67 or 90, is one approved method.
(ii) For Group 2 airplanes: Using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(2) Repeat the inspection required by paragraph (f) of this AD thereafter at intervals not to exceed 3,000 flight cycles.
(i) Accomplishment of the initial detailed inspection of the Section 46 lower lobe frames required by paragraph (f)(2) or (i)(2) of AD 2005-20-30 constitutes terminating action for the requirements of this AD only for airplanes identified in Boeing Alert Service Bulletin 747-53A2408, Revision 1, dated April 4, 2002, as Group 1 airplanes.
(j)(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) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane.
(4) AMOCs approved previously in accordance with AD 99-07-12, amendment 39-11097, are approved as AMOCs for the corresponding provisions of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 777-200 series airplanes. This proposed AD would require installing a new washer between the lower wing surface and the jam nut of the sump drain valve assembly. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent energy from a lightning strike on the bushing for the sump drain valve from arcing to the inside of the center fuel tank wall, which could create an ignition source in the fuel tank and result in a fuel tank explosion.
We must receive comments on this proposed AD by February 3, 2006.
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.
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD.
Margaret Langsted, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6500; 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 in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
The FAA has examined the underlying safety issues involved in recent fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with another latent failure condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
We have received a report indicating that small gaps may be present between the bushing of the sump drain valve and the lower wing surface in the center fuel tank, on certain Boeing Model 777-200 series airplanes. If a lightning strike occurs on the bushing, arcs can go across the small gaps between the bushing and the lower wing surface, and into the inside of the fuel tank wall. The bushing does not have an engineered bond path to the wing surface. In addition, the layer of sealant between the bushing and the inner surface of the fuel tank could be too thin to contain the energy in the arcs. This condition, if not corrected, could create an ignition source in the center fuel tank and result in a fuel tank explosion.
We have reviewed Boeing Special Attention Service Bulletin 777-28-0045, dated September 1, 2005. The service bulletin describes procedures for installing a new washer between the lower wing surface and the jam nut of the sump drain valve assembly. 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. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
There are about 88 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 22 airplanes of U.S. registry. The proposed actions would take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Required parts would cost about $360 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $13,640, or $620 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue
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 and placed it in the AD docket. 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 Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 3, 2006.
(b) None.
(c) This AD applies to Boeing Model 777-200 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 777-28-0045, dated September 1, 2005.
(d) This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent energy from a lightning strike on the bushing for the sump drain valve from arcing to the inside of the center fuel tank wall, which could create an ignition source in the fuel tank and result in a fuel tank explosion.
(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, install a new washer between the lower wing surface and the jam nut of the sump drain valve assembly in both wings, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-28-0045, dated September 1, 2005.
(g)(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) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes; Model DC-9-81 (MD-81), -82 (MD-82), -83 (MD-83), and -87 (MD-87) airplanes; and Model MD-88 airplanes. That proposed AD would have required repetitive inspections and functional tests of the static port heater assemblies, an inspection of the static port heaters and insulators, and corrective actions if necessary. This new action revises the proposed AD by adding repetitive inspections of the static port heaters and insulators and revising the functional test of the static port heater. The actions specified by this new proposed AD are intended to prevent an electrical short of the static port heater from sparking and igniting the insulation blanket adjacent to the static port heater, which could result in smoke and/or fire in the cabin area. This action is intended to address the identified unsafe condition.
Comments must be received by January 17, 2006.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-198-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed AD may be obtained from Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Elvin 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.
Interested persons are invited to participate in the making of the proposed AD by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed AD. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-198-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-198-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD) was published as a notice of proposed rulemaking (NPRM) in the
The airplane manufacturer informed the FAA that the functional test of the left and right primary and alternate static port heater assemblies must be revised to prevent damaging the aircraft fuselage skin. An operator informed the airplane manufacturer that performing the current functional test would overheat and damage the aircraft fuselage skin. Therefore the airplane manufacturer has revised the functional test and issued Boeing Service Bulletin DC9-30-097, Revision 2, dated May 27, 2005, which references the revised functional test (Boeing Service Bulletin DC9-30-097, Revision 01, dated January 24, 2003, is cited as the appropriate source of service information for doing functional tests specified in the original NPRM). We have revised this supplemental NPRM to reference Revision 2 of Boeing Service Bulletin DC9-30-097 as the appropriate source of service information for accomplishing certain proposed inspections, replacements, and functional tests.
We have also considered the following comments we received in response to the original NPRM:
One commenter generally agrees with the original NPRM.
The National Transportation Safety Board (NTSB) requests that the inspection specified in paragraph (b)(2) of the original NPRM be changed from a one-time inspection to a repetitive inspection. The NTSB is concerned that incorrect stacking of the heater and insulator may occur after the one-time inspection. The NTSB states that repetitive inspections at the same interval as the inspection specified in paragraph (b)(1) of the original NPRM would identify incorrect stacking without placing an undue burden on operators.
We agree with the NTSB that the inspection specified in paragraph (b)(2) of the supplemental NPRM be changed to a repetitive inspection. Incorrect stacking of the heater and insulator will cause higher-than-normal operating temperature locally in the insulation blanket, which would lead to quicker deterioration and aging of the rubber, causing it to crack and lead to electrical shorting or arcing. In consideration of this unsafe condition and the potential for incorrect stacking, we have determined that a repetitive inspection of the heater and insulator for incorrect stacking is necessary. We have revised paragraph (b) of the supplemental NPRM accordingly.
Two commenters request that the original NPRM be withdrawn. One commenter, the airplane manufacturer, contends that the unsafe condition no longer exists. The commenter states that the unsafe condition was addressed by Boeing Alert Service Bulletin MD90-30A023, including Appendix, dated March 14, 2001 (for Model MD-90-30 airplanes); and by Boeing Alert Service Bulletin MD80-30A092, including Appendix, dated March 14, 2001 (for Model DC-9-81, -82, -83, and -87 airplanes, and Model MD-88 airplanes). The commenter notes that those service bulletins were mandated by AD 2001-10-11, amendment 39-12237 (66 FR 28651, May 24, 2001), and by AD 2001-10-10, amendment 39-12236 (66 FR
The commenter also states that a review of operators' reports indicates that only two events resulted in smoke in the cabin, both on one operator's Model MD-88 airplanes. One event resulted in the issuance of the service bulletins described previously, and the other event report stated that a smoke smell was “evident.” The commenter notes that “in the three years since the release of these service bulletins and the related ADs, no other static port heater smoke/fire events have been reported from the entire MD-80/90 fleet.” The commenter believes that the actions in the original NPRM are purely an enhancement; thus, the NPRM should be withdrawn.
The other commenter states that the cause of the smoke in the cabin was determined to be an electrical short of the static port heater, which caused a spark that ignited the metallized Mylar insulation blanket adjacent to the heater. The commenter contends that Boeing Alert Service Bulletin MD80-30A092 was issued to address the unsafe condition by inspecting the static port heater wiring and modifying or removing the metallized Mylar insulation blankets. The commenter notes that it accomplished this service bulletin to comply with AD 2001-10-10 and found no faults in any of the static port heaters. The commenter believes this addresses the unsafe condition and therefore the original NPRM is not needed.
We do not agree with the commenters' requests to withdraw the original NPRM. Although no other static port heater smoke/fire events have been reported since we issued ADs 2001-10-10 and 2001-10-11, the potential for sparks from an electrical short of the static port heater to ignite the insulation blanket adjacent to the static port heater and result in smoke and/or fire in the cabin area still exists. While ADs 2001-10-10 and 2001-10-11 require only a one-time inspection of the wiring of the static port heaters, this supplemental NPRM would require repetitive functional tests and inspections of the static port heater assemblies and wiring. The proposed repetitive inspections are required to identify and remove marginal static port heaters before they fail and generate sparks. Therefore, we have not withdrawn this supplemental NPRM.
One commenter requests that the reference to AMM 30-32-00 be revised to AMM 30-30-00. The commenter believes the reference in paragraph (b)(2) of the original NPRM is in error as it is not reflected in either the DC-9 or the MD-80 AMMs.
We agree with the commenter that the reference should be revised to Boeing Model DC-9 AMM 30-30-00 for Model DC-9 airplanes only. For Model DC-9 airplanes, AMM 30-30-00 contains the instructions for performing a general visual inspection of the left and right primary and alternate static port heater and insulator for proper installation. For Model MD-80 airplanes, Boeing Model MD-80 AMM 30-30-01 contains the same instructions. We have revised paragraph (b)(2) of the supplemental NPRM accordingly.
One commenter requests that Model DC-9-10, -20, -30, -40, and -50 series airplanes be removed from the applicability of the original NPRM. The commenter states that the original NPRM addresses known problems on the Model DC-9-81 (MD-81), -82 (MD-82), -83 (MD-83), and -87 (MD-87) airplanes, and Model MD-88 airplanes, and extends a proposed solution to Model DC-9-10, -20, -30, -40, and -50 series airplanes. The commenter notes that the shorted wiring at the static port heater blanket caused or contributed to an instance of a metallized Mylar insulation blanket being ignited. The commenter believes the unsafe condition does not apply to Model DC-9-10, -20, -30, -40, and -50 series airplanes because those models do not use metallized Mylar insulation blankets.
We do not agree with the commenter to remove Model DC-9-10, -20, -30, -40, and -50 series airplanes from the applicability in this supplemental NPRM. The unsafe condition exists for airplanes on which there is a static port heater regardless of the type of insulation blanket adjacent to the heater. An electrical short of the static port heater from sparking could ignite the insulation blanket adjacent to the static port heater and result in smoke and/or fire in the cabin area. We have not revised the supplemental NPRM in this regard.
The same commenter requests that the compliance times specified in paragraph (b) of the original NPRM be revised. The commenter notes that the initial inspection specified in the original NPRM is to be done within 18 months. However, the commenter proposes that the initial inspection be done within 36 months. The commenter contends that the area of inspection is not normally opened during the light checks that occur every 18 months and that the area would be open for the heavy checks that occur every 36 months. The commenter also suggests doing the repetitive inspections at intervals not to exceed 36 months instead of intervals not to exceed 48 months as specified in paragraph (b) of the original NPRM. The commenter concludes that their proposed compliance times would alleviate much of its labor impact.
We do not agree with the commenter to revise the compliance times in paragraph (b) of the supplemental NPRM. In developing an appropriate compliance time, we considered the safety implications, and normal maintenance schedules for timely accomplishment of the inspections specified in the supplemental NPRM. In consideration of all of these factors, we determined that the compliance times, as proposed, represent an appropriate interval in which the inspections can be accomplished, while still maintaining an adequate level of safety. Operators are always permitted to accomplish the requirements of an AD at a time earlier than the specified compliance time; therefore, an operator may choose to do the repetitive inspections at intervals earlier than 48 months. We have not revised the supplemental NPRM in this regard.
One commenter requests that provisions should be made to allow further flight subject to the conditions of the MEL when damaged or inoperative static port heater assemblies are found during an inspection specified by the original NPRM. The commenter notes that the original NPRM specifies that, if damage is found or the heater fails a functional test, the damaged or inoperative static port heater assembly must be replaced before further flight. The commenter states that the FAA-approved MEL item 30-6 allows the static port heaters to be inoperative for takeoff and landing under certain conditions, for up to 10 days. The commenter believes that provisions to allow the operator to collar the circuit breaker and permit further flight subject to the MEL should be made in the event of parts shortages or other unforeseen circumstances.
We do not agree with the commenter to make provisions to allow further flight subject to the conditions of the MEL when damaged or inoperative static port heater assemblies are found. MEL item 30-6 is based on meteorological conditions, which are subject to change, during takeoff and landing. We have not revised the supplemental NPRM in this regard. However, under the provisions of paragraph (e) of the supplemental NPRM, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.
One commenter requests that airplanes on which the metallized Mylar insulation blankets have been replaced be excluded from the initial inspection specified in paragraph (b) of the original NPRM. The commenter notes that it is well into its metallized Mylar insulation blanket replacement program for its Model MD-80 fleet. The commenter states that the reason to exclude these airplanes is because of the lack of findings during the inspection of the static port heaters in all of its airplanes in 2001.
We disagree with the commenter. As stated previously, the identified unsafe condition is on all airplanes specified in the applicability of the supplemental NPRM regardless of whether the insulation blankets are made of metallized Mylar. Therefore, even if the metallized Mylar insulation blankets have been removed or replaced, operators must do the inspections specified in paragraph (b) of the supplemental NPRM to inspect both the wiring in the static port connecter for damage and to inspect for proper installation of the static port heater and insulator. These inspections are required in order to address the identified unsafe condition. We have not revised the supplemental NPRM in this regard. However, under the provisions of paragraph (e) of the supplemental NPRM, we may consider requests for approval of an AMOC if sufficient data are submitted to substantiate that such an AMOC would provide an acceptable level of safety.
One commenter requests that replacing a static port heater in accordance with Boeing Service Bulletin MD80-34-289 be allowed as a means of compliance with the initial inspection specified in paragraph (b) of the original NPRM. The commenter states that most of its primary static ports and primary static port heaters were replaced during the accomplishment of Boeing Service Bulletin MD80-34-289 to comply with the requirements for domestic reduced vertical separation minimums (RVSM).
We do not agree with the commenter's request to allow replacement of the static port heater in accordance with Boeing Service Bulletin MD80-34-289, dated February 25, 1997, as a means of compliance with the initial inspection specified in paragraph (b) of the supplemental NPRM. The service bulletin, titled “Navigation—Attitude Indication—Inspect for Reduced Vertical Separation Minimums (RVSM) Requirements,” is for RVSMs that started being implemented March 27, 1997. However, the replacement procedure specified in the service bulletin does not comply with paragraph (b)(2) of the supplemental NPRM, which requires performing a general visual inspection of the static port heater and insulator for proper installation. We have not revised the supplemental NPRM in this regard. However, under the provisions of paragraph (e) of the final rule, we may approve requests for an alternate method of compliance (AMOC) if data are submitted to substantiate that such an AMOC would provide an acceptable level of safety.
One commenter notes that “Condition 2” of the service bulletin refers to McDonnell Douglas drawing SR09340158. However, the commenter states that the drawing is applicable to Model MD-80 airplanes, not to Model DC-9 airplanes. We infer from this that the commenter is requesting clarification of a drawing specified in Boeing Service Bulletin DC9-30-097, Revision 01, dated January 24, 2003.
We do not agree with the commenter that the drawing is not applicable to Model DC-9 airplanes. McDonnell Douglas drawing SR09340158 is applicable to both Model MD-80 airplanes and Model DC-9 airplanes. Because Model DC-9-80 (MD-80) airplanes are a derivative of the Model DC-9 airplanes, Boeing uses DC-9 and MD-80 drawings interchangeably. We have not revised the supplemental NPRM in this regard.
Two commenters request that the Cost Impact section in the original NPRM be revised. One commenter notes that Boeing Service Bulletin DC9-30-097 estimates the labor to do the visual inspections and functional tests of the left and right primary and alternate static port heater assemblies to be 3.2 hours. The commenter estimates 6.0 labor hours to be more accurate. The other commenter notes that the service bulletin estimates either 2.8 or 3.2 labor hours to gain access, do the general visual inspection, and do the test. The commenter states that the original NPRM specifies only one labor hour to do the general visual inspection and test, and one labor hour to do the other inspection. The commenter also points out that the original NPRM does not include labor hours to do repairs “as required” and does not include the cost to replace any damaged or inoperative blankets, at approximately $500 to $1,000 each.
While we do not object to the figures provided by the commenters, we do not agree to revise the Cost Impact section in the supplemental NPRM. The cost information describes only the direct costs of the specific actions in the supplemental NPRM that will be required, based on data provided by the manufacturer for the number of work hours necessary to do the proposed actions. We recognize that, in doing the actions required by an AD, operators may incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which may vary significantly among operators, are almost impossible to calculate. The economic analysis of an AD also does not consider the costs of “on-condition” actions (that is, actions needed to correct an unsafe condition and costs of associated parts) because, regardless of AD direction, those actions would be required to correct an unsafe condition identified in an airplane and ensure operation of that airplane in an airworthy condition, as required by the Federal Aviation Regulations. We have not revised the supplemental NPRM in this regard.
We have revised this supplemental NPRM to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.
Since the changes described above expand the scope of the original NPRM, the FAA has determined that it is
There are approximately 1,836 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,125 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the proposed general visual inspection for wire damage and functional test, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection for wire damage and functional test on U.S. operators is estimated to be $73,125, or $65 per airplane, per inspection cycle.
It would also take approximately 1 work hour per airplane to accomplish the proposed general visual inspection for proper installation, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection for proper installation on U.S. operators is estimated to be $73,125, or $65 per airplane, per inspection cycle.
The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
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.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent an electrical short of the static port heater from sparking and igniting the insulation blanket adjacent to the static port heater, which could result in smoke and/or fire in the cabin area, accomplish the following:
(a) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Boeing Service Bulletin DC9-30-097, Revision 2, dated May 27, 2005.
(b) Within 18 months after the effective date of this AD, do the actions in paragraphs (b)(1) and (b)(2) of this AD. Repeat the actions thereafter at intervals not to exceed 48 months.
(1) Perform a general visual inspection of the left and right primary and alternate static port heater assemblies for wire damage; and perform a functional test of the left and right primary and alternate static port heater assemblies; in accordance with the service bulletin.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation or assembly to detect obvious damage, failure or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normal available lighting conditions such as daylight, hangar lighting, flashlight or drop-light and may require removal or opening of access panels or doors. Stands, ladders or platforms may be required to gain proximity to the area being checked.”
(2) Perform a general visual inspection of the left and right primary and alternate static port heater and insulator for proper installation in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO). Inspecting for proper installation in accordance with “Heater, Static—Removal/Installation” of Airplane Maintenance Manual (AMM) 30-30-01 for Model MD-80 airplanes or “Pitot and Static—Maintenance Practices” of AMM 30-30-00 for Model DC-9 airplanes, as applicable, is one approved method. Before further flight, correct any improper installation in accordance with a method approved by the Manager, Los Angeles ACO. Correcting improper installation in accordance with AMM 30-30-01 or AMM 30-30-00, as applicable, is one approved method. For an inspection method or corrective method to be approved by the Manager, Los Angeles ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(c) If wire damage is found and/or the heater assembly fails the functional test during the general visual inspection and functional test required by paragraph (b)(1) of this AD: Before further flight, replace the damaged or inoperative static port heater assembly with a new or serviceable static
(d) Inspections, functional tests, and corrective actions accomplished before the effective date of this AD in accordance with Boeing Service Bulletin DC9-30-097, dated February 15, 2002; and Boeing Service Bulletin DC9-30-097, Revision 01, dated January 24, 2003; are considered acceptable for compliance with the corresponding actions specified in this AD.
(e)(1) In accordance with 14 CFR 39.19, the Manager, Los Angeles Aircraft Certification Office, FAA, is authorized to approve alternative methods of compliance for this AD.
(2) Before using any AMOC approved in accordance with 14 CFR 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking; reopening of comment period.
This document revises an earlier proposed airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-90-30 airplanes, that would have required repetitive inspections and functional tests of the static port heater assemblies, an inspection of the static port heaters and insulators, and corrective actions if necessary. This new action revises the proposed AD by adding repetitive inspections of the static port heaters and insulators and revising the functional test of the static port heater assemblies. The actions specified by this new proposed AD are intended to prevent an electrical short of the static port heater from sparking and igniting the insulation blanket adjacent to the static port heater, which could result in smoke and/or fire in the cabin area. This action is intended to address the identified unsafe condition.
Comments must be received by January 17, 2006.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-194-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments may be submitted via fax to (425) 227-1232. Comments may also be sent via the Internet using the following address:
The service information referenced in the proposed AD may be obtained from Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Elvin 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.
Interested persons are invited to participate in the making of the proposed AD by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed AD. The proposals contained in this action may be changed in light of the comments received.
Submit comments using the following format:
• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.
• For each issue, state what specific change to the proposed AD is being requested.
• Include justification (e.g., reasons or data) for each request.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-194-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-194-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-90-30 airplanes, was published as a notice of proposed rulemaking (NPRM) in the
The airplane manufacturer informed the FAA that the functional test of the left and right primary and alternate static port heater assemblies must be revised to prevent damaging the aircraft fuselage skin. An operator informed the airplane manufacturer that performing the current functional test will overheat and damage the aircraft fuselage skin. Therefore, the airplane manufacturer has revised the functional test and issued Boeing Service Bulletin MD90-30-026, Revision 1, dated May 27, 2005, which references the revised functional test (Boeing Service Bulletin MD90-30-026, dated February 15, 2002, is cited as the appropriate source of service information for doing functional tests specified in the original NPRM). We have revised the supplemental NPRM to reference Revision 1 of Boeing Service Bulletin MD90-30-026 as the appropriate source of service information for accomplishing certain proposed inspections, replacements, and functional tests.
We have also considered the following comments we received in response to the original NPRM:
The National Transportation Safety Board (NTSB) requests that the inspection for incorrect stacking specified in paragraph (b)(2) of the NPRM be changed from a one-time inspection to a repetitive inspection. The NTSB is concerned that, after the one-time inspection specified in the NPRM, incorrect stacking may still occur. The NTSB states that repetitive inspections would address any incorrect stacking that may occur in the future. The NTSB also states that the repetitive inspection interval could be the same as the one for the inspection specified in paragraph (b)(1) of the NPRM, and therefore would not place an undue burden on operators.
We agree with the NTSB that the inspection required in paragraph (b)(2) of the supplemental NPRM be changed to repetitive inspections. Incorrect stacking of the heater and insulator will cause higher-than-normal operating temperature locally in the insulation blanket, which would lead to quicker deterioration and aging of the rubber, causing it to crack and lead to electrical shorting or arcing. In consideration of this unsafe condition and the potential for incorrect stacking, we have determined that repetitive inspections of the heater and insulator for incorrect stacking is necessary. We have revised paragraph (b) of the supplemental NPRM accordingly.
One commenter, the airplane manufacturer, requests that the NPRM be withdrawn. The commenter contends that the unsafe condition no longer exists. The commenter states that the unsafe condition was addressed by Boeing Alert Service Bulletin MD90-30A023, including Appendix, dated March 14, 2001 (for Model MD-90-30 airplanes), which was mandated by AD 2001-10-11, amendment 39-12237 (66 FR 28651, May 24, 2001), and by Boeing Alert Service Bulletin MD80-30A092, including Appendix, dated March 14, 2001 (for Model DC-9-81, -82, -83, and -87 airplanes, and Model MD-88 airplanes), which was mandated by AD 2001-10-10, amendment 39-12236 (66 FR 28643, May 24, 2001). The commenter states that those ADs require inspecting the wiring of the primary and alternate static port heaters, determining if the type of insulation blanket installed is metallized Mylar, and modifying the insulation blankets if necessary.
The commenter also states that a review of operator's reports indicates only two events resulted in smoke in the cabin, both on one operator's MD-88 airplanes. One event resulted in the issuance of the service bulletins described previously, and the other event report stated a smoke smell was “evident.” The commenter notes that “in the three years since the release of these service bulletins and the related ADs, no other static port heater smoke/fire events have been reported from the entire MD-80/90 fleet.”
The commenter concludes that the unsafe condition no longer exists, and that the actions in the NPRM are purely an enhancement. Therefore, the commenter requests that the NPRM be withdrawn.
We do not agree with the commenter's request to withdraw the NPRM. Although no other static port heater smoke/fire events have been reported since we issued ADs 2001-10-10 and 2001-10-11, the potential for sparks from an electrical short of the static port heater to ignite the insulation blanket adjacent to the static port heater and result in smoke and/or fire in the cabin area still exists. While ADs 2001-10-10 and 2001-10-11 require only a one-time inspection of the wiring of the static port heaters, this supplemental NPRM would require repetitive functional tests and inspections of the static port heater assemblies and wiring. The proposed repetitive inspections are required to identify and remove marginal static port heaters before they fail and generate sparks. Therefore, we have not withdrawn this supplemental NPRM.
One commenter requests that AMM 30-32-00 be revised to include the procedures to check the insulator for proper installation.
We partially agree with the commenter's request. Operators should note that the procedures to check the insulator for proper installation are located in Boeing Model MD-90-30 AMM 30-32-01, which is a subparagraph of AMM 30-32-00. We have revised the reference to the AMM in paragraph (b)(2) of this supplemental NPRM accordingly.
The same commenter requests that Boeing Service Bulletin MD90-30-026, dated February 15, 2002 (cited as the appropriate source of service information for the NPRM), be revised to include the inspection for proper installation as required by the NPRM. The commenter notes that the service bulletin does not include an inspection for proper installation.
We do not agree with the commenter's request. We have consulted with the manufacturer and have concluded that the AMM provides the necessary information to properly complete the inspection. Therefore, there is limited value in revising the service bulletin to include this information. No change is made to the supplemental NPRM in this regard.
We have revised this supplemental NPRM to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.
Since certain changes described above expand the scope of the original NPRM, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.
There are approximately 116 airplanes of the affected design in the worldwide fleet. The FAA estimates that 22 airplanes of U.S. registry would be affected by this proposed AD.
It would take approximately 1 work hour per airplane to accomplish the proposed general visual inspection for
It would also take approximately 1 work hour per airplane to accomplish the proposed general visual inspection for proper installation, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection for proper installation on U.S. operators is estimated to be $1,430, or $65 per airplane, per inspection cycle.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.
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.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by adding the following new airworthiness directive:
To prevent an electrical short of the static port heater from sparking and igniting the insulation blanket adjacent to the static port heater, which could result in smoke and/or fire in the cabin area, accomplish the following:
(a) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Boeing Service Bulletin MD90-30-026, Revision 1, dated May 27, 2005.
(b) Within 18 months after the effective date of this AD, do the actions in paragraphs (b)(1) and (b)(2) of this AD. Repeat the actions thereafter at intervals not to exceed 48 months.
(1) Perform a general visual inspection of the left and right primary and alternate static port heater assemblies for wire damage; and perform a functional test of the left and right primary and alternate static port heater assemblies; in accordance with the service bulletin.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation or assembly to detect obvious damage, failure or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normal available lighting conditions such as daylight, hangar lighting, flashlight or drop-light and may require removal or opening of access panels or doors. Stands, ladders or platforms may be required to gain proximity to the area being checked.”
(2) Perform a general visual inspection of the left and right primary and alternate static port heater and insulator for proper installation in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO). Inspecting for proper installation in accordance with “Static Port Heaters—Maintenance Practices” of McDonnell Douglas MD-90-30 Airplane Maintenance Manual (AMM) 30-32-01 is one approved method. Before further flight, correct any improper installation in accordance with a method approved by the Manager, Los Angeles ACO. Correcting improper installation in accordance with “Static Port Heaters—Maintenance Practices” of AMM 30-32-01 is one approved method. For an inspection method or corrective method to be approved by the Manager, Los Angeles ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(c) If wire damage is found and/or the heater assembly fails the functional test during the general visual inspection and functional test required by paragraph (b)(1) of this AD: Before further flight, replace the damaged or inoperative static port heater assembly with a new or serviceable static port heater assembly in accordance with the service bulletin.
(d) Actions accomplished before the effective date of this AD according to Boeing Service Bulletin MD90-30-026, dated February 15, 2002, are considered acceptable for compliance with the corresponding actions specified in this AD.
(e)(1) In accordance with 14 CFR 39.19, the Manager, Los Angeles ACO, FAA, is authorized to approve alternative methods of compliance for this AD.
(2) Before using any AMOC approved in accordance with 14 CFR 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to revise the Class E airspace at Sand Point, AK. Three new Standard Instrument Approach Procedures (SIAPs), a revised Departure Procedure (DP) and a revised SIAP are being published for the Sand Point Airport. Adoption of this proposal would result in revised Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Sand Point, AK.
Comments must be received on or before February 3, 2006.
Send comments on the proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2005-23026/Airspace Docket No. 05-AAL-39, at the beginning of your comments. You may also submit comments on the Internet at
An informal docket may also be examined during normal business hours at the office of the Manager, Safety, Alaska Flight Service Operations, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587.
Gary Rolf, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-23026/Airspace Docket No. 05-AAL-39.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591 or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is considering an amendment to the Code of Federal Regulations (14 CFR part 71), which would revise the Class E airspace at Sand Point, AK. The intended effect of this proposal is to modify Class E airspace upward from 700 ft. and 1,200 ft. above the surface to contain Instrument Flight Rules (IFR) operations at Sand Point, AK.
The FAA Instrument Flight Procedures Production and Maintenance Branch has developed three new SIAPs, revised the DP, and modified one SIAP for the Sand Point Airport. The new approaches are: (1) Area Navigation (Global Positioning System) (RNAV (GPS)) Runway (RWY) 13, original; (2) Non-directional Beacon (NDB)/Distance Measuring Equipment (DME) RWY 13, original; (3) NDB/DME RWY 31, original. The unnamed revised DP is published in the front of the U.S. Terminal Procedures Alaska Vol 1. The revised SIAP is the NDB RWY 13, Amendment 1. Modified Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface within the Sand Point Airport area would be established by this action. The proposed airspace is sufficient to contain aircraft executing the new and revised instrument procedures at the Sand Point Airport.
The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9N,
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it proposes to modify the Class E airspace sufficiently to contain aircraft executing instrument procedures at Sand Point Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for 14 CFR part 71 continues to read as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N,
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of the Sand Point Airport and within 3 miles each side of the 172° bearing of the Borland NDB/DME extending from the 6.4-mile radius to 13.9 miles south of the airport and within 5 miles either side of the 318° bearing of the Borland NDB/DME extending from the 6.4-mile radius to 17 miles northwest of the airport; and that airspace within 5 miles either side of the 324° bearing of the Borland NDB/DME extending from the 6.4-mile radius to 17 miles northwest of the airport, and that airspace extending upward from 1,200 feet above the surface within a 25-mile radius of the Borland NDB/DME.
Environmental Protection Agency (EPA).
Advance notice of proposed rulemaking; second extension of the comment period.
The EPA is extending the comment period a second time for an advanced notice of proposed rulemaking (ANPR) published on August 31, 2005 (70 FR 51694). The first extension of comment period published in the
Comments must be received on or before February 16, 2006. Requests to meet with EPA should be made on or before January 30, 2006.
Submit comments, identified by Docket ID No. EPA-OAR-2005-0148, by one of the following methods:
•
• E-mail:
• Fax: 202-566-1741.
• Mail: Docket ID No. EPA-OAR-2005-0148, Environmental Protection Agency Docket Center, Mail Code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 10460. Please include duplicate copies, if possible.
• Hand Delivery: Docket ID No. EPA-OAR-2005-0148, Environmental Protection Agency Docket Center, EPA West Building, Room-102, 1301 Constitution Avenue, NW., Washington, DC. Please include duplicate copies, if possible. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Marcia L. Spink, Air Protection Division, Office of Air Programs, Mail Code: 3AP20; Environmental Protection Agency, Region 3, 1650 Arch St., Philadelphia, PA 19103-2029; telephone (215) 814-2104,
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve revisions to the State Implementation Plan (SIP) submitted by the state of Iowa. These revisions include the general rulemaking that Iowa completes for the purpose of updating various rules, making clarifications and other minor revisions. EPA is also proposing approval of revisions to the Iowa Operating Permits Program for the purpose of updating and clarifying various rules included in the general rulemaking. These revisions add new definitions, as well as an administrative correction to a previously submitted rule. Approval of these revisions will ensure consistency between the state and Federally-approved rules, and ensure Federal enforceability of the State's revised air program rules.
Comments on this proposed action must be received in writing by January 19, 2006.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2005-IA-0006 by one of the following methods:
1.
2. E-mail: Heather Hamilton at
3. Mail: Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to: Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8 to 4:30, excluding legal holidays.
Please see the direct final rule which is located in the Rules section of this
Heather Hamilton at (913) 551-7039, or by e-mail at
In the final rules section of the
Department of Defense (DoD).
Proposed rule with request for comments.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update text addressing contract pricing matters and cost accounting standards administration. This proposed rule is a result of a transformation initiative undertaken by DoD to dramatically change the purpose and content of the DFARS.
Comments on the proposed rule should be submitted in writing to the address shown below on or before February 21, 2006, to be considered in the formation of the final rule.
You may submit comments, identified by DFARS Case 2003-D014, using any of the following methods:
•
•
•
•
•
•
All comments received will be posted to
Mr. Bill Sain, (703) 602-0293.
DFARS Transformation is a major DoD initiative to dramatically change the purpose and content of the DFARS. The objective is to improve the efficiency and effectiveness of the acquisition process, while allowing the acquisition workforce the flexibility to innovate. The transformed DFARS will contain only requirements of law, DoD-wide policies, delegations of FAR authorities, deviations from FAR requirements, and policies/procedures that have a significant effect beyond the internal operating procedures of DoD or a significant cost or administrative impact on contractors or offerors. Additional information on the DFARS Transformation initiative is available at
This proposed rule is a result of the DFARS Transformation initiative. The proposed DFARS changes include:
• Addition of text at 215.403-1(c) and 230.201-5(a)(1) to implement Section 817 of the National Defense Authorization Act for Fiscal Year 2003 (Pub. L. 107-314) regarding exceptions to cost or pricing data requirements and waiver of cost accounting standards.
• Deletion of 215.404-1(d), Cost realism analysis, because FAR 15.404-1 contains sufficient policy on this subject.
• Deletion of unnecessary introductory text at redesignated 215.404-71-4(f), Facilities capital employed, Values: Normal and designated ranges.
• Deletion of the definition of “Acceptable estimating system” from 215.407-5-70(a)(1), and relocation of the definition to the contract clause at 252.215-7002, Cost Estimating System Requirements; addition of a cross-reference in 215.407-5-70(a)(1) to the relocated definition; elimination of 215.407-5-70(b)(1)(iii) and (iv) and relocation of the language to the new definition at 252.215-7002(a); and deletion of duplicative language at 252.215-7002(b).
• Revision of 230.201-5(a)(1)(A) to address the authority of the Director, Defense Procurement and Acquisition Policy, to grant cost accounting standards waivers, in accordance with Section 802 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65).
• Removal of 230.7000, Contract facilities capital estimates; 230.7001, Use of DD Form 1861; 230.7002, Preaward facilities capital applications; and 230.7004-2, DD Form 1861, and relocation of text on these subjects to 215.404-4, Profit, since these sections pertain to the calculation of weighted guidelines for profit, rather than cost accounting standards.
• Elimination of 230.7003, Postaward facilities capital applications, and 230.7004-1, Forms CASB-CMF, since these sections duplicate CAS 414, Cost of Money as an Element of the Cost of Facilities Capital; FAR 31.205-10, Cost of Money; and the implementing contract clauses.
• Elimination of the definitions at 230.7100(a) and (b), since these definitions are provided in the cost accounting standards (CAS); elimination of the definition at 230.7100(c), because it conflicts with CAS; and elimination of the definition at 230.7100(d), because it is unnecessary.
• Elimination of 230.7101, Calculations, and 230.7102, Determining imputed cost of money, because they are adequately covered in CAS 417, Cost of Money as an Element of the Cost of Capital Assets Under Construction (48 CFR 9904.417).
• Removal of 230.7103, Preaward capital employed application, and relocation of that coverage to 215.404-73(b)(2)(i), Offsets for facilities capital cost of money, since it applies to offsets in determining profit, rather than cost accounting standards.
• Relocation of the following text to the new DFARS companion resource, Procedures, Guidance, and Information (PGI). Additional information on PGI is available at
• 215.403-1(c)(1), Adequate price competition.
• 215.403-5, Instructions for submission of cost or pricing data or information other than cost or pricing data.
• 215.404-2, Information to support proposal analysis.
• 215.404-3, Subcontract pricing considerations.
• 215.404-70, DD Form 1547, Record of Weighted Guidelines Method Application.
• 215.404-71-2(b), (d), and (e), Performance risk.
• 215.404-71-3(b), (d), (e), and (f)(3), Contract type risk and working capital adjustment.
• 215.404-71-4, Facilities capital employed (partial relocation).
• 215.404-71-5(b) and (c), Cost efficiency factor.
• 215.404-76, Reporting profit and fee statistics.
• 215.406-1, Prenegotiation objectives.
• 215.406-3, Documenting the negotiation.
• 215.407-4, Should-cost review.
• 215.407-5-70(e) and (f), Estimating systems “ Disclosure, maintenance, and review requirements.
• 215.470(b) and (c), Estimated data prices, except that the first sentence of (b) remains in DFARS, and is revised for clarity.
• 230.201-5(a)(1), Waiver (partial relocation).
• 253.215-70, DD Form 1547, Record of Weighted Guidelines Application.
This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities
The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Government procurement.
Therefore, DoD proposes to amend 48 CFR Parts 215, 230, 252, and 253 as follows:
1. The authority citation for 48 CFR Parts 215, 230, 252, and 253 continues to read as follows:
41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 215.403-1 is revised to read as follows:
(c) See PGI 215.403-1(c) for guidance on standards for exceptions from cost or pricing data requirements.
(3)
(4)
(B) By November 30th of each year, the departments and agencies shall provide a report to the Director, DPAP, ATTN: DPAP/Policy, of all waivers granted under FAR 15.403-1(b)(4), during the previous fiscal year, for any contract, subcontract, or modification expected to have a value of $15,000,000 or more. See PGI 215.403-1(c)(4)(B) for the format and guidance for the report. The Director, DPAP, will submit a consolidated report to the congressional defense committees.
(C) DoD has waived the requirement for submission of cost or pricing data for the Canadian Commercial Corporation and its subcontractors.
(D) DoD has waived cost or pricing data requirements for nonprofit organizations (including educational institutions) on cost-reimbursement-no-fee contracts. The contracting officer shall require:
3. Section 215.403-5 is revised to read as follows:
When the solicitation requires contractor compliance with the Contractor Cost Data Reporting System, follow the procedures at PGI 215.403-5.
4. Section 215.404-1 is amended by removing paragraph (d).
5. Sections 215.404-2 and 215.404-3 are revised to read as follows:
See PGI 215.404-2 for guidance on obtaining field pricing or audit assistance.
Follow the procedures at PGI 215.404-3 when reviewing a subcontractor's proposal.
6. Section 215.404-4 is amended by revising paragraph (b)(1) introductory text to read as follows:
(b) * * *
(1) Contracting officers shall use a structured approach for developing a prenegotiation profit or fee objective on any negotiated contract action when cost or pricing data is obtained, except for cost-plus-award-fee contracts (see 215.404-74, 216.405-2, and FAR 16.405-2) or contracts with Federally Funded Research and Development Centers (FFRDCs) (see 215.404-75). There are three structured approaches—
7. Section 215.404-70 is revised to read as follows:
Follow the procedures at PGI 215.404-70 for use of DD Form 1547 whenever a structured approach to profit analysis is required.
8. Section 215.404-71-2 is amended by revising paragraphs (b), (d), and (e) to read as follows:
(b)
(d)
(e)
9. Section 215.404-71-3 is amended by revising paragraphs (b), (d), (e), and (f)(3) to read as follows:
(b)
(d)
(e)
(f) * * *
(3) An example is available at PGI 215.404-71-3(f)(3).
10. Section 215.404-71-4 is revised to read as follows:
(a)
(b)
(1) An analysis of the appropriate Forms CASB-CMF and cost of money factors (48 CFR 9904.414 and FAR 31.205-10); and
(2) DD Form 1861, Contract Facilities Capital Cost of Money.
(c)
(d)
(e)
(f)
(g)
11. Section 215.404-71-5 is amended by revising paragraph (b) and removing paragraph (c). The revised text reads as follows:
(b) See PGI 215.404-71-5(b) for guidance on appropriate use of the special cost efficiency factor.
12. Section 215.404-73 is amended by revising paragraph (b)(2)(i) to read as follows:
(b) * * *
(2) * * *
(i) The contracting officer shall reduce the overall prenegotiation profit objective by the amount of facilities capital cost of money under Cost Accounting Standard 414, Cost of Money as an Element of the Cost of Facilities Capital (48 CFR 9904.414). Cost of money under CAS 417, Cost of Money as an Element of the Cost of Capital Assets Under Construction (48 CFR 9904.417), should not be used to reduce the overall prenegotiation profit objective. The profit amount in the negotiation summary of the DD Form 1547 must be net of the offset.
13. Sections 215.404-76, 215.406-1, and 215.406-3 are revised to read as follows:
Follow the procedures at PGI 215.404-76 for reporting profit and fee statistics.
See PGI 215.406-1 for guidance on establishing prenegotiation objectives.
Follow the procedures at PGI 215.406-3 for documenting the negotiation.
14. Section 215.407-4 is revised to read as follows:
See PGI 215.407-4 for guidance on determining whether to perform a program or overhead should-cost review.
15. Section 215.407-5-70 is amended by revising paragraphs (a)(1), (b)(1), (e), and (f) to read as follows:
(a) * * *
(1)
(b) * * *
(1) DoD policy is that all contractors have acceptable estimating systems that consistently produce well-supported proposals that are acceptable as a basis for negotiation of fair and reasonable prices.
(e)
(f)
16. Section 215.470 is amended by revising paragraph (b), removing paragraph (c), and redesignating paragraph (d) as paragraph (c). The revised text reads as follows:
(b) When data are required to be delivered under a contract, include DD Form 1423, Contract Data Requirements List, in the solicitation. See PGI 215.470(b) for guidance on the use of DD Form 1423.
17. Section 230.201-5 is revised to read as follows:
(a)(1)(A) The military departments and the Director, Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics):
(B) Follow the procedures at PGI 230.201-5(a)(1) for submitting waiver requests to the Director, Defense Procurement and Acquisition Policy.
(2) The military departments shall not delegate CAS waiver authority below the individual responsible for issuing contracting policy for the department.
(e) By November 30th of each year, the military departments shall provide a report to the Director, Defense Procurement and Acquisition Policy,
18. Subparts 230.70 and 230.71 are removed.
19. Section 252.215-7002 is amended as follows:
a. By revising the clause date;
b. In paragraph (a), by revising the paragraph heading and adding a definition of “Acceptable estimating system”; and
c. By revising paragraph (b). The revised and added text reads as follows:
(a)
(1) Is maintained, reliable and consistently applied;
(2) Produces verifiable, supportable and documented cost estimates that are an acceptable basis for negotiation of fair and reasonable prices;
(3) Is consistent with and integrated with the Contractor's related management systems; and
(4) Is subject to applicable financial control systems.
(b)
20. Section 253.215-70 is revised to read as follows:
Follow the procedures at PGI 253.215-70 for completing DD Form 1547.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the 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 burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the 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 burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of 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 should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs
Modoc Resource Advisory Committee, Alturas, California, USDA Forest Service.
Notice of meeting.
Pursuant to the authorities in the Federal Advisory Committees Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Modoc National Forest's Modoc Resource Advisory Committee will meet Monday, January 9th, 2006 and February 6th, 2006 and March 6th in Alturas, California for business meetings. The meetings are open to the public.
The business meeting January 9th begins at 4 pm., at the Modoc National Forest Office, Conference Room, 800 West 12th St., Alturas. Agenda topics will include existing and future projects that meet the intent of Pub. L. 106-393. Time will also be set aside for public comments at the beginning of the meeting.
The business meeting February 6th begins at 4 pm; at the Modoc National Forest Office, Conference Room, 800 West 12th St., Alturas. Agenda topics will include existing and future projects that meet the intent of Pub. L. 106-393. Time will also be set aside for public comments at the beginning of the meeting.
The business meeting March 6th begins at 4 pm; at the Modoc National Forest Office, Conference Room, 800 West 12th St., Alturas. Agenda topics will include existing and future projects that meet the intent of Pub. L. 106-393. Time will also be set aside for public comments at the beginning of the meeting.
Stan Sylva, Forest Supervisor and Designated Federal Officer, at (530) 233-8700; or Public Affairs Officer Louis J Haynes at (530) 233-8846.
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to section 251 of the Trade Act of 1974 (19 U.S.C. 2341
Any party having a substantial interest in the proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Chief Counsel, Room 7005, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. Please follow the procedures set forth in section 315.9 of EDA's interim final rule (70 FR 47002) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance.
In the Matter of Zhan Gao, 12731 Mill Heights, Herndon, VA 20171; Respondent: and Technology Business Services, 12731 Mill Heights, Herndon, VA 20171; University Laboratories, 12731 Mill Heights, Herndon, VA 20171; Allways, Inc., 12731 Mill Heights, Herndon, VA 20171; Donghua Xue, 12731 Mill Heights, Herndon, VA 20171; Related Persons
On March 5, 2004, in the U.S. District Court in the Eastern District of Virginia, Zhan Gao (“Gao”) was convicted of two felonies, including one violation of the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (“IEEPA”) and one violation of the Internal Revenue Code (26 U.S.C. 7206 (2000)). As to the IEEPA count, Gao was found guilty of knowingly and willfully having exported and caused to be exported from the United States to the People's Republic of China, 80 microprocessors, which were Commerce Control List items, without obtaining the required license from the Department of Commerce. These items were controlled for national security reasons for export to China and valued at approximately $500,000. Gao was sentenced to seven months in prison.
Section 11(h) of the Export Administration Act of 1979, as amended (currently codified at 50 U.S.C. app. §§ 2491-2420 (2000)) (“Act”)
I have received notice of Gao's conviction for violating the IEEPA, and have provided notice and an opportunity for Gao to make a written submission to the Bureau of Industry and Security as provided in Section 766.25 of the Regulations. Having
In addition, pursuant to Sections 766.25(h) and 766.23 of the Regulations, the Director, Office of Exporter Services, in consultation with the Director, Office of Export Enforcement, may take action to name persons related to the Respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business in order to prevent evasion of the Order. On March 18, 2005, I gave notice to Technology Business Services, University Laboratories, Allways, Inc. and Donghua Xue, Gao's husband, notifying them that their export privileges under the Regulations could be denied for up to 10 years as BIS believed these entities were related to Gao and including them in the Gao Order was necessary to prevent evasion. The basis for considering the addition of these entities was the fact that Gao had used these entities to conduct the illegal business that was subject of the criminal conviction and all are operated out of her home in Virginia.
Donghue Xue responded to the notification and did not raise any objections to naming the above referenced related persons. I have therefore decided to name Technology Business Services, University Laboratories, Allways, Inc. and Donghua Xue as related persons to Zhan Gao, thereby denying their export privileges as well.
I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Gao and Technology Business Services, University Laboratories, Allways, Inc. and Donghua Xue had an interest at the time of Gao's conviction. The 10-year denial period ends on March 5, 2014.
Accordingly, it is hereby
I. Until March 5, 2014, Zhan Gao, 12731 Mill Heights, Herndon, VA 20171, and when acting for or on her behalf, her employees, agents or representatives, (“the Denied Person”) and the following persons related to the Denied Person as defined by Section 766.23 of the Regulations, Technology Business Services, University Laboratories, Allways, Inc. and Donghua Xue, all at 12731 Mill Heights, Herndon, Virginia 20171, and when acting for or on his or their behalf, his or their employees, agents or representatives, (“the Related Persons”) (together, the Denied Persons and the Related Persons are “Person Subject To This Order”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulation.
II. No person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Persons Subject To This Order any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Persons Subject To This Order of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Persons Subject To This Order acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Persons Subject To This Order of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Persons Subject To This Order in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Persons Subject To This Order, or service any item, of whatever origin, that is owned, possessed or controlled by the Persons Subject To This Order if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
III. In addition to the Related Persons named above, after notice and opportunity for comment as provided in section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Gao by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order if necessary to prevent evasion of the Order.
IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.
V. This Order is effective immediately and shall remain in effect until March 5, 2014.
VI. In accordance with Part 756 of the Regulations, Gao and any of the Related Persons may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.
VII. A copy of this Order shall be delivered to Gao and each Related Person. This Order shall be published in the
Import Administration, International Trade Administration, Department of Commerce.
December 20, 2005.
Erin C. Begnal or Tom Killiam, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1442 or (202) 482-5222, respectively.
On May 27, 2005, the Department of Commerce (“Department”) initiated an administrative review of the antidumping duty order on brake rotors from the People's Republic of China. The review was initiated for 27 individually named firms. The period of review (POR) is April 1, 2004, through March 31, 2005.
However, due to the large number of firms subject to this administrative review, and the Department's experience regarding the resulting administrative burden to review each company for which a request has been made, the Department exercised its authority to limit the number of respondents selected for individual review by sampling, and conducted the sampling on November 16, 2005.
The following respondents were selected for individual review pursuant to the sampling procedure: Qingdao Meita Automotive Industry Co., Ltd., Yantai Winhere Auto-Part Manufacturing Co., Ltd., Xiangfen Hengtai Brake Systems Co., Ltd., Hongfa Machinery (Dalian) Group Co., Ltd., and Longkou Haimeng Machinery Co., Ltd.
The preliminary results of this administrative review are currently due by December 31, 2005.
Pursuant to section 751(a)(3)(A) of the Act, the Department shall issue preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order for which a review is requested and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within the specified time periods, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
The Department has determined that completion of the preliminary results within the originally anticipated time limit, December 31, 2005, is impracticable. For the first time in this proceeding, the Department employed a sampling methodology to select respondents. In order to obtain necessary information and to afford parties opportunities to comment on the Department's respondent selection methodology, the Department did not conduct its respondent selection sampling procedure until November 16, 2005.
Additionally, on April 29, 2005, Shanxi Zhongding Auto Parts Co., Ltd. agreed to waive the time limits of its new shipper review, on April 29, 2005, pursuant to 19 CFR 351.214(j)(3), and agreed to have its review conducted concurrently with the eighth administrative review of this order for the period April 1, 2004, through March 31, 2005. Therefore, the preliminary results of this new shipper review will also be extended by 120 days to April 30, 2006. The deadline for the final results of these reviews continues to be 120 days after the publication of the preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 20, 2005.
Kit Rudd or Nicole Bankhead, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1385 and (202) 482-9068, respectively.
On September 28, 2005, the Department of Commerce (“the Department”) published in the
Pursuant to section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“the Act”), and section 351.214(i)(1) of the Department's regulations, the Department shall issue final results in a new shipper review of an antidumping
On October 17, 2005, the Department granted the Coalition for the Preservation of American Brake Drum and Rotor Aftermarket Manufacturers (“Petitioner”) an extension of time to file publicly available information to value certain factors of production in the final results of the review. In addition, on October 25, 2005, the Department granted respondents Laizhou Wally Automobile Co., Ltd. (“Wally”) and Dixion Brake System (Longkou) Ltd. an extension of time to file their case briefs and rebuttal briefs. As a result of these extensions, the Department requires additional time to analyze the complex issues contained in the parties' comments and briefs, including the Petitioner's argument regarding the
Therefore, for the reasons cited above, we are extending the time limit for the completion of the final results of this review by 30 days, until no later than January 18, 2006. This notice is published in accordance with section 751(a)(2)(B)(iv) of the Act and section 351.214(i)(2) of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
December 20, 2005.
Maureen Flannery at (202) 482-3020 or Paul Stolz at (202) 482-4474, AD/CVD Operations, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230.
The U.S. Department of Commerce (Department), pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act), has determined that revocation of the antidumping duty order on certain cased pencils (pencils) from the People's Republic of China (PRC) would likely lead to continuation or recurrence of dumping. On December 6, 2005, the International Trade Commission (ITC), pursuant to section 751(c) of the Act, determined that revocation of the antidumping duty order on pencils from the PRC would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time. Therefore, pursuant to 19 CFR 351.218(f)(4), the Department is publishing notice of the continuation of the antidumping duty order on pencils from the PRC.
On July 1, 2005, the Department initiated, and the ITC instituted, a sunset review of the antidumping duty order on pencils from the PRC, pursuant to section 751(c) of the Act.
Imports covered by this order are shipments of certain cased pencils of any shape or dimension (except as noted 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, our written description of the scope of the order is dispositive.
As a result of the determinations by the Department and the ITC that revocation of this antidumping duty order would be likely to lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty order on pencils from the PRC. U.S. Customs and Border Protection will continue to collect antidumping duty deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of continuation of this order is the date of publication in the
We are issuing and publishing the results and notice in accordance with sections 751(c) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
December 20, 2005.
Gene Calvert or Sean Carey, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3586 or (202) 482-3964, respectively.
On September 9, 2005, the Department of Commerce (“the Department”) published the preliminary results of the administrative review of the antidumping duty order on certain corrosion-resistant carbon steel flat products from Canada for the period of August 1, 2003, through July 31, 2004
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the final results in an administrative review within 120 days of the date on which the preliminary results were published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to 180 days from the date of publication of the preliminary results.
Because of the Department's recent verification after the issuance of its preliminary determination, additional time is required to release and analyze its findings, and to afford interested parties the opportunity to comment on the verification findings of the three Canadian producers of subject merchandise: Dofasco Inc., Sorevco Inc., and Stelco Inc. Therefore, the Department finds that it is not practicable to complete the review by the original deadline of January 7, 2006. Consequently, in accordance with section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations, the Department is extending the time limit for the completion of the final results of the review until no later than March 8, 2006, which is 180 days from the publication of the preliminary results.
This notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
United States Patent and Trademark Office, Commerce.
Request for comments.
The United States Patent and Trademark Office (USPTO) has, in response to recent case law, revised its guidelines to be used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter. The USPTO is requesting comments from the public regarding these interim examination guidelines.
Comment Deadline Date: To be ensured of consideration, written comments must be received on or before June 30, 2006. No public hearing will be held.
Comments should be sent by electronic mail message over the Internet addressed to
Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site (
The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available via the Office Internet Web site (address:
Linda Therkorn, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at 571-272-8800, or Ray Chen, Office of the Solicitor, by telephone at 571-272-9035, by mail addressed to: Mail Stop Comments, P.O. Box 1450, Alexandria, VA, 22313-1450, or by facsimile transmission to 571-273-0125, marked to the attention of Linda Therkorn or Ray Chen.
The USPTO has published a notice setting forth interim guidelines for the examination of patent applications for patent subject matter eligibility under 35 U.S.C. 101.
The Patent Subject Matter Eligibility Interim Guidelines are based on the USPTO's current understanding of the law and are believed to be fully consistent with binding precedent of the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Federal Circuit's predecessor courts. The Patent Subject Matter Eligibility Interim Guidelines do not constitute substantive rule making and hence do not have the force and effect of law. The Patent Subject Matter Eligibility Interim Guidelines have been designed to assist USPTO personnel in analyzing claimed subject matter for compliance with substantive law. Rejections will be based upon the substantive law and it is these rejections which are appealable. Consequently,
The Patent Subject Matter Eligibility Interim Guidelines merely revise USPTO examination practice for consistency with the USPTO's current understanding of the case law regarding patent subject matter eligibility under 35 U.S.C. 101. Therefore, the Patent Subject Matter Eligibility Interim Guidelines are interpretive or relate only to agency practice and procedure, and prior notice and an opportunity for public comment are not required under 5 U.S.C. 553(b)(A) (or any other law). Nevertheless, the USPTO is providing this opportunity for public comment because the USPTO desires the benefit of public comment on the Patent Subject Matter Eligibility Interim Guidelines.
(1) While the Patent Subject Matter Eligibility Interim Guidelines explain that physical transformation of an article or physical object to a different state or thing to another establishes that a claimed invention is eligible for patent protection, Annex III to the Patent Subject Matter Eligibility Interim Guidelines explains that identifying that a claim transforms data from one value to another is not by itself sufficient for establishing that the claim is eligible for patent protection. Therefore, claims that perform data transformation must still be examined for whether there is a practical application of an abstract idea that produces a useful, concrete, and tangible result. Is the distinction between physical transformation and data transformation appropriate in the context of the Patent Subject Matter Eligibility Interim Guidelines? If not, please explain why and provide support for an alternative analysis.
(2) Is the USPTO interpretation of
(3) As the courts have yet to define the terms “useful,” “concrete,” and “tangible” in the context of the practical application requirement, are the explanations provided in the Patent Subject Matter Eligibility Interim Guidelines sufficient? If not, please suggest alternative explanations.
(4) What role should preemption have in the determination of whether a claimed invention is directed to a practical application of a 35 U.S.C. 101 judicial exception?
(5) Annex IV to the Patent Subject Matter Eligibility Interim Guidelines explains why the USPTO considers claims to signals
The USPTO also notes that the U.S. Supreme Court has granted certiorari in
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before January 19, 2006.
David Van Wagner, Division of Market Oversight, U.S. Commodity Futures Trading Commission, 1155 21st Street, NW., Washington, DC 20581, (202) 418-5481; FAX: (202) 418-5527; e-mail:
In April 1998, the Commodity Futures Trading Commission (Commission or CFTC) removed the prohibition on off-exchange trade options on the enumerated agricultural commodities subject to a number of regulatory conditions. 63 FR 18821 (April 16, 1998). Thereafter, the Commission streamlined the regulatory or paperwork burdens in order to increase the utility of agricultural trade options while maintaining basic customer protections. 64 FR 68011 (Dec. 6, 1999).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the CFTC's regulations were published on December 30, 1981. See 46 FR 63035 (Dec. 30, 1981). The
Send comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, to the addresses listed below. Please refer to OMB Control No. 3038-0048 in any correspondence.
David Van Wagner, Division of Market Oversight, U.S. Commodity
Commodity Futures Trading Commission (“Commission”).
Wednesday, February 15, 2006, commencing at 10 a.m.
1155 21st Street, NW., Washington, DC, Lobby Level Hearing Room (Room 1000).
Open.
Public Hearing on Self-Regulation and Self-Regulatory Organizations (“SROs”).
Requests to appear and supporting materials should be mailed to the Commodity Futures Trading Commission, Three Lafayette Center, 1155 21st Street, NW., Washington, DC 20581, attention Office of the Secretariat; transmitted by facsimile at 202-418-5521; or transmitted electronically to
In a separate
The Commission hereby announces that the SRO Hearing will commence on Wednesday, February 15, 2006, at 10 a.m., at the Commission's headquarters in Washington, DC. An agenda will be provided as the hearing date approaches. All individuals or organizations wishing to appear before the Commission must submit to the Secretariat, at the above address, a request to appear. Such request must be received by January 13, 2006, and must include the name of the individual appearing; the entity that he or she represents, if any; a concise statement of interest and qualifications; and a brief summary or abstract of his or her statement. The Commission will invite a representative number of individuals or organizations to appear at the hearing from those submitting requests to appear. A transcription of the hearing will be made and entered into the Commission's public comment files, which will remain open for the receipt of written comments until March 2, 2006.
The Commission believes that providing interested members of the public with an opportunity to appear before it, responds to questions, and address differing viewpoints will enhance its decision-making as the SRO Study nears conclusion.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0145).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning use of data universal numbering system (DUNS) as primary contractor identification. This OMB clearance expires on April 30, 2006.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before February 21, 2006.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Mr. Ernest Woodson, Contract Policy Division, GSA, (202) 501-3775.
The Data Universal Numbering System (DUNS) number is the nine-digit identification number assigned by Dun and Bradstreet Information Services to an establishment. The Government uses the DUNS number to identify contractors in reporting to the Federal Procurement Data System (FPDS). The FPDS provides a comprehensive mechanism for assembling, organizing, and presenting contract placement data for the Federal Government. Federal agencies report data on all contracts in excess of the micro-purchase threshold to the Federal Procurement Data Center which collects, processes, and disseminates official statistical data on Federal contracting. Contracting officers insert the Federal Acquisition Regulation (FAR) provision at 52.204-6, Data Universal Numbering System (DUNS) Number, in solicitations they expect will result in contracts in excess of the micro-purchase threshold and do not contain FAR 52.204-7, Central Contractor Registration. This provision requires offerors to submit their DUNS number with their offer. If the offeror does not have a DUNS number, the provision provides instructions on obtaining one.
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 January 19, 2006.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, 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, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to Kim Rudolph, Docket Manager at her e-mail address
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 January 19, 2006.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, New
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kim Rudolph, Docket Manager at her e-mail address
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 February 21, 2006.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. 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.
Not-for-profit institutions.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to Kim Rudolph, Docket Manager at her e-mail address
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 January 19, 2006.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to Kim Rudolph, Docket Manager at her e-mail address
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 January 19, 2006.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, 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
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Kim Rudolph, Docket Manager at her e-mail address
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 21, 2006.
Submit your comments, referencing docket ID number RCRA-2005-0016, to EPA online using EDOCKET (our preferred method), by e-mail to
Newman Smith, Office of Solid Waste (5302W), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-308-8757; fax number: 703-308-8433; e-mail address:
EPA has established a public docket for this ICR under Docket ID number RCRA-2005-0016, which is available for public viewing at the RCRA Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the RCRA Docket is (202) 566-0270. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at
Any comments related to this ICR should be submitted to EPA within 60 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When 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 EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's
Partners will also have an opportunity to complete and submit the second optional form titled Application for Certificate of Accomplishment. They may submit this form when they accomplish the goals they established for their initial participation in the program. These certificate applications will enable the Agency to confirm a partners' progress and to measure the overall success of the program. Evaluation and acceptance of these certificate applications is also the basis the Agency uses to recognize partner accomplishments in a formal (
A third form is an optional, one-time Case Studies Submission Form. This form enables a partner to describe its waste minimization techniques, implementation problems, lessons learned, benefits, and relevant implications. The case studies will assist the Agency in better understanding waste minimization approaches and technologies. The information may also help the Agency in sharing lessons learned and effective strategies among the facilities generating hazardous waste, in order to promote continued and effective waste minimization efforts. Sharing effective waste reduction strategies with others is a fundamental objective of the partnership program.
The fourth and fifth forms provide current partners the opportunity to revise current goals or to submit additional goals. They are titled the Add Our New Goals Form and the Goal Revision Form. Other than their titles, both forms are actually the same as the enrollment form described above.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before February 21, 2006.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2003-0039, by one of the following methods:
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Cindy Axinn Newberg, Stratospheric Protection Division, Office of Atmospheric Programs, Office of Air and Radiation, Mail Code 6205J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-343-9729 and email address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2003-0039, which is available for online viewing at
Use
Pursuant to section 3506(c)(2)(A) of PRA, EPA specifically solicits comments and information to enable it to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
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. Offer alternative ways to improve the collection activity.
6. Make sure to submit your comments by the deadline identified under DATES.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
EPA will consider the comments received, historical information with complying with the requirements of this ICR, and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 4, 2006.
Board of Governors of the Federal Reserve System, December 15, 2005.
This notice corrects a notice (FR Doc. E5-7262) published on page 73747 of the issue for Tuesda, December 13, 2005.
Under the Federal Reserve Bank of New York heading, the entry for Community Partners Bancorp, Middletown, New Jersey, is revised to read as follows:
Comments on this application must be received by January 6, 2006.
Board of Governors of the Federal Reserve System, December 15, 2005.
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”) (44 U.S.C. 3501-3520). The FTC is seeking public comments on its proposal to extend through December 31, 2008 the current PRA clearances for information collection requirements contained in four product labeling rules enforced by the Commission. Those clearances expire on December 31, 2005.
Comments must be received on or before January 19, 2006.
Interested parties are invited to submit written comments. Comments should refer to “Apparel Rules: FTC File No. P948404” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope and should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission/Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue, NW., Washington, DC 20580. Because paper mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, (in ASCII format, WordPerfect, or Microsoft Word) as part of or as an attachment to email messages directed to the following email box:
Comments should also be submitted to: Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission. Comments should be submitted via facsimile to (202) 395-6974 because U.S. Postal Mail is subject to lengthy delays due to heightened security precautions.
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission and will be available to the public on the FTC website, to the extent practicable, at
Requests for additional information or copies of the proposed information requirements should be addressed as follows:
For the Fur Act Regulations, Wool Act Regulations, and Textile Act Regulations, contact Carol Jennings, Attorney, Enforcement Division, Bureau of Consumer Protection 600 Pennsylvania Ave., NW., Washington, DC 20580, (202) 326-2996.
For the Care Labeling Rule, contact Connie Vecellio, Attorney, Enforcement Division, Bureau of Consumer Protection, 600 Pennsylvania Ave., NW., Washington, DC 20580, (202) 326-2996.
On September 28, 2005, the FTC sought comment on the information collection requirements associated with regulations under the Fur Act, 16 CFR Part 301 (OMB Control Number 3084-0099); regulations under the Wool Act, 16 CFR Part 300 (OMB Control Number 3084-0100); regulations under the Textile Act, 16 CFR Part 303 (OMB Control Number 3084-0101); and the Care Labeling Rule, 16 CFR 423 (OMB Control Number 3084-0103). See 70 FR 56692. No comments were received. Pursuant to the OMB regulations that implement the PRA (5 CFR Part 1320), the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the rules. All comments should be filed as prescribed in the
Staff's burden estimates for the four rules in question are based on data from the Bureau of Census, U.S. Customs and International Trade Commission, the Department of Labor, and data or other input from industry sources. The relevant information collection requirements within these rules and corresponding burden estimates follow.
The Fur Act prohibits the misbranding and false advertising of fur products. The Fur Act Regulations, 16
Recordkeeping: The Regulations require that retailers, manufacturers, processors, and importers of furs and fur products keep certain records in addition to those they may keep in the ordinary course of business. Staff estimates that 1,300 retailers incur an average recordkeeping burden of about 13 hours per year (16,900 hours total); 115 manufacturers and fur processors combined incur an average recordkeeping burden of about 52 hours per year (5,980 total); and 1,200 importers of furs and fur products incur an average recordkeeping burden of 26 hours per year (31,200 hours total). The combined recordkeeping burden for the industry is approximately 54,080 hours annually.
Staff estimates that the incremental burden associated with the Regulations' invoice disclosure requirement, beyond the time that would be devoted to preparing invoices in its absence, is approximately 30 seconds per invoice.
Staff estimates that the Regulations' advertising disclosure requirements impose an average burden of one hour per year for each of the approximately 1,300 domestic fur retailers, or a total of 1,300 hours.
Thus, staff estimates the total disclosure burden to be approximately 113,633 hours (86,000 hours for labeling + 26,333 hours for invoices + 1,300 hours for advertising).
Staff believes that there are no current start-up costs or other capital costs associated with the Regulations. Because the labeling of fur products has been an integral part of the manufacturing process for decades, manufacturers have in place the capital equipment necessary to comply with the Regulations' labeling requirements. Industry sources indicate that much of the information required by the Fur Act and its implementing Regulations would be included on the product label even absent the regulations. Similarly, invoicing, recordkeeping, and advertising disclosures are tasks performed in the ordinary course of business so that covered firms would incur no additional capital or other non-labor costs as a result of the Act or the Regulations.
The Wool Act prohibits the misbranding of wool products. The Wool Act Regulations, 16 CFR 300, establish disclosure requirements that assist consumers in making informed purchasing decisions and recordkeeping requirements that assist the Commission in enforcing the Regulations.
Staff believes that there are no current start-up costs or other capital costs associated with the Regulations. Because the labeling of wool products has been an integral part of the manufacturing process for decades, manufacturers have in place the capital equipment necessary to comply with the Regulations. Based on knowledge of the industry, staff believes that much of the information required by the Wool Act and its implementing regulations would be included on the product label even absent their requirements. Similarly, recordkeeping and advertising disclosures are tasks performed in the ordinary course of business so that covered firms would incur no additional capital or other non-labor costs as a result of the Regulations.
The Textile Act prohibits the misbranding and false advertising of textile fiber products. The Textile Act Regulations, 16 CFR 303, establish disclosure requirements that assist consumers in making informed purchasing decisions, and recordkeeping requirements that assist the Commission in enforcing the Regulations. The Regulations also contain a petition procedure for requesting the establishment of generic names for textile fibers.5
Staff believes that there are no current start-up costs or other capital costs associated with the Regulations. Because the labeling of textile products has been an integral part of the manufacturing process for decades, manufacturers have in place the capital equipment necessary to comply with the Regulations' labeling requirements. Industry sources indicate that much of the information required by the Textile Act and its implementing rules would be included on the product label even absent their requirements. Similarly, recordkeeping, invoicing, and advertising disclosures are tasks performed in the ordinary course of business so that covered firms would incur no additional capital or other non-labor costs as a result of the Regulations.
The Care Labeling Rule, 16 CFR Part 423, requires manufacturers and importers to attach a permanent care label to all covered textile clothing in order to assist consumers in making purchase decisions and in determining what method to use to clean their apparel. Also, manufacturers and importers of piece goods used to make textile clothing must provide the same care information on the end of each bolt or roll of fabric.
Staff estimates that approximately 24,700 manufacturers or importers of textile apparel, producing about 17.4 billion textile garments annually, are subject to the Rule's disclosure requirements. The burden of developing proper care instructions may vary greatly among firms, primarily based on the number of different lines of textile garments introduced per year that require new or revised care instructions. Staff estimates the burden of determining care instructions to be 43 hours each year per respondent, for a cumulative total of 1,062,100 hours. Staff further estimates that the burden of drafting and ordering labels is 2 hours each year per respondent, for a total of 49,400 hours. Staff believes that the process of attaching labels is fully automated and integrated into other production steps for about 40 percent of the approximately 17.4 billion garments that are required to have care instructions on permanent labels.
Staff believes that there are no current start-up costs or other capital costs associated with the Rule. Because the labeling of textile products has been an integral part of the manufacturing process for decades, manufacturers have in place the capital equipment necessary to comply with the Rule's labeling requirements. Based on knowledge of the industry, staff believes that much of the information required by the Rule would be included on the
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is providing notice that it has approved a supplemental new animal drug application (NADA) filed by Elanco Animal Health. The approved NADA provides for the veterinary prescription use of an injectable solution of tilmicosin phosphate for respiratory disease in cattle and sheep. This supplemental NADA adds user safety information to product labeling.
Joan C. Gotthardt, Center for Veterinary Medicine (HFV-130), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7571, e-mail:
Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed a supplement to NADA 140-929 for MICOTIL 300 (tilmicosin phosphate), an injectable solution available by veterinary prescription for use in the treatment and control of respiratory disease in cattle and in the treatment of respiratory disease in sheep. This supplemental NADA adds user safety information to product labeling related to the mechanism of toxicity and medical intervention. In accordance with section 512(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360b(i)) and part 514 (21 CFR part 514) in §§ 514.105(a) and 514.106(a), the Center for Veterinary Medicine is providing notice that this supplemental NADA is approved as of December 2, 2005. The basis of approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and § 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
Food and Drug Administration, HHS.
Notice of public meeting.
The Food and Drug Administration (FDA) is announcing the following public meeting: Regulatory Process for Pediatric Mechanical Circulatory Support Devices (Ventricular Assist Devices). The topics of discussion are the agency's activities regarding the regulation and approval of circulatory support devices used for temporary support in pediatric patients.
This workshop helps fulfill the Department of Health and Human Services' and FDA's important mission to protect the public health by providing the medical device community with guidance on the approval process for mechanical circulatory support devices (ventricular assist devices) used in pediatric patients in need of temporary support (left side, right side, or both sides). During the public workshop, FDA will present information regarding the approval process for these devices. Specifically, FDA will address applications for premarket approval, humanitarian use designations, humanitarian device exemptions, and investigational device exemptions. FDA will also present information regarding preclinical engineering qualification of pediatric mechanical circulatory support devices and invited experts will discuss medical and surgical topics. Following each presentation, and at the close of the meeting, FDA will conduct a question and answer session with the participating audience. After the workshop, presentations can be accessed by the public on the Internet at
This workshop helps to implement the objectives of section 406 of the FDA Modernization Act (21 U.S.C. 393) and the FDA Plan for Statutory Compliance, which include working more closely with stakeholders and ensuring access to needed scientific and technical expertise. The workshop also furthers the goals of the Small Business Regulatory Enforcement Fairness Act (Public Law 104-121) by providing outreach activities by Government agencies directed to small businesses.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
The Drug Addiction Treatment Act of 2000 (“DATA,” Pub. L. 106-310) amended the Controlled Substances Act (21 U.S.C. 823(g)(2)) to permit practitioners (physicians) to seek and obtain waivers to prescribe certain approved narcotic treatment drugs for the treatment of opiate addiction. The legislation sets eligibility requirements and certification requirements as well as an interagency notification review process for physicians who seek waivers.
To implement these new provisions, SAMHSA developed a notification form (SMA-167) that facilitates the submission and review of notifications. The form provides the information necessary to determine whether practitioners (
However, there is no prohibition on use of other means to provide requisite information. The Secretary will convey notification information and determinations to the Drug Enforcement Administration (DEA), which will assign an identification number to qualifying practitioners; this number will be included in the practitioner's registration under 21 U.S.C. 823(f).
Practitioners may use the form for two types of notification: (a) New, and (b) immediate. Under “new” notifications, practitioners may make their initial waiver requests to SAMHSA. “Immediate” notifications inform SAMHSA and the Attorney General of a practitioner's intent to prescribe immediately to facilitate the treatment of an individual (one) patient under 21 U.S.C. 823(g)(2)(E)(ii).
The form collects data on the following items: Practitioner name; state medical license number and DEA registration number; address of primary location, telephone and fax numbers; e-mail address; name and address of group practice; group practice employer identification number; names and DEA registration numbers of group practitioners; purpose of notification new, immediate, or renewal; certification of qualifying criteria for treatment and management of opiate dependent patients; certification of capacity to refer patients for appropriate counseling and other appropriate ancillary services; certification of maximum patient load, certification to use only those drug products that meet the criteria in the law. The form also notifies practitioners of Privacy Act considerations, and permits practitioners to expressly consent to disclose limited information available on
Since July 2002, SAMHSA has received approximately 6,400 notifications and has certified over 5,500 physicians. Eighty-one percent of the notifications were submitted by mail or by facsimile, with approximately twenty percent submitted through the Web based online system. Approximately 60 percent of the certified physicians have consented to disclosure on
Respondents may submit the form electronically, through a dedicated Web page that SAMHSA will establish for the purpose, as well as via U.S. mail.
The following table summarizes the estimated annual burden for the use of this form.
Written comments and recommendations concerning the proposed information collection should be sent by January 19, 2006 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974.
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1035, 1 Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. Subpart C of the Mandatory Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines dated April 13, 2004 (69 FR 19644), the following laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Federal Emergency Management Agency, Department of Homeland Security.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA) has submitted the following information
Requests for additional information or copies of the information collection should be made to Chief, Records Management, FEMA, 500 C Street, SW., Room 316, Washington, DC 20472, facsimile number (202) 646-3347, or e-mail address
Federal Emergency Management Agency, Department of Homeland Security.
Notice and request for comments.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Chief, Records Management, FEMA, 500 C Street, SW., Room 316, Washington, DC 20472, facsimile number (202) 646-3347, or e-mail address
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Alaska (FEMA-1618-DR), dated December 9, 2005, and related determinations.
December 9, 2005.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated December 9, 2005, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Alaska, resulting from a severe fall storm, tidal surges, and flooding from September 22-26, 2005, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Alaska.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act you may deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Public Assistance and Hazard Mitigation will be limited to 75 percent of the total eligible costs. If Other Needs Assistance under Section 408 of the Stafford Act is later requested and warranted, Federal funding under that program will also be limited to 75 percent of the total eligible costs.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Acting Director, under Executive Order 12148, as amended, Dennis Hunsinger, of FEMA, is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Alaska to have been affected adversely by this declared major disaster:
Bering Strait Regional Education Attendance Area, Kashunamiut Regional Education Attendance Area, Lower Kuskokwim Regional Education Attendance Area, and the Northwest Arctic Borough for Public Assistance.
Bering Strait Regional Education Attendance Area, Kashunamiut Regional Education Attendance Area, Lower Kuskokwim Regional Education Attendance Area, and the Northwest Arctic Borough are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice amends the notice of a major disaster declaration for the State of Indiana (FEMA-1612-DR), dated November 8, 2005, and related determinations.
December 7, 2005.
Magda Ruiz, Recovery Division, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Acting Director, Department of Homeland Security, under Executive Order 12148, as amended, Marianne C. Jackson, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
This action terminates my appointment of Brad Gair as Federal Coordinating Officer for this disaster.
Transportation Security Administration (TSA), DHS.
Notice.
This notice announces that TSA has forwarded the Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by January 19, 2006. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Comments may be faxed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: DHS-TSA Desk Officer, at (202) 395-5806.
Katrina Wawer, Information Collection Specialist, Office of Transportation Security Policy, TSA-9, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220.
In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA intends to make the forms, which provide the basis for the device manufacturer's application to this process, widely available to the interested manufacturers through “Current Announcements” in the “Business Opportunities” link within the TSA website:
Fish and Wildlife Service, Interior.
Notice of availability.
The Fish and Wildlife Service announces that a Final Comprehensive Conservation Plan for Bon Secour National Wildlife Refuge is available for distribution. The plan was prepared pursuant to the National Wildlife Refuge System Improvement Act of 1997, and in accordance with the National Environmental Policy Act of 1969, and describes how the refuge will be managed for the next 15 years. The compatibility determinations for wildlife observation, photography, and hiking; swimming and beach use; recreational fishing; environmental education and interpretation; and scientific research are also available within the plan.
A copy of the plan may be obtained by writing to Robert Cail, Refuge Manager, Bon Secour National Wildlife Refuge, 12295 State Highway 180, Gulf Shores, Alabama 36542; or by calling 251/540-7720; fax 251/540-7301. The plan may also be accessed and downloaded from the Service's Web site
Bon Secour National Wildlife Refuge is located on the Gulf coast of Alabama, 8 miles west of the city of Gulf Shores in Baldwin and Mobile Counties. The planning study area was divided into five separate management units along the Fort Morgan Peninsula and Little Dauphin Island. Although the refuge was established in 1980, to date, only 6,978 acres have been acquired within the 12,570-acre acquisition boundary, including the 575 acres leased from the State of Alabama. The Service has management jurisdiction along the shoreline above mean high tide, except on Little Dauphin Island, which contains 560 acres of submerged bottoms. The potential wildlife habitat values of beach/dune, maritime forest, and estuarine habitat provided the impetus to purchase the properties.
Management efforts since 1985 have emphasize acquiring land, securing staff to operate the refuge, and initiating conservation programs that benefit endangered wildlife species. However, Service acquisition of key properties, such as inholdings and beach/dune habitat, may not be realized within the 15-year planning period due to budget constraints and landowner preferences. The five units within the acquisition boundary have a significant “edge,” which contributes to the predation of birds, sea turtles, and beach mice. Edge effect is the tendency of a transitional zone between communities to contain a greater variety of species and more dense populations of species than any surrounding communities.
Implementing the comprehensive conservation plan will enable the refuge to fulfill its critical role in the conservation and management of fish and wildlife resources along coastal Alabama, and to provide quality environmental education and wildlife-dependent recreation opportunities for refuge visitors. The Service analyzed four alternatives for managing the refuge and selected Alternative D to guide management direction over the next 15 years.
Under alternative D, fishing will continue with greater emphasis on the quality of the experience. Education and interpretation will be promoted with regular programs and partnerships with local schools. Wildlife observation and photography opportunities will be expanded, including a kayak trail and observation towers, highlighting refuge management programs and unique wildlife habitats. A user fee and permit system will be implemented to facilitate night fishing at Mobile Point. Depending upon the availability of funds, a visitor center and headquarters office will be constructed, which will include space for interpretation and environmental education. Also based on the availability of funds, a biological technician, outdoor recreation planner, seasonal maintenance worker, and full-time law enforcement officer will be added to accomplish objectives outlined in the plan.
Research studies on the refuge will be fostered and partnerships developed with agencies and universities, providing needed resources and equipment sites, all while meeting the needs of the refuge's wildlife and habitat management programs. Research will also benefit conservation efforts throughout the central Gulf coast to preserve, enhance, restore, and manage coastal barrier island habitat. New surveys on birds, reptiles, and amphibians will be initiated to develop baseline information.
Under this alternative, the refuge will continue to seek acquisition of all lands within the present acquisition boundary. Pristine lands that provide quality habitat and connectivity to existing refuge lands will be priority
Public comments were requested, considered, and incorporated throughout the planning process. Public outreach included open houses, public meetings, technical workgroups, planning update mailings, and
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105-57.
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 receipt of applications for permit.
The public is invited to comment on the following applications to conduct certain activities with endangered species and/or marine mammals.
Written data, comments or requests must be received by January 19, 2006.
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 species. This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following applications for a permit to conduct certain activities with marine mammals. The application was submitted to satisfy requirements of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The applicant requests a permit to import a polar bear (Ursus maritimus) sport hunted from the Lancaster Sound polar bear population in Canada for personal, noncommercial use.
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce; and United States Fish and Wildlife Service, Interior.
Notice of Availability of recovery plan of Atlantic salmon.
The National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (FWS)(collectively, the Services) announce the availability of the final recovery plan for the Gulf of Maine (GOM) distinct population segment (DPS) of Atlantic salmon (
Requests for a copy of the final recovery plan should be addressed to the Atlantic Salmon Recovery Coordinator, NMFS, Northeast Regional Office, Protected Resources Division, One Blackburn Drive, Gloucester, MA 01930. A copy of the Final Recovery Plan can also be downloaded from the following web address:
Jessica Pruden, NMFS Atlantic Salmon Recovery Coordinator, (978) 281-9328 extension 6532.
The Endangered Species Act of 1973, as amended, (16 U.S.C. 1531
The GOM DPS includes all naturally reproducing remnant populations of Atlantic salmon from the Kennebec River downstream of the former Edwards Dam site, northward to the mouth of the St. Croix River. DPS salmon taken for hatchery rearing for broodstock purposes and any captive progeny from these salmon are also included as part of the DPS. These hatchery-held fish, however, do not count toward delisting or reclassification goals as these goals refer to the status of naturally-spawned salmon in the wild.
At the time of listing, there were at least eight rivers in the geographic range of the GOM DPS known to still support wild Atlantic salmon populations: the Dennys, East Machias, Machias, Pleasant, Narraguagus, Ducktrap and Sheepscot Rivers, and Cove Brook. At the time of listing, the Services deferred a decision whether the DPS range included the mainstem of the Penobscot River and its tributaries above the former site of the Bangor Dam. Presently a status review is underway to determine the relationship of large river systems (e.g., the Penobscot and Kennebec Rivers) to the DPS as currently delineated. This review will also determine the status of current salmon populations within these large river systems, as well as any other additional salmon populations present outside the geographic range of the DPS. Decisions regarding the status of these populations may have significant implications for the recovery strategy and recovery criteria. The Services will consider the implications of these decisions and, if necessary, amend or modify the recovery plan accordingly.
The GOM DPS has declined to critically low levels. Adult returns, and estimates of juvenile abundance and survival have continued to decline since the listing. In 2004, total adult returns to the eight rivers still supporting wild Atlantic salmon populations within the DPS were estimated to range from 60 to 113 individuals. Therefore, while full recovery will encompass the full range of the DPS from the Kennebec to the St. Croix River, the initial focus of the recovery program is to stabilize populations in the eight populations in the DPS that were extant at the time of the listing
The recovery plan contains a synopsis of the biology and distribution of Atlantic salmon, a description of factors affecting species recovery, an outline of actions needed to recover the species, and an implementation schedule for completing the recovery tasks. The recovery plan, prepared with the assistance of the Maine Atlantic Salmon Commission (ASC), provides a framework for addressing a multitude of threats threatening the survival and conservation of the GOM DPS of Atlantic salmon.
The Services published a notice of availability of the draft recovery plan for the GOM DPS of Atlantic salmon in the
The Services received comments from a wide range of stakeholders and interested parties including state, Federal and local government agencies; local stakeholder groups; non-
The Maine ASC coordinated the review of the draft plan by state agencies. The state agencies involved in the plan review were the Maine ASC, Maine Department of Marine Resources (DMR), Maine Department of Inland Fisheries and Wildlife (IFW), Maine Department of Environmental Protection (DEP), Maine Department of Agriculture, Food, and Rural Resources (DAFRR), Maine Bureau of Pesticide Control (BPC), Maine Department of Conservation (DOC), Maine Bureau of Parks and Lands (BPL), Maine Forest Service (MFS), Maine Geological Service (MGS), Maine Department of Transportation (DOT), and Maine State Planning Office (SPO).
In addition to public review, the recovery plan underwent peer-review. The Services and the State identified and contacted 27 peer reviewers with specific technical and other relevant expertise, requesting review and comment on the draft recovery plan. These individuals were asked to review relevant sections of the plan for technical accuracy and completeness. The peer-reviewers were also asked to identify any specific issues or information that the Services should consider in the preparation of a final recovery plan. The Services received eight responses from the individuals contacted.
In conjunction with efforts to prepare a final recovery plan, the Services and the Maine ASC conducted a 2-day Threats Assessment Workshop in December 2004. The Services assembled a team of technical experts from Maine ASC, NOAA Fisheries and USFWS to conduct a structured threats analysis to evaluate the geographic extent and life stage affected by threats, and the severity of these effects. During this workshop, the Services and workshop participants reviewed and considered the recommendations of the National Research Council's (NRC) (2004) report on Atlantic Salmon in Maine, as well as relevant public and peer review comments received during the comment period. The workshop resulted in the following threats being identified in the final recovery plan as high priority for action to reverse the decline of Atlantic salmon populations in the GOM DPS: (1) Acidified water and associated aluminum toxicity which decrease juvenile survival; (2) aquaculture practices, which pose ecological and genetic risks; (3) avian Predation; (4) changing land use patterns (e.g., development, agriculture, forestry); (5) climate change; (6) depleted diadromous fish communities; (7) incidental capture of adults and parr by recreational fishermen; (8) introduced fish species that compete or prey on Atlantic salmon; (9) low marine survival; (10) poaching of adults in DPS rivers; (11) recovery hatchery program (potential for artificial selection/domestication); (12) sedimentation; and (13) water extraction.
The public and peer review comments received during the public comment period have been fully considered in the preparation of this recovery plan. In response to comments received, the Services have made revisions to the draft plan as appropriate. In addition, the Services have reviewed and considered the recommendations of the 2004 NRC report on Atlantic Salmon in Maine and incorporated the recommendations as appropriate.
The majority of the comments received on the draft recovery plan were editorial and were incorporated as received. More substantive comments and responses to these comments are summarized below.
The Downeast Salmon Federation (DSF) commented that the draft plan should specifically state that the Water Use Management Plan (WUMP) is not comprehensive enough to truly deserve the name, and that a reader of the recovery plan unfamiliar with the WUMP might conclude that these “plans” address cumulative as well as individual withdrawals. DSF commented that the WUMP actually addresses only those withdrawals made by the larger industry users and does not do a thorough or precautionary job of planning or managing water use in these watersheds. Lastly, DSF commented that the documents referred to as the WUMP provide a basis from which to move forward, but are lacking in addressing the impact of the full range of irrigators within these watersheds.
The Recovery Plan states that education and outreach programs inform the general public and interested parties, such as land owners, business and industry, state and local government about the Atlantic salmon recovery process. Education and information campaigns help promote Atlantic salmon as an important national resource and encourage individual and group involvement in the recovery process. The Recovery Plan recommends that a comprehensive and coordinated Education and Outreach Plan for the Gulf of Maine DPS of Atlantic salmon should be developed. This plan should include a strategy to coordinate the efforts of Federal, state and local organizations currently involved in education and outreach programs. The plan should identify target audiences, review existing programs and materials, evaluate the role of public display of Atlantic salmon, identify education and outreach needs, identify responsibilities and costs and develop strategies for dissemination of information and materials.
NMFS and the FWS are committed to the implementation of the Gulf of Maine DPS of Atlantic salmon Recovery Plan. The recovery plan may be revised in the future on the basis of new information. Public notice and an opportunity for public review and comment would be provided prior to final approval of a revised recovery plan.
The authority for this action is section 4(f) of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service (FWS), Interior; National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; scoping meetings.
The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) advise interested parties of their intent to conduct public scoping under the National Environmental Policy Act (NEPA) to gather information to prepare an Environmental Impact Statement (EIS) related to a permit application from the Port of Vancouver, Washington, for the incidental take of listed species. The permit application would be associated with the Port of Vancouver Columbia Gateway Site Habitat Conservation Plan adjacent to the Columbia River in Vancouver, WA.
The public scoping meeting will be held on January 4, 2006, from 4-7 p.m. in Vancouver, WA.
Written comments should be received on or before January 19, 2006.
The public scoping meeting will be held at the Fruit Valley Community Center, 3203 Unander Avenue, Vancouver, WA 98660-1100.
All comments concerning the preparation of the EIS and the NEPA
Greg M. Smith, FWS (503) 231-6179; or Laura Hamilton, NMFS (360) 753-5820.
Section 9 of the Endangered Species Act (ESA) (16 U.S.C. 1538) and implementing regulations prohibit the taking of animal species listed as endangered or threatened. The term “take” is defined under the ESA (16 U.S.C. 1532(19)) as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. “Harm” is defined by FWS regulation to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering (50 CFR 17.3). NMFS' definition of “harm” includes significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, spawning, migrating, rearing, and sheltering (64 FR 60727, November 8, 1999).
Section 10 of the ESA and implementing regulations specify requirements for the issuance of incidental take permits (ITPs) to non-Federal landowners for the take of endangered and threatened species. Any proposed take must be incidental to otherwise lawful activities, not appreciably reduce the likelihood of the survival and recovery of the species in the wild, and minimize and mitigate the impacts of such take to the maximum extent practicable. In addition, the applicant must prepare a habitat conservation plan (HCP) describing the impact that will likely result from such taking, the strategy for minimizing and mitigating the take, the funding available to implement such steps, alternatives to such taking, and the reason such alternatives are not being implemented.
NEPA (42 U.S.C. 4321
An EIS for the Columbia Gateway HCP would analyze the potential issuance of two ITPs, one by NMFS and one by the FWS. To obtain an ITP, the applicant must prepare an HCP that meets the issuance criteria established by the ESA and Service regulations (50 CFR 17.22(b)(2), 17.32(b)(2), and 222.307). Should a permit or permits be issued, the permit(s) may include assurances under the Services' "No Surprises" regulations.
The Port of Vancouver (Port) is seeking ITPs from the Services that would provide ESA regulatory certainty for a proposed expansion of water-dependent and water-related development at the Columbia Gateway site. This industrial development would consist of the infrastructure necessary to support marine terminals on Parcel 3 (approximately 517 acres), and offsite transportation facilities necessary to move material to and from Parcel 3. These offsite transportation facilities include a proposed rail line to connect Columbia Gateway with the existing Burlington Northern Santa Fe mainline, and the extension of 26th Avenue within the City of Vancouver to provide an alternate route between the site and Interstate 5, to accommodate increased cargo and employee trips that would occur as a result of the project.
In addition to Parcel 3, the Columbia Gateway site includes Parcels 2, 4, and 5, and the Port's Rufener property. Parcel 2 is a 31-acre tract near Parcel 3, Parcels 4 (112 acres) and 5 (430 acres) are located north of the Vancouver Lake Flushing Channel, and the Rufener property (206 acres) is located east of Vancouver Lake and west of the Fruit Valley neighborhood. To compensate for wildlife habitat impacts that would be caused by proposed development activities on Parcel 3, the Port proposes to provide habitat mitigation on Parcels 4 and 5 and the Rufener property. Some industrial facilities would also be developed on the Rufener property. A portion of Parcel 2 may be used as a transportation corridor to access Parcel 3.
Species for which the Port seeks incidental take coverage include 15 species of fish and one species of wildlife. Three of the fish species are currently listed as endangered under the ESA, including Upper Columbia River Spring-run Chinook (
The draft HCP to be prepared by the Port in support of the ITP applications will describe the impacts of take on proposed covered species, and will propose a conservation strategy to minimize and mitigate those impacts on each covered species to the maximum extent practicable. The Port will develop habitat conservation measures for fish and wildlife, and their associated habitat, with assistance from the Services. Habitat conservation measures for the bald eagle will follow the Washington Department of Fish and Wildlife Bald Eagle Management Plan, developed for the site with the FWS and
• Regulated wetland (Clean Water Act section 404) impacts as a result of development on Parcel 3 would be mitigated on Parcels 4 and 5 (approximately 542 acres).
• Natural resource protection and mitigation planning would be primarily shaped by regulatory requirements.
• Wetland and wildlife habitat impacts from development of the road and rail infrastructure would be mitigated on the Port's Rufener property.
• Limited mitigation and habitat areas would be retained along the shoreline and the Flushing Channel on Parcel 3.
The draft HCP will identify HCP alternatives considered by the Port and will explain why those alternatives were not selected. The Services are responsible for determining whether the HCP satisfies ESA section 10 permit issuance criteria.
Under NEPA, a reasonable range of alternatives to a proposed project must be developed and considered in the Services' environmental review. The Services have identified the following preliminary alternatives for public evaluation during the scoping period:
Additional project alternatives may be developed based on input received from the public scoping process.
The primary purpose of the scoping process is for the public to assist the Services in developing the EIS by identifying important issues and alternatives related to the applicant's proposed action. The scoping workshop will allocate time for presentations by the Services and the Port, followed by informal questions and discussions.
Written comments from interested parties are welcome to ensure that the full range of issues related to the proposed permit request are identified. All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices listed in the
The Services request that comments be specific. In particular, we request information regarding: direct, indirect, and cumulative impacts that implementation of the proposed HCP or other alternatives could have on endangered and threatened and other covered species, and their communities and habitats; other possible alternatives that meet the purpose and need; potential adaptive management and/or monitoring provisions; funding issues; existing environmental conditions in the plan area; other plans or projects that might be relevant to this proposed project; permit duration; maximum acreage that should be covered; specific species that should or should not be covered; specific landforms that should or should not be covered; and minimization and mitigation efforts. NMFS and FWS estimate that the draft EIS will be available for public review in the summer of 2006.
The environmental review of this project will be conducted in accordance with the requirements of the NEPA of 1969 as amended (42 U.S.C. 4321
Persons needing reasonable accommodations to attend and participate in the public meeting should contact Greg Smith (see
Bureau of Land Management.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Mojave Southern Great Basin Resource Advisory Council (RAC) will meet as indicated below.
The Mojave Southern Great Basin RAC meetings will be held January 20, 2006; March 23, 2006; June 15 and 16, 2006; and August 17, 2006.
The Mojave Southern Great Basin RAC meetings will be held January 20, 2006 and March 23, 2006 at the BLM Las Vegas Field Office, located at 4701 N. Torrey Pines Dr., Las Vegas, NV; June 15, 2006, at the Bristlecone Convention Center 150 Sixth St., Ely, NV; and August 17, 2006 at the Beatty Community Center, 100 A-Ave. South, Beatty, NV.
The Mojave Southern Great Basin RAC meetings will usually begin at 8 a.m. and adjourn at approximately 4 p.m. Public comment periods regarding matters on the agenda will be held at 9:30 a.m. during each meeting.
Hillerie C. Patton, BLM Las Vegas Field Office Public Affairs Specialist at 702-515-5046.
The Mojave Southern Great Basin RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of public issues in Southern Nevada. Topics of discussion during Mojave Southern RAC meetings may include land use planning, Environmental Impact Statements, recreation, fire
These meetings are open to the public. The public may present written comments to the RACs. Each formal RAC meeting will also have time, as identified above, allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.
Bureau of Reclamation, Interior.
Notice of intent to prepare an Environmental Impact Statement (EIS).
Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA), the Department of the Interior, Bureau of Reclamation (Reclamation) will prepare an EIS to evaluate expanding the existing Los Vaqueros Reservoir and alternatives to improve water supply reliability and water quality for Bay Area water users, particularly those receiving water from the Sacramento-San Joaquin Delta; and contribute to lower cost implementation of the CALFED Environmental Water Account (EWA). Pursuant to the California Environmental Quality Act, Contra Costa Water District will prepare an EIR on the proposed project concurrent with the EIS preparation. A joint EIS/EIR document will be prepared.
Reclamation was directed in Public Law 108-7, (Omnibus Appropriations Act of 2003) to conduct a feasibility-level investigation of the potential expansion of Los Vaqueros Reservoir.
Four scoping meetings will be held to solicit public input on the scope of the environmental document, alternatives, concerns and issues to be addressed in the EIS. The scoping meeting dates are:
• Tuesday, January 24, 2006, 1:30 to 3:30 p.m., Sacramento, CA.
• Tuesday, January 24, 2006, 6 to 8 p.m. Antioch, CA.
• Wednesday January 25, 2006, 6 to 8 p.m., Livermore, CA.
• Thursday, January 26, 2006, 6 to 8 p.m., Concord, CA.
Submit written comments on the scope of the environmental document to Reclamation at the address below by February 28, 2006.
The scoping meeting locations are:
• Sacramento—Department of Water Resources, the Bonderson Building, 901 P Street, Public Hearing Room first floor, Sacramento, CA 95814.
• Antioch—Legion Hall, Veteran's Memorial Building 403 West 6th Street, Antioch, CA 94509.
• Livermore—Martinelli Event Center, Agricultural Center, 3585 Greenville Road, Livermore, CA 94550.
• Concord—Contra Costa Water District, 1331 Concord Ave., Concord, CA 94520.
Written comments on the scope of the environmental document should be sent to Ms. Patricia Roberson, Bureau of Reclamation, Mid Pacific Regional Office, 2800 Cottage Way, Sacramento CA 95825-1898; by e-mail at
Patricia Roberson, Reclamation Project Manager at the above address, (916) 978-5074; or Ms. Marguerite Naillon, Project Manager, Contra Costa Water District, P.O. Box H2O, Concord, CA 94524, (925) 688-8018. If you would like to be included on the EIS/EIR mailing list, please contact Jennifer Allen, CirclePoint, at (415) 227-1100 ext. 33 or
One of the five potential surface storage projects described in the CALFED Bay-Delta Program's long-term plan is the expansion of the existing Los Vaqueros Reservoir, an existing 100,000-acre-foot off-stream surface storage facility, located in Contra Costa County, California. The existing facility is owned and operated by the Contra Costa Water District (CCWD).
The primary study area includes the Los Vaqueros Reservoir watershed and associated dam and reservoir facilities, which are situated in the coastal foothills west of the Delta and east of the Bay Area, the central and south Delta, and service areas of Bay Area water agencies that may be directly affected by the project. The Bay Area water agencies that may be directly affected include Contra Costa Water District, Alameda County Water District, Santa Clara Valley Water district, and Alameda County Flood Control and Water Conservation District—Zone 7. Due to the potential influence on other programs and projects, an extended study area is defined to include the service area of the San Francisco Public Utilities Commission and the Central Valley of California.
Planning studies to date have focused on identifying water resources problems, needs, and opportunities in the primary study area, developing a set of planning objectives to help guide the remainder of the feasibility study, and formulating a set of initial alternatives. These elements of the study are summarized below.
The planning objectives identified below were developed based on the problems, needs, and opportunities in the study area.
• Increase water supply reliability for water providers within the study area, principally to help meet municipal and industrial water demands during drought periods, with a focus on enlarging Los Vaqueros Reservoir.
• Use an expanded Los Vaqueros Reservoir to develop replacement water supplies for the long-term EWA, if the cost of water provided from an expanded reservoir is found to be less than the cost of water for continued implementation of that program.
• To the extent possible through pursuit of the water supply reliability and environmental water objectives, improve the quality of water deliveries to municipal and industrial customers in the study area.
In addition to the study objectives, various planning constraints, principles, and criteria were identified and are being used to help guide the investigation. These criteria include the Contra Costa Water District's principles of participation.
From the Planning Objectives, a number of water resources management measures were identified. The most effective of these measures were used to formulate a set of initial alternatives. The initial action alternatives, still under refinement, include the following elements:
• Different ways to increase reservoir capacity: Raise the existing dam in-place or replace it completely with a new dam;
• Different ways/points of connection to deliver water to Bay Area users via facilities of the State Water Project;
• Different reservoir expansion sizing and operations geared to meet the project objectives: Water supply reliability, EWA needs, and/or water quality.
Specific measures and combinations of measures in these initial alternatives will likely change in future studies and some may be combined with others or dropped from further consideration. Other measures and combinations of measures may emerge during the scoping process and warrant development into alternatives. In addition to the action alternatives, the No Action alternative will also be evaluated. Additional information on these initial alternatives is contained in the Los Vaqueros Expansion Investigation, California, Initial Alternatives Information Report at
The environmental review will be conducted pursuant to NEPA, the Endangered Species Act, and other applicable Federal law, to analyze the potential environmental impacts of implementing a range of feasible alternatives, including Los Vaqueros Reservoir expansion. Public input on the range of alternatives to be considered will be sought through the initial public scoping meetings.
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home addresses from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
United States International Trade Commission.
Revised schedule for the subject investigations.
December 9, 2005.
Debra Baker (202-205-3180), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On October 12, 2005, the Commission established a schedule for the conduct of the final phase of the subject investigations (70 FR 60556, October 18, 2005). Subsequently, the Commission received a request from an interested party to change the scheduled date for the public hearing. The Commission, therefore, is revising its schedule.
The Commission's new schedule for the investigations is as follows: requests to appear at the hearing must be filed with the Secretary to the Commission not later than April 20, 2006; the prehearing conference will be held at the U.S. International Trade Commission Building at 9:30 a.m. on April 25, 2006; the prehearing staff report will be placed in the nonpublic record on April 7, 2006; the deadline for filing prehearing briefs is April 21, 2006; the hearing will be held at the U.S. International Trade Commission Building at 9:30 a.m. on May 2, 2006; the deadline for filing posthearing briefs is May 11, 2006; the Commission will make its final release of information on June 6, 2006; and final party comments are due on June 8, 2006.
For further information concerning these investigations see the
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice of Commission determination to conduct a full five-year review concerning the antidumping duty order on pure magnesium from China.
The Commission hereby gives notice that it will proceed with a full review pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) to determine whether revocation of the antidumping duty order on pure magnesium from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date. For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
December 5, 2005.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
On December 5, 2005, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c)(5) of the Act. The Commission found that the domestic interested party group response to its notice of institution (70 FR 52122, September 1, 2005) was adequate but that the respondent interested party group response was inadequate. The Commission also found that other circumstances warranted conducting a full review.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.62 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission instituted this investigation effective March 4, 2005, following receipt of a petition filed with the Commission and Commerce by Eramet Marietta Inc., Marietta, OH, and the Paper, Allied-Industrial, Chemical and Energy Workers International Union, Local 5-0639, Belpre, OH. The final phase of the investigation was scheduled by the Commission following notification of a preliminary determination by Commerce that imports of superalloy degassed chromium from Japan were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission's investigation and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determination in this investigation to the Secretary of Commerce on December 15, 2005. The views of the Commission are contained in USITC Publication 3825 (December 2005), entitled
By order of the Commission.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency has submitted to OMB for approval the information collections described in this notice. The public is invited to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
Written comments must be submitted to OMB at the address below on or before January 19, 2006 to be assured of consideration.
Send comments to Desk Officer for NARA, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5167.
Requests for additional information or copies of the proposed information collections and supporting statements should be directed to Tamee Fechhelm at telephone number 301-837-1694 or fax number 301-837-3213.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for these information collections on September 29, 2005 (70 FR 56931 and 56932). No comments were received. NARA has submitted the described information collections to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collections are necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collections; (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 the use of information technology; and (e) whether small businesses are affected by this collection. In this notice, NARA is soliciting comments concerning the following information collections:
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You can also use NARA's Web site at
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You can also use NARA's Web site at
U.S. Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
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A copy of the supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance packages are available at the NRC worldwide Web site:
Comments and questions should be directed to the OMB reviewer by February 21, 2006.
John A. Asalone, Office of Information and Regulatory Affairs (3150-0151), NEOB-10202, Office of Management and Budget, Washington DC 20503.
Comments can also be e-mailed to
The NRC Clearance Officer is Brenda Jo. Shelton, 301-415-7233.
For the Nuclear Regulatory Commission.
Entergy Operations, Inc. (the licensee) is the holder of Facility Operating License No. NPF-38 which authorizes operation of Waterford Steam Electric Station, Unit 3 (Waterford 3). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect.
The facility consists of one pressurized-water reactor located in St. Charles Parish, Louisiana.
Sections IV.F.2.b and c of Appendix E, to Title 10 of the
The licensee had scheduled a plume exposure pathway exercise for December 7, 2005. However, due to Hurricanes Katrina and Rita, the State of Louisiana was unable to support the exercise. Under the current regulations, the licensee would have had until December 31, 2005, to complete its next biennial full or partial-participation emergency preparedness exercises consisting of both onsite and offsite exercises. By letter dated October 24, 2005, the licensee requested an exemption from Section IV.F.2.c of Appendix E to 10 CFR part 50. Though not referenced in the licensee's request, the NRC staff has determined that an exemption from Section IV.F.2.b of Appendix E to 10 CFR part 50 is also necessary, since the last full participation onsite exercise was completed on May 21, 2003. The licensee commits to conduct the next biennial full participation emergency preparedness exercise on June 28, 2006. Future onsite and offsite exercises will be scheduled biennially from the year 2005.
The Commission, pursuant to 10 CFR 50.12(a)(1), may grant exemptions from the requirements of 10 CFR Part 50 that are authorized by law, will not present an undue risk to public health and safety, and are consistent with the common defense and security. The Commission, however, pursuant to 10 CFR 50.12(a)(2), will not consider granting an exemption unless special circumstances are present. Under 10 CFR 50.12(a)(2)(ii), special circumstances are present when application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule. Under 10 CFR 50.12(a)(2)(v), special circumstances are present whenever the exemption would provide only temporary relief from the applicable regulation and the licensee or applicant has made good faith efforts to comply with the regulation.
The underlying purposes for conducting a biennial exercise are to ensure that emergency organization personnel are familiar with their duties and to test the adequacy of emergency plans. In order to accommodate the scheduling of exercises, the NRC has allowed licensees to schedule the exercises at any time during the calendar biennium. Conducting the Waterford 3 exercise in calendar year 2006 places the exercise past the previously scheduled biennial calendar year of 2005.
Since the last exercise conducted at Waterford 3 on May 21, 2003, Waterford 3 has conducted two emergency response team tabletops (site drills without state or parish participation) on August 8 and December 9, 2003, and Waterford 3 site-wide drills (which includes state and parish participation) on March 11, June 17, September 30, and December 2, 2004, and February 17, and August 4, 2005. The licensee also states:
Emergency response team tabletops are conducted prior to each site-wide drill. The local parishes had limited participation (communication only) in each of the site-wide drills. The Louisiana Office of Homeland Security and Emergency Preparedness also participated to a limited extent (communications only) in these drills. The Louisiana Department of Environmental Quality participated in all the site-wide drills by manning the Waterford 3 Emergency Operations Facility and the Emergency News Center. The NRC and FEMA did not participate in any of the tabletops or site-wide drills. Although these drills were not evaluated by NRC and FEMA, the results were critiqued by the drill participants, our emergency response organization, and the parish and state officials who participated in the drills. The drills were also evaluated by our Quality Assurance Department. An emergency preparedness medical drill at Ochsner Medical Center (Ochsner) took place on July 23, 2003, and FEMA evaluated a medical drill at Ochsner on August 6, 2003. Issues identified during all emergency preparedness drills and in the critiques that follow all the drills have been resolved or are being resolved under our corrective action program.
The NRC staff considers the intent of the regulatory requirement is met by having conducted these series of drills and the emergency response to Hurricane Katrina. The NRC staff considers that these measures are adequate to maintain an acceptable level of emergency preparedness during this period, satisfying the underlying purposes of the rule. Therefore, the special circumstances of 10 CFR 50.12(a)(2)(ii) are satisfied. In addition, the staff has concluded that the above drills and exercises provide adequate protection of the public health and safety and are consistent with the common defense and security.
Only temporary relief from the regulation is provided by the requested exemption, since Waterford 3 will resume their normal biennial exercise schedule in 2007. The licensee has made a good faith effort to comply with the regulation. The exemption is being sought by the licensee in response to a request by the State of Louisiana to postpone the exercise. Louisiana was unable to support the original schedule for the exercise due to a series of severe weather events. FEMA, in its letter dated October 14, 2005, to the State of Louisiana, stated, “* * * we concur that the Waterford-3 Radiological Emergency Preparedness (REP) Exercise currently scheduled for December 7, 2005, * * * should be postponed due to the effects of Hurricanes Katrina and Rita on the local infrastructure * * *.”
The NRC staff, having considered the schedule and resource issues with those agencies that participate in and evaluate the offsite portion of the exercises, concludes that the licensee made a good faith effort to meet the requirements of the regulation. The NRC staff, therefore, concludes that the exemption request meets the special circumstances of 10 CFR 50.12(a)(2)(v) and should be granted.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Additionally, special circumstances are present, which make conducting the exercise impracticable in 2005, and which allow the underlying purposes of the regulation to be served with a postponement. Therefore, the Commission hereby grants Entergy Operations, Inc. an exemption from the requirements of 10 CFR part 50, Appendix E, Sections IV.F.2.b and c for Waterford 3.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (70 FR 73311).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
The Virginia Electric and Power Company (the licensee) is the holder of Renewed Facility Operating License Nos. DPR-32 and DPR-37 that authorizes operation of the Surry Power Station, Unit Nos. 1 and 2 (Surry). The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in effect.
The facility consists of a two pressurized-water reactors located in Surry County, Virginia.
Section IV.F.2.b of Appendix E, to Title 10 of the
The licensee had scheduled a full participation Radiological Emergency Preparedness Exercise for December 6, 2005. Because the Virginia Department of Emergency Management (DEM) is currently constructing a new Emergency Operations Center (EOC) and this EOC is not scheduled to be fully operational until January 2, 2006, the Virginia DEM requested approval from FEMA to delay the emergency exercise until February 7, 2006, in order to allow the Virginia DEM to test its new EOC during the exercise at Surry. By letter dated May 20, 2005, FEMA approved Virginia DEM's request to delay this exercise until the first week of February 2006. Under the current regulations, the licensee would have until December 31, 2005, to complete its next full participation exercise. The licensee plans to conduct a Federally observed full participation emergency exercise on February 7, 2006. Future full participation exercises will be scheduled biennially from the year 2005.
By letter dated September 15, 2005, the licensee requested an exemption from the requirements of 10 CFR Part 50, Appendix E, Section IV.F.2.b and c regarding the biennial exercise and participation of the offsite response organizations during a biennial emergency exercise at Surry. Subsequently, the NRC staff has determined that the requirements of 10 CFR Part 50, Appendix E, Section IV.F.2.b and c are applicable to the circumstances of the licensee's request and that an exemption from those requirements is appropriate.
Pursuant to 10 CFR 50.12(a)(1), the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR Part 50 when the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security. However, pursuant to 10 CFR 50.12(a)(2), the Commission will not consider granting an exemption unless special circumstances are present. Under 10 CFR 50.12(a)(2)(ii), special circumstances are present when application of the regulation in the
The underlying purpose for conducting a biennial exercise is to ensure that emergency response organization personnel are familiar with their duties and to test the adequacy of emergency plans. In order to accommodate the scheduling of full participation exercises, the NRC staff has allowed licensees to schedule the exercises at any time during the calendar biennium. Conducting the full participation exercise at Surry in calendar year 2006 places the exercise past the previously scheduled biennial calendar year of 2005.
Since the last full participation exercise conducted at Surry on July 15, 2003, the licensee conducted Full Scale Plume exercises on April 13, 2004, and December 6, 2005, and also performed an unannounced plume phase exercise on August 25, 2004. In addition, four training exercises were conducted. The NRC staff considers the intent of this requirement met by having conducted these series of exercises and drills. The NRC staff considers these measures to be adequate to maintain an acceptable level of emergency preparedness during this period, satisfying the underlying purpose of the rule. Therefore, the special circumstances of 10 CFR 50.12(a)(2)(ii) are satisfied.
Only temporary relief from the regulation is provided by the requested exemption since Surry will resume its normal biennial exercise schedule in 2007. The licensee has made a good faith effort to comply with the regulation. The exemption is being sought by the licensee in response to a request by the Virginia DEM to postpone the exercise. The Virginia DEM requested this delay to allow for the completion of the new EOC, which is not scheduled for completion until January 2, 2006. In its letter dated May 20, 2005, FEMA stated that it supports the schedule change from December 6, 2005, to the first week of February 2006.
The NRC staff, having considered the schedule and resource issues with those agencies that participate in and evaluate the offsite portion of the full participation exercises, concludes that the licensee made a good faith effort to meet the requirements of the regulation. Therefore, the NRC staff concludes that the exemption request meets the special circumstances of 10 CFR 50.12(a)(2)(v) and should be granted.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants the licensee an exemption from the requirements of 10 CFR Part 50, Appendix E, Section IV.F.2.b and c for Surry, Units 1 and 2.
Pursuant to 10 CFR 51.32, the Commission has determined that the granting of this exemption will not have a significant effect on the quality of the human environment (70 FR 72666).
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
The Nuclear Regulatory Commission (NRC or the Commission) is considering issuance of an amendment pursuant to Title 10 of the Code of Federal Regulations (10 CFR) part 50, for Facility Operating License No. NPF-86 issued to FPL Energy Seabrook, LLC (the licensee), for operation of Seabrook Station, Unit No. 1 (Seabrook), located in Rockingham County, New Hampshire. Therefore, as required by 10 CFR 51.21, the NRC is issuing this environmental assessment and finding of no significant impact.
The proposed action would extend the expiration date of the operating license for Seabrook from October 17, 2026, to March 15, 2030.
The proposed action is in accordance with the licensee's application for amendment dated March 28, 2005, as supplemented September 23, 2005.
The current operating licensed term for Seabrook ends on October 17, 2026. This is 40 years from the date of the zero-power operating license, which was issued on October 17, 1986. The amendment would extend the expiration date of the operating license from October 17, 2026, to March 15, 2030. The extended date for termination of the operating license would be 40 years after issuance of the full-power operating license which was issued on March 15, 1990. This would allow the licensee to recapture approximately 41 months of additional plant operation for the unit. This proposed amendment is not a request for license renewal pursuant to 10 CFR Part 54.
The NRC has completed its evaluation of the proposed action and concludes that there are no significant environmental considerations involved with the proposed action. The extension of the operating licenses does not affect the design or operation of the plant, does not involve any modifications to the plant or any increase in the licensed power for the plant, and will not create any new or unreviewed environmental impacts that were not considered in the Final Environmental Statement (FES) related to the operation of Seabrook, NUREG-0895, dated December 1982. The evaluations presented in the FES were of the environmental impacts of generating power at Seabrook and the basis for granting a 40-year operating license for Seabrook. The environmental impacts of the proposed action are based on the evaluations in the FES. It should be noted that the Seabrook license was amended on February 28, 2005, to allow an increase in maximum core power by 5.2% (from 3411 megawatts thermal (MWt) to 3587 MWt). The environmental assessment of the power uprate was published in the
The FES which, in general, assesses various impacts associated with operation of the facility in terms of annual impacts, and balances these against the anticipated annual energy production benefits.
The offsite exposure from releases during postulated accidents has been previously evaluated in the Updated Final Safety Analysis Report (UFSAR) for Seabrook. The results are acceptable when compared with the criteria defined in 10 CFR Part 100, as
The NRC staff has concluded that the impacts associated with the addition of approximately 41 months to the license expiration date are not significantly different from the operating license duration assessed in the Seabrook FES. Therefore, the staff concluded that the FES sufficiently addresses the environmental impacts associated with a full 40-year operating period for Seabrook.
The annual occupational exposure of workers at the plant, station employees and contractors, is reported in the Annual Operating Report submitted by the licensee. The lowest exposure value is for a year without a refueling outage, and the highest value is for a year with a refueling outage. In Section 5.9.3.1.1 of the FES, the average occupational exposure for a pressurized water reactor was reported as 440 person-rems. Therefore, the expected annual occupational exposure for the proposed extended period of operation does not change previous conclusions presented in the FES on occupational exposure.
The offsite exposure from releases during routine operations has been previously evaluated in Section 5.9.3 of the FES. During the low-power license, the plant was restricted to no more than five percent of rated power for no longer than 0.75 effective full power hours, and the generation of radioactivity at the plant was significantly smaller than would have occurred if the plant were at full-power operation. Therefore, the addition of approximately 41 months of operation that the licensee has requested does not change previous conclusions presented in the FES on annual public doses.
The proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential nonradiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect nonradiological plant effluents and has no other environmental impact. Therefore, there are no significant nonradiological environmental impacts associated with the proposed action.
Accordingly, the NRC concluded that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (i.e., the “no-action” alternative). Denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
The action does not involve the use of any different resource than those previously considered in the FES for Seabrook.
On December 8, 2005, the staff consulted with the New Hampshire State official, Mr. Mike Nawoj, and the Massachusetts State official, Mr. James Muckerheid, regarding the environmental impact of the proposed action. The State officials had no comments.
On the basis of the environmental assessment, the NRC concluded that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated March 28, 2005 as supplemented September 23, 2005. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of December 19, 26, 2005, January 2, 9, 16, 23, 2006.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the Week of December 19, 2005.
There are no meetings scheduled for the Week of December 26, 2005.
There are no meetings scheduled for the Week of January 2, 2006.
This meeting will be webcast live at the Web address:
This meeting will be webcast live at the Web address:
There are no meetings scheduled for the Week of January 23, 2006.
* The schedule for Commission meetings is subject to change on short
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC's Disability Program Coordinator, August Spector, at 301-415-7080, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from November 23, 2005 to December 8, 2005. The last biweekly notice was published on December 6, 2005 (70 FR 72667).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination. Within 60 days after the date of publication of this notice, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; (2) courier, express mail, and expedited delivery services: Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff; (3) e-mail addressed to the Office of the Secretary, U.S. Nuclear Regulatory Commission,
Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission or the presiding officer of the Atomic Safety and Licensing Board that the petition, request and/or the contentions should be granted based on a balancing of the factors specified in 10 CFR 2.309(a)(1)(i)-(viii).
For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change modifies Technical Specifications (TS) Surveillance Requirement (SR) 4.4.B.1 to provide an alternative means for testing the Electromatic Relief Valves (EMRVs). Accidents are initiated by the malfunction of plant equipment, or the failure of plant structures, systems, or components. The performance of EMRV testing is not a precursor to any accident previously evaluated and does not change the manner in which the valves are operated. The proposed testing requirements will not contribute to the failure of the relief valves nor any plant structure, system, or component. AmerGen Energy Company, LLC (AmerGen) has determined that the proposed change in testing methodology provides an equivalent level of assurance that the relief valves are capable of performing their intended safety functions. Thus, the proposed change does not affect the probability of an accident previously evaluated.
The performance of EMRV testing provides confidence that the EMRVs are capable of depressurizing the reactor pressure vessel (RPV). This will protect the reactor vessel from overpressurization and allow the Core Spray system to inject into the RPV as designed. The proposed change involves the manner in which the EMRVs are tested, and has no effect on the types or amounts of
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not affect the assumed accident performance of the EMRVs, nor any plant structure, system, or component previously evaluated. The proposed change does not involve the installation of new equipment, and installed equipment is not being operated in a new of different manner. The change in test methodology ensures that the EMRVs remain capable of performing their safety functions. No set points are being changed which would alter the dynamic response of plant equipment. Accordingly, no new failure modes are introduced.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change will allow testing of the EMRV actuation electrical circuitry, including the solenoid, and mechanical actuation components, without causing the EMRV to open. Accordingly, in-situ EMRV cycling is avoided, reducing the potential for valve seat leakage. The valves will be tested in accordance with the Inservice Test (IST) Program that involves testing the valve at a test facility using steam. The combination of the IST and proposed actuator test provides confidence that the EMRVs will perform their design function.
The proposed change does not affect the EMRV set points or the operational criteria that directs the EMRVs to be manually opened during plant transients. There are no changes proposed which alter the set points at which protective actions are initiated, and there is no change to the operability requirements for equipment assumed to operate for accident mitigation.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the proposed amendment involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Deletion of TS SR 4.7.12.1c is an administrative change since there are no valves in the essential services chilled water system for which the TS SR 4.7.12.1c is applicable. The deletion of the “during shutdown” restriction from TS SRs 4.5.2e (Safety Injection), 4.6.2.1d (Containment Spray), and 4.7.3b (Component Cooling Water/Auxiliary Component Cooling Water) does not impact system operation nor does it reduce TS SRs. Component actuations that will be allowed to be performed online for these TS SRs are either already actuated online for other TS SRs or the components to be actuated online are currently stroked online in accordance with the Inservice Testing Program. Therefore, the accident mitigation features of the plant for previously evaluated accidents are not affected by the proposed amendment.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Deletion of TS SR 4.7.12.1c is an administrative change since there are no valves in the essential services chilled water system for which the TS SR 4.7.12.1c is applicable. The deletion of the “during shutdown” restriction from TS SRs 4.5.2e (Safety Injection), 4.6.2.1d (Containment Spray), and 4.7.3b (Component Cooling Water/Auxiliary Component Cooling Water) does not impact system operation nor does it reduce TS SR. Component actuations that will be allowed to be performed online for these TS SRs are either already actuated online for other TS SRs or the components to be actuated online are currently stroked online in accordance with the Inservice Testing Program. Therefore, the proposed change introduces no new mode of plant operation and no new possibility for an accident is introduced.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
There are no automatic valves in the essential services chilled water system that actuate on an SIAS [safety injection actuation signal]. Deletion of the “during shutdown” limitation does not change the TS test requirements or surveillance frequency. Therefore, existing TS surveillance requirements are not reduced by the proposed change, thus no margins of safety are reduced.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The NRC staff issued a notice of opportunity for comment in the
The proposed change requires a SG Program that includes performance criteria that will provide reasonable assurance that the SG tubing will retain integrity over the full range of operating conditions (including startup, operation in the power range, hot standby, cooldown and all anticipated transients included in the design specification). The SG performance criteria are based on tube structural integrity, accident induced leakage, and operational LEAKAGE.
A SGTR [steam generator tube rupture] event is one of the design basis accidents that are analyzed as part of a plant's licensing basis. In the analysis of a SGTR event, a bounding primary to secondary LEAKAGE rate equal to the operational LEAKAGE rate limits in the licensing basis plus the LEAKAGE rate associated with a double-ended rupture of a single tube is assumed.
For other design basis accidents such as a MSLB [main steamline break], rod ejection, and reactor coolant pump locked rotor the tubes are assumed to retain their structural integrity (i.e., they are assumed not to rupture). These analyses typically assume that primary to secondary LEAKAGE for all SGs is 1 gallon per minute or increases to 1 gallon per minute as a result of accident induced stresses. The accident induced leakage criterion introduced by the proposed changes accounts for tubes that may leak during design basis accidents. The accident induced leakage criterion limits this leakage to no more than the value assumed in the accident analysis.
The SG performance criteria proposed change to the TS identify the standards against which tube integrity is to be measured. Meeting the performance criteria provides reasonable assurance that the SG tubing will remain capable of fulfilling its specific safety function of maintaining reactor coolant pressure boundary integrity throughout each operating cycle and in the unlikely event of a design basis accident.
The performance criteria are only a part of the SG Program required by the proposed change to the TS. The program, defined by NEI 97-06, Steam Generator Program Guidelines, includes a framework that incorporates a balance of prevention, inspection, evaluation, repair, and leakage monitoring. The proposed changes do not, therefore, significantly increase the probability of an accident previously evaluated.
The consequences of design basis accidents are, in part, functions of the DOSE EQUIVALENT I-131 in the primary coolant and the primary to secondary LEAKAGE rates resulting from an accident. Therefore, limits are included in the plant technical specifications for operational leakage and for DOSE EQUIVALENT I-131 in primary coolant to ensure the plant is operated within its analyzed condition. The typical analysis of the limiting design basis accident assumes that primary to secondary leak rate after the accident is 1 gallon per minute with no more than [500 gallons per day or 720 gallons per day] in any one SG, and that the reactor coolant activity levels of DOSE EQUIVALENT I-131 are at the TS values before the accident.
The proposed change does not affect the design of the SGs, their method of operation, or primary coolant chemistry controls. The proposed approach updates the current TSs and enhances the requirements for SG inspections. The proposed change does not adversely impact any other previously evaluated design basis accident and is an improvement over the current TSs.
Therefore, the proposed change does not affect the consequences of a SGTR accident and the probability of such an accident is reduced. In addition, the proposed changes do not affect the consequences of an MSLB, rod ejection, or a reactor coolant pump locked rotor event, or other previously evaluated accident.
The proposed performance based requirements are an improvement over the requirements imposed by the current technical specifications. Implementation of the proposed SG Program will not introduce any adverse changes to the plant design basis or postulated accidents resulting from potential tube degradation. The result of the implementation of the SG Program will be an enhancement of SG tube performance. Primary to secondary LEAKAGE that may be experienced during all plant conditions will be monitored to ensure it remains within current accident analysis assumptions.
The proposed change does not affect the design of the SGs, their method of operation, or primary or secondary coolant chemistry controls. In addition, the proposed change does not impact any other plant system or component. The change enhances SG inspection requirements.
Therefore, the proposed change does not create the possibility of a new or different [kind] of accident from any accident previously evaluated.
The SG tubes in pressurized water reactors are an integral part of the reactor coolant pressure boundary and, as such, are relied upon to maintain the primary system's pressure and inventory. As part of the reactor coolant pressure boundary, the SG tubes are unique in that they are also relied upon as a heat transfer surface between the primary and secondary systems such that residual heat can be removed from the primary system. In addition, the SG tubes isolate the radioactive fission products in the primary coolant from the secondary system. In summary, the safety function of [a] SG is maintained by ensuring the integrity of its tubes.
Steam generator tube integrity is a function of the design, environment, and the physical condition of the tube. The proposed change does not affect tube design or operating environment. The proposed change is expected to result in an improvement in the tube integrity by implementing the SG Program to manage SG tube inspection, assessment, repair, and plugging. The requirements established by the SG Program are consistent with those in the applicable design codes and standards and are an improvement over the requirements in the current TSs.
For the above reasons, the margin of safety is not changed and overall plant safety will be enhanced by the proposed change to the TS.
The NRC staff proposes to determine that the amendments request involves no significant hazards consideration.
(1) Operation of the facility in accordance with the proposed amendment would not involve a significant increase in the probability or consequences of an accident previously evaluated.
None of the proposed changes to the Technical Specifications results in operation of the facility that adversely affects the initiation of any accident previously evaluated. There is no adverse impact on any plant system. Plant systems will continue to function as designed, and all performance requirements for these systems remain acceptable. The analysis, performed to support the proposed changes, has included evaluations and/or analyses of all the analyzed accident analyses, including the effects of changes on the SG tube sleeve design. The analyses and evaluations have verified that the accident analyses acceptance criteria continue to be met. Dose consequences acceptance criteria have been verified to be met for analyzed events. Therefore, the proposed changes do not significantly increase the probability or consequences of an accident previously evaluated.
(2) Operation of the facility in accordance with the proposed amendments would not create the possibility of a new or different kind of accident from any previously evaluated.
No new accident scenarios, failure mechanisms or limiting single failures are introduced as a result of the proposed changes to the Technical Specifications. Although the allowable tube plugging level is increased, the criteria for tube plugging/sleeving and the tube integrity considerations remain unchanged. The proposed changes have no adverse effects on any safety-related systems and do not challenge the performance or integrity of any safety-related system. The DNBR [Departure from Nucleate Boiling Ratio] limits and trip setpoints associated with the respective reactor protection system functions have verified that the accident analyses criteria continue to be met. Therefore, this amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated.
(3) Operation of the facility in accordance with the proposed amendments would not involve a significant reduction in a margin of safety.
The safety analyses of all analyzed design basis accidents, supporting the proposed changes to the Technical Specifications, continue to meet the applicable acceptance criteria with respect to the radiological consequences, specified acceptable fuel design limits (SAFDLs), primary and secondary overpressurization, and 10 CFR 50.46 requirements. The DNBR and the setpoint analyses are performed on a cycle-specific basis to verify that the reactor protection system functions continue to provide adequate protection against fuel design limits. Evaluation of the steam line break and LOCA [Loss of Coolant Accident] mass and energy releases determined that the overall containment response remains acceptable. The performance requirements for all systems have been verified to be acceptable from design basis accidents' consideration. The proposed amendment, therefore, will not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The Emergency Service Water (ESW) System is not an accident initiator. The proposed change provides operability requirements and surveillance requirements to ensure the ESW System is operable as required for accident mitigation. The proposed operability requirements and allowed outage time is consistent with the requirements for the systems supported by the ESW System. The [calculated radiological] dose to the public and the Control Room operators [due to a postulated accident] are unaffected by the proposed change. The proposed LCO provides direction with respect to actions to be taken when support systems are inoperable.
The proposed Technical Specifications does not introduce new equipment operating modes, nor does the proposed change alter existing system relationships. The proposed amendment does not introduce new failure modes.
Therefore, the proposed amendment will not significantly increase the probability or the consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not introduce new equipment operating modes, nor do they alter existing system relationships. The proposed changes do not introduce new failure modes. They do not alter the equipment required for accident mitigation and they appropriately consider the effects on supported systems when a support system is inoperable. When support systems are inoperable, actions are specified consistent with safe plant operation.
Therefore, the proposed changes will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in the margin of safety?
The proposed change provides specifications for the ESW System that are consistent with current Technical Specification requirements for other equipment. The proposed changes ensure that the ESW and other support systems will be available when required and provides adequate alternative actions when the support systems are not available. The allowed outage times for the ESW subsystem is consistent with that allowed for other equipment required for accident mitigation. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes to the USAR discuss the changes to the Seized Rotor (SR), Control Element Assembly Ejection (CEAE), Steam Generator Tube Rupture (SGTR) and Main Steam Line Break (MSLB) events resulting from the installation of the replacement steam generators (RSGs) and the replacement pressurizer (RPZR). These changes do not affect an accident initiator previously evaluated in the USAR or the Technical Specifications and will not prevent any safety systems from performing their accident mitigating function as discussed in the USAR or the Technical Specifications.
In all events evaluated, with the exception of the Control Room dose of the MSLB concurrent iodine spike case, there is no margin reduction. The Control Room dose of the MSLB concurrent iodine spike case is increased from 2.5 rem to 4.5 rem. The calculated doses resulting from the proposed changes to USAR Sections 14.1.6, 14.6.2.8, 14.12.6, 14.13.4 and 14.14.3 remain below the regulatory limits set by 10 CFR 50.67.
Therefore, these changes do not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes are the result of changes in the analysis of the radiological consequences of the SR, CEAE, SGTR and MSLB events of the replacement of the steam generators (SGs) and the pressurizer. The proposed changes do not modify or install any safety related equipment. They do, however, change the licensing basis by using fuel gap fractions from Reference 7.6 in accordance with previously accepted license applications by other licensees and by assuming shorter concurrent iodine spike durations in accordance with Section 2.2 of Appendix E of RG 1.183, since the activity released during the eight-hour spike duration exceeds the available release.
Therefore, these changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The calculated doses resulting from the proposed changes to USAR Sections 14.1.6, 14.6.2.8, 14.12.6, 14.13.4 and 14.14.3 remain below the regulatory limits set by 10 CFR 50.67. In all events evaluated, with the exception of the Control Room dose of the MSLB concurrent iodine spike case, there is no margin reduction. The Control Room dose of the MSLB concurrent iodine spike case is increased from 2.5 rem to 4.5 rem. This margin reduction is primarily due to the significant delay in the reactor coolant reaching 212 F with the RSGs and RPZR (i.e., at 159.2 hours versus the 10.94 hours applicable to the original steam generators). This analysis has conservatively used a spike duration of 4 hours. If the updated analysis took credit for the percentage of defective fuels associated with Technical Specification concentrations when developing the duration of the concurrent iodine spike (i.e., used 0.28% defective fuel versus the conservatively assumed 1% defective fuel used in the analysis), the analysis would have resulted in an estimated spike duration of 2 hours instead of 4 hours and the control room dose would be significantly reduced.
Therefore, the proposed changes do not involve a significant reduction in the safety margin.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
These proposed changes affect only operations in the spent fuel pool during spent fuel cask loading operations. Plant power operations and other spent fuel pool operations are not affected. There are no changes to the design or operation of the power plant that could affect system, component or accident functions resulting from these changes.
Fuel loading into the spent fuel casks in the spent fuel pool will not require any significant changes to spent fuel pool structures, systems, or components, nor will their performance requirements be altered. The potential to handle a spent fuel cask was considered in the original design of the plant. Therefore, the response of the plant to previously analyzed Part 50 accidents and related radiological releases will not be adversely impacted, and will bound those postulated during cask loading activities in the cask loading area.
Accordingly, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
These proposed changes affect only operations in the spent fuel pool during spent fuel cask loading operations. Plant power operations and other spent fuel pool operations are not affected. No new accident scenarios, failure mechanisms, or single failures are introduced as a result of the proposed changes. All systems, structures, and components previously required for mitigation of an event remain capable of fulfilling their intended design function with these changes to the TS.
Fuel handling procedures and associated administrative controls for movement of spent fuel in the spent fuel pool remain applicable and are being appropriately augmented to accommodate spent fuel cask loading operations. Additionally, the soluble boron concentration required to maintain k
Therefore, the possibility of a new or different kind of accident from any accident previously evaluated is not created.
3. Does the proposed change involve a significant reduction in a margin of safety?
An NRC-approved methodology was used to perform the criticality analyses that provide the basis to incorporate a boron concentration and a new burnup versus enrichment curve into the plant Technical Specifications to ensure criticality safety margins are maintained during spent fuel cask loading. Spent fuel casks at FCS are loaded in the spent fuel pool in an area adjacent to the spent fuel racks. No physical segregation such as a wall or gate exists between the spent fuel racks and spent fuel cask loading area. The cask loading area floor is approximately two feet lower than the floor on which the spent fuel racks are located. Therefore, the spent fuel pool water flows in and around the spent fuel racks and spent fuel casks being loaded in a common pool. Neutronic coupling between fuel in the spent fuel racks and fuel in the spent fuel cask has been appropriately considered in the criticality analysis, including accident events that postulate mis-loading of a fresh fuel assembly into the cask and dropping a fuel assembly between the spent fuel racks and spent fuel cask during loading.
The normal condition criticality analysis was performed assuming no soluble boron in the spent fuel pool water and credit for fuel burnup. The proposed new Technical Specification requirement to permit only fuel assemblies with the minimum required burnup versus enrichment to be loaded into the spent fuel cask preserves this analysis basis. The accident condition criticality analysis was performed assuming a minimum of 800 ppm boron in the spent fuel pool during cask loading operations. All analyses account for uncertainties at a 95[-]percent probability/95-percent confidence level. The proposed new Technical Specification requirement to maintain a minimum boron concentration of 800 ppm in the spent fuel pool during spent fuel cask loading operations preserves this analysis basis. For defense-in-depth, the spent fuel pool boron concentration is typically maintained at approximately 1900 ppm during normal operations and would not be expected to be reduced during spent fuel cask loading operations.
Therefore, there is no significant reduction in a margin of safety as a result of this change.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
This change was proposed by the industry's Technical Specification Task Force (TSTF) and is designated TSTF-372, Revision 4. The NRC staff issued a notice of opportunity for comment in the
The proposed change allows a delay time for entering a supported system TS when the inoperability is due solely to an inoperable snubber if risk is assessed and managed. The postulated seismic event requiring snubbers is a low-probability occurrence and the overall TS system safety function would still be available for the vast majority of anticipated challenges. Therefore, the probability of an accident previously evaluated is not significantly increased, if at all. The consequences of an accident while relying on allowance provided by proposed LCO 3.0.8 are no different than the consequences of an accident while relying on the TS required actions in effect without the allowance provided by proposed LCO 3.0.8. Therefore, the consequences of an accident previously evaluated are not significantly affected by this change. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). Allowing delay times for entering supported system TS when inoperability is due solely to inoperable snubbers, if risk is assessed and managed, will not introduce new failure modes or effects and will not, in the absence of other unrelated failures, lead to an accident whose consequences exceed the consequences of accidents previously evaluated. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from an accident previously evaluated.
The proposed change allows a delay time for entering a supported system TS when the inoperability is due solely to an inoperable snubber, if risk is assessed and managed. The postulated seismic event requiring snubbers is a low-probability occurrence and the overall TS system safety function would still be available for the vast majority of anticipated challenges. The risk impact of the proposed TS changes was assessed following the three-tiered approach recommended in Regulatory Guide 1.177. A bounding risk assessment was performed to justify the proposed TS changes. The proposed LCO 3.0.8 defines limitations on the use of the provision and includes a requirement for the licensee to assess and manage the risk associated with operation with an inoperable snubber. The net change to the margin of safety is insignificant. Therefore, this change does not involve a significant reduction in a margin of safety.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change is an administrative change to revise the Technical Specification (TS) 5.3.1 licensed operator minimum qualification requirements and remove the plant staff retraining and replacement training program requirements from the TS. The proposed change does not directly impact accidents previously evaluated. The Diablo Canyon Power Plant (DCPP) licensed operator training program is accredited by the National Academy for Nuclear Training (NANT) and is based on a systems approach to training consistent with the requirements of 10 CFR 55. Although licensed operator qualifications and training may have an indirect impact on accidents previously evaluated, the NRC considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR 55 rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and is based on a systems approach to training. The DCPP plant staff retraining and replacement training program meets the requirements of 10 CFR 50.120.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different accident from any accident previously evaluated?
The proposed change is administrative in nature and does not affect the plant design, hardware, system operation, or operating procedures. The DCPP licensed operator training program is accredited by the NANT and is based on a systems approach to training consistent with the requirements of 10 CFR 55. Although licensed operator qualifications and training may have an indirect impact on accidents previously evaluated, the NRC considered this impact during the rulemaking process, and by promulgation of the revised 10 CFR 55 rule, concluded that this impact remains acceptable as long as the licensed operator training program is certified to be accredited and is based on a systems approach to training. The DCPP plant staff retraining and replacement training program meets the requirements of 10 CFR 50.120.
Therefore, the proposed change does not create the possibility of a new or different accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The proposed change is administrative in nature and does not affect the plant design, hardware, system operation, or operating procedures. The change does not exceed or alter a design basis or safety limit and thus does not reduce the margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed amendment[s] relocate the instrument response time limits for the reactor trip system (RTS) and engineered safety feature actuation system (ESFAS) from the technical specifications to the Updated Final Safety Analysis Report (UFSAR). The proposed amendment[s] conform to the guidance given in Enclosures 1 and 2 of Generic Letter 93-08. Neither the response time limits nor the surveillance requirements for performing response time testing will be altered by this submittal. The overall RTS and ESFAS functional capabilities will not be changed and assurance that action requirements of the reactor trip and engineered safety features systems are completed within the time limits assumed in the accident analyses is unaffected by the proposed amendment[s].
Therefore, operation of the facility in accordance with the proposed amendment[s] will not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed amendment[s] will not change the physical plant or the modes of plant operation defined in the operating license[s]. The change does not involve the addition or modification of equipment nor does it alter the design or operation of plant systems.
Therefore, operation of the facility in accordance with the proposed amendment[s] will not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the change involve a significant reduction in a margin of safety?
The measurement of instrumentation response times at the frequencies specified in the technical specification provides assurance that actions associated with the reactor trip and engineered safety features systems are accomplished within the time limits assumed in the accident analyses. The response time limits and the measurement frequencies remain unchanged by the proposed amendment[s].
There will be no effect on the manner in which safety limits or limiting safety system settings are determined nor will there be any effect on those plant systems necessary to assure the accomplishment of protection functions.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Overall protection system performance will remain within the bounds of the previously performed accident analyses since no hardware changes are proposed. The same reactor trip system (RTS) and engineered safety feature actuation system (ESFAS) instrumentation will continue to be used. The protection systems will continue to function in a manner consistent with the plant design basis. These changes to the Technical Specifications do not result in a condition where the design, material, and construction standards that were applicable prior to the changes are altered.
The proposed changes will not modify any system interface. The proposed changes will not affect the probability of any event initiators. There will be no degradation in the performance of, or an increase in the number of challenges imposed on safety-related equipment assumed to function during an accident. There will be no changes to normal plant operating parameters or accident mitigation performance. The proposed changes will not alter any assumptions or change any mitigation actions in the radiological consequence evaluations in the FSAR [final safety analysis report]. The determination that the results of the proposed changes are acceptable was established in the NRC SE [safety evaluation] issued for WCAP [Westinghouse Commercial Atomic Power report]-14333, dated July 15, 1998. Implementation of the proposed changes will result in an insignificant risk impact. The proposed changes to Action 16 of TS [Technical Specification] 3/4.3.2 are also acceptable as demonstrated by meeting the acceptance criteria contained in Regulatory Guides 1.174 and 1.177.
The proposed changes to the AOTs [allowable outage times] and bypass test times, reduce the potential for inadvertent reactor trips and spurious ESF [engineered safety feature] actuations, and therefore do not increase the probability of any accident previously evaluated. The proposed changes do not change the response of the plant to any accidents and have an insignificant impact on the reliability of the RTS and ESFAS signals. The RTS and ESFAS will remain highly reliable and the proposed changes will not result in a significant increase in the risk of plant operation. This is demonstrated by showing that the impact on plant safety as measured by the increase in CDF [core damage frequency] is less than 1.0E-06 per year and the increase in LERF [large early release frequency] is less than 1.0E-07 per year. In addition, for the AOT and bypass test time changes, the ICCDP [incremental conditional core damage probability] and ICLERP [incremental conditional large early release probability] values are less than 5.0E-07 and 5.0E-08, respectively. The proposed changes meet the acceptance criteria in Regulatory Guides 1.174 and 1.177. Therefore, since the RTS and ESFAS will continue to perform their functions with high reliability as originally assumed, and the increase in risk as measured by the “CDF, “LERF, ICCDP, ICLERP risk metrics is within the acceptance criteria of Regulatory Guides 1.174 and 1.177, there will not be a significant increase in the consequences of any accidents.
The proposed changes to the bypass test times and AOTs do not adversely affect accident initiators or precursors nor alter the design assumptions, conditions, or configuration of the facility or the manner in which the plant is operated and maintained. The proposed changes do not alter or prevent the ability of structures, systems, and components (SSCs) from performing their intended function to mitigate the consequences of an initiating event to within the applicable acceptance criteria. The proposed changes do not affect the source term, containment isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. The proposed changes are consistent with safety analysis assumptions and resultant consequences.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
There are no hardware changes or any changes in the method by which any safety-related plant system performs its safety function. The proposed changes will not affect the normal method of plant operation. No performance requirements will be affected or eliminated. The proposed changes will not result in a physical alteration to any plant system or a change in the method by which any safety-related plant system performs its safety function. There will be no setpoint changes or changes to accident analysis assumptions.
No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures are introduced as a result of these changes. There will be no adverse effect or challenges imposed on any safety-related system as a result of these changes.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does this change involve a significant reduction in a margin of safety?
The proposed changes do not affect the acceptance criteria for any analyzed event nor is there a change to any Safety Analysis Limit (SAL). There will be no effect on the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined nor will there be any effect on those plant systems necessary to assure the accomplishment of protection functions. There will be no impact on the DNBR [departure from nucleate boiling ratio] limits, FQ, FDH, LOCA [loss-of-coolant accident] PCT [peak cladding temperature], peak local power density, or any other margin of safety. The radiological dose consequence acceptance criteria continue to be met.
Redundant RTS and ESFAS trains are maintained, and diversity with regard to the signals that provide reactor trip and engineered safety features actuation is also maintained. All signals credited as primary or secondary, and all operator actions credited in the accident analyses will remain the same. The proposed changes will not result in plant operation in a configuration outside the design basis. The calculated impact on risk is insignificant and meets the acceptance criteria contained in Regulatory Guides 1.174 and 1.177. Although there was no attempt to quantify any positive human factors benefit due to increased AOTs and bypass test times, it is expected that there would be a net benefit due to the reduced potential for spurious reactor trips and actuations associated with testing and maintenance activities.
Implementation of the proposed changes is expected to result in an overall improvement in safety, as follows:
Improvements in the effectiveness of the operating staff in monitoring and controlling plant operation will be realized. This is due to less frequent distraction of the operators and shift supervisor to attend to RTS and ESFAS instrumentation Actions with short AOTs.
The increased AOTs will provide more time for trouble shooting and repair activities, therefore reducing the potential for spurious trips and actuations.
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Pursuant to 10CFR50.91, the preceding analyses provide a determination that the proposed Technical Specification changes pose no significant hazard as delineated by 10CFR50.92.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.929(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
This change was proposed by the industry's Technical Specification Task Force (TSTF) and is designated TSTF-359. The NRC staff issued a notice of opportunity for comment in the
The proposed change allows entry into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS. Being in a TS condition and the associated required actions is not an initiator of any accident previously evaluated. Therefore, the probability of an accident previously evaluated is not significantly increased. The consequences of an accident while relying on required actions as allowed by proposed LCO 3.0.4, are no different than the consequences of an accident while entering and relying on the required actions while starting in a condition of applicability of the TS. Therefore, the consequences of an accident previously evaluated are not significantly affected by this change. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed). Entering into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS, will not introduce new failure modes or effects and will not, in the absence of other unrelated failures, lead to an accident whose consequences exceed the consequences of accidents previously evaluated. The addition of a requirement to assess and manage the risk introduced by this change will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from an accident previously evaluated.
The proposed change allows entry into a mode or other specified condition in the applicability of a TS, while in a TS condition statement and the associated required actions of the TS. The TS allow operation of the plant without the full complement of equipment through the conditions for not meeting the TS LCO. The risk associated with this allowance is managed by the imposition of required actions that must be performed within the prescribed completion times. The net effect of being in a TS condition on the margin of safety is not considered significant. The proposed change does not alter the required actions or completion times of the TS. The proposed change allows TS conditions to be entered, and the associated required actions and completion times to be used in new circumstances. This use is predicated upon the licensee's performance of a risk assessment and the management of plant risk. The change also eliminates current allowances for utilizing required actions and completion times in similar circumstances, without assessing and managing risk. The net change to the margin of safety is insignificant. Therefore, this change does not involve a significant reduction in a margin of safety.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The supplemental letter dated November 2, 2005, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of these amendments is contained in a Safety Evaluation dated December 2, 2005.
The supplements dated May 3, July 6, September 13, October 6, October 24, and November 15, 2005, provided additional information that clarified the application, did not expand the scope of the November 16, 2004 application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated November 17, 2005.
No significant hazards consideration comments received: No
The supplement dated September 15, 2005, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as published in the
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated November 1, 2005.
No significant hazards consideration comments received: No
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 1, 2005.
No significant hazards consideration comments received: No
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 5, 2005.
No significant hazards consideration comments received: No
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 7, 2005.
No significant hazards consideration comments received: No
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated November 17, 2005.
No significant hazards consideration comments received: No
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Proposed revisions to an existing system of records.
The Nuclear Regulatory Commission (NRC) is issuing public notice of its intent to modify an existing system of records, NRC-20, “Official Travel Records—NRC,” to incorporate the collection and use of travel charge card records, including credit data, to comply with the Consolidated Appropriations Act, 2005 (Pub. L. 108-447).
The revised system of records will become effective without further notice on January 30, 2006 unless comments received on or before that date cause a contrary decision. If changes are made based on NRC's review of comments received, a new final notice will be published.
Comments may be provided to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Written comments should also be transmitted to the Chief of the Rules and Directives Branch, either by means of facsimile transmission to (301) 415-5144, or by e-mail to
Sandra S. Northern, Privacy Program Officer, FOIA/Privacy Act Team, Records and FOIA/Privacy Services Branch, Information and Records Services Division, Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6879; e-mail:
NRC is proposing to add new categories of records in the system to include charge card applications, terms and conditions for use of charge cards, charge card training documentation, monthly reports regarding accounts, credit data, and related documentation; update the authority for the system by adding Section 639 of the Consolidated Appropriations Act, 2005 (Pub.L. 108-447); and incorporate three new routine uses which will allow disclosure of information to the charge card issuing bank, the Department of Interior, National Business Center, to collect severe travel card delinquencies by employee salary offset, and to a consumer reporting agency to obtain credit reports.
A report on the proposed revisions is being sent to OMB, the Committee on Homeland Security and Governmental Affairs of the U.S. Senate, and the Committee on Government Reform of the U.S. House of Representatives as required by the Privacy Act and OMB Circular No. A-130, Appendix I, “Federal Agency Responsibilities for Maintaining Records About Individuals.” NRC's actions are also consistent with OMB Circular A-123, “Management's Responsibility for Internal Control.”
Accordingly, the NRC proposes to amend NRC-20 to read as follows:
Official Travel Records—NRC.
Primary system—Division of Financial Services, Office of the Chief Financial Officer, NRC, Two White Flint North, 11545 Rockville Pike, Rockville, Maryland.
Duplicate system—Duplicate systems may exist, in part, within the organization where the employee actually works for administrative purposes, at the locations listed in Addendum I, Parts 1 and 2, published on September 24, 2004 (69 FR 57579).
Current and former NRC employees, prospective NRC employees, consultants, and invitational travelers for NRC programs.
These records contain requests and authorizations for official travel, travel
5 U.S.C. 5701; 31 U.S.C. 716, 1104, 1108, 3511, 3512, 3701, 3711, 3717, 3718; Federal Travel Regulations, 41 CFR Parts 301-304; Federal Property Management Regulations, 41 CFR Part 101-41; Executive Order 9397; Section 639 of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447).
In addition to the disclosures permitted under subsection (b) of the Privacy Act, the NRC may disclose information contained in this system of records without the consent of the subject individual if the disclosure is compatible with the purpose for which the record was collected under the following routine uses:
a. To the U.S. Treasury for payment;
b. To the Department of State or an embassy for passports or visas;
c. To the General Services Administration and the Office of Management and Budget for required periodic reporting;
d. To the charge card issuing bank;
e. To the Department of Interior, National Business Center, for collecting severe travel card delinquencies by employee salary offset;
f. To a consumer reporting agency to obtain credit reports; and g. For any of the routine uses specified in the Prefatory Statement of General Routine Uses.
Disclosure Pursuant to 5 U.S.C. 552a(b)(12):
Disclosures of information to a consumer reporting agency, other than to obtain credit reports, are not considered a routine use of records. Disclosures may be made from this system to “consumer reporting agencies” as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f) (1970)) or the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701(a)(3) (1996)).
Maintained on paper in file folders, on computer media, and on magnetic tape.
Records are accessed by name, social security number, authorization number, and voucher payment schedule number.
Maintained in key locked file cabinets and in conserver files in a passcode locked room. Passports and visas are maintained in a locked file cabinet. For electronic records, an identification number, a password, and assigned access to specific programs are required in order to retrieve information.
Paper records are retained for 6 years and 3 months after period covered by account, then destroyed through disposal in a Classified and Sensitive Unclassified Waste container in accordance with GRS 9. Electronic records are deleted after the expiration of the retention period authorized for the disposable hard copy file or when no longer needed, whichever is later.
Chief, Payment Policy and Obligations Team, Division of Financial Services, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Individuals seeking to determine whether this system of records contains information pertaining to themselves should write to the Freedom of Information Act and Privacy Act (FOIA/PA) Officer, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and comply with the procedures contained in NRC's Privacy Act regulations, 10 CFR Part 9.
Same as “Notification procedure.”
Same as “Notification procedure.”
Information is provided by the individual, NRC Agency staff, NRC contractors, the charge card issuing bank, the consumer reporting agency, and outside transportation agents.
None.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of opportunity for public comment.
On November 7, 2005, the Nuclear Regulatory Commission (NRC) published for public comment a proposed rule in the
Comment period expires on February 6, 2006. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
You may submit comments on the seismic report and the proposed rule by any one of the following methods. Please include the following number, RIN 3150-AH29, in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to:
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone (301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.
Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at
Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at
Richard Dudley, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone (301) 415-1116; e-mail:
For the Nuclear Regulatory Commission.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 10-SB is used to register classes of securities of small business issuers pursuant to Section 12 of the Securities Exchange Act of 1934 to provide material information necessary for informed investment decisions. Every issuer subject to Section 13(a) and 15(d) under the Exchange Act must file a periodic report with the Commission containing information about its business and financial condition. The information provided on Form 10-SB is mandatory and is available to the public upon request. We estimate that Form 10-SB takes approximately 133 hours per response and is filed by 254 respondents. It is estimated that 25% of the 33,782 annual burden hours (8,446 burden hours) would be prepared by the company.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments regarding the above information should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or send an e-mail to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation Blackout Trade Restriction (“Regulation BTR”) clarifies the scope and application of Section 306(a) of the Sarbanes-Oxley Act of 2002 (“Act”). Section 306(a)(6) of the Act requires an issuer to provide timely notice to its directors and executive officers and to the Commission of the imposition of a blackout period that would trigger the statutory trading prohibition of Section 306(a)(1). The information provided under Regulation BTR is mandatory and is available to the public. Approximately 1,230 issuers file Regulation BTR notices annually. We estimate that it takes 2 hours per response for an issuer to draft a notice to directors and executive officers for a total annual burden of 2,460 hours. The issuer prepares 75% of the 2,460 annual burden hours for a total reporting
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments regarding the above information should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or send an e-mail to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation G under the Securities Exchange Act of 1934 (the “Exchange Act”) requires registrants that publicly disclose material information that includes a non-GAAP financial measure to provide a reconciliation to the most directly comparable GAAP financial measure. Regulation G implemented the requirements of Section 401 of the Sarbanes-Oxley Act of 2002. The information provided under Regulation G is mandatory and is available to the public. We estimate that approximately 14,000 public companies must comply with Regulation G approximately six times a year for a total of 84,000 responses annually. We estimated that it takes approximately .5 hours per response (84,000 × .5 hours) for a total reporting burden of 42,000 hours annually.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments regarding the above information should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or send an e-mail to
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17a-5(c) [17 CFR 240.17a-5(c)] under the Securities Exchange Act of 1934 requires certain broker-dealers who carry customer accounts to provide statements of the broker-dealer's financial condition to their customers. Paragraph (5) of Rule 17a-5(c) provides a conditional exemption from this requirement. It is estimated that approximately 375 broker-dealer respondents with approximately 109 million public customer accounts incur an average burden of 130,000 hours per year to comply with this rule.
Rule 17a-5(c) does not contain record retention requirements. Compliance with the rule is mandatory. Responses are not confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
General comments regarding the estimated burden hours should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 10b-17, Untimely announcements of record dates (17 CFR 240.10b-17), requires any issuer of a class of securities publicly traded by the use of any means or instrumentality of interstate commerce or of the mails or of any facility of any national securities exchange to give notice of the following actions relating to such class of securities: (1) A dividend; (2) a stock split; or (3) a rights or other subscription offering. Notice shall be (1) given to the National Association of Securities Dealers, Inc.; (2) in accordance with the procedures of the national securities exchange upon which the securities are registered; or (3) may be waived by the Commission.
The information required by Rule 10b-17 is necessary for the execution of the Commission's mandate under the Exchange Act to prevent fraudulent, manipulative, and deceptive acts and practices by broker-dealers. The consequence of not requiring the information collection pursuant to Rule 10b-17 is that sellers who have received distributions as recordholders may dispose of the cash or stock dividends or other rights received as recordholders without knowledge of possible claims of purchasers.
It is estimated that, on an annual basis, there are approximately 29,430 respondents and that each response takes about 10 minutes to complete, thus imposing approximately 4,905 burden hours annually (29,430 × 10 minutes). We believe that the average hourly cost to produce and file a response under the rule is about $50. Therefore, the annual reporting cost burden for complying with this rule is about $245,250 (4,905 × $50).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number. Written comments regarding the above information should be directed to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
The Securities and Exchange Commission (“Commission”).
Notice of Application for an order pursuant to Section 26(c) of the Investment Company Act of 1940 (“1940 Act”).
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. Applicants: Brian Burke, Esq., Lincoln National Life Insurance Company, 1300 South Clinton Street, Fort Wayne, IN 46802.
Ellen J. Sazzman, Senior Counsel, at (202) 551-6762 or Harry Eisenstein, Branch Chief, at (202) 551-6795, Office of Insurance Products, Division of Investment Management.
Following is a summary of the application. The complete application may be obtained for a fee from the Public Reference Branch of the Commission, 100 F Street, NE., Washington, DC 20549 (tel. 202-551-5850).
1. Lincoln Life, located at 1300 South Clinton Street, Fort Wayne, Indiana 46802, is a stock life insurance company incorporated under the laws of the State of Indiana on June 12, 1905. Lincoln Life is principally engaged in offering life insurance policies and annuity policies and is licensed in all states (except New York) and the District of Columbia, Guam, and the Virgin Islands. Lincoln Life is the depositor and sponsor of the Separate Accounts. Lincoln Life is wholly owned by Lincoln National Corporation (“LNC”), a publicly held insurance holding company incorporated under Indiana law on January 5, 1968.
2. The Board of Directors of Lincoln Life established Lincoln Life Account C pursuant to the laws of the State of Indiana on June 3, 1981 as a unit investment trust. Lincoln Life Account C is registered under the 1940 Act as a unit investment trust (File No. 811-03214). The assets of Lincoln Life Account C support certain individual variable annuity contracts. Security interests in Lincoln Life Account C offered through such contracts have been registered under the Securities Act
3. The Board of Directors of Lincoln Life established Lincoln Life Account Q pursuant to the laws of the State of Indiana on November 3, 1997 as a unit investment trust. Lincoln Life Account Q is registered under the 1940 Act as a unit investment trust (File No. 811-08569). The assets of Lincoln Life Account Q support certain group contracts. Security interests in Lincoln Life Account Q offered through such contracts have been registered under the 1933 Act (File No. 333-43373).
4. The Separate Accounts are comprised of sub-accounts established to receive and invest net purchase payments under the Contracts. Each sub-account invests exclusively in the shares of a specified portfolio and supports the Contracts.
5. The Contracts permit their owners to allocate each Contract's accumulated cash or contract value among available sub-accounts, each of which invests in a different investment portfolio of an underlying mutual fund. The Contracts offer thirty-nine investment options.
6. Currently, transfers of cash and/or contract value can be made among and between the sub-accounts available as investments under the Contracts without the imposition of a transfer charge. However, Applicants reserve the right to impose a charge of $10 per transfer on Contracts issued through Lincoln Life Account C if such transfer exceeds the maximum number of transfers allowed in a contract year, which varies from six to twelve, depending on the contract. Market timing restrictions may also apply to transfers under Contracts issued by Lincoln Life Account C. The only restrictions for Contracts issued through Lincoln Life Account Q, except for those relating to market timing, are that transfers are restricted to once every thirty days and Applicants reserve the right to further limit the number of transfers. When transfer restrictions are imposed, Lincoln Life and the Separate Accounts reserve the right to waive these restrictions.
7. Under the Contracts, Lincoln Life reserves the right to substitute shares of one investment company for shares of another investment company.
8. Lincoln Life has performed a thorough review of all the investment options available under the Contracts and has determined that several existing funds offered under the Contracts warrant replacement.
9. As described below, Applicants propose to make certain substitutions of shares of the Substitute Funds (listed in Column II) for shares of the Replaced Funds (listed in Column I) held in sub-accounts of their respective Separate Accounts.
10. The investment objective of the AllianceBernstein VP Growth Portfolio (Replaced Fund) is to provide long-term growth of capital. Current income is incidental to the portfolio's objective. The portfolio invests primarily in equity securities of companies with favorable earnings outlooks, and long-term growth rates are expected to exceed that of the United States (“U.S.”) economy over time. The portfolio emphasizes investments in large- and mid-cap companies. The portfolio also may invest up to 25% of its total assets in lower-rated fixed-income securities and convertible bonds and generally up to 20% of its assets in foreign securities. The portfolio applies the principles of growth investing to select securities. The portfolio uses fundamental company analysis to select stocks that it believes are good candidates to provide long-term growth of capital.
11. The investment objective of the AllianceBernstein VP Growth and Income Portfolio (Substitute Fund) is to seek reasonable income and reasonable opportunity for appreciation through investments primarily in dividend-paying common stocks of good quality (both income and capital appreciation). To pursue this goal, the portfolio invests primarily in dividend-paying common stocks of large, well established “blue-chip” companies. The portfolio may also invest in fixed-income and convertible securities and in securities of foreign issuers. The basic strategy of the portfolio is to seek income producing securities that represent good long-term investment opportunities.
12. The investment objectives of the AllianceBernstein VP Growth Portfolio (Replaced Fund) and the AllianceBernstein Growth and Income Portfolio (Substitute Fund) are substantially similar. Both funds seek growth of capital (capital appreciation) over time with AllianceBernstein Growth and Income Portfolio seeking greater emphasis on income. While their specific investment strategies differ, both funds are stock funds seeking primarily domestic stock investments with good long-term growth prospects. AllianceBernstein Growth and Income Portfolio also seeks good quality dividend paying prospects. Each fund normally invests primarily in stocks of large-sized domestic companies with the ability to invest in foreign stocks as well. While each of these funds seeks to achieve its objective through somewhat different investment strategies, Applicants believe that an investor in the AllianceBernstein VP Growth Portfolio is generally attempting to achieve the same long-term goal as that sought by the AllianceBernstein Growth and Income Portfolio investors.
13. The investment objective of the Delaware VIP Global Bond Series (Replaced Fund) is to seek current income consistent with preservation of principal. The Series invests primarily in fixed-income securities that may also provide the potential for capital appreciation. The Series is a global
14. The investment objective of the Delaware VIP Diversified Income Series (Substitute Fund) is to seek maximum long-term total return consistent with reasonable risk. The Series invests primarily in bonds allocated among three sectors of the fixed-income market. These sectors include: The High Yield Sector, the Investment Grade Sector, and the International Sector. In determining how much of the Series to allocate to each sector, the Series' investment manager reviews economic and market conditions and interest rate trends as well as the potential risks and rewards associated with each sector. The Series' assets will periodically be reallocated. Under normal circumstances, as little as 5% or as much as 50% of the Series' assets may be invested in each of the High-Yield Sector and International Sector. Under normal circumstances, there is no minimum or maximum limit on the amount of the Series' assets that may be invested in the Investment Grade Sector.
15. The investment objectives of the Delaware VIP Global Bond Series (Replaced Fund) and the Delaware VIP Diversified Income Series (Substitute Fund) are similar. The Delaware VIP Global Bond Series seeks current income consistent with preservation of principal and the Delaware VIP Diversified Income Series seeks maximum long-term total return consistent with reasonable risk. Both funds seek to invest the majority of their assets in fixed income securities. Both funds also invest a portion of their fund assets in international fixed-income securities. While each of these funds seeks to achieve its objective through somewhat different investment strategies, Applicants believe that an investor in the Delaware VIP Global Bond Series is generally attempting to achieve the same long-term goal as that sought by the Delaware VIP Diversified Income Series investors.
16. The investment objective of the Janus Aspen Worldwide Growth Portfolio (Replaced Fund) is long-term growth of capital in a manner consistent with the preservation of capital. The portfolio invests primarily in common stocks of companies of any size located throughout the world. The portfolio normally invests in issuers from at least five different countries, including the United States. The portfolio may, under unusual circumstances, invest in fewer than five countries or even a single country. The portfolio manager applies a “bottom up” approach in choosing investments. In other words, the portfolio manager looks at companies one at a time to determine if a company is an attractive investment opportunity and if it is consistent with the portfolio's investment policies. If the portfolio manager is unable to find such investments, the portfolio's uninvested assets may be held in cash or similar investments. Within the parameters of its specific investment policies, the Portfolio will limit its investment in high-yield/high-risk bonds to less than 35% of its net assets.
17. The investment objective of the Scudder VIT Equity 500 Index Fund (Substitute Fund) is to seek to replicate, as closely as possible, before the deduction of expenses, the performance of the Standard & Poors 500 Composite Stock Price Index (the “S&P 500 Index”) which emphasizes stocks of large U.S. companies. Under normal circumstances the fund intends to invest at least 80% of its assets, determined at the time of purchase, in stocks of companies included in the S&P 500 Index and in derivative instruments, such as futures contracts and options, that provide exposure to the stocks of companies in the S&P 500 Index. The fund invests for capital appreciation, not income; any dividend and interest income is incidental to the pursuit of this objective. Over the long term, the investment advisor seeks a correlation between the performance of the fund, before expenses, and the S&P 500 Index of 98% or better. A figure of 100% would indicate perfect correlation.
18. The investment objectives of the Janus Aspen Worldwide Growth Portfolio (Replaced Fund) and the Scudder VIT Equity 500 Index Fund (Substitute Fund) are substantially similar in that the funds seek long-term growth and capital (capital appreciation), respectively. Both funds invest in common stocks with potential for capital appreciation. Both funds invest in large capitalization domestic equity securities, with Janus Aspen Worldwide Growth Portfolio also investing a substantial portion of its assets in large capitalization foreign equity securities. While each of these funds seeks to achieve its objective through somewhat different investment strategies, Applicants believe that an investor in the Janus Aspen Worldwide Growth Portfolio is generally attempting to achieve the same long-term goal as that sought by the Scudder VIT Equity 500 Index Fund investors.
19. The investment objective of the Neuberger Berman AMT Partners Portfolio (Replaced Fund) is to seek growth of capital. To pursue this goal, the portfolio invests mainly in common stocks of mid- to large-capitalization companies. The portfolio seeks to reduce risk by diversifying among many companies and industries. The manager looks for well-managed companies with strong balance sheets whose stock prices are undervalued. The portfolio has the ability to change its goal without shareholder approval, although it does not currently intend to do so.
20. The investment objective of the AllianceBernstein VP Growth and Income Portfolio (Substitute Fund) is to seek reasonable income and reasonable opportunity for appreciation through investments primarily in dividend-paying common stocks of good quality (both income and capital appreciation). To pursue this goal, the Portfolio invests primarily in dividend-paying common stocks of large, well established “blue-chip” companies. The Portfolio may also invest in fixed-income and convertible securities and in securities of foreign issuers. The basic strategy of the fund is to seek income producing securities that represent good long-term investment opportunities.
21. The investment objectives of the Neuberger Berman AMT Partners Portfolio (Replaced Fund) and the AllianceBernstein Growth and Income Portfolio (Substitute Fund) are substantially similar. Both funds seek growth of capital (capital appreciation) over time, with AllianceBernstein Growth and Income Portfolio seeking greater emphasis on income. While their specific investment strategies differ somewhat, both funds are stock funds seeking primarily domestic investments with good long-term growth prospects. Neuberger Berman AMT Partners Portfolio employs a “value oriented investment approach, while the AllianceBernstein Growth and Income Portfolio places emphasis on dividend paying high quality equity investments. Each fund normally invests primarily in stocks of large-sized domestic stock
22. The investment objective of the Putnam VT Health Sciences Fund (Replaced Fund) is to seek capital appreciation. The fund invests mainly in common stocks of companies in the health sciences industries, with a focus on growth stocks. Under normal circumstances, the fund invests at least 80% of the fund's net assets in securities of (a) companies that derive at least 50% of their assets, revenues or profits from the pharmaceutical, health care services, applied research and development and medical equipment and supplies industries, or (b) companies with the potential for growth as a result of their particular products, technology, patents or other market advantages in the health sciences industries. The fund invests mainly in mid-sized and large companies. The fund may invest in foreign investments.
23. The investment objective of the American Funds Growth Fund (Substitute Fund) is growth of capital. The fund seeks to make investments grow by investing primarily in common stocks of companies that appear to offer superior opportunities for growth of capital. The fund may invest up to 15% of its assets in equity securities of issuers domiciled outside the U.S. and Canada and not included in Standard & Poor's 500 Composite Index. The fund is designed for investors seeking capital appreciation through stocks.
24. The investment objectives of the Putnam VT Health Sciences Fund (Replaced Fund) and the American Funds Growth Fund (Substitute Fund) are substantially similar in that the funds seek growth of capital and capital appreciation, respectively. Both funds are domestic stock funds and invest the majority of fund assets in equity securities of issuers domiciled in the U.S. Both funds invest in “growth” equity securities, with the Putnam VT Health Sciences Fund focusing principally on Health Sciences related “growth” equity securities. While each of these funds seeks to achieve its objective through somewhat different investment strategies, Applicants believe that an investor in the Putnam VIT Health Sciences Fund is generally attempting to achieve the same long-term goal as that sought by the American Funds Growth Fund investors.
25. The chart on the following pages compares the average annual total returns for the Replaced Funds and the Substitute Funds for the past five calendar year periods.
26. The following chart shows the approximate size (as of December 31, 2004), expense ratios, management fees, and 12b-1 fees for each of the Replaced Funds for Calendar Year 2004.
27. The next chart provides the approximate size (as of 12/31/04), expense ratios, management fees, and 12b-1 fee for each of the Substitute Funds for Calendar Year 2004.
28. The Applicants proposed substitutions would effectively consolidate the Lincoln Life assets of each Substitute Fund held by the Separate Accounts with those of the corresponding Replaced Fund, with a goal of each Substitute Fund having an expense ratio that is equal to or lower than the Replaced Fund. In the following comparisons, “expense ratio” refers to both gross and net expense ratios, and “management fee” includes both gross and net management fees, as well as any applicable 12b-1 fees.
29. AllianceBernstein VP Growth and Income Portfolio (Substitute Fund) has a lower expense ratio (.85%) and management fee (.55%) and is larger than the AllianceBernstein VP Growth Portfolio (Replaced Fund) which has an expense ratio of 1.13% and a management fee of .75%. Both funds have the same 12b-1 fee (.25%). AllianceBernstein VP Growth and Income Portfolio also has performed better for three time periods and lower for two time periods compared to the AllianceBernstein VP Growth Portfolio (the 1999 calendar year time period is not comparable).
30. Delaware VIP Diversified Income Series (Substitute Fund) has a lower expense ratio (on a net basis after applicable contractual waivers) (.80%) and management fee (on a net basis after applicable contractual waivers) (.65%) and is smaller than the Delaware VIP Global Bond Series (Replaced Fund) which has an expense ratio of .93% and a management fee of .75%. Both the Substitute Fund and the Replaced Fund are affiliated with the Applicants. Delaware VIP Diversified Income Series does not have applicable performance time periods to compare to Delaware VIP Global Bond Series, except for calendar year 2004 in which Delaware VIP Diversified Income Series has performed lower than Delaware VIP Global Bond Series.
31. Scudder VIT Equity 500 Index Fund (Substitute Fund) has a lower expense ratio (.29%) and management fee (.20%) and is smaller than Janus Aspen Worldwide Growth Portfolio (Replaced Fund) which has an expense ratio of .63% and a management fee of .60%. The Scudder VIT Equity 500 Index Fund also has performed better for five time periods and lower for one time period compared to the Janus Aspen Worldwide Growth Portfolio.
32. AllianceBernstein VP Growth and Income Portfolio (Substitute Fund) has a lower expense ratio (.85%) and a lower total management fee of .80% (the sum of .55% management fee plus .25% 12b-1 fee) and is larger than Neuberger Berman AMT Partners Portfolio (Replaced Fund) which has an expense ratio of .91% and a management fee of .83% (and no 12b-1 fee). The AllianceBernstein VP Growth and Income Portfolio also has performed better for three time periods and lower for two time periods (the 1999 calendar year time period is not comparable) compared to the Neuberger Berman AMT Partners Portfolio.
33. American Funds Growth Fund (Substitute Fund) has a lower expense ratio (.61%) and a lower management fee (.35%) and is larger than Putnam VT Health Sciences Fund (Replaced Fund) which has an expense ratio of 1.10% and a management fee of .70%. Both funds have the same 12b-1 fee (.25%). The American Funds Growth Fund also has performed better for four time periods and lower for two time periods compared to the Putnam VIT Health Sciences Fund.
34. By supplements to the most current prospectuses for the Contracts, all owners and prospective owners of the Contracts were notified of Lincoln Life's intention to take the necessary actions, including seeking the order requested by the application, to effect the substitutions described above. The supplements and prospectuses stated that on the date of the proposed substitutions (after the relief requested has been obtained and all necessary systems support changes have been made), the Substitute Funds will replace the Replaced Funds as the underlying investments for affected sub-accounts.
35. By means of an additional prospectus supplement or updated prospectus, Contract owners will be advised, at least thirty days in advance of the substitutions, of the actual date of the substitutions. In the pre-substitution notice, Applicants will advise Contract owners that from the date of the supplement until the date of the proposed substitutions, they are permitted to make one transfer of contract value (or annuity unit exchange) out of the Replaced Funds to any sub-account option within the Contract without the transfer (or exchange) being treated as one of a limited number of transfers (or exchanges) allowed under the Contracts. Further, such a transfer will not be subject to a transfer charge. The notice will also inform Contract owners that the Applicants will not exercise any rights reserved under Contracts to impose additional restrictions on transfers until at least thirty days after the substitutions, except that the Applicants may impose restrictions on transfers to limit “market timing” activities by Contract owners or their agents. The supplement will further advise Contract owners that for at least thirty days following the effective date of the proposed substitutions, Lincoln Life will permit Contract owners affected by the substitutions to make one transfer of contract value (or annuity unit exchange) out of the Substitute Fund sub-account to another sub-account without the transfer (or exchange) being treated as one of a limited number of permitted transfers (or exchanges) or a limited number of transfers (or exchanges) permitted without a transfer charge.
36. At least sixty days before the date of the proposed substitutions, affected Contract owners who have not already been provided with a prospectus for each Substitute Fund will receive a prospectus that includes complete and current information concerning the Substitute Funds.
37. Lincoln Life will redeem shares of each Replaced Fund in cash and purchase with the proceeds shares of the corresponding Substitute Fund. Redemption requests and purchase orders will be placed simultaneously so that the contract values will remain fully invested at all times.
38. The proposed substitutions will take place at relative net asset value with no change in the amount of any Contract owner's contract value, cash value, or death benefit or in the dollar value of his or her investment in any of the Separate Accounts.
39. Contract owners will not incur any fees or charges as a result of the proposed substitutions nor will their rights or Lincoln Life's obligations under the Contracts be altered in any way. All expenses incurred in connection with the proposed substitutions, including legal, accounting, brokerage and other fees and expenses, will be paid by Lincoln Life. In addition, the proposed substitutions will not impose any tax liability on Contract owners. The proposed substitutions will not cause the contract fees and charges currently imposed by Lincoln Life and paid by existing Contract owners to be greater after the proposed substitutions than before the proposed substitutions. No fees will be charged on the transfers made at the time of the proposed substitutions because the proposed substitutions will not be treated as a transfer for the purpose of assessing transfer charges or for determining the
40. In addition to the supplements and prospectuses distributed to Contract owners as described above, within five business days after the proposed substitutions are completed, any Contract owners affected by the substitutions will be sent a written notice informing them that the substitutions were carried out and that they may make one transfer of Contract value or cash value under a Contract invested in any one of the sub-accounts on the date of the notice to another sub-account available under their Contract at no cost and without regard to the usual limit on the frequency of transfers among the variable account options and from the variable account options to the fixed account options. The notice will also reiterate that Lincoln Life will not exercise any rights reserved by it under the Contracts to impose additional restrictions on transfers or to impose any charges on transfers (other than with respect to “market timing” activities) until at least thirty days after the proposed substitutions. Lincoln Life will also send each Contract owner current prospectuses for the Substitute Funds involved to the extent that the Contract owner has not previously received a copy.
41. Lincoln Life has determined that all of the Substitute Funds that are the subject of this Application will be treated as affiliated funds. The Applicants agree that, to the extent that the annualized expenses of each Substitute Fund exceeds, for each fiscal period (such period being less than 90 days) during the twenty-four month period following the date of the substitutions, the 2004 net expense level of the corresponding Replaced Fund, Lincoln Life will, for each Contract outstanding on the date of the proposed substitutions, make a corresponding reduction in separate account (or sub-account) expenses on the last day of such fiscal period, such that the amount of the Substitute Fund's net expenses, together with those of the corresponding separate account (or sub-account) will, on an annualized basis, be no greater than the sum of the net expenses of the Replaced Fund and the expenses of the separate account (or sub-account) for the 2004 fiscal year.
42. The Applicants further agree that Lincoln Life will not increase total separate account charges (net of any reimbursements or waivers) for any existing Contract owner on the date of the substitutions for a period of twenty-four months from the date of the substitutions.
1. Section 26(c) of the Act requires the depositor of a registered unit investment trust holding the securities of a single issuer to obtain Commission approval before substituting the securities held by the trust. Specifically, Section 26(c) states:
It shall be unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the Commission shall have approved such substitution. The Commission shall issue an order approving such substitution if the evidence establishes that it is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of this title.
2. Applicants state that the proposed substitution of shares of the Substitute Funds for those of the Replaced Funds appears to involve substitutions of securities within the meaning of Section 26(c) of the Act. Applicants also submit that the proposed substitutions meet the standards that the Commission and its staff have applied to substitutions that have been approved in the past. Applicants therefore request an order from the Commission pursuant to Section 26(c) approving the proposed substitutions under the terms of this Application.
3. The Contracts give Lincoln Life the right, subject to Commission approval, to substitute shares of another investment company for shares of an investment company held by a sub-account of the Separate Accounts. Applicants believe that the prospectuses for the Contracts and the Separate Accounts contain appropriate disclosure of this right.
4. Applicants have concluded that, although there are differences in the objectives and policies of the Substitute and Replaced Funds, their objectives and policies are sufficiently consistent to assure that following the substitutions, the achievement of the core investment goals of the affected Contract owners in the Replaced Funds will not be frustrated.
5. With respect to each proposed substitution, Applicants represent that Contract owners with balances invested in a Substitute Fund will have an expense ratio that is equal to or lower than the Replaced Fund. Applicants anticipate that Contract owners will be better off with the array of sub-accounts offered after the proposed substitutions than they have been with the array of sub-accounts offered prior to the substitutions. The proposed substitutions retain for Contract owners the investment flexibility which is a central feature of the Contracts. If the proposed substitutions are carried out, all Contract owners will be permitted to allocate purchase payments and transfer Contract values and cash values between and among approximately the same number of sub-accounts as they could before the proposed substitutions. Applicants note that Contract owners who do not wish to participate in a Substitute Fund will have an opportunity to reallocate their accumulated value among other available sub-accounts without the imposition of any charge or limitation (other than with respect to “market timing” activity.)
Applicants submit that, for all the reasons stated above, the proposed substitutions are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
[To be announced].
Closed meeting.
100 F Street, NE., Washington, DC.
Tuesday, December 13, 2005.
Additional items.
The following items have been added to the closed meeting scheduled for Tuesday, December 20, 2005: Opinion and a Regulatory matter regarding a financial institution.
Commissioner Campos, as duty officer, voted to consider these items listed for the closed meeting in closed session and that no earlier notice thereof was possible.
At times, changes in Commission priorities require alterations in the scheduling of meeting items. For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
On July 30, 2004, the Chicago Board Options Exchange, Incorporated (“CBOE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change related to margin requirements for complex options spreads under Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The CBOE has proposed to incorporate the provisions of a Regulatory Circular (RG03-066—
The Exchange has proposed to add definitions of a “long condor spread,” “short iron butterfly spread” and “short iron condor spread” to Rule 12.3(a). These definitions cover six of the seven strategies identified in the Circular. Each definition covers two strategies identified in the Circular because each definition provides for a base strategy, in which all options expire at the same time, and a calendar spread strategy, in which a long option may expire after the other options expire concurrently.
The Exchange has proposed a revision to its current definition of a butterfly spread to provide for the remaining strategy, a calendar spread version of the long butterfly spread. These revisions consist of (1) splitting the current butterfly spread definition into two definitions, one for the long butterfly spread and one for the short butterfly spread, (2) fashioning the two definitions so that they are consistent with the style and format of the new definitions referred to in the prior paragraph, and (3) providing for a calendar spread version in the long butterfly spread definition.
In the Circular, call options were utilized to construct three of the seven strategy examples. Each of these three strategies has a parallel application with put options. For brevity, the put option versions were not specifically identified in the Circular, but the Circular was intended to apply to the put option counterpart of each of the strategies demonstrated with call options. Both the put and call option versions are provided for in the newly proposed rule definitions. The remaining four complex spread strategies originally identified in the Circular involved both call options and put options (that is, “iron” strategies). Each of these four strategies has a reciprocal configuration (that is, the call options can precede the put options in ascending sequence of exercise prices). However, there is no need to address the reciprocal variations because there is no benefit from a margin requirement standpoint of including them in the iron strategy definitions.
According to the Exchange, each of the complex spreads identified in the proposed rule can be derived by combining and netting two or more option spreads (that is, the butterfly spread, the box spread and the time spread) that already are identified in the margin rules and ascribed a margin requirement. Furthermore, the sum of the margin required on the basic option spreads that can be combined and netted to form a complex spread covers the maximum risk of the complex spread and, as in the Circular, is the margin requirement specified in the proposed rules. Each of the subject complex spread strategies has a known and limited risk when configured as specified in the proposed definitions. The Exchange has proposed to revise current Rule 12.3(c)(5)(C)(6) to provide a margin requirement for each of the long condor spread, short iron butterfly spread and short iron condor spread.
The Exchange noted that the proposed rule prohibits European style options in the case of the calendar version of a complex spread and requires that the interval between each option series be equal in the case of all complex spread strategies. Unlike the Circular, the proposed rules would not limit complex spreads to a margin account. The Exchange also has proposed a revision to Rule 12.3(e)—
The Exchange noted that it has received no negative comments concerning the Circular since it was issued. Moreover, the Exchange is not aware of any negative consequences as a result of applying the margin requirements permitted by the Circular.
After careful review, 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.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to amend its rules governing the hours of trading in equity options and narrow-based index options. The Exchange proposes that these changes become effective February 1, 2006. The text of the proposed rule change is available on the CBOE's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule change is to amend the CBOE's rules governing the hours of trading in equity options and narrow-based index options. Specifically, the CBOE proposes to amend its rules to change the close of the normal trading hours in equity options and in narrow-based index options from 3:02 p.m. (Chicago time) to 3 p.m. (Chicago time). After the change, the time of the close of trading in these CBOE options will correspond to the normal time set for the close of trading on the primary exchanges listing the stocks underlying the CBOE options. The primary exchanges generally close at 3 p.m. (Chicago time).
According to the Exchange, in 1997, the CBOE decided to change its closing time for equity options and narrow-based index options from 3:10 p.m. to 3:02 p.m. At the time, the CBOE determined that there were reasons to continue trading options for a limited period of time after the close of trading of the primary markets for the underlying securities. Specifically, the Exchange believed that the extended period allowed for options traders to respond to late reports of closing prices over the consolidated tape. If the price of a late reported trade on an underlying security was substantially different from the previous reported price, the extended trading session gave options traders the opportunity to bring options quotes in line with the closing price of the underlying security.
However, because of improvements in the processing and reporting of transactions, the CBOE believes that there are no longer significant delays in the reporting of closing prices; and therefore, a two minute session is no longer needed to trade options after the underlying securities close trading. Additionally, the Exchange believes that pricing aberrations can occur if an option is traded when the underlying stock is no longer trading, since there is a close relationship in the price of the underlying stock and the overlying option. As a result, the CBOE believes that it is difficult for the market to price options accurately when the underlying security is not trading.
As noted above, the Exchange also proposes to change the closing time for narrow-based indexes under CBOE Rule 24.6 because these indexes are subject to the same pricing problems as options on individual stocks. According to the CBOE, a significant news announcement on one component of a narrow-based index could have a significant effect on that index. However, the Exchange is not at this time proposing to change the closing time of 3:15 p.m. for broad-based index options because it does not believe that a significant news announcement by the issuer of one component stock of a broad-based index is likely to have a significant effect on the price of that broad-based index.
Accordingly, the CBOE proposes to amend its rules, including CBOE Rules 6.1, 6.2, 12.3, 24.6, and 24.16, in which references are made to a 3:02 p.m. closing time for equity options and narrow-based index options.
The Exchange notes that if it were to unilaterally modify its closing time, the existence of dissimilar closing times applicable to the different options exchanges would likely lead to confusion for options investors and broker-dealers. Accordingly, in September 2005, the Exchange requestedfrom the Commission's Division of Market Regulation express authorization to jointly discuss this operational issue with the other options exchanges who are participants in the Options Price Reporting Authority,
The Exchange believes that the proposed rule change is consistent with the Section 6(b) of the Act
The CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, 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 at (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303.
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 MSRB has filed with the Commission a proposal consisting of an interpretive notice relating to the definition of solicitation for purposes of Rules G-37 and G-38. The text of the proposed rule change, as amended, is available on the MSRB's Web site (
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in
The MSRB has recently amended Rule G-38, on solicitation of municipal securities business, to prohibit brokers, dealers and municipal securities dealers (“dealers”) from making direct or indirect payments to any persons who are not affiliated persons
The proposed rule change makes clear that the central element in determining whether a communication is a solicitation is whether the communication occurs with the purpose of obtaining or retaining municipal securities business. As a general proposition, the proposed rule change provides that a communication made under circumstances reasonably calculated to obtain or retain municipal securities business could be considered a solicitation unless the circumstances indicate otherwise. The proposed rule change provides numerous examples of circumstances where a communication may or may not be considered a solicitation, including guidance on communications with issuer representatives, promotional communications, work-related communications, communications with conduit borrowers, and communications by non-affiliated professionals.
The MSRB believes that the proposed rule change, as amended, is consistent with section 15B(b)(2)(C) of the Act,
The MSRB does not believe that the proposed rule change, as amended, will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act since it would apply equally to all dealers.
The MSRB published notices for comment on draft amendments to Rule G-38 on April 5, 2004 (the “April 2004 Notice”)
In the April 2004 Notice, the MSRB asked whether a communication with a conduit borrower to hire a dealer as an underwriter for a private activity bond issue where the issuer ultimately must approve the underwriter for the issue should be considered an indirect communication with the issuer. In the September 2004 Notice, the MSRB stated that, from a literal perspective, any communication by a dealer with a conduit borrower intended to cause the borrower to select the dealer to serve as underwriter for a conduit issue could be considered a solicitation of municipal securities business. This is because the
ABASA and BMA characterized the MSRB's guidance in the September 2004 Notice as creating a presumption that a communication with a conduit borrower is a solicitation which can be rebutted only under narrowly drawn circumstances. They also observed that many communications with conduit borrowers occur before the identity of the issuer has been determined. As a result, they suggested that a dealer often cannot know if a communication with a conduit borrower might later be considered a solicitation since the dealer does not know if the issuer ultimately used will meet the requirements for rebutting the presumption that a communication with the borrower is a solicitation.
Nonetheless, the MSRB agrees that a dealer's communication with a conduit borrower generally should not be deemed an indirect solicitation of the issuer unless a reasonable nexus can be established between the making of contributions to officials of the conduit issuer within the meaning of Rule G-37 and the selection of the underwriter for such conduit financing. A determination of whether such a reasonable nexus could exist depends on the specific facts and circumstances. The proposed rule change reflects this position.
In the April 2004 Notice, the MSRB noted that, where an issuer representative asks an associated person of a dealer whether the dealer has municipal securities capabilities, a limited affirmative response by the associated person, together with the provision to the issuer representative of contact information for dealer personnel who handle municipal securities business, generally would not be presumed to be a solicitation by such associated person. In the September 2004 Notice, the MSRB provided further elaboration and additional examples, noting in particular that the associated person could have an MFP of the dealer contact the issuer representative directly in response to such an inquiry. In both notices, the MSRB stated that, if the associated person receives compensation such as a finder's or referral fee for such business, the associated person generally would be viewed as having solicited the business.
ABASA appreciated the clarification of the “inform and refer” concept provided in the September 2004 Notice. However, ABASA continued to object that the MSRB viewed the receipt of a finder's fee or referral fee as causing a communication to be considered a solicitation. ABASA stated that this would significantly add to the regulatory burden of bank dealers and, at a minimum, the MSRB should exempt any referral fees permitted under the Gramm-Leach-Bliley Act. PNC stated that dealer personnel should be permitted to approach issuer representatives to inform them of the dealer's municipal securities capabilities without such communication being considered a solicitation, but Mr. Chapman disagreed.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-9303.
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 Section 4 of Schedule A to the NASD By-Laws to increase the session fee for the Regulatory Element of the continuing education requirements of NASD Rule 1120. Below is the text of the proposed rule change. Proposed new language is in
(a) through (e) No change.
(f) There shall be a session fee of [$60.00]
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.
The Regulatory Element, a computer-based education program administered by NASD to help ensure that registered persons are kept up-to-date on regulatory, compliance, and sales practice matters in the industry, is a component of the Securities Industry Continuing Education Program (“Program”) under NASD Rule 1120. The Securities Industry/Regulatory Council on Continuing Education (“Council”)
It is the Council's responsibility to maintain the Program on a revenue neutral basis while maintaining adequate reserves for unanticipated future expenditures.
The proposed implementation date is January 1, 2006.
NASD believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
NASD does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
NASD has neither solicited nor received comments on the proposed rule change.
The foregoing rule change 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, 100 F Street, NE., Washington, DC 20549-9303.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing a pilot to put into operation Phase 1 of the NYSE HYBRID MARKET
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes a Pilot to put into operation Phase 1 of the Hybrid Market initiative with respect to a group of securities, known as Phase 1
Approximately 200 securities out of the 3,600 securities listed on the Exchange (approximately 5%) have been identified as Pilot securities and are listed on Exhibit 3 of the filing.
The Pilot will allow the Exchange to conduct real-time system and user testing of certain features of the Hybrid Market filings in order to be in a position to comply with the implementation of Regulation NMS.
The Exchange believes the Pilot will prove beneficial from both a technology and a training perspective. It will give the Exchange the opportunity to identify and address any system problems and to identify and incorporate beneficial system changes that become apparent as a result of usage in real time and under real market conditions. The ability to have such real time user interface will be invaluable, as it is impossible to accurately anticipate behavioral changes in a development or mock-trading
The Exchange anticipates that the Pilot will operate with minimal problems given the amount and degree of testing and training that has occurred to date. In addition, the Exchange plans to phase-in the Pilot, if approved, to allow for a controlled and moderated roll out of the new systems and capabilities.
There has been extensive testing of the approximately 15 Exchange systems impacted by the Pilot, individually and collectively, both in development and production environments. This testing occurred at all levels, including development testing, automation testing, SIAC testing, NYSE testing, integrated system testing and code reviews, production environment testing, fall-back and recovery testing, and regression and new functionality testing.
In addition, there has been comprehensive training for both Floor brokers and specialists, individually and together in a mock trading environment. Training was conducted by the Exchange and was supplemented in most cases by firm-specific training conducted by member organizations for their employees. In addition, the Exchange training environment was made available to proprietary system vendors for their training sessions.
Moreover, the Exchange intends to have available at all times during the Pilot two versions of the operating software—the new version that would be operational and the original, pre-Pilot version. If a problem develops during the Pilot, the Exchange will be able to revert to the pre-Pilot software within an average time of two minutes or less.
Accordingly, the Exchange believes that the extensiveness of the testing and training, the phase-in approach and the fall-back capabilities provide significant assurances that the Pilot will operate as expected. However, in the event systems or other problems arise with the Pilot that adversely impact investors or impede the Exchange's ability to maintain a fair and orderly market, the Exchange will immediately terminate the Pilot in whole or in part, as appropriate, and return trading to current operations under current NYSE rules.
During the Pilot, the following rules and provisions of the Hybrid Market initiative as outlined in the Hybrid Market filings will be operational. To eliminate possible confusion as to what rule provisions apply to Pilot securities, the Exchange has identified those new or amended rules which will be operational during the Pilot with a “P.” Where part of a provision of a proposed Hybrid Market rule will be operational during the Pilot, but another part of the proposed rule will not, the Exchange has noted this in the attached rule text with the designation that the section is “intentionally omitted.” In addition, during the Pilot, all other Exchange rules apply to Pilot securities as they do today.
During the Pilot, NYSE Direct+® (“Direct+”) will continue to operate as it does today under current Exchange Rules 1000-1005 and subject to the same availability, restrictions and conditions, as outlined in those rules.
During the Pilot, the Exchange is proposing to activate the Floor broker agency file to permit brokers to enter their interest at or outside the best bid and offer in Pilot securities (also referred to as “e-Quoting”). The following sections of proposed Exchange Rule 70.20, described in the Hybrid Market filings, would apply during the Pilot:
• 70.20(a)(i)(ii)
• 70.20(b)
• 70.20(c)(i)-(iv): Floor brokers will be able to populate the reserve file but it will be
• 70.20(e)
• 70.20(f)
• 70.20(i)-(l)
• 70.30
During the Pilot, the following sections of proposed Rule 70.20 would
• Rule 70.20(d)(i)-(ii): Sweep functionality
• Rule 70.20(g)-(h): Feature permitting brokers to exclude their interest from the aggregate information available to the specialist
The above sections that are not applicable during the Pilot are intentionally omitted from the proposed rule text.
In the event that a proprietary vendor system has not been activated or vender systems or Exchange systems that have been activated otherwise become unavailable, a Floor broker who is unable to enter his or her own Floor broker agency interest has the following options:
(i) Request a specialist to enter the agency interest on behalf of the Floor broker who is unable to enter it for himself or herself;
(ii) Send an order through SuperDot;
(iii) Send a CAP-DI order
(iv) Trade manually in the Crowd, as is done today;
(v) Ask another Floor broker to represent the order through his or her agency interest file; or
(vi) Send an order for Direct+ execution.
The Hybrid Market filings described proposed rule 70.20(f) which requires cancellation of agency interest files when the broker leaves the Crowd. In connection with the Pilot, the Exchange proposes to amend this provision to clarify that a Floor broker may leave the Crowd without canceling his or her agency interest files in order to recharge his or her handheld device.
During the Pilot, specialists will be able to manually layer their interest at and outside the best bid and offer, which will give specialists' bids and offers persistent standing (also referred to as s-Quotes).
During the Pilot, specialists will not be able to disseminate NYSE Specialist Files
During the Pilot, specialists will not be able to have systems using algorithms to send messages via the API to layer their interest or to otherwise trade or quote, nor will the specialist's reserve capability be operational. Therefore, proposed Exchange Rules 104(b)-(h) will not be in effect.
During the Pilot, the systemic programming of priority, parity and yielding, as proposed by the Hybrid Market filings, other than the yielding requirements for additional specialist interest, will be operational. As a result, the following rules will apply during the Pilot: 70.20(b)(P), 72(c)-(g)(P), 104.10(6)(i)(C)(P), and 108(a)(P).
The most substantive change that will apply to trading in Pilot securities will be that Floor brokers will lose their current ability to object to the specialist trading on parity with their orders unless the specialist is manually trading with them in the Crowd. However, a Floor broker's use of an e-Quote implicitly suggests his or her agreement that the specialist can be on parity with his or her orders. A Floor broker who does not want to permit the specialist to trade on parity with his or her orders may send the order through SuperDot,
A Floor broker who is manually bidding or offering (
During the Pilot, the following rules, as amended in the Hybrid Market filings would apply to Pilot securities: Exchange Rules 60(e)(P), 117P, 122P, 123(e)P, and 132B(a)(D)(P).
The Exchange quotation is 20.05 bid, offered at 20.07, 3,000 x 300. The bid consists of: 1,000 shares of book interest, which arrived first and has priority; 1,000 shares of broker agency interest comprised of two brokers' bids for 500 shares each at 20.07, and 1,000 shares of specialist interest. A market order to sell 3,000 shares arrives and trades with the 20.05 bid, as follows: 3,000 shares trade and this is reported by the specialist via the Smart Report Template and the system assigns the contra-parties as follows: 1,000 shares of book interest trade first (priority), and the remaining 2,000 shares are split equally (1,000 shares each) between the floor broker agency interest files and specialist interest file, as they are on parity.
Currently, when a trade occurs, the Exchange's system notifies the specialist if any CAP-DI or stop orders have been elected by such trade. The specialist has to then determine if there is any liquidity against which the elected orders (or portions thereof) can trade. If so, the specialist manually executes and reports trades involving the elected volume.
The Commission recently published an Exchange filing that provides that elected stop and CAP-DI volume will be automatically executed
In connection with the Pilot, the Exchange is proposing changes to Rule 76 to clarify that elected stop and stop limit orders are exempt from the requirement that a member expose the order for possible price improvement before crossing it.
In addition, the Exchange is proposing amendments to Rule 13 with respect to stop and stop limit orders. Certain of these changes were proposed in the Hybrid Market filings. With respect to the Pilot, the Exchange is proposing additional changes to Rule 13 to add language that provides for the possibility of manual representation of stop and stop limit orders in the Crowd.
In addition, commencing with the Pilot, converted CAP-DI orders will be systemically represented to enable them to participate in NYSE Direct+
Exchange Rule 123A.30 provides that a Floor broker may permit a specialist to trade on parity with CAP-DI orders. The rule currently provides that if a specialist is on parity with one or more CAP-DI orders, at no time may the specialist participate for its own account in an amount in excess of that which each CAP-DI order would receive, except that the specialist may participate for its own account to an extent greater than any particular CAP-DI order where the size specified on such order has been satisfied. A specialist trading on parity with a CAP-DI order remains subject to the limitations in Exchange Rule 104.10 as to transactions for his or her own account effected on destabilizing ticks.
Commencing with the Pilot, the Exchange will systemically ensure that the specialist's participation when trading along with CAP-DI orders is in accordance with the parity requirements of Rule 123A.30. The system will assign the proper number of shares to the specialist and CAP-DI orders. The Exchange filed
Current Exchange Rule 123A.30 also provides that specialists have the ability, subject to certain restrictions noted in the rule, to convert CAP-DI orders to participate in transactions or to bid or offer, without an electing trade.
Proposed Exchange Rule 123A.30(a)(P)
In addition, the Exchange is proposing to add new section (iv)(P) to proposed Exchange Rule 123A.30(a)(P) to provide that when a specialist is bidding or offering and an automatic execution occurs with such bid/offer, marketable CAP-DI orders on the Display Book® on the same side as the specialist's interest will be automatically actively converted to participate in this execution, with the system assigning the proper number of shares to the specialist and CAP-DI orders, as discussed above. This will allow CAP-DI orders to better participate in executions.
However, in certain instances, an automatic conversion of marketable CAP-DI orders will not occur even though the specialist is trading for its own account. This will occur where the execution that included automatically converted CAP-DI orders elects a contra-side stop or stop limit order. In this situation, pursuant to current Exchange Rule 123A.40, the specialist, as party to the election of the stop order, owes such elected stop order an execution at the same price as the specialist traded. The execution of such stop orders, in which the specialist is the contra-party, may be manual
The Exchange believes that the proposed rule change, as amended, is consistent with Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change, as amended, will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-NYSE-2005-87. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
With this proposed rule change, the Exchange has requested temporary
The NYSE explained in its filing that it has tested these functions extensively but that it needs to test them in an actual trading environment to ensure that they operate as intended. Accordingly, NYSE represented that it does not anticipate any significant problems arising from the Pilot. However, NYSE will immediately terminate the Pilot, in whole or in part, as appropriate, should any systems or other problems arise that adversely impact the protection of investors or impede its ability to maintain a fair and orderly market, and return trading to its current operations under current NYSE rules.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
By the Commission.
On July 12, 2004, the New York Stock Exchange, Inc. (the “Exchange” or “NYSE”) filed with the Securities and Exchange Commission (“SEC” or the “Commission”) a proposed rule change to amend specified provision of Exchange Rule 431 (margin requirements) pursuant to Section 19(b)(1)
The Exchange has proposed amendments to Rule 431 (margin requirements) that will recognize specific additional complex option spread strategies and set margin requirements commensurate with the risk of such spread strategies. These complex spread strategies are a combination of two or more basic option spreads that are already covered under Exchange Rule 431. In addition, the Exchange has proposed the elimination of the two-dollar standard exercise price interval limitation for listed options and certain terminology with respect to “permitted offsets,” as defined in its Rule. The proposed amendments described below have been developed in conjunction with the Chicago Board Options Exchange (“CBOE”).
As noted, the Exchange has proposed amendments to Rule 431 to recognize
The Exchange states that basic option spreads can be paired in such ways that they offset each other in terms of risk. The total risk of the combined spreads is less than the sum of the risk of both spread positions if viewed as stand-alone strategies. The specific complex spread strategies listed below are structured using the same principles as, and are essentially expansions of, the advanced spreads currently allowed in Rule 431.
Currently, Rule 431 recognizes and prescribes margin requirements for advanced spread strategies known as the “butterfly spread” and the “box spread.” However, the Exchange noted that these option spreads are limited in scope and that its proposal expands upon the types of pairings that would qualify for butterfly spread and box spread treatment.
Exchange Rule 431(f)(2)(G)(i) recognizes “calendar spreads,” also known as “time spreads,” but these spreads are not identified as such. The Exchange has proposed to define this term as “the sale of one option and the simultaneous purchase of an option with a more distant expiration date, both specifying the same underlying component with the same exercise price where the long options do not expire before the short option with the longest term expiration” in the definition section of the Rule (NYSE 431(f)(2)(C)) because some of the complex spreads recognized in this proposal will include this component of spread strategies.
The Exchange noted that to be eligible for the margin requirements in the proposal, a complex spread must be consistent with one of the seven patterns specified below. The expiration months and the sequence of the exercise prices must correspond to the same pattern, and the intervals between the exercise prices must be equal.
Under the proposal, members and member organizations will be required to obtain initial and maintenance margin for the subject complex spreads, whether established outright or through netting, of not less than the sum of the margin required on each basic spread in the equivalent aggregation.
The Exchange noted that the basic requirements for complex options spreads are as follows: (a) The complex spreads must be carried in a margin account; (b) European-style options are prohibited for complex spread combinations having a long option series that expires after the other option series. Only American-style options may be used in these combinations. Additionally, the intervals between exercise prices must be equal, and each complex spread must comprise four option series, with the exception of a Long Calendar Butterfly Spread, which must comprised of three option series.
According to the Exchange, the sum of the margin required on each currently recognized spread in each of the applicable aggregations renders a margin requirement for the subject complex spread strategies as stated below. The additional complex option strategies and maintenance margin requirements are as follows: (1) A Long Condor Spread comprised of two long Butterfly Spreads; (2) a Short Iron Butterfly Spread comprised of one long Butterfly Spread and one short Box Spread; (3) a Short Iron Condor Spread comprised of two long Butterfly Spreads and one short Box Spread; (4) a Long Calendar Butterfly Spread comprised of one long Calendar Spread and one long Butterfly Spread; (5) a Long Calendar Condor Spread comprised of one long Calendar Spread and two long Butterfly Spreads; (6) a Short Calendar Iron Butterfly Spread comprised of one long Calendar Spread plus one long Butterfly Spread and one short Box Spread; and (7) a Short Calendar Iron Condor Spread comprised of one Long Calendar Spread plus two long Butterfly Spreads and one short Box Spread.
The Exchange stated that the purpose and benefit of the proposal is to set levels of margin that more precisely represent the actual net risk of the option positions in the account and to enable customers to implement these strategies more efficiently.
Currently, Exchange Rule 431(f)(2)(J) limits permitted offsets
The Exchange has proposed a rule change to eliminate the two-dollar standard exercise price interval limitation for listed options and the definition of “in-or-at-the-money.” As proposed, Rule 431(f)(2)(J) would require permitted offset transactions be effected for specialist or market-making purposes such as hedging, risk reduction, rebalancing of positions, liquidation, or accommodation of customer orders, or other similar specialist or market-making purposes, while prohibiting trading in an underlying security that is not related to specialist or market making option activities, or that does not constitute a reasonable hedge.
Because clearing firms have risk monitoring systems that alert them to unhedged positions and haircut requirements pursuant to Rule 15c3-1
After careful review, 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.
The Commission further finds elimination of the two-dollar standard exercise price interval limitation for listed options and elimination of the definition of “in-or-at-the-money” are consistent with the requirements of Section 6(b)(5). The rules changes should allow specialists and market makers to hedge risk related to their options positions while prohibiting trading in an underlying security that is not related to specialist or market making option activities, or that does not constitute a reasonable hedge.
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”)
PCX proposes to amend its Schedule of Fees and Charges in order to include a provision that deals with royalty, or license fees, that are passed on to market participants on options trades that are part of an Option Strategy Execution.
The text of the proposed rule change is available on the Exchange's Internet Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
PCX is proposing this change to the PCX Schedule of Rates and Charges so that the Exchange may continue to pass on the full amount of any royalty or license fees to trade participants, even when total transaction fees are capped in association with a defined Options Strategy Execution. PCX has established a cap on the transaction fees it charges to market participants that engage in certain strategy executions, as defined in the PCX Schedule of Fees and Charges. PCX represents that the cap was established because the referenced Options Strategy Executions are generally large volume trades done by professionals whose profit margins are generally narrow. The Exchange caps the transaction fees associated with such executions at $1,000 per strategy execution, with a monthly cap of $50,000 per initiating firm.
Certain classes of options listed on PCX have as their underlying issue licensed products that carry a royalty fee on every contract traded. These fees are assessed by the issuing agency, and are not Exchange transaction fees. License fees, or royalty fees, that are charged to the Exchange are passed on to the actual participants executing the trade. Even though some of the fees are passed on, the fee cap would prevent PCX from recovering these fees in their entirety if they were to be included as transaction fees. If royalty fees are included as transaction fees, PCX would face the possibility of having to pay out substantial fees while the fee cap would limit the amount the Exchange would be able to pass on to trade participants. Because of the negative financial implications to the Exchange, PCX will not include license or royalty fees, which are passed on to trade participants in connection with trades that are done as part of an Options Strategy Execution, as part of the transaction fees counting towards both the $1,000 per trade transaction fee cap and the $50,000 per month fee cap.
The Exchange believes that proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing proposed rule change 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, Station Place, 100 F Street, NE., Washington, DC 20549-9303.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages that will require clearance by the Office of Management and Budget (OMB) in compliance with Pub. L. 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. The information collection packages that may be included in this notice are for new information collections, approval of existing information collections, revisions to OMB-approved information collections, and extensions (no change) of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and on ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Written comments and recommendations regarding the information collection(s) should be submitted to the OMB Desk Officer and the SSA Reports Clearance Officer. The information can be mailed and/or faxed to the individuals at the addresses and fax numbers listed below:
I. The information collections listed below are pending at SSA and will be submitted to OMB within 60 days from the date of this notice. Therefore, your comments should be submitted to SSA within 60 days from the date of this publication. You can obtain copies of the collection instruments by calling the SSA Reports Clearance Officer at 410-965-0454 or by writing to the address listed above.
1. Reporting Changes that Affect Your Social Security Payment—20 CFR 404.301-305, .310-311, .330-.333, .335-.341, .350-.352, .370-.371, .401-.402, .408(a), .421-.425, .428-.430, .434-.437, .439-.441, .446-.447, .450-.455, .468—0960-0073. SSA uses the information collected on Form SSA-1425 to determine continuing entitlement to Title II Social Security benefits and to determine the proper benefit amount. The respondents are Title II beneficiaries receiving SSA retirement, disability or survivor's auxiliary benefits who need to report an event that could affect payments.
2. Workers' Compensation/Public Disability Questionnaire—20 CFR 404.408—0960-0247. Section 224 of the Social Security Act provides for the reduction of disability insurance benefits (DIB) when the combination of DIB and any workers' compensation (WC) and/or certain Federal, State or local public disability benefits (PDB) exceeds 80% of the worker's predisability earnings. Form SSA-546 is used to collect the data necessary to determine whether or not the worker's receipt of WC/PDB payments will cause a reduction of DIB. The respondents are applicants for the Title II DIB.
3. Medicaid Use Report—20 CFR 416.268—0960-0267. The information required by this regulation is used by SSA to determine if an individual is entitled to special Title XVI Supplemental Security Income (SSI) payments and, consequently, to Medicaid benefits. The respondents are SSI recipients whose payments were stopped based on earnings.
4. Supplemental Security Income Claim Information Notice—20 CFR 416.210—0960-0324. Form SSA-L8050-U3 is used by SSA to ensure that all sources of potential income that can be used to provide for an SSI beneficiary's own support and maintenance are utilized. SSI is intended to supplement other income an individual has available. Respondents are businesses and applicants/recipients of SSI who may be eligible for benefits from public or private programs.
5. Application Statement for Child's Insurance Benefits—20 CFR 404.350-0368, 404.603, and 416.350—0960-0010. Title II of the Social Security Act provides for the payment of monthly benefits to the children of an insured retired, disabled, or deceased worker, if certain conditions are met. Form SSA-4-BK is used by SSA to collect information needed to determine whether the child or children are entitled to benefits. The respondents are children of the worker or individuals who complete this form on their behalf.
6. National Employment Activity and Disability Survey—0960-0666
The Ticket to Work (TTW) program was established by the Ticket to Work and Work Incentives Improvement Act of 1999. The program will provide eligible Social Security Disability Insurance (SSDI) and SSI disability beneficiaries with a Ticket, which can be used to obtain vocational rehabilitation (VR) or employment services through participating providers, called Employment Networks (ENs). The goal of the TTW program is to assist participants in returning to work at a level above the Substantial Gainful Activity (SGA) level. The program is expected to increase beneficiary demand for employment-related services and activities. It is also expected to increase the number and diversity of providers in response to the less restrictive participation requirements and increased consumer demand for services.
The National Employment Activity and Disability Survey will collect data on the work-related activities of SSI and SSDI beneficiaries as the TTW program, and other initiatives designed to improve beneficiary employment outcomes, are implemented. The TTW Survey is specifically designed to be a significant resource for the formal evaluation of TTW, but SSA anticipates that the survey will provide useful information for a variety of evaluation and policy analysis purposes, especially related to current efforts that attempt to improve return to work. The survey questionnaire focuses on information about beneficiaries and their work-related activities that cannot be obtained from SSA's administrative records. The survey will provide information about: (1) Beneficiaries who assign their Tickets to ENs, and their experience in the program; (2) beneficiaries who do not assign their Tickets, and the reasons why they do not, including involuntary non-participants; (3) the employment outcomes of Ticket users and other beneficiaries; and (4) the use of employment services by Ticket users and other beneficiaries. The respondents will be selected from SSI and SSDI disabled beneficiaries who meet the Ticket to Work program eligibility requirements.
II. The information collections listed below have been submitted to OMB for clearance. Your comments on the information collections would be most useful if received by OMB and SSA within 30 days from the date of this publication. You can obtain a copy of the OMB clearance packages by calling the SSA Reports Clearance Officer at 410-965-0454, or by writing to the address listed above.
1. Private Printing and Modification of Prescribed Applications and Other Forms—20 CFR 422.527—0960-0663. This regulation mandates that non-government persons or organizations who wish to reproduce, duplicate, or privately print any application or other form owned by SSA must receive written authorization from the Agency to do so. The respondents are private persons or groups who wish to reproduce, duplicate, or privately print an SSA application or form.
2. Public Information Campaign—0960-0544. SSA sends public information materials (
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection. The FAA has undertaken an effort to improve aviation safety by
Please submit comments by January 19, 2006.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for the renewal of a currently approved information collection. The information will be collected from holders of FAA production approvals and selected suppliers to obtain their input on how well the agency is performing the administration and conduct of the Aircraft Certification Systems Evaluation Program (ACSEP). The Agency will use the information as a customer service standard to continually improve ACSEP. A notice was published in the
Please submit comments by January 19, 2006.
Judy Street on (202) 267-9895.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention FAA Desk Officer.
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for the renewal of a currently approved information collection. 14 CFR Part 61 requires airmen to notify the FAA of any conviction or administrative action resulting from any alcohol or drug related motor vehicle offense within 60 days of the offense. A notice was published in the
Please submit comments by January 19, 2006.
Judy Street on (202) 267-9895.
Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Federal Aviation Administration, DOT.
Notice; request for comment.
The Federal Aviation Administration (FAA) proposes to revise its procedures for implementing the National Environmental Policy Act, Order 1050.1E, Environmental Impacts: Policies and Procedures, with proposed Order 1050.1E, Change 1. The revisions in proposed Order 1050.1E, Change 1, include: Changes for clarification; changes for consistency; a change for addition of information; corrections; editorial changes, and the addition of Categorical Exclusion 311f for prohibited areas. This notices provides the public opportunity to comment on the proposed changes. All comments on the proposed changes will be considered in preparing the final version of FAA Order 1050.1E, Change 1.
Comments must be received on or before January 19, 2005.
Comments should be mailed, in triplicate, to the Federal Aviation Administration (FAA) Office of the Chief Counsel, Attn: Rules Docket (AGC-200), Docket No. FAA 2005 22020, 800 Independence Avenue, SW., Room 915G, Washington, DC 20591. Comments may be inspected in Room 915G between 8:30 a.m. and 5 p.m., weekdays except Federal Holidays.
Commenters who wish the FAA to acknowledge the receipt of their comments must submit with their comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA 2005 22020.” The postcard will be dated-stamped by the FAA and returned to the commenter.
The National Environmental Policy Act (NEPA) and implementing regulations promulgated by the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508) establish a broad national policy to protect the quality of the human environment and provide policies and goals to ensure that environmental considerations and associated public concerns are given careful attention and appropriate weight in all decisions of the Federal Government. Section 102(2) of NEPA and 40 CFR 1505.1 require Federal agencies to develop and, as needed, revise implementing procedures consistent with the CEQ regulations. The FAA's current Order 1050.1E, Environmental Impacts: Policies and Procedures, provides FAA's policy and procedures for complying with the requirements of: (a) The CEQ regulations for implementing the procedural provisions of NEPA; (b) Department of Transportation (DOT) Order DOT 5610.1C, Procedures for Considering Environmental Impacts, and (c) other applicable environmental laws, regulations, and executive orders and policies. The FAA is proposing to amend Order 1050.1E with Order 1050.1E, Change 1.
As part of revising its environmental order, the FAA is seeking public comment regarding the proposed changes as described in the following synopsis of changes.
The proposed FAA Order 1050.1E, Change 1, Environmental Impacts: Policies and Procedures, includes additions or changes to the current version of FAA Order 1050.1E which may be of interest to the public and other government agencies and organizations. The revised Order 1050.1E, Change 1, would institute changes in the following chapters and sections of Appendices A and C. Changes are shown by
(1) Ch. 3, Para 301c: Change for clarification. The category of “warning areas” has been added to the list of advisory actions. FAA regulations define “warning area” as airspace of defined dimensions, extending from 3 nautical miles outward from the coast of the United States, that contain activity that may be hazardous to nonparticipating aircraft. (see 14 CFR § 1.1). The purpose of a warning area is to warn nonparticipating pilots of the potential danger. Designation of a warning area is not necessary for the hazardous activity to occur. Therefore, the FAA is proposing to classify designation of warning areas, like designation of alert areas, as an advisory action.
301c. Designation of alerts areas
(2) Ch. 3, Para. 304c: Change for clarification. The paragraph was revised to include coastal zones in the list of
304c. An impact on natural, ecological (e.g., invasive species), or scenic resources of Federal, Tribal, State, or local significance (for example: Federally listed or proposed endangered, threatened, or candidate species or designated or proposed critical habitat under the Endangered Species Act); resources protected by the Fish and Wildlife Coordination Act; wetlands; floodplains;
(3) Ch. 3, Para. 309c: Editorial Change. The word “system” was removed following the word “ILS” in line 11. The word was removed because it was duplicative. The sentence now reads “* * * (establishment or relocation of an ILS is not included * * *”.
309c. Federal financial assistance for, or ALP approval of, or FAA installation or upgrade of facilities and equipment, other than radars, on designated airport or FAA property or launch facility. Facilities and equipment means FAA communications, navigation, surveillance and weather systems. Weather systems include hygrothermometers, Automated Weather Observing System (AWOS), Automatic Surface Observation System (ASOS), Stand Alone Weather Sensors (SAWS), Runway Visual Range (RVR), other essentially similar facilities and equipment that provides for modernization or enhancement of the service provided by these facilities. Navigational aids include Very High Frequency Omnidirectional Range (VOR), VOR Test facility (VOT), co-located VOR's and Tactical Aircraft Control and Navigation (TACAN) (VORTAC), Low Power TACAN, Instrument Landing System (ILS) equipment or components of ILS equipment (
(4) Ch. 3, Para. 311f: Addition of Categorical Exclusion (CATEX) 311f., Establishment or modification of prohibited areas. In its initial notice concerning Order 1050.1E, the FAA proposed a CATEX for the “[e]stablishment or modification of Special Use Airspace (SUA), (e.g., restricted areas, warning areas), and military training routes for subsonic operations that have a base altitude of 3,000 feet above ground level (AGL), or higher.” In the preamble to the final Order 1050.1E, the FAA announced that it was removing this CATEX for further study. For the reasons given below, the FAA is now proposing a separate CATEX for prohibited areas, a type of SUA.
Prohibited areas are airspace designated under 14 CFR part 73 within which no person may operate an aircraft without permission of the using agency (see 14 CFR 1.1). The FAA establishes prohibited areas when necessary to prohibit flight over an area on the surface in the interest of national security or welfare. It is possible that the establishment or modification of a prohibited area could necessitate a revision of air traffic control procedures. However, such a revision generally would only affect aircraft operating under instrument flight rules over 3,000 feet AGL unless they are arriving or departing within an airport environment. Prohibited areas are not normally established within the airport environment. Revised air traffic control procedures at 3,000 feet or more AGL are already covered by the CATEX in paragraph 311i of Order 1050.1E, as are procedures below 3,000 feet AGL that do not cause air traffic to be routinely routed over noise sensitive areas. The proposed CATEX below incorporates relevant language from the existing CATEX in paragraph 311i.
(5) Ch. 4, Para 401p: Change for clarification. Text was added to the paragraph to clarify the types of SUA actions that are subject to environmental review.
401p. Special Use Airspace (unless otherwise explicitly
(6) Ch. 4, Para 401p.(5): Change for clarification. Text was added to the paragraph to differentiate between temporary and permanent changes to SUA and to be consistent with categorical exclusion 307e. Permanent changes to SUA normally require an EA. Temporary changes (e.g., temporary military operations area (MOA)) are established by issuing a Notice to Airman (NOTAM). NOTAMs are categorically excluded actions under Paragraph 307e.
(5) The provisions of p(1)-(4) of this paragraph are not applicable to special use airspace actions if minor adjustments are made such as raising the altitudes; if a change is made in the designation of the controlling or using agency;
(7) Ch. 4, Para 404e: Change for consistency. Two sentences would be revised to change “should” to “shall” and “coordinated” to “reviewed” to be consistent with Para. 406c. The sentences now read “For projects that originate in or are approved at FAA headquarters, the EA and FONSI should be coordinated with AGC for legal sufficiency. For projects that originate in and are approved by the regions, the EA and FONSI should be reviewed by Regional Counsel”.
404e. Internal review of the EA is conducted by potentially affected FAA program offices having an interest in the proposed action to assure that all FAA concerns have been addressed technically, and with AGC or Regional Counsel to assure that the EA is legally sufficient. For projects that originate in or are approved at FAA headquarters, the EA and FONSI
(8) Ch. 5, Para 506b: Change for consistency with CEQ regulations. As written, the text appears to require that the environmentally preferred alternative be identified in the EIS's Executive Summary. CEQ regulations encourage, but do not require identification of the environmentally
506b. Executive Summary. An executive summary will be included to adequately and accurately summarize the EIS. The summary describes the proposed action, stresses the major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to be resolved (including the choice among alternatives). It also discusses major environmental considerations and how these have been addressed; summarizes the analysis of alternatives; and agency preferred and sponsor preferred alternatives.
(9) Ch. 5, Para 506e: Change for consistency with CEQ regulations. Two sentences were removed and two sentences were modified to be consistent with CEQ regulation, 40 CFR 1505.2(b) regarding the timing of the identification of the environmentally preferred alternative. This paragraph now requires that the environmentally preferred alternative be identified in the EIS. However, federal agencies are not required under the CEQ regulations to discuss the environmentally preferred alternative until the record of decision. If an environmentally preferred alternative is known to the agency before the ROD, it can be disclosed at that time.
506e. This section is the heart of the EIS (see 40 CFR 1502.14; see also 40 CFR 1502.10(e) and 40 CFR 1505.2 for more information on alternatives). It presents a comparative analysis of the no action alternative, the proposed action and other reasonable alternatives to fulfill the purpose and need for the action.
(10) Ch. 5, Para 512: Change for consistency CEQ regulations. A phrase was inserted indicating that the ROD must identify all alternatives considered, including the environmentally preferred alternative.
5.12. Following the time periods described in 40 CFR 1506.10 (i.e., 90 days from DEIS Notice of Availability (NOA) issuance and 30 day waiting period for FEIS NOA issuance), the agency's decisionmaker may make a decision on the Federal action.
(11) Ch. 5, text box on page 5-16: Change for clarification. The phrase “for the first time” was inserted.
FAA encourages all interested parties to provide comments concerning the scope and content of the Draft EIS. Comments should be as specific as possible and address the analysis of potential environmental impacts and the adequacy of the proposed action or merits of alternatives and the mitigation being considered. Reviewers should organize their participation so that it is meaningful and makes the agency aware of the viewer's interests and concerns using quotations and other specific references to the text of the Draft EIS and related documents. Matters that could have been raised with specifically during the comment period on the Draft EIS may not be considered if they are raised
(12) Ch. 5, Para. 509a.(1) and (4): Change for consistency with AEE policy. Both paragraphs indicate that an FEIS originating in Headquarters (1) and regions (4) should be forwarded to the Office of Environment and Energy (AEE) for review and concurrence. As a matter of policy, AEE does not review FEISs, most of which are sent to AEE for information only. AEE does not review and concur unless AEE is specifically requested to review and concur on a document for a specific purpose. Both paragraphs have been revised to reflect this policy.
509a. Internal review is coordinated as follows:
(1) FEIS's originating in headquarters. The office or service director shall send a copy of the FEIS to AGC to review for legal sufficiency and concurrence.
(4) FEIS's originating in regions or centers, but where authority to approve the FEIS is retained in headquarters. The applicable division manager or center shall send the proposed FEIS to the appropriate headquarters' office or service director. The office or service will provide the FEIS to AGC for review.
(13) Appendix A, Section 3. Coastal Resources: Change for correction. Paragraph 3.2b.(2) was revised to clarify what should be included concerning coastal zone consistency in an EA or EIS for a direct Federal action, e.g. an activity that the FAA itself is undertaking such as establishment of a navigational aid. Title 16 U.S.C. 1456(e)(2), states that the CZMA shall not be construed to supersede laws applicable to Federal agencies. Title 15 CFR 930.32(a) further provides that a Federal agency may determine that full consistency with the policies of a management program is prohibited by existing law applicable to the agency.
3.2b.
(14) Appendix A, Section 6. Department of Transportation Act, Section 4(f): Change for correction. Paragraph 6.1a. is being revised to correct a misstatement regarding the legislative history of 49 U.S.C. 303(c). Section 4(f) was not recodified and renumbered as part of the 1994 recodification of aviation statutes.
6.1a. The Federal statute that governs impacts in this category is commonly known as the Department of Transportation (DOT) Act, section 4(f) provisions. Section 4(f) of the DOT Act,
(15) Appendix A, Section 9. Floodplains: Change for clarification. Currently paragraphs 9.2c and 9.2g contain the same extensive notification requirements for both encroachments and significant encroachments. DOT Order 5650.2 paragraph 7 makes a distinction between notification requirements for encroachments and significant encroachments. Paragraph 9.2c is being revised to clarify the distinction between the notification requirements for encroachments and significant encroachments.
9.2c. If the agency finds that the only practicable alternative requires siting in the base floodplain, a floodplain encroachment would occur and further environmental analysis is needed. The FAA shall, prior to taking the action, design or modify the proposed action to minimize potential harm to natural floodplain values or within the base floodplain. The action is to be consistent with regulations issued according to section 2(d) of E.O. 11988. The FAA shall also provide the public with an opportunity to review the encroachment through its public involvement process and any public
(16) Appendix A, Section 10. Hazardous Material, Pollution Prevention, and Solid Waste: Change for correction and consistency. Paragraph 10.1d (2). The definition of hazardous waste under the Resource Conservation and Recovery Act (RCRA) is slightly different than that in EPA regulation 40 CFR 261.1. Paragraph 10.1d(2) referenced both definitions. FAA uses the EPA regulatory definition for purposes of NEPA compliance so we propose to delete the reference to the RCRA definition.
(17) Appendix A, Section 11. Historical, Architectural, Archeological, and Cultural Resources: Change for clarification. Paragraph 11.2b. was revised to remove contradictory language. The beginning of the sentence indicated that identifying the area of potential effect (APE) was only required if the undertaking may have an adverse effect. The beginning of the sentence, “If an undertaking may have an adverse effect,” has been deleted.
11.2b. Determination of Undertaking. The responsible FAA official determines whether the proposed action is an “undertaking,” as defined in 36 CFR 800.16(y) (and not an undertaking that is merely subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency), and whether it is a type of activity that has the potential to cause adverse effects on historic properties eligible for or listed on the NRHP. If the agency determines, and the SHPO/THPO does not object, that an undertaking does not have the potential to have an effect on historic properties, a historical or cultural resource survey is not necessary and the FAA may issue a determination that the action has no effect.
(18) Appendix C, Figure 3. Related Memoranda and Guidance: Change for correction. The date of the Memorandum of Understanding between the FAA and the Department of Defense was updated. The description of the Memorandum was also revised to more accurately describe the document.
Federal Railroad Administration, DOT.
Notice of OMB approvals.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292), or Victor Angelo, Office of Support Systems, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6470). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law No. 104-13, section 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to display OMB control numbers and inform respondents of their legal significance once OMB approval is obtained. The following new FRA information collections were approved in the past nine months: (1) OMB No. 2130-0553, Positive Train Control (49 CFR 236) (Final Rule). The expiration date for this collection of information is August 31, 2008. (2) OMB No. 2130-0560, Use of Locomotive Horns at Highway-Rail Grade Crossings (49 CFR 222 and 229) (Final Rule). The expiration date for this collection of information is July 31, 2008. (3) OMB No. 2130-0004, Locomotive Safety Standards and Event Recorders (49 CFR 229) (Final Rule). The expiration date for this collection of information is August 31, 2008. (4) OMB No. 2130-0568, Emergency Order No. 24. The expiration date for this collection of information is March 31, 2006.
The following information collections were re-approved: (1) OMB No. 2130-0533, Qualifications For Locomotive Engineers (49 CFR part 240). The new expiration date for this information collection is August 31, 2008. (2) OMB No. 2130-0552, Locomotive Cab Sanitation Standards (49 CFR part 229). The new expiration date for this information collection is August 31, 2008. (3) OMB No. 2130-0517, Supplemental Qualifications Statement For Railroad Safety Inspector Applicants (Form FRA F 120). The new expiration date for this information collection is August 31, 2008. (4) OMB No. 2130-0539, Roadway Worker Protection: Roadway Maintenance Machines (49 CFR part 214) (Form FRA F 6180.119). The new expiration date for this information collection is August 31, 2008. (5) OMB No. 2130-0544, Passenger Equipment Safety Standards (Current Rule) (49 CFR parts 216 and 238). The new expiration date for this information collection is November 30, 2008.
Persons affected by the above referenced information collections are not required to respond to any collection of information unless it displays a currently valid OMB control number. These approvals by the Office of Management and Budget (OMB) certify that FRA has complied with the provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and with 5 CFR 1320.5(b) by informing the public about OMB's approval of the information collection requirements of the above cited forms and regulations.
44 U.S.C. 3501-3520.
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting these information collection requirements (ICRs) for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than February 21, 2006.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590, or Mr. Victor Angelo, Office of Support Systems, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-0017 or on OMB control number 2130-0506.” Alternatively, comments may be transmitted via facsimile to (202) 493-6265 or (202) 493-6170, or e-mail to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone: (202) 493-6292) or Victor Angelo, Office of Support Systems, RAD-20, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6470). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law No. 104-13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for
Below is a brief summary of the currently approved ICRs that FRA will submit for clearance by OMB as required under the PRA:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
In accordance with Title 49 Code of Federal Regulations (CFR), Parts 211.9 and 211.41 notice is hereby given that the Federal Railroad Administration (FRA) has received a request to expand an existing waiver of compliance from certain requirements of Federal railroad safety regulations. The individual petition is described below, including the parties seeking the extension, the nature of the extension being requested and the petitioner's arguments in favor of relief.
The Burlington Northern and Santa Fe Railway Company (BNSF) seeks permission to expand the current Electronic Train Management System (ETMS) waiver granted on June 23, 2004, into another area of their rail network. The extension of this pilot will allow BNSF to further demonstrate the objectives of ETMS on different track configurations and operational scenarios. This extension will also allow BNSF to demonstrate the ETMS technology with denser traffic patterns and give BNSF the potential to test interoperability with other railroads.
The ETMS pilot project on the Beardstown subdivision is currently in the third phase of the FRA waiver that was granted on June 23, 2004. To date, BNSF has operated nearly 1700 ETMS-activated trains over this pilot test area. BNSF has conducted over five hundred tests in cooperation with the FRA Office of Safety that have successfully demonstrated the objectives that are feasible in the first pilot test area. BNSF is prepared to continue the testing and demonstration of the ETMS technology in other areas of their rail network that will allow them to further demonstrate the safety and operational benefits that the rail industry can derive from this technology.
The ETMS expansion will be tested and demonstrated on the BNSF's Fort Worth subdivision between Fort Worth, Texas, milepost 346.67 and Gainesville, Texas, milepost 411.3. In addition, the system will be tested and demonstrated on the Red Rock subdivision between Gainesville, Texas, milepost 411.3X and Arkansas City, Kansas, milepost 264.11. The combined distance of the test territory is 329 miles. The present method of operation on the BNSF is Centralized Traffic Control. The total trains are approximately 25 per day, 21 BNSF trains, 2 Amtrak trains, and 2 Union Pacific Railroad trains.
BNSF is currently developing an installation, test, and implementation plan for this second pilot test area. BNSF's present implementation guidelines would follow the same methodologies as previously used in the Beardstown test area with regards to personnel training and the testing of the test area's unique components such as grade, track configuration, and track database. In addition, BNSF's plan for this area would include a phased methodology as was done in the Beardstown test area where Phase 1 included no enforcement with ETMS active, Phase 2 included enforcement with ETMS active, and Phase 3 is a continuance of Phase 2 with some relief from detail reporting. This approach has proven to be productive and comprehensive.
The expansion would begin with wayside and locomotive equipment installation in the beginning of 2006. Upon completion of the wayside installation, the track database verification and locomotive testing would commence. Finally, the phased revenue demonstration would begin upon the successful completion of the verification and validation testing.
Interested parties are invited to participate in these proceedings by submitting written views, data or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
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
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.
The Burlington Northern and Santa Fe Railway (BNSF) seeks relief from the requirements of the Rules, Standard and Instructions, Title 49 CFR, Part 236, Section 236.312, on the Hannibal Bridge, milepost 0.95, in Kansas City, Missouri, on the Nebraska Division, St. Joseph Subdivision, as follows:
1. BNSF requests relief to the extent that they be allowed to use a modified easer bar inspection and test procedure to determine compliance with the rail surface and alignment requirements. The modified procedure uses 5/8 inch as the acceptable tolerance for the amount of easer bar/casting play.
2. BNSF requests relief from the requirement that bridge locking members must be detected within one inch of their proper positions, to the extent that they be permitted to continue using an alternate method of
Applicant's justification for relief: BNSF fully expects the actual rail surface and alignment to be maintained within the 3/8 inch required by 236.312; however, BNSF's Bridge Engineers feel that additional easer bar clearance is needed to reliably operate this bridge because of its particular design. The Hannibal Bridge does not have wedges or rollers, and instead has end lifts on each corner of the swing span. BNSF has installed, at great expense, a rather elaborate mechanical proximity sensor device, near the deck level at each of the four corners of the bridge, to detect that the bridge is properly seated. While this approach to detecting locking is not the same as described in the FRA's Technical Manual, BNSF's Bridge Engineers believe it accurately detects when the swing span is properly seated, clearly the intent of the rule. These devices are designed to detect that all four corners are within 3/8 inch of the proper seated position vertically and, on two of the corners, within 3/8 inch of proper horizontal alignment. BNSF respectfully submits that while the method of detecting bridge locking and rail surface/alignment on their Hannibal Bridge might not be conventional or familiar, it is completely safe and complies with the intent of 49 CFR 236.312.
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 PI-401, 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.
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.
The Canadian Pacific Railway seeks approval of the proposed modification of the traffic control system, at milepost 3.22, just west of Lyndale Avenue, on the Paynesville Subdivision, near Minneapolis, Minnesota, consisting of the discontinuance and removal of the power-operated derail. The proposed change is associated with a plan to install a new stand-a-lone remote-controlled derail, just outside the actual yard tracks, at milepost 3.65.
The reason given for the proposed changes is due to safety concerns about the derail's location and operation.
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 (DOT).
Response to comments, notice of decision.
On October 14, 2004, NHTSA published a notice requesting comments on possible alternatives to revise the agency's test procedures for frontal impact New Car Assessment Program (NCAP) testing. This notice summarizes the comments received and provides the agency's decision on how we will proceed. The agency has decided to maintain the full-frontal barrier test procedure, the test speed of 35 mph (56 km/h), the current test dummies, and the current rating system until the further research and analysis are completed.
For technical issues concerning the upgrade to frontal NCAP, contact Mr. Brian Park of the New Car Assessment Program. Telephone: (202) 366-6012. Facsimile: (202) 493-2739. Electronic Mail:
The National Highway Traffic Safety Administration (NHTSA) is responsible for reducing deaths, injuries, and economic losses resulting from motor vehicle crashes. One way in which NHTSA accomplishes this mission is by providing consumer information to the public. Currently, NHTSA conducts tests and provides frontal, side, and rollover stability vehicle safety ratings to consumers through the New Car Assessment Program (NCAP). With this information, consumers can make better-educated decisions about their purchases, thereby providing market forces that encourage automakers to further improve the safety of their vehicles.
Since 1978, the test procedure for NCAP's frontal crash test program has been similar to the frontal barrier test procedure used in Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant Crash Protection,” except that the NCAP test has been conducted at a speed of 5 mph (8 km/h) above that specified in FMVSS No. 208. Recent amendments to FMVSS No. 208 will require vehicles to be tested at an increased speed of 35 mph (56 km/h) for the belted Hybrid III 50th percentile male dummy, the same test procedure as the current frontal NCAP.
Seventeen comments were received in response to the notice. While most of the commenters did not object to keeping the current frontal NCAP, they did offer mixed responses on the different options for modifying the current test procedure. Additionally, most commenters supported the idea of changing the current rating system in some way, and generally recommended that any changes made to the program should reflect real world crash data. Though they did not submit comments directly to the notice, a Government Accountability Office (GAO) study suggested that the agency should include different injury measurements and additional occupant sizes in both the frontal and side crash test-rating systems.
In our notice requesting comments on possible alternatives to current NCAP test procedures and/or rating system, the alternatives offered were as follows: (1) Maintaining the current program, (2) modifying the test procedure, and (3) changing the rating system.
The first option offered for consideration was to maintain the current program. Under this option, NCAP test results could be used for testing compliance with the FMVSS No. 208 and vice-versa, thereby maintaining or perhaps increasing the amount of consumer information provided by the agency.
The second option offered for consideration was to modify the current test procedure. Three modifications were described. The first was to increase the current test speed; that is, to test the vehicles as outlined in FMVSS No. 208, but at a faster speed. As the test speed of the FMVSS No. 208 test will be raised from 30 mph (48 km/h) to 35 mph (56 km/h), the NCAP test speed could also be increased by 5 mph (8km/h) from 35 mph (56 km/h) to 40 mph (64 km/h). This test could also serve as a compliance indicant. The second variation was to add a variety of dummies. The Hybrid III 5th percentile female dummy could be placed in the driver position with the Hybrid III 50th percentile male dummy in the passenger position, or vice-versa. Additionally, rear seat occupants could include one or more of the Hybrid III family of child dummies with their appropriate child restraints. The third modification was to add another test procedure, such as an offset frontal test, either as a replacement or in addition to the full-frontal barrier test.
The third option offered for consideration was to make changes to the rating system. Two changes were offered for consideration under this approach. One possible change was to modify the star rating bands so that the combined chance of a serious injury to the head or chest would be 5 percent or lower (as opposed to the current 10 percent limit) for a vehicle to receive five stars. The injury probability ranges required for the other star ratings would also be adjusted accordingly. A second modification was to add new injury metrics to the star rating like neck (Nij), chest deflection, femur loads and tibia index. These injury metrics are currently measured in the NCAP test, but are not used to compute the star rating.
This section provides a brief summarization of the seventeen comments submitted to the docket by vehicle manufacturers, safety advocates, and the general public.
General Motors Corporation (GM) and Daimler Chrysler Corporation (DaimlerChrysler) did not object to maintaining the current frontal NCAP
The Advocates for Highway and Auto Safety (Advocates), the Insurance Institute for Highway Safety (IIHS), and Public Citizen expressed concerns with maintaining the current frontal program. The Advocates believe that the changes to FMVSS No. 208 will make the NCAP crash tests irrelevant. IIHS stated that, “* * * the remaining performance differences among new vehicles are unlikely to translate into important differences in occupant protection in real-world crashes.” Public Citizen reiterated the fact that most new vehicles receive four-or five-star ratings, stated that “the frontal NCAP program should be made more comprehensive,” and suggested achieving this by including structural integrity and more body regions to the rating.
Both Advocates and Public Citizen favored an increase of the frontal test speed from 35 mph (56 km/h) to 40 mph (64 km/h). Public Citizen suggested that deadly frontal crashes occur disproportionately at speeds above the current NCAP speed, based on 2003 data on fatal head-on crashes from NHTSA's Fatality Analysis Reporting System (FARS). The Advocates acknowledged that the full-barrier crash test is primarily a test of restraint system effectiveness. They suggested a higher test speed could lead to further improvements for both air bags and seat belts, but that it might increase vehicle stiffness and air bag aggressiveness. They further suggested that this could be countered by implementing a new rating system that modified the score based on a compatibility “modifier.”
GM, Nissan North America, Inc. (Nissan), Honda Motor Company Ltd. and American Honda Motor Company (Honda), Ford Motor Company (Ford), the Association of International Automobile Manufacturers, Inc. (AIAM), and IIHS were opposed to an increase of test speed. They all suggested that the higher test speed could lead to increased vehicle stiffness and more aggressive air bags, which in turn would diminish any increased benefits. Nissan and IIHS also specifically questioned the real-world benefits of a higher test speed.
With regard to adopting the Hybrid III 5th percentile adult female test dummy into the frontal test procedure, GM, Public Citizen, and Bidez & Associates supported this option. However, they disagreed on how the dummy should be adopted. GM recommended replacing the Hybrid III 50th percentile dummy with the Hybrid III 5th percentile dummy and maintaining one single test. Public Citizen, on the other hand, supported running one test with the Hybrid III 50th and 5th dummies in the driver and passenger seats followed by a second test with the dummies in switched positions. Bidez & Associates felt that the 5th percentile dummy should be added to an offset frontal test rather than the current full-frontal barrier test.
Nissan, Ford, DaimlerChrysler, Magna Steyr, AIAM, and IIHS all objected to either replacing the Hybrid III 50th percentile dummy with the Hybrid III 5th percentile dummy or including the 5th percentile into frontal NCAP testing. Nissan suggested that the 50th percentile occupant represents the largest percentage of injured occupants and thus there is no reason to include the 5th percentile. Ford cited that the addition of the 5th percentile into NCAP testing could have adverse effects (though no specifics were given) and that the agency should do additional research. DaimlerChrysler referenced the agency's Notice of Proposed Rulemaking for adding the Hybrid III 5th percentile dummy to FMVSS No. 208 and stated that potential benefits for including this dummy were “statistically minor, an overestimate, and can't be absolutely quantified.” AIAM likewise suggested that the agency consider real world conditions before adding the Hybrid III 5th percentile dummy to the NCAP. IIHS suggested that assessing different sizes of dummies in FMVSS No. 208 is fine, but there is no evidence that it will provide any benefit in NCAP testing.
NHTSA had also offered for consideration testing with child dummies in the rear seats. GM, Nissan, and BMW objected to testing with child dummies that utilize child restraint systems (CRS). These commenters cited test burden due to the large number of different child restraint models available, and consumer confusion as reasons not to pursue this option. The commenters suggested that consumers could become confused when trying to interpret safety ratings using only one child restraint model out of the large number that are currently available. Additionally, Nissan stated that it was unclear whether the dummy's response would be attributable to the design of the CRS or to the vehicle itself. GM, however, did think adding child dummies to the rear seat has merit, but indicated that additional research was required to fully comprehend how to effectively evaluate vehicles for rear occupant protection.
Ford, Evenflo, Advocates, Public Citizen, and Bidez & Associates all supported the inclusion of restrained child dummies in frontal NCAP. Advocates and Public Citizen did not offer further comment. Ford suggested that if the agency decides to test with child dummies, only the three-year-old Hybrid III dummy in a uniform (or standard) production CRS with Lower Anchors and Top Tethers for Children (LATCH) should be used since that test mode has been most thoroughly evaluated by the agency. Evenflo also favored this approach, but they recommended using a CRS surrogate in lieu of a production CRS in order to ensure year-to-year consistency. Bidez & Associates added that they would like to see three child dummies in the rear seat of every vehicle: A Hybrid-III three-year-old, six-year-old, and ten-year-old. The three-year old would be restrained in a CRS recommended by the vehicle manufacturer and the six- and ten-year-old dummies would be restrained in the two outboard rear-seating positions by vehicle belts.
Subaru, Nissan, BMW, Porsche, IIHS, Magna Steyr, the Advocates, and Public Citizen encouraged the adoption of a frontal offset test procedure to replace the full-frontal barrier test. Most emphasized that a large percentage of frontal offset crashes occurs in the real world, and that these crashes may be more frequent than full-frontal crashes. Some also provided recommendations regarding the overlap percentage, deformable barrier, and other test procedure specifics. Honda favored the addition of a frontal offset test, and suggested that a full-width deformable barrier (FDB) test to enhance vehicle crash compatibility be simultaneously introduced.
GM, Ford, and AIAM did not support the adoption of an offset test. GM pointed out that IIHS conducts 40 percent frontal offset crash tests and that
IIHS, GM, Ford, DaimlerChrysler, and Honda were opposed to changing the star rating limits. IIHS and GM questioned the real world benefits of changing the star rating bands. Ford, DaimlerChrysler, and Honda cautioned against the undesired consequences of changing the star bands, particularly in changing the five-star criteria. Daimler Chrysler expressed that in order to differentiate current vehicles, they would support half-star ratings. Daimler Chrysler said that “creating a 5-star rating based on a 5 percent risk of serious injury would likely lead to more aggressive vehicle and restraint counter measures with possible adverse real-world occupant safety and crash compatibility consequences.” Honda, on the other hand, said that a tougher five-star rating with the current head and chest injury curves could make vehicles and/or restraints softer, which could provide disbenefits for higher speed crashes and compromise protection for larger occupants.
AIAM also questioned the influence that new star bands would have on the repeatability (consistency from one test to the next) of star ratings. IIHS suggested that changing the star rating limits would only result in vehicle manufacturers making tweaks and small adjustments and would not have a meaningful impact on vehicle crashworthiness in the real world. The Advocates did not disagree with changing the star rating limits, but suggested that other proposed changes would yield much more meaningful results.
Public Citizen favored changing the star rating limits, suggesting that the new star ratings should increase stringency. Public Citizen recommended using 5 percent or less for head and chest injury to attain a five star rating. Nissan also considered this approach reasonable, provided that NHTSA could explain the relationship between the new and current calculation method, and that previously tested vehicles have their safety rating revised according to the new rating system.
Most respondents either supported adding injury measures to the rating system or did not comment on the issue. The Advocates supported the addition of new injury metrics, but recommended separate ratings for the different injury criteria so that consumers can differentiate between life-threatening injuries and serious non-life-threatening injuries. Nissan did not object to additional injury metrics provided that the new inclusions would be supported by real world data, and that previously tested vehicles have their safety ratings revised.
Ford proposed that HIC calculated over a 15 millisecond duration (HIC 15) and chest deflection be used to replace the role of HIC36 and chest acceleration in the frontal NCAP tests. GM, Porsche, and DaimlerChrysler also recommended the use of chest deflection instead of chest acceleration, as it might be a better predictor of chest injury.
As neck load data is currently collected in NCAP tests, both Porsche and Subaru supported the use of Nij. DaimlerChrysler objected to the inclusion of Nij due to what they believe is inappropriate interaction between air bags and the neck of the Hybrid III 5th percentile dummy.
None of the responders objected to the inclusion of femur criteria into the rating, as most stated that femur criteria have already been established and are addressed in current vehicle designs. For lower leg (tibia) criteria, only Subaru and GM considered the use of the lower leg to be beneficial. GM stated this could reduce the number of debilitating injuries. However, Porsche and GM commented that lower leg injury mechanics are not simple and a better understanding of the relationship between full-frontal crashes and lower leg injuries is needed.
In reviewing the comments to the 2004 Notice, it is apparent that there is no single prevailing opinion as to the future direction that should be pursued in revising the frontal NCAP. While Public Citizen and the Advocates favored an increase in the test speed, the auto companies and IIHS were all opposed. Incorporation of an offset frontal test was favored by a number of the commenters, including the IIHS, but several auto manufacturers raised various concerns. Likewise, most comments did not favor changing the star rating limits, although Public Citizen did recommend revisions to increase the stringency of the star ratings. There were also widely divergent views regarding incorporation of different dummies into the frontal NCAP test program. One area in which there seemed to be some agreement was in support of adding more injury measures to the rating system.
NHTSA has maintained several guiding principles when considering additions and/or revisions to NCAP. These include ensuring that NCAP complements FMVSS performance requirements and other agency programs in promoting automotive safety, providing meaningful information to the consumers, encouraging safety improvement through market forces, and assuring the integrity of the rating program for consumers. This requires that the NCAP information be provided in a timely manner that is readily understood by the consumers, that considers changing vehicle trends, and perhaps most importantly, is supported by sound data and research. Although the comments provided to the 2004 notice have been helpful in offering approaches that warrant consideration in revising the frontal NCAP, there was little substantive data or research provided that is necessary to establish a revised program with such far reaching public policy automotive safety implications.
The safety advances for frontal occupant protection envisioned a generation ago have now been incorporated into FMVSS No. 208. For emerging technologies, it is not apparent which will most effectively advance frontal occupant protection safety. NASS data (Appendix A) show that the current NCAP crash severity, with an impact velocity of 35 mph and delta-V of about 41-45 mph, represents all except about 0.2% of all frontal occupant injury crashes. As noted by Public Citizen, about 7% of the AIS 3+ injuries occur above this crash severity. However, the agency also notes that over 84% of the AIS 2+ and one-half of the AIS 3+ injuries occur at a delta-V of less than 25 mph. Included in these are many of the lower extremity injuries that are encompassed in the offset frontal efforts currently being considered and researched by NHTSA.
Based on the foregoing and considering the comments received to the 2004 notice, we have decided that the most prudent approach for the frontal NCAP is to maintain the current test and rating procedures until we have established the sound science necessary to provide a basis for revising the program in a manner that it would be most meaningful for the consumers while ensuring that safety is advanced without unintended consequences. We have initiated a comprehensive review of our entire NCAP program to assure that it continues to most effectively complement FMVSS performance requirements and other agency programs in promoting automotive safety, particularly with the rapid emergence of new technologies. The review will include a further examination of the various options presented for upgrade to frontal NCAP, including rating vehicles for child occupant protection; the research, testing, and analysis needed; and the real world implications. We expect to have a course of action determined in 2006.
The agency believes that there is insufficient scientific basis to propose any revisions to the frontal NCAP at this time. We are therefore maintaining the full-frontal barrier test procedure, the test speed of 35 mph (56 km/h), the current test dummies, and the current rating system. We have come to this conclusion based on our evaluation of the comments received, real world data, available test data, and recent congressional mandates. We believe that further research and analysis is needed to establish a new frontal NCAP that complements existing FMVSS and drives the market towards improved safety for frontal occupant protection without unintended consequences. Accordingly, we will conduct the additional analyses necessary for the development of a new frontal rating program that will continue to provide meaningful information to the consumers and thereby encourage safety improvement through market forces.
49 U.S.C. 32302, 30111, 30115, 30117, 30166, and 30168, and Pub.L. 106-414, 114 Stat. 1800; delegation of authority at 49 CFR 1.50.
The National Automotive Sampling System (NASS) Crashworthiness Data System (CDS) and the Fatality Analysis Reporting System (FARS) are two of the data systems that NHTSA uses to gain insight into real world crash data. Generally, the NASS provides detailed specifics on sampled towaway crashes while FARS provides a broad overview of the fatal crash data.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Department of the Treasury Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before January 19, 2006 to be assured of consideration.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 21, 2006.
Submit written comments on the collection of information to Ann W. Bickoff (193E1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail:
Ann W. Bickoff at (202) 273-8310 or FAX (202) 273-9381.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility;
a. Application for Physicians, Dentists, Podiatrists and Optometrists, Chiropractors, VA Form 10-2850—7,450 hours.
b. Application for Nurses and Nurse Anesthetists, VA Form 10-2850a—29,799 hours.
c. Application for Residents, VA Form 10-2850b—15,893 hours.
d. Application for Associated Health Occupations, VA Form 10-2850c—9,933 hours.
e. Application for Medical, Dental and Associated Health Students, Trainees and Intern VA Form 10-2850d—28,143 hours.
f. Appraisal of Applicant VA Form FL 10-341a—25,410 hours.
a. Application for Physicians, Dentists, Podiatrists and Optometrists, Chiropractors VA Form 10-2850—30 minutes.
b. Application for Nurses and Nurse Anesthetists VA Form 10-2850a—30 minutes.
c. Application for Residents VA Form 10-2850b—30 minutes.
d. Application for Associated Health Occupations VA Form 10-2850c—30 minutes.
e. Application for Medical, Dental and Associated Health Students, Trainees and Intern VA Form 10-2850d—30 minutes.
f. Appraisal of Applicant VA Form FL 10-341a—30 minutes.
a. Application for Physicians, Dentists, Podiatrists and Optometrists, Chiropractors VA Form 10-2850-14,900.
b. Application for Nurses and Nurse Anesthetists VA Form 10-2850a—59,598.
c. Application for Residents VA Form 10-2850b—31,786.
d. Application for Associated Health Occupations VA Form 10-2850c—19-866.
e. Application for Medical, Dental and Associated Health Students, Trainees and Intern VA Form 10-2850d—56,286.
f. Appraisal of Applicant—VA Form FL 10-341a—50,820.
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before February 21, 2006.
Submit written comments on the collection of information to Ann Bickoff, Veterans Health Administration (193E1), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 or e-mail
Ann Bickoff at (202) 273-8310.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Policy, Planning and Preparedness, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Office of Policy, Planning and Preparedness (OPP&P), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before January 19, 2006.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-8374 or FAX (202) 565-6950. Please refer to “OMB Control No. 2900-New (VERS)”. Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-New (VERS)” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Human Resources Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the United States Department of Veterans Affairs (VA), has submitted to the Office of Management and Budget (OMB) the following emergency proposal for the collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. 3507(j)(1)). VA is requesting an emergency clearance for Request for One-VA Identification Card.
Comments must be submitted on or before January 3, 2006.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-8374, FAX (202) 565-6950 or e-mail:
By direction of the Secretary.
In notice document 05-23766 beginning on page 72994 in the issue of Thursday, December 8, 2005, make the following correction:
On page 72995, in the table “Partial Hospitalization Rates for Full-Day and Half-Day Programs FY 2006”, in the third column, in the seventh entry, “211” should read “221”.
In notice document 05-23642 beginning on page 72463 in the issue of Monday, December 5, 2005 make the following correction:
On page 72463, in the third column,under the heading
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to designate a total of approximately 633 river miles (mi) (1018.7 kilometers (km)) of critical habitat for spikedace and loach minnow. Proposed critical habitat is located in New Mexico and Arizona. We hereby solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal prior to final designation to incorporate or address new information received during public comment periods.
We will accept comments from all interested parties until February 21, 2006. We must receive requests for public hearings in writing at the address shown in the
If you wish to comment, you may submit your comments and materials concerning this proposal, identified by RIN number 1018-AU33, by any one of several methods:
1. You may submit written comments and information to Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Arizona Ecological Services Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona, 85021.
2. You may hand-deliver written comments and information to our Arizona Ecological Services Office, or fax your comments to 602/242-2513.
3. You may send your comments by electronic mail (e-mail) to
(4) Federal eRulemaking Portal:
All comments and materials received, as well as supporting documentation used in preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the above address.
Steve Spangle, Field Supervisor, Arizona Ecological Services Office (telephone 602/242-0210; facsimile 602/242-2513).
It is our intent that any final action resulting from this proposal will be as accurate and effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. On the basis of public comment, during the development of the final rule we may find that areas proposed do not contain features essential to the conservation of the species, are appropriate for exclusion under section 4(b)(2), or not appropriate for exclusion, and in all of these cases, this information would be incorporated into the final designation. We particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh the benefits of excluding areas from the designation.
(2) Specific information on the distribution and abundance of spikedace and loach minnow and their habitats, and which habitat contains the primary constituent elements essential to the conservation of these species and why.
(3) Land-use designations and current or planned activities in or adjacent to the areas proposed and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities.
(5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
(6) In addition, please consider the following: We specifically solicit the delivery of spikedace- and loach minnow-specific management plans including implementation schedules for areas included in this proposed designation, and comment on: (a) Whether these areas are occupied and contain the primary constituent elements that are essential to the conservation of the species; (b) whether these areas warrant exclusion; and (c) the basis for excluding these areas from critical habitat pursuant to section 4(b)(2) of the Act.
(7) We are not proposing the upper portion of the San Pedro River as critical habitat because of the presence of nonnative fish species and the absence of both spikedace and loach minnow. We seek comment on whether this area is essential to the conservation of the species and whether it should be included as critical habitat.
(8) Some of the lands we have identified as containing features essential to the conservation of the spikedace and loach minnow are being considered for exclusion from the final designation of critical habitat. We specifically solicit comment on the possible inclusion or exclusion of such areas;
(a) Whether these areas are occupied and contain the features essential to the conservation of the species and;
(b) Whether these, or other areas proposed but not specifically addressed in this proposal, warrant exclusion and;
(9) We are not proposing Fossil Creek as critical habitat because it is currently unoccupied. However, we seek comment on whether this area is essential to the conservation of the species and whether it should be included as critical habitat.
If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see
Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the administrative record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this
In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 470 species, or 38 percent, of the 1,253 listed species in the United States under the jurisdiction of the Service have designated critical habitat.
We address the habitat needs of all 1,253 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the states, and the section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.
We note, however, that the August 6, 2004 Ninth Circuit judicial opinion, (
We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.
The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA). None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.
It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For more information on the spikedace and loach minnow, refer to the final designation of critical habitat for the spikedace and loach minnow published in the
On September 20, 1999, the United States District Court for the District of New Mexico,
In
Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary.
Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.
To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known, using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical habitat only if the essential features therein may require special management or protection. When the best available scientific data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but that was not known to be occupied at the time of listing will likely be essential to the conservation of the species and, therefore, included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered Species Act, published in the
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.
In determining areas that contain features essential to the conservation of spikedace and the loach minnow, we used the best scientific data available. We have reviewed the overall approach to the conservation of these species compiled in their respective recovery plans (USFWS 1991a, 1991b) and undertaken by local, State, Federal, and Tribal agencies, and private and non-governmental organizations operating within the species' range since their listing in 1986.
We have also reviewed available information that pertains to the habitat requirements of these species. The material included data in reports submitted during section 7 consultations and by biologists holding section 10(a)(1)(A) recovery permits; research published in peer-reviewed articles, agency reports, and databases; and regional Geographic Information System (GIS) coverages and habitat models.
In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to consider those physical and biological features (i.e., primary constituent elements (PCEs)) that are essential to the conservation of the species and that may require special management considerations or protection. These features include but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspring; and habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
Each of the areas designated in this rule have been determined to contain sufficient PCEs to provide for one or more of the life history functions of spikedace or loach minnow. In some cases, the PCEs exist as a result of ongoing Federal actions. As a result, ongoing Federal actions at the time of designation will be included in the baseline in any consultation conducted subsequent to this designation.
We determined the primary constituent elements for spikedace and loach minnow from studies on their habitat requirements and population biology including, but not limited to, Barber et al. 1970, Minckley 1973, Anderson 1978, Barber and Minckley 1983, Turner and Taffanelli 1983, Barrett et al. 1985, Propst et al. 1986, Service 1989, Hardy et al. 1990, Douglas et al. 1994, Stefferud and Rinne 1996, and Velasco 1997.
The areas proposed for designation as critical habitat are designed to provide sufficient riverine and associated floodplain area for breeding, non-breeding, and dispersing adult spikedace and loach minnow, as well as for the habitat needs of juvenile and larval stages of these fishes. In general, the constituent elements of critical habitat for spikedace and loach minnow include the riverine ecosystem formed by the wetted channel and the adjacent floodplains within 300 lateral feet on either side of bankfull stage. Spikedace and loach minnow use the riverine ecosystem for feeding, sheltering, and cover while breeding and migrating. This proposal takes into account the naturally dynamic nature of riverine systems and floodplains (including riparian and adjacent upland areas) that are an integral part of the stream ecosystem. For example, riparian areas are seasonally flooded habitats (i.e., wetlands) that are major contributors to a variety of vital functions within the associated stream channel (Federal Interagency Stream Restoration Working Group 1998, Brinson et al. 1981). They are responsible for energy and nutrient cycling, filtering runoff, absorbing and gradually releasing floodwaters, recharging groundwater, maintaining streamflows, protecting stream banks from erosion, and providing shade and cover for fish and other aquatic species. Healthy riparian and adjacent upland areas help ensure water courses maintain the habitat components essential to aquatic species (e.g., see FS 1979; Middle Rio Grande Biological Interagency Team 1993; Briggs 1996), including the spikedace and loach minnow. Habitat quality within the mainstem river channels in the historical range of the spikedace and loach minnow is intrinsically related to the character of the floodplain and the associated tributaries, side channels, and backwater habitats that contribute to the key habitat features (e.g., substrate, water quality, and water quantity) in these reaches. We believe a relatively intact riparian area, along with periodic flooding in a relatively natural pattern, is important in maintaining the stream conditions necessary for long-term conservation of the spikedace and loach minnow.
The lateral extent of streams was set at 300 ft (91.4 m) to either side of bankfull stage to accommodate stream meandering and high flows, and in order to ensure adequate protection of riparian zones adjacent to stream channels. Bankfull stage is defined as the discharge at which channel maintenance is the most effective, or the upper level of the range of channel-forming flows which transport the bulk of the available sediment over time. Bankfull stage is generally considered to be that level of stream discharge reached just before flows spill out onto the adjacent floodplain. The discharge that occurs at bankfull stage, in combination with the range of flows that occur over a length of time, govern the shape and size of the river channel (Rosgen 1996, Leopold 1997).
The use of bankfull stage and 300 ft (91.4 m) on either side recognizes the naturally dynamic nature of riverine systems and recognizes that floodplains are an integral part of the stream ecosystem. The use of bankfull stage and 300 ft (91.4 m) on either side of a tributary also is an area that contains the features essential to the conservation of the species. A relatively intact floodplain, along with the periodic flooding in a relatively natural pattern, is an important element in the long-term survival and recovery of spikedace and loach minnow. The riparian areas encompassed in the 300 lateral feet (91.4 m) to either side of bankfull stage play an important role in overall stream health, in that they function as the floodplain and dissipate stream energies associated with high flows (BLM 1990). This is further discussed below in the “Proposed Critical Habitat” section of the rule.
The specific primary constituent elements required of spikedace habitat are derived from the biological needs of the spikedace as described below.
Streams in the Southwestern United States have a wide fluctuation in flows and resulting habitat conditions at different times of the year. Spikedace persist in these varying conditions and, as discussed below, several studies have documented habitat conditions at occupied sites.
Spikedace have differing habitat requirements through their various life stages. Generally, adult spikedace prefer intermediate-sized streams with moderate to swift currents over sand, gravel, and cobble substrates (
Flow velocities in occupied habitats vary by season as well. During the warm season (June-November), spikedace on the Gila River occupied areas with mean flow velocities of 19.3 in/second (49.1 cm/second) at one site, and 7.4 in/second (18.8 cm/second) at the second site. During the cold season (December-May), mean flow velocities at these same sites were 15.5 in/second (39.4 cm/second) and 8.4 in/second (21.4 cm/second). It is believed that spikedace seek areas in the stream that offer protection during periods of cooler temperatures to offset their decreased metabolic rates. Where water depth remains fairly constant throughout the year as at the first site, slower velocities provided habitats in portions of the stream with warmer temperatures. Where flow velocity remains fairly constant throughout the year, such as at the second site, shallower water provided habitats in portions of the stream with warmer temperatures (Propst
Larval and juvenile spikedace occupy different habitats than adults, tending to occupy shallow, peripheral portions of streams in areas with slower currents (Anderson 1978, Propst
Outside of the breeding season, adult spikedace primarily use riffle habitat (a shallow area in a streambed causing ripples) or quiet eddies (where the water moves in the opposite direction of water in the main channel or in circular patterns) downstream of those riffles. Eighty percent of the spikedace collected in a Verde River study used run and glide habitat. For this study, a glide was defined as a portion of the stream with a lower gradient (0.3 percent), versus a run which had a slightly steeper gradient (0.3-0.5 percent) (Rinne and Stefferud 1996). Spikedace on the Gila River were most commonly found in riffle areas of the stream with moderate to swift currents (Anderson 1978) and some run habitats (J.M. Montgomery 1985), as were spikedace in Aravaipa Creek (Barber and Minckley 1966).
Seasonal differences in habitats utilized have been noted in the upper Gila drainage, for both the winter and breeding seasons. For example, the spikedace was found to use shallower habitats at 6.6 in (<16.8 cm) in the winter, and deeper water at 6.6 to 12.6 in (16.8-32.0 cm) during warmer months (Propst
As noted above, streams in the Southwestern United States have a wide fluctuation in flows and are periodically dewatered. While portions of stream segments included in this designation may experience dry periods, they are still considered essential because the spikedace is adapted to this environment and will use these areas as connective corridors between occupied or seasonally occupied habitat when they are wetted.
In the Verde River study, spikedace glide-run habitats were characterized by approximately 29 percent sand or fines (silty sand) (Rinne 2001). Spikedace numbers in the Verde River increased almost three times (from 18 to 52 individuals) when the fine component of the substrate decreased from about 27 percent down to 7 percent (Neary
Larval spikedace substrate preferences are similar to those of adults. Sixty percent of spikedace larvae in the Gila River were found over sand-dominated substrates, while 18 percent were found over gravel and an additional 18 percent found over cobble-dominated substrates (Propst
The degree of substrate embeddedness may also affect the prey base for spikedace. As discussed below, mayflies constitute a significant portion of the spikedace diet. Suitable habitat for the type of mayflies found in Aravaipa Creek includes pebbles or gravel for clinging. Excess sedimentation would cover or blanket smaller pebbles and gravel, resulting in a lack of suitable habitat for mayflies, and a subsequent decrease in available prey items for spikedace.
Flooding in Aravaipa Creek has resulted in the transport of heavier loads of sediments such as cobble, gravel, and sand that deposited where the stream widens, gradient flattens, and velocity and turbulence decrease. Dams formed by such deposition can temporarily cause water to back up and break into braids downstream of the dam. The braided areas provide excellent nurseries for larval and juvenile fishes (Velasco 1997).
On the Gila River in New Mexico, flows fluctuate seasonally with snowmelt causing spring pulses and occasional floods, and late-summer or monsoonal rains producing floods of varying intensity and duration. These high flows benefit essential spikedace spawning and foraging habitat (Propst
Floods likely also benefit native fish by breaking up embedded bottom materials (Mueller 1984). A study of the Verde River analyzed the effects of flooding in 1993 and 1995, finding that these floods had notable effects on both native and nonnative fish species. Among other effects, the floods either stimulated spawning or enhanced recruitment of three of the native species, and may have eliminated one of the nonnative fish species (Rinne and Stefferud 1997).
Flooding, as part of a natural hydrograph, temporarily removes nonnative fish species, which are not adapted to flooding. Thus flooding consequently removes the competitive pressures of nonnative fish species on native fish species which persist following the flood. A study on the differential responses of native and nonnative fishes in seven unregulated and three regulated streams or stream reaches that were sampled before and after major flooding noted that fish faunas of canyon-bound reaches of unregulated streams invariably shifted from a mixture of native and nonnative fish species to predominantly, and in some cases exclusively, native forms after large floods. Samples from regulated systems indicated relatively few or no changes in species composition due to releases from upstream dams at low, controlled volumes. However, during emergency releases, effects to nonnative fish species were similar to those seen with flooding on unregulated systems (Minckley and Meffe 1987).
The onset of flooding also corresponds with an increased diversity of food items for spikedace. Reductions in the mainstream invertebrates, such as mayflies, cause the fish to expand its food base in an opportunistic manner. In addition, inflowing flood waters carry terrestrial invertebrates, such as ants, bees, and wasps (Hymenopterans), into
The effects of nonnative fish competition on spikedace can be classified as either interference or exploitive. Interference competition occurs when individuals directly affect others, such as by fighting or preying upon them. Exploitive competition occurs when individuals affect others indirectly, such as through use of common resources (Douglas
The effects of nonnative fish preying on natives such as spikedace would be classified as interference competition. There is circumstantial evidence of the negative impacts of nonnative predators on native fishes for several stream reaches. Channel catfish, flathead catfish, and smallmouth bass all prey on native fishes, as evidenced by prey remains of native fishes in the stomachs of these predatory species (Propst
Similar interactions between native and nonnative fishes were observed for the upper reaches of the East Fork of the Gila River. In this system, native fish were limited, with spikedace being rare or absent, while nonnative channel catfish and smallmouth bass were moderately common prior to 1983 and 1984 floods. Post-1983 flooding, adult nonnative predators were generally absent and spikedace were collected in moderate numbers in 1985 (Propst
Interference competition occurs with species such as red shiner. Red shiner appear to be particularly detrimental to spikedace because although spikedace and shiners are separated geographically (
One study focused on three stream reaches on the Gila River and Aravaipa Creek having only spikedace; one reach on the Verde River where spikedace and red shiner have co-occurred for three decades; and one reach on the Gila River where red shiner recently invaded areas and where spikedace had never been recorded. The study indicated that, for reaches where only spikedace were present, spikedace showed a preference for slower currents and smaller particles in the substrate than were generally available throughout the Gila River and Aravaipa Creek systems. For red shiner in the Verde River, the study showed that red shiner occupied waters that were generally slower and with smaller particle size in the substrate than were, on average, available in the system. The study concluded that, where the two species were caught together, habitats of spikedace were statistically indistinguishable from those occupied by red shiner. The study further concludes that spikedace, where co-occurring with red shiner, move into currents swifter than those selected when in isolation, while red shiner occupy the slower habitat, whether they are alone or with spikedace (Douglas
Stomach content analysis of spikedace determined that mayflies, caddisflies, true flies, stoneflies, and dragonflies are all prey items for spikedace. In one Gila River study, the frequency of occurrence was 71 percent for mayflies, 34 percent for true flies, and 25 percent for caddisflies (Propst
At Aravaipa Creek, spikedace consumed a total of 36 different prey items (Barber and Minckley 1983). Mayflies constituted the majority of prey items, followed by true flies. Of the mayflies consumed, 36.5 percent were adults, while 33.3 percent were nymphs. Terrestrial invertebrates, including ants, wasps, and spiders, were also consumed, as were beetles, true bugs, caddisflies, and water fleas.
Spikedace diet varies seasonally (Barber and Minckley 1983). Mayflies dominated stomach contents in July, but declined in August and September, increasing in importance again between October and June. When mayflies were available in lower numbers, spikedace consumed a greater variety of foods, including true bugs, true flies, beetles, and spiders.
Spikedace diet varies with age class as well. Young spikedace, classified as< 0.9 in (22.9 mm) fed on a diversity of small-bodied invertebrates occurring in and on sediments along the margins of the creek. True flies were found most frequently, but water fleas and aerial adults of aquatic and terrestrial insects also provide significant parts of the diet. As juveniles grow and migrate into the
Spikedace are very dependent on aquatic insects for sustenance, and production of the aquatic insects consumed by spikedace occurs mainly in riffle habitats (Propst
Aquatic invertebrates that constitute the bulk of the spikedace diet have specific habitat parameters of their own. Mayflies, which constituted the largest percentage of prey items, spend their immature stages in fresh water. Mayfly nymphs occur in all types of fresh waters, wherever there is an abundance of oxygen, but they are most characteristic of shallow water. Mayflies found in spikedace stomach content analyses consisted of individuals from several genera, with individuals from the genus
Fish kills have been documented in the San Francisco River (Rathbun 1969) and the San Pedro River (Eberhardt 1981), both of which are within the species' historical range. In both instances, leaching ponds associated with copper mines released waters into the streams, resulting in elevated levels of toxic chemicals. For the San Pedro River, this included elevated levels of iron, copper, manganese, and zinc. Both incidents resulted in die-offs of species inhabiting the streams. Eberhardt (1981) notes that no bottom-dwelling aquatic insects, live fish, or aquatic vegetation of any kind were found for a 60 mi (97 km) stretch of river in the area affected by the spill. Rathbun (1969) reported similar results for the San Francisco River. The possibility for similar accidents, or pollution from other sources, exists throughout these species ranges due to their proximity to mines, communities, agricultural areas, and major transportation routes.
As discussed above under flow velocities, spikedace use a variety of habitat types within the channel during their reproductive cycle and at various life stages. Although not typically associated with pools (Anderson 1978), pools are used by female spikedace during the breeding season while males remained in riffle habitats. Females leave the pools, generally on the downstream end of the riffle, and swim upstream to males in riffle habitat (Barber
Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the primary constituent elements essential to the conservation of the spikedace are:
1. Permanent, flowing, water with low levels of pollutants, including:
a. Living areas for adult spikedace with slow to swift flow velocities between 20 and 60 cm/second (8-24 inches/second) in shallow water between approximately 10 cm (4 inches) to one meter (40 inches) with shear zones where rapid flow borders slower flow, areas of sheet flow (or smoother, less turbulent flow) at the upper ends of mid-channel sand/gravel bars, and eddies at downstream riffle edges;
b. Living areas for juvenile spikedace with slow to moderate water velocities of approximately 18 cm/second (8 inches/second) or higher in shallow water between approximately 3 cm (1.2 inches) to one meter (40 inches);
c. Living areas for larval spikedace with slow to moderate flow velocities of approximately 10 cm/second (4 inches/second) or higher in shallow water approximately 3 cm (1.2 inches) to one meter (40 inches).
d. Water with low levels of pollutants such as copper, arsenic, mercury and cadmium; human and animal waste products; pesticides; suspended sediments; and gasoline or diesel fuels and with dissolved oxygen levels greater than 3 parts per million (ppm).
2. Sand, gravel, and cobble substrates with low or moderate amounts of fine sediment and substrate embeddedness. Suitable levels of embeddedness are generally maintained by a natural, unregulated hydrograph that allows for periodic flooding or, if flows are modified or regulated, a hydrograph that allows for adequate river functions, such as flows capable of transporting sediments.
3. Streams that have:
a. Low gradients of less than approximately 1.0 percent;
b. Water temperatures in the approximate range of 35-85° Fahrenheit (F) (1.7-29.4 °C) (with natural diurnal and seasonal variation);
c. Pool, riffle, run, and backwater components, and;
d. An abundant aquatic insect food base consisting of mayflies, true flies, and caddisflies, stoneflies, and dragonflies.
4. Habitat devoid of nonnative fish species detrimental to spikedace, or habitat in which detrimental nonnative fish are at levels which allow persistence of spikedace.
5. Areas within perennial, interrupted stream courses which are periodically dewatered but that serve as connective corridors between occupied or seasonally occupied habitat and through which the species may move when the habitat is wetted.
Each of the areas designated in this rule have been determined to contain sufficient PCEs to provide for one or more of the life history functions of the spikedace. In some cases, the PCEs exist as a result of ongoing Federal actions. As a result, ongoing Federal actions at the time of designation will be included in the baseline in any consultation conducted subsequent to this designation.
The specific primary constituent elements essential to the conservation of the loach minnow are derived from the biological requirements of the loach minnow, as described below.
As noted for the spikedace above, streams in the Southwestern United States have a wide fluctuation in flows and resulting habitat conditions at different times of the year. Loach minnow persist in these varying conditions and, as discussed below, several studies have documented habitat conditions at occupied sites.
Flow rate studies have been completed on the Gila River, Tularosa River, San Francisco River, Aravaipa Creek, Deer Creek. Measured flows in habitat occupied by adult loach minnow ranged from 9.6 to 31.2 in/second (24.4 to 79.2 cm/second) (Barber and Minckley 1966, Propst
Juvenile loach minnow generally occurred in areas where velocities were similar to those used by adults, but faster than those used by larvae. In the Gila, San Francisco, and Tularosa rivers, juveniles occupied areas with mean velocities ranging between 1.2-33.6 in/second (3.0 to 85.3 cm/second) (Propst
Loach minnow prefer shallow, swift, and turbulent riffles. The use of riffle habitat has been documented in Aravaipa Creek (Barber and Minckley 1966, Rinne 1989, Velasco 1997, Vives and Minckley 1990), Eagle Creek (Marsh
The availability of pool and run habitats affects availability of prey species. While most of the food items of loach minnow are riffle species, two are not, including mayfly nymphs which, at times, made up 17% of the total food volume of loach minnow in a study at Aravaipa Creek (Schreiber 1978). The presence of a variety of habitat types is therefore important to the persistence of loach minnow in a stream, even while they are typically associated with riffles.
Loach minnow in Aravaipa Creek and the Gila River appeared to prefer cobble and gravel, avoiding areas dominated by sand or finer gravel. This may be due to the fact that loach minnow maintain a relatively stationary position on the bottom of a stream in flowing water. An irregular bottom, such as that created by cobble or larger gravels, creates pockets of lower water velocities around larger rocks where loach minnow can remain stationary with less energy expenditure (Turner and Tafanelli 1983). In the Gila and San Francisco rivers, the majority of loach minnow captured occurred in the upstream portion of a riffle rather than in the central and lower depositional sections of the riffle. This is likely due to the availability of interstitial spaces in the cobble-rubble substrate, which became filled with sediment more quickly in the central and lower sections of a riffle section as suspended sediment begins to drop out (Propst
Loach minnow use different substrates during different life stages. Embryos occurred primarily on large gravel to rubble, while larvae were found where substrate particles were smaller than that used by embryos. Juvenile fish occupy areas with substrates of larger particle size than larvae. Adults exhibited a narrower preference for substrates than did juveniles, and were most commonly
As noted above, streams in the Southwestern United States have a wide fluctuation in flows and are periodically dewatered. While portions of stream segments included in this designation may experience dry periods, they are still considered essential because the loach minnow is adapted to this changing environment and will use these areas as connective corridors between occupied or seasonally occupied habitat when they are wetted.
The construction of water diversions, by increasing water depth, has reduced or eliminated riffle habitat in many stream reaches. In addition, loach minnow are generally absent in stream reaches affected by impoundments. While the specific factor responsible for this is not known, it is likely related to modification of thermal regimes, habitat, food base, or discharge patterns. Flooding also cleans, rearranges, and rehabilitates important riffle habitat (Propst et al. 1988).
Flooding allows for the scouring of sand and gravel in riffle areas, which reduces the degree of embeddedness of cobble and boulder substrates (Britt 1982). Prior to flooding, excessive sediment in the bedload is typically deposited at the downstream undersurfaces of cobble and boulder substrate components where flow velocities are lowest, and can result in a higher degree of embeddedness (Rinne 2001). Following flooding, cavities created under cobbles by scouring action of the flood waters provides enhanced spawning habitat for loach minnow.
Studies on the Gila, Tularosa, and San Francisco rivers, found that flooding is primarily a positive influence on native fish, and apparently had a positive influence on the relative abundance of loach minnow. Rather than following a typical pattern of winter mortality and population decline, high levels of recruitment occurred after the flood, and loach minnow relative abundance remained high through the next spring. Flooding has enhanced and enlarged loach minnow habitat, resulting in a greater survivorship of individuals through winter and spring (Propst et al. 1988). Similar results were observed on the Gila and San Francisco rivers following flooding in 1978 (Britt 1982).
Natural flooding may also reduce the negative impacts of nonnative fish species on loach minnow. During significant floods, nonnative species were either displaced or destroyed, while native species were able to maintain their position in or adjacent to channel habitats, persist in micro refuges or recolonize should they be displaced (Britt 1982, Minckley and Meffe 1987).
Interference competition, such as competition for actual resources (Schoener 1983), may occur between loach minnow and red shiner, as red shiner is the nonnative fish species most likely to occur along stream margins in places occupied by small loach minnow. Red shiners occur in all places known to be formerly occupied by loach minnow, and are absent or rare in places where loach minnow persists. Because of this, red shiner has often been implicated in the decline of loach minnow, as well as other native fishes. Loach minnow habitat is markedly different from that of the red shiner, so that interaction between the two species was unlikely to cause shifts in habitat use by loach minnow (Marsh et al. 1989). Studies indicate that, instead, red shiner move into voids left when native fishes such as loach minnow are extirpated due to habitat degradation in the area (Bestgen and Propst 1986).
Prior to 1960, the Glenwood-Pleasanton reach of the Gila River supported a native fish community of eight different species. Post-1960, four of these species became uncommon, and ultimately three of them were extirpated. In studies completed between 1961 and 1980, it was determined that loach minnow was less common than it had been, while diversity of the nonnative fish community had increased in comparison to the pre-1960 period. Following 1980, red shiner, fathead minnow, and channel catfish were all regularly collected. Drought and diversions for irrigation resulted in a decline in habitat quality, with canyon reaches retaining habitat components for native species. However, establishment of nonnative fishes in the canyon reaches then reduced the utility of these areas for native species (Propst et al. 1988).
Loach minnow consume different prey items during their various life stages. Both larvae and juveniles primarily consumed true flies, which
Fish kills associated with previous mining accidents are detailed under the spikedace PCEs above. These incidents occurred within the historical range of the loach minnow.
Habitat conditions needed for reproduction and rearing of offspring include appropriate flow velocities, substrates, sediment levels, and riffle availability. Loach minnow place eggs in areas with mean velocities ranging between 2.4 to 15.6 in/second (3.0 to 39.6 cm/second) in the Gila, San Francisco, and East Fork Gila rivers (Britt 1982, Propst
Substrate type is important to spawning as well. While loach minnow spawning occurs in the same riffle habitat that adults occupy, it is the substrate that determines its suitability for spawning. Eggs are deposited on the undersurface of rocks or cobbles. Rocks are generally flattened, have smooth surfaces, and are angular. Rocks which have eggs attached are generally embedded on their upstream side in the substrate. Eggs placed under rocks in the Gila River, San Francisco River, and Aravaipa Creek were placed on the underside of rocks in nest cavities formed by rocks of varying sizes (Britt 1982, Propst
Loach minnow spawning is the life history stage most affected by sediment or fines (Vives and Minckley 1990). Because deposition of eggs occurs on the downstream undersurfaces of cobble and boulder substrate components, excessive fines in the bedload of a system can fill in the areas where eggs would otherwise be deposited, especially in areas of slower velocities.
Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the primary constituent elements essential to the conservation of the loach minnow are:
1. Permanent, flowing, water with low levels of pollutants, including:
a. Living areas for adult loach minnow with moderate to swift flow velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with gravel, cobble, and rubble substrates;
b. Living areas for juvenile loach minnow with moderate to swift flow velocities between 1.0 to 34 in/second (3.0 to 85.0 cm/second ) in shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with sand, gravel, cobble, and rubble substrates;
c. Living areas for larval loach minnow with slow to moderate velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in shallow water with sand, gravel, and cobble substrates and;
d. Spawning areas with slow to swift flow velocities in shallow water where cobble and rubble and the spaces between them are not filled in by fine dirt or sand.
e. Water with low levels of pollutants such as copper, arsenic, mercury and cadmium; human and animal waste products; pesticides; suspended sediments; and gasoline or diesel fuels and with dissolved oxygen levels greater than 3 parts per million (ppm).
2. Sand, gravel, and cobble substrates with low or moderate amounts of fine sediment and substrate embeddedness. Suitable levels of embeddedness are generally maintained by a natural, unregulated hydrograph that allows for periodic flooding or, if flows are modified or regulated, a hydrograph that allows for adequate river functions, such as flows capable of transporting sediments.
3. Streams that have:
a. Low gradients of less than approximately 2.5 percent;
b. Water temperatures in the approximate range of 35-85° Fahrenheit (F) (1.7-29.4 °C) (with natural diurnal and seasonal variation);
c. Pool, riffle, run, and backwater components, and;
d. An abundant aquatic insect food base consisting of mayflies, true flies, black flies, caddisflies, stoneflies, and dragonflies.
4. Habitat devoid of nonnative fish species detrimental to loach minnow or habitat in which detrimental nonnative fish species are at levels which allow persistence of loach minnow.
5. Areas within perennial, interrupted stream courses which are periodically dewatered but that serve as connective corridors between occupied or seasonally occupied habitat and through which the species may move when the habitat is wetted.
Each of the areas designated in this rule have been determined to contain sufficient PCEs to provide for one or more of the life history functions of the loach minnow. In some cases, the PCEs exist as a result of ongoing Federal actions. As a result, ongoing Federal actions at the time of designation will be included in the baseline in any consultation conducted subsequent to this designation.
In proposing critical habitat for the spikedace and loach minnow, we reviewed historical and current occurrence data, information pertaining to habitat features for these species, rangewide recovery considerations such as genetic diversity and representation of all major portions of the species' historical ranges, scientific information on the biology and ecology of the two species, general conservation biology
We are designating critical habitat on lands that we have determined are within the geographical range occupied by either, or in some cases both, the spikedace and loach minnow. We consider an area to be occupied by the spikedace or loach minnow if we have records to support occupancy within the last 10 years, or where the stream segment is directly connected to a segment with occupancy records from within the last 10 years (this is described within each unit description below). We chose 10 years because this would encompass three to four generations for both of these species. We believe this is a reasonable number based on the fact that both species are difficult to detect in surveys and many of the areas where they occur are remote and as a result there is not a high level of survey effort. All areas proposed have the features that are essential to the conservation of spikedace or loach minnow and are within the area historically occupied by these species and require special management consideration and protection.
We divided the overall historical range into five river complexes, and each critical habitat stream segment was derived from within these larger complexes. In this way, populations in mainstem tributaries may access a wider geographic area by moving into smaller tributaries, while populations in tributaries are afforded the ability to disperse to other tributaries via the mainstem river within that complex. Overall, the complexes proposed herein provide coverage throughout the historical range of the species, with exceptions for areas that were excluded for specific reasons, as detailed below (see “Proposed Exclusions under Section 4(b)(2) of the Act” section below). The proposed critical habitat designation constitutes our best assessment of areas that contain the features (PCEs) essential to the conservation of spikedace and loach minnow and that require special management or protection.
Segments were designated based on sufficient PCEs being present to support spikedace or loach minnow life processes. Some segments contain all PCEs and support multiple life processes, while other segments contain only a portion of the PCEs necessary to support the particular use of that habitat by spikedace or loach minnow. Where a subset of the PCEs are present (e.g., water temperature during spawning), only those PCEs present at designation will be protected.
A brief discussion of each area designated as critical habitat is provided in the unit descriptions below. Additional detailed documentation concerning these areas is contained in our supporting record for this rulemaking.
When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing and occupied after listing, contain the primary constituent elements essential to the conservation of the species that may require special management considerations or protection. We believe each area included in this final designation requires special management and protections as described in our unit descriptions and Table 1.
Special management considerations for each area will depend on the threats to the spikedace and/or loach minnow in that critical habitat area. For example, special management that addresses the threat of nonnative fish species could include efforts to remove nonnative fish species from a creek, via chemical compounds that kill fish (e.g. rhotenone) but otherwise do not harm the environment, and construction of fish barriers that prevent the upstream movement of nonnative fishes into spikedace or loach minnow habitat. Special management that addresses the threat of fire could include using prescribed fire to reduce fuel loads and prevent catastrophic wildfires, protecting the area from retardant application during the fire, salvaging individuals from populations that are threatened by wildfire, and protecting the stream from excessive ash and sediment through re-seeding or other means following the fire. On-going livestock grazing is only a threat to spikedace and loach minnow if not properly managed. Proper management may include the use of fencing, appropriate grazing systems, appropriate seasons of use, and other improvements to allotments such as new water tanks. With regard to water use, maintaining high quality and adequate quantities of water for all life stages of spikedace and loach minnow may involve special management actions such as retaining an adequate buffer of riparian vegetation to help filter out sediment and contaminants, and maintaining streamflow via sustainable levels of ground and surface water use. The construction of water diversions, by increasing water depth, has reduced or eliminated riffle habitat in many stream reaches. In addition, loach minnow are generally absent in stream reaches affected by impoundments. While the specific factor responsible for this is not known, it is likely related to modification of thermal regimes, habitat, food base, or discharge patterns. We have included below in our description of each of the critical habitat areas for the spikedace and loach minnow a description of the threats occurring in that area requiring special management or protections.
We are proposing five complexes as critical habitat for the spikedace and loach minnow. Historically, the range of the spikedace included most of the Gila River Basin. The spikedace now occupies approximately 10 percent of its historical range. Current populations of spikedace are found in Graham, Pinal, and Yavapai counties in Arizona, and Grant, Catron, and Hidalgo counties, in New Mexico. Critical habitat vital to the conservation of loach minnow includes small to large perennial streams with shallow, turbulent riffles, primarily cobble substrate, and swift currents (Minckley 1973, Propst and Bestgen 1991, Rinne 1989, Propst et al. 1988). As with spikedace, the historical range of loach minnow encompassed most of the Gila River Basin. The loach minnow now occupies approximately 15 percent of its historical range, and is found in Graham, Greenlee, and Pinal counties in Arizona and Catron, Grant, and Hidalgo counties in New Mexico.
For each stream reach, the upstream and downstream boundaries are described below. Additionally, critical habitat includes the stream channels within the identified stream reaches and areas within these reaches potentially inundated during high flow events. As described in the “Primary Constituent Elements” section above, critical habitat includes the area of bankfull width plus 300 feet on either side of the banks. This 300-foot width defines the lateral extent of each area of critical habitat that contains sufficient PCEs to provide for
We determined the 300-foot lateral extent for several reasons. First, the implementing regulations of the Act require that critical habitat be defined by reference points and lines as found on standard topographic maps of the area (50 CFR 424.12). Although we considered using the 100-year floodplain, as defined by the Federal Emergency Management Agency (FEMA), we found that it was not included on standard topographic maps, and the information was not readily available from FEMA or from the Army Corps of Engineers for the areas we are proposing to designate. We suspect this is related to the remoteness of many of the stream reaches where these species occur. Therefore, we selected the 300-foot lateral extent, rather than some other delineation, for three biological reasons: (1) The biological integrity and natural dynamics of the river system are maintained within this area (i.e., the floodplain and its riparian vegetation provide space for natural flooding patterns and latitude for necessary natural channel adjustments to maintain appropriate channel morphology and geometry, store water for slow release to maintain base flows, provide protected side channels and other protected areas, and allow the river to meander within its main channel in response to large flow events); (2) conservation of the adjacent riparian area also helps provide essential nutrient recharge and protection from sediment and pollutants; and (3) vegetated lateral zones are widely recognized as providing a variety of aquatic habitat functions and values (e.g., aquatic habitat for fish and other aquatic organisms, moderation of water temperature changes, and detritus for aquatic food webs) and help improve or maintain local water quality (see U.S. Army Corps of Engineers' final notice concerning Issuance and Modification of Nationwide Permits, March 9, 2000, 65 FR 12818-12899).
Among other things, the floodplain provides space for natural flooding patterns and latitude for necessary natural channel adjustments to maintain channel morphology and geometry. We believe a relatively intact riparian area, along with periodic flooding in a relatively natural pattern, are important in maintaining the stream conditions necessary for long-term survival and recovery of the spikedace and loach minnow.
Conservation of the river channel alone is not sufficient to ensure the survival and recovery of the spikedace and loach minnow. For the reasons discussed above, we believe the riparian corridors adjacent to the river channel provide an important function within the areas proposed for designation of critical habitat.
The proposed designation of critical habitat for both spikedace and loach minnow includes five complexes totaling approximately 803 miles (1024.7 km) of stream reaches (see Tables 1 and 2 below). The proposed critical habitat areas described below constitute our best assessment at this time of areas determined to be occupied at the time of listing, are considered to be within the geographical range occupied by either the spikedace or loach minnow, or have been determined to be occupied following the listing and are considered to contain features essential to the conservation of the spikedace or loach minnow. All areas proposed as critical habitat and areas proposed for exclusion contain sufficient PCEs to support one or more of the life history functions of the spikedace or loach minnow and are areas that may require special management and protection. Unless otherwise indicated, the following areas identified in Table 1 and in the unit descriptions below, are proposed for designation as critical habitat for both spikedace and loach minnow (see the “Proposed Regulation Promulgation” section of this rule below for exact descriptions and distances of boundaries). The proposal includes portions of 10 streams for spikedace and 23 streams for loach minnow; however, individual streams are not isolated, but are connected with others to form areas or “complexes.”
Table 2 below provides approximate area (mi/km) determined to meet the definition of critical habitat for the spikedace and loach minnow and the areas proposed for exclusion from the final critical habitat designation by State.
The approximate area encompassed within each proposed critical habitat unit is shown in Table 4.
The Verde River Complex was occupied by spikedace at the time of listing, and is still considered to be occupied based on surveys documenting spikedace presence as recently as 1999. This complex was also historically occupied by loach minnow. At this time, the tributary streams of the Verde River are believed to be unoccupied by both species and are not being proposed as critical habitat. The Verde River Complex is unusual in that a relatively stable thermal and hydrologic regime is found in the upper river and in Fossil Creek, one of the tributaries to the Verde River. Also, spikedace in the Verde River are genetically (Tibbets 1993) and morphologically (Anderson and Hendrickson 1994) distinct from all other spikedace populations. The Verde River contains one or more of the primary constituent elements, including shear zones, sheet flow, and eddies, and an appropriate prey base. The continuing presence of spikedace and the existence of features that are essential to the conservation of the species create a high potential for restoration of loach minnow to the Verde River system. Threats to this critical habitat area requiring special management and protections include water diversions, grazing, and nonnative fish species (see Table 1 above).
The landownership of this complex consists of large blocks of USFS lands in the upper and lower reaches, with significant areas of private ownership in the Verde Valley. There are also lands belonging to Arizona State Parks, Yavapai Apache Tribe, and the AGFD. The Verde River divides the west and east halves of the Prescott National Forest, and passes by or through the towns of Camp Verde, Middle Verde, Bridgeport, Cottonwood, and Clarkdale.
Verde River Complex—Spikedace Only—106.5 miles (171.4 km) of river extending from the confluence with Fossil Creek upstream to Sullivan Dam at Township 17 North, Range 2 West, section 15, including lands belonging to the Yavapai Apache Tribe. Sullivan Dam is at the upstream limit of perennial flow in the mainstem of the Verde River. Perennial flow results from a series of river-channel springs and from Granite Creek. The Verde River contains features essential to the conservation of the spikedace between its headwaters and Fossil Creek. These portions of the Verde River provide a relatively stable thermal and hydrologic regime suitable for spikedace. Below Fossil Creek, the Verde River has a larger flow and is thought to offer little suitable habitat for spikedace or loach minnow. However, this is historical range for both species, and comments on previous critical habitat designations from the U.S. Forest Service (USFS) indicated this stretch of the river may offer substantial value for spikedace and loach minnow recovery. We will continue to seek further information regarding the Verde River and its role in conservation for these two species and may consider designation of the Verde River below Fossil Creek in future potential revisions of critical habitat. We are working with the Yavapai Apache Tribe on the development of a management plan for their lands. On the basis of our partnership with the Tribe, and in anticipation of completion of a native fishes management plan, the portion of the Verde River belonging to the Yavapai Apache Tribe may be excluded from final critical habitat pursuant to section 4(b)(2) of the Act (see “Relationship of Critical Habitat to Tribal Lands” section below for additional information).
The Salt River Sub-basin represents a significant portion of loach minnow historical range; however, loach minnow have been extirpated from all but a small portion of the Black and White Rivers. As the only remaining population of loach minnow on public lands in the Salt River Sub-basin, the Black River Complex is considered vital to the species.
We propose streams within this complex as critical habitat for loach minnow only. At this time, spikedace are not known to historically occupy areas at this elevation; however, the data on maximum elevation for spikedace are not definitive and if information becomes available that differs from that currently available, the Black River complex may be reevaluated for spikedace critical habitat designation in a future revision. Portions of the sub-basin are unsuitable, either because of topography or because of the presence of reservoirs, stream channel alteration by humans, or overwhelming nonnative fish populations. However other areas within the sub-basin remain suitable. Threats in this complex requiring special management include grazing, nonnative fish, recreation, and sedimentation resulting from a recent fire that destroyed vegetation (see Table 1). The ownership of this complex is predominantly USFS, with a few small areas of private land. All streams within the complex are within the boundaries of the Apache-Sitgreaves National Forest and include lands of the White Mountain Apache Tribe.
(1) East Fork Black River—Loach Minnow Only—5.5 miles (8.8 km) of river extending from the confluence with the West Fork Black River upstream to the confluence with Deer Creek. This area is considered occupied based on records from 1996, it is connected to the North Fork East Fork Black River with documented loach minnow records from 2004, and contains one or more of the primary constituent elements including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles).
(2) North Fork East Fork Black River—Loach Minnow Only—11.2 miles (18.0 km) of river extending from the confluence with Deer Creek upstream to the confluence with an unnamed tributary. This area is occupied by loach minnow based on surveys documenting presence of loach minnow as recently as 2004. Above the unnamed tributary, the
(3) Boneyard Creek—Loach Minnow Only—1.4 miles (2.3 km) of creek extending from the confluence with the East Fork Black River upstream to the confluence with an unnamed tributary. Boneyard Creek contains one or more of the primary constituent elements, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). This area is considered to be occupied based on records from 1996; it is also connected to the North Fork East Fork Black River which has documented loach minnow records from 2004. This area represents part of the only occupied complex in the Salt River basin.
(4) East Fork White River—Loach Minnow Only—12.5 miles (20.1 km) of the East Fork White River extending from the confluence with the North Fork White River and the East Fork White River at Township 5 North, Range 22 East, section 35 upstream to Township 5 North, Range 23 East, southeast quarter of section 13. This area was occupied by loach minnow at the time of listing and is still considered occupied. This segment of the East Fork White River contains sufficient features to support one or more of the life history functions of the loach minnow. Threats in this segment requiring special management include water diversions and recreation. The entirety of this reach is located on lands belonging to the White Mountain Apache Tribe. A management plan for loach minnow has been in place on these lands since 2000. On the basis of this plan and our partnership with the White Mountain Apache Tribe, we are proposing to exclude this area from final critical habitat pursuant to section 4(b)(2) of the Act (see “Relationship of Critical Habitat to Tribal Lands” section below for additional information).
The portions of this complex being proposed for critical habitat are within the geographical range occupied by both spikedace and loach minnow and contain the features essential to the conservation of these species. Aravaipa Creek supports the largest remaining spikedace and loach minnow populations in Arizona. Threats in this complex requiring special management include water diversions, grazing, nonnative fish, recreation, and mining (see Table 1). This area includes extensive BLM land as well as extensive private land, some State of Arizona lands, and a small area of allotted land, used by the San Carlos Apache Tribe. The lower portions of the Gila River are BOR lands.
(1) Gila River—Spikedace Only—39.0 miles (62.8 km) of river extending from the Ashurst-Hayden Dam upstream to the confluence with the San Pedro River. Spikedace were located in the Gila River in 1991 (Jakle 1992), and the Gila River is connected with Araviapa Creek, which supports the largest remaining spikedace population. Those portions of the Gila River proposed for designation contain one or more of the primary constituent elements, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Above the confluence with the San Pedro River, flow in the Gila River is highly regulated by the San Carlos Dam and does not contain the features essential to the conservation of either species. Below the confluence, the input of the San Pedro provides a sufficiently unregulated hydrograph, which is a feature essential to the conservation of the spikedace. Threats in this area requiring special management include water diversions, grazing, and nonnative fish species. This river is part of the complex that contains the largest remaining population of spikedace and loach minnow and contains the features essential to the conservation of the species.
(2) Lower San Pedro River—Spikedace Only—13.4 miles (21.5 km) of river extending from the confluence with the Gila River upstream to the confluence with Aravaipa Creek. This area was occupied at the time of listing and is connected with Araviapa Creek, which supports the largest remaining spikedace population. This portion of the San Pedro River contains one or more of the primary constituent elements, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Existing flow in the river comes from surface and subsurface contributions from Aravaipa Creek. Threats in this area requiring special management include water diversions, nonnative fish, grazing, and mining. This river is part of the complex that contains the largest remaining population of spikedace and loach minnow and contains the features essential to the conservation of the species.
(3) Aravaipa Creek—28.1 miles (45.3 km) of creek extending from the confluence with the San Pedro River upstream to the confluence with Stowe Gulch, which is where the upstream limit of sufficient perennial flow ends for either species. Aravaipa Creek was occupied by both spikedace and loach minnow at the time of listing, and continues to support a substantial population of both species (Service files 2005). Aravaipa Creek contains one or more of the primary constituent elements, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats in this area requiring special management include water diversions, nonnative fish, and recreational pressures (see Table 1).
(4) Turkey Creek—Loach Minnow Only—2.7 miles (4.3 km) of creek extending from the confluence with Aravaipa Creek upstream to the confluence with Oak Grove Canyon. This creek was occupied at the time of listing and is currently occupied by loach minnow (Rienthal, University of Arizona, pers. comm. 2004). Turkey Creek contains one or more of the primary constituent elements, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management are generally the same for Aravaipa Creek, and include water diversions, nonnative fish, and recreational pressure (see Table 1). This creek is part of the complex that contains the largest remaining population of spikedace and loach minnow and contains the features essential to the conservation of the species.
(5) Deer Creek—Loach Minnow Only—2.3 miles (3.6 km) of creek extending from the confluence with Aravaipa Creek upstream to the boundary of the Aravaipa Wilderness. This stream was occupied at the time of listing and is currently occupied by loach minnow (Rienthal, University of Arizona, pers. comm. 2004). Deer Creek contains one or more of the primary constituent elements important to loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). The threats to loach minnow in this area are similar to those for Aravaipa Creek, including water diversions, nonnative fish, and recreation. This creek is part of the complex that contains the largest remaining population of spikedace and loach minnow and contains the features essential to the conservation of the species.
The streams in this complex are within the geographical range occupied by the loach minnow and/or the spikedace. The Blue River system and adjacent portions of the San Francisco River constitute the longest stretch of occupied loach minnow habitat unbroken by large areas of unsuitable habitat. Threats in this complex are described in the individual stream reaches below. This complex contains extensive USFS land, some BLM land, and scattered private, State of Arizona, and New Mexico Department of Game and Fish (NMDGF) lands.
(1) Eagle Creek—45.3 miles (72.9 km) of creek extending from the Phelps-Dodge Diversion Dam upstream to the confluence of Dry Prong and East Eagle Creeks, including lands of the San Carlos Apache Reservation. Eagle Creek was occupied by spikedace and loach minnow at the time of listing. The most current records of occupancy in Eagle Creek are 1987 for spikedace and 1997 for loach minnow. Eagle Creek contains one or more of the primary constituent elements important to spikedace and loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats within this area that require special management include water diversions, grazing, nonnative fish, and mining (see Table 1).
A section of Eagle Creek approximately 17.2 miles (27.7 km) long occurs on the San Carlos Apache Reservation. We have received a management plan from the San Carlos Apache Tribe addressing native fishes. On the basis of this plan and our partnership with the San Carlos Apache Tribe, we are proposing to exclude this area from final critical habitat pursuant to section 4(b)(2) of the Act (see “Relationship of Critical Habitat to Tribal Lands” section below for additional information).
(2) San Francisco River—Loach Minnow Only—126.5 miles (203.5 km) of river extending from the confluence with the Gila River upstream to the mouth of The Box, a canyon above the town of Reserve. Loach minnow occupied the San Francisco River at the time of listing and still occupy it presently (Propst 2002). The San Francisco River contains one or more of the primary constituent elements important to loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include water diversions, grazing, and nonnative fish species (see Table 1).
(3) Tularosa River—Loach Minnow Only—18.6 miles (30.0 km) of river extending from the confluence with the San Francisco River upstream to the town of Cruzville. Above Cruzville, the river does not contain the features essential to the conservation of the species because of the small size of the stream and a predominance of fine substrates. This area includes one or more of the primary constituent elements important to loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). The Tularosa River was occupied at the time of listing and is known to be currently occupied based on records as recent as 2001. Threats to the species and its habitat in this area that require special management include grazing and nonnative fish (see Table 1).
(4) Negrito Creek—Loach Minnow Only—4.2 miles (6.8 km) of creek extending from the confluence with the San Francisco River upstream to the confluence with Cerco Canyon. Above this area, the creek does not contain the features essential to the conservation of the species because of gradient and channel morphology. Negrito Creek has been occupied since listing, with the most recent record from 1998 (Service Files 2005). This area contains one or more of the primary constituent elements important to loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish (see Table 1). This stream contains the features essential to the conservation of the species and one of the few remaining populations of the species. The area is currently occupied, and it is directly connected to the Tularosa River, which is also occupied with records dating from 2001.
(5) Whitewater Creek—Loach Minnow Only—1.1 miles (1.8 km) of creek extending from the confluence with the San Francisco River upstream to the confluence with the Little Whitewater Creek. Upstream of this area the river does not contain the features essential to the conservation of the species because of gradient and channel changes that make the portion above Little Whitewater Creek unsuitable for loach minnow. Whitewater Creek was occupied at the time of listing, and is currently occupied as it is within an area connected with the San Francisco River where loach minnow records exist from 2001. This area does support one or more primary constituent elements for loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area include grazing and nonnative fish (see Table 1).
(6) Blue River—Loach Minnow Only—51.1 miles (82.2 km) of river extending from the confluence with the San Francisco River upstream to the confluence of Campbell Blue and Dry Blue Creeks. The Blue River was occupied at the time of listing and continues to be occupied by loach minnow (Carter 2004). The Blue River contains one or more of the primary constituent elements required by loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Planning is underway among several State and Federal agencies for reintroduction of native fishes, including spikedace, in the Blue River, and thus the Blue River may be considered for spikedace critical habitat in future revisions of the designation. Threats in this area include water diversions, grazing, nonnative fish, and roads (see Table 1).
(7) Campbell Blue Creek—Loach Minnow Only—8.1 miles (13.1 km) of creek extending from the confluence of Dry Blue and Campbell Blue Creeks upstream to the confluence with Coleman Canyon. Areas above Coleman Canyon do not contain the features essential to the conservation of the species because the creek changes and becomes steeper and rockier, making it unsuitable for spikedace or loach minnow. Campbell Blue Creek is currently occupied (Carter 2004) and supports one or more of the velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area include grazing and nonnative fish species (see Table 1).
(8) Dry Blue Creek—Loach Minnow Only—3.0 miles (4.8 km) of creek extending from the confluence with Campbell Blue Creek upstream to the confluence with Pace Creek. Dry Blue Creek has been occupied by loach minnow since listing and is connected with Campbell Blue Creek, which has documented loach minnow records as recent as 2004. This area also contains one or more of the primary constituent elements required by loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring
(9) Pace Creek—Loach Minnow Only—0.8 miles (1.2 km) of creek extending from the confluence with Dry Blue Creek upstream to a barrier falls. Pace Creek has been occupied by loach minnow since listing with the most recent record from 1998. This area also contains one or more of the primary constituent elements required by loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish species (see Table 1).
(10) Frieborn Creek—Loach Minnow Only—1.1 miles (1.8 km) of creek extending from the confluence with Dry Blue Creek upstream to an unnamed tributary. Frieborn Creek has been occupied by loach minnow since listing with the most recent record from 1998. This area also contains one or more of the primary constituent elements required by loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish species (see Table 1).
(11) Little Blue Creek—Loach Minnow Only—2.8 miles (4.5 km) of creek extending from the confluence with the Blue River upstream to the mouth of a canyon. Little Blue Creek was occupied at the time of listing and is connected with the Blue River, which has documented loach minnow records as recent as 2004. This area also contains one or more of the primary constituent elements required by loach minnow and is connected to the Blue River. Threats requiring special management in this area include grazing and nonnative fish (see Table 1).
This complex is occupied by spikedace and loach minnow and contains the largest remaining populations of both species in New Mexico. It is considered to represent the “core” of what remains of these species. Threats requiring special management in this area are addressed in each of the individual stream segment descriptions below. The largest areas are on USFS land, with small private inholdings. There are large areas of private lands in the Cliff-Gila Valley, and the BLM administers significant stretches upstream of the Arizona/New Mexico border. There are also small areas of NMDGF, National Park Service, and State of New Mexico lands.
(1) Upper Gila River—102.1 miles (164.3 km) of river extending from the confluence with Moore Canyon (near the Arizona/New Mexico border) upstream to the confluence of the East and West Forks of the Gila River. The Gila River was occupied by spikedace and loach minnow at the time of listing and continues to be occupied by both species (Propst 2002, Propst et al. 1988, Rinne 1999b). The Gila River from its confluence with the West Fork Gila and East Fork Gila contains one or more primary constituent elements for spikedace and loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include water diversions, grazing, recreation, road construction, and nonnative fish species (see Table 1).
(2) East Fork Gila River—26.1 miles (42.0 km) of river extending from the confluence with the West Fork Gila River upstream to the confluence of Beaver and Taylor creeks. This area was occupied by both species at the time of listing and both species have been found there as recently as 2001 (Propst 2002). In addition, this area is connected to habitat currently occupied by spikedace and loach minnow on the West Fork of the Gila River. Portions of the East Fork Gila River contain one or more of the primary constituent elements required by spikedace and loach minnow including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish species (See Table 1).
(3) Middle Fork Gila River—Spikedace Only—7.7 miles (12.3 km) of river extending from the confluence with the West Fork Gila River upstream to the confluence with Big Bear Canyon. This area is currently occupied, and is connected to currently occupied habitat on the West Fork of the Gila River (Propst 2002). The Middle Fork Gila River contains one or more of the primary constituent elements required by spikedace, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish species (See Table 1).
(4) Middle Fork Gila River—Loach Minnow Only—11.9 miles (19.1 km) of river extending from the confluence with the West Fork Gila River upstream to the confluence with Brothers West Canyon. This area is currently occupied and is connected to currently occupied habitat on the West Fork of the Gila River. Portions of the Middle Fork Gila River contain one or more primary constituent elements required by loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Threats to this area requiring special management include grazing and nonnative fish species (See Table 1).
(5) West Fork Gila River—7.7 miles (12.4 km) of river extending from the confluence with the East Fork Gila River upstream to the confluence with EE Canyon. This lower portion of the West Fork was occupied by both spikedace and loach minnow at the time of listing and continues to be occupied by both species. This area contains one or more primary constituent elements required by spikedace and loach minnow, including sufficient flow velocities and appropriate gradients, substrates, depths, and habitat types (i.e., pools, riffles). Above EE Canyon, the river does not contain the features essential to the conservation of the species due to gradient and channel morphology. Threats to this area requiring special management include grazing and nonnative fish species (See Table 1).
Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species.
In our critical habitat designations, we use the provision outlined in section 4(b)(2) of the Act to evaluate those specific areas that contain the features essential to the conservation of the species to determine which areas to propose and subsequently finalize (i.e., designate) as critical habitat. On the basis of our preliminary evaluation, discussed in detail below, we are proposing to exclude certain lands from the designation of critical habitat for the spikedace and loach minnow. In the development of our final designation, we will incorporate or address any new
Areas excluded pursuant to section 4(b)(2) may include, but are not limited to, those covered by: (1) Legally operative Habitat Conservation Plans (HCPs) that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) National Wildlife Refuge System Comprehensive Conservation Plans (CCPs) that provide assurances that the conservation measures for the species will be implemented and effective.
Within the areas containing the features essential to the conservation of the species for spikedace and loach minnow in Arizona and New Mexico, there are Tribal lands; however, there are no lands owned by the Department of Defense, National Wildlife Refuges, or private lands with legally operative HCPs or draft HCPs. We have determined that the following tribes have lands containing features essential to the conservation of the spikedace and loach minnow: Yavapai Apache, San Carlos Apache, and White Mountain Apache. In making our final decision with regard to tribal lands, we will be considering several factors including our relationship with the Tribe or Nation and whether a management plan has been developed for the conservation of the spikedace and loach minnow on their lands. The White Mountain Apache completed a final management plan in 2000 that we have in our records and we have also received a final management plan from the San Carlos Apache Tribe. We are proposing to exclude lands of the San Carlos Apache Tribe and lands of the White Mountain Apache Tribe, as discussed in further detail below. We will continue to work with the Yavapai-Apache Nation during the comment period on the development of a management plan for their lands. We note that lands of the Yavapai-Apache Nation may be considered for exclusion in the final rule and that any exclusions made in the final rule will be the result of a reanalysis of any new information received.
The most direct, and potentially largest, regulatory benefit of critical habitat is that federally authorized, funded, or carried out activities require consultation pursuant to section 7 of the Act to ensure that they are not likely to destroy or adversely modify critical habitat. There are two limitations to this regulatory effect. First, it only applies where there is a Federal nexus—if there is no Federal nexus, designation itself does not restrict actions that destroy or adversely modify critical habitat. Second, it only limits destruction or adverse modification. By its nature, the prohibition on adverse modification is designed to ensure those areas that contain the physical and biological features essential to the conservation of the species or unoccupied areas that are essential to the conservation of the species are not eroded. Critical habitat designation alone, however, does not require specific steps toward recovery.
Once consultation under section 7 of the Act is triggered, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect the listed species or its critical habitat. However, if the Service determines through informal consultation that adverse impacts are likely to occur, then formal consultation would be initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat, with separate analyses being made under both the jeopardy and the adverse modification standards. For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may contain discretionary conservation recommendations to minimize adverse effects to primary constituent elements, but it would not contain any mandatory reasonable and prudent measures or terms and conditions. Mandatory reasonable and prudent alternatives to the proposed Federal action would only be issued when the biological opinion results in a jeopardy or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's decision in
The information provided in this section applies to all the discussions below that discuss the benefits of inclusion and exclusion of critical habitat in that it provides the framework for the consultation process.
A benefit of including lands in critical habitat is that the designation of critical habitat serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the spikedace and loach minnow. In general the educational benefit of a critical habitat designation always exists, although in some cases it may be redundant with other educational effects. For example, habitat conservation plans have significant public input and may largely duplicate the educational benefit of a critical habitat designation. This benefit is
However, we believe that there would be little additional informational benefit gained from the designation of critical habitat for the proposed exclusions discussed in this rule because these areas are included in this proposed rule as having essential spikedace and/or loach minnow features. Consequently, we believe that the informational benefits are already provided even though these areas are not designated as critical habitat.
The information provided in this section applies to all the discussions below that discuss the benefits of inclusion and exclusion of critical habitat.
In accordance with the Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on tribal lands are better managed under tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Based on this philosophy, we believe that, in many cases, designation of tribal lands as critical habitat provides very little additional benefit to threatened and endangered species. Conversely, such designation is often viewed by tribes as an unwanted intrusion into tribal self governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend.
The San Carlos Apache Tribe has one stream within its tribal lands, Eagle Creek, that is known to be currently occupied by the spikedace and loach minnow and its tribal lands contain features that are essential to the conservation of the spikedace and loach minnow. The Tribe has completed and is implementing a Fisheries Management Plan (FMP) that includes specific management actions for the spikedace and loach minnow. In this proposed exclusion, we considered several factors, including our relationship with San Carlos Apache Tribe, and the degree to which the Tribe's FMP provides specific management for the spikedace and loach minnow. Tribal governments protect and manage their resources in the manner that is most beneficial to them. The San Carlos Apache Tribe exercises legislative, administrative, and judicial control over activities within the boundaries of its lands. Additionally, the Tribe has natural resource programs and staff and has enacted the FMP. In addition, as trustee for land held in trust by the United States for Indian Tribes, the Bureau of Indian Affairs (BIA) provides technical assistance to the San Carlos Apache Tribe on management planning and oversees a variety of programs on their lands. Spikedace and loach minnow conservation activities have been ongoing on San Carlos Apache tribal lands, and, prior to the completion of their FMP, their natural resource management was consistent with management of habitat for this species. The development and implementation of the efforts formalized in the San Carlos Apache Tribes FMP will continue with or without critical habitat designation.
The San Carlos Apache Tribe highly values its wildlife and natural resources, and is charged to preserve and protect these resources under the Tribal Constitution. Consequently, the Tribe has long worked to manage the habitat of wildlife on its tribal lands, including the habitat of endangered and threatened species. We understand that it is the Tribe's position that a designation of critical habitat on its lands improperly infringes upon its tribal sovereignty and the right to self-government.
The San Carlos Apache Tribes FMP provides assurances and a conservation benefit to the spikedace and loach minnow. Implementation of the FMP will result in protecting all known spikedace and loach minnow habitat on San Carlos Tribal Land and assures no net habitat loss or permanent modification will occur in the future. The purpose of the FMP includes the long-term conservation of native fishes, including the spikedace and loach minnow, on tribal lands. The FMP outlines actions to conserve, enhance, and restore spikedace and loach minnow habitat, including efforts to eliminate nonnative fishes from spikedace and loach minnow habitat. All habitat restoration activities (whether it is to rehabilitate or restore native plants) will be conducted under reasonable coordination with the Service. All reasonable measures will be taken to ensure that recreational activities do not result in a net habitat loss or permanent modification of the habitat. All reasonable measures will be taken to conduct livestock grazing activities in a manner that will ensure the conservation of spikedace and loach minnow habitat. Within funding limitations and under confidentiality guidelines established by the Tribe, the Tribe will cooperate with the Service to monitor and survey spikedace and loach minnow habitat, conduct research, perform habitat restoration, remove nonnative fish species, or conduct other beneficial spikedace and loach minnow management activities.
The White Mountain Apache Tribe has one stream within its tribal lands, East Fork White River, that is known to be currently occupied by loach minnow and its tribal lands contain features that are essential to the conservation of the loach minnow. The White Mountain Apache Tribe currently has a management plan in place for loach minnow. The plan was completed in 2000 and provides for, among other conservation measures, inventory and monitoring, water quality protection ordinance, captive propagation, and relocation to minimize loss from catastrophic events such as fire and drought. Prior to and since the plan was developed, the Tribe has actively managed for loach minnow. In this proposed exclusion, we considered several factors, including our relationship with the White Mountain Apache Tribe, and the degree to which the Tribe's management plan provides specific management for the loach minnow. Tribal governments protect and manage their resources in the manner that is most beneficial to them. The White Mountain Apache Tribe exercises legislative, administrative, and judicial control over activities within the boundaries of its lands. Additionally, the Tribe has natural resource programs and staff and has been managing for the conservation of the loach minnow. In addition, as trustee for land held in trust by the United States for Indian Tribes, the Bureau of Indian Affairs (BIA) provides technical assistance to the White Mountain Apache Tribe on management
The White Mountain Apache Tribe highly values its wildlife and natural resources, and is charged to preserve and protect these resources under the Tribal Constitution. Consequently, the Tribe has long worked to manage the habitat of wildlife on its tribal lands, including the habitat of endangered and threatened species. We understand that it is the Tribe's position that a designation of critical habitat on its lands improperly infringes upon its tribal sovereignty and the right to self-government.
Below we provide our combined preliminary benefits analysis for the proposed exclusion of the tribal lands of the San Carlos Apache Nation and the White Mountain Apache Nation.
Including lands of the San Carlos Apache Tribe and the White Mountain Apache Tribe in critical habitat would provide some additional benefit from section 7 consultation, because we could consult via the BIA on actions that could adversely affect critical habitat. Activities covered in previous consultations included livestock grazing, recreation, fish stocking, fire management, bank stabilization projects, and conservation measures that benefited spikedace and/or loach minnow. These included monitoring, fence repair (to exclude cattle from overusing and thereby damaging habitat), and education programs to inform the public of the need to avoid actions that damage habitat. However, we note that because the spikedace and loach minnow are listed species and are found on these Tribal lands, section 7 consultation under the jeopardy standard will still be required if Tribal or BIA activities would affect spikedace or loach minnow, regardless of whether these lands are included in the final critical habitat designation. As a result, we expect that inclusion of San Carlos Apache and White Mountain Apache tribal lands in the critical habitat designation would provide only that additional habitat protection accorded by critical habitat as discussed by the Ninth Circuit Court of Appeals in the Gifford Pinchot ruling discussed above.
Nevertheless, few additional benefits would be derived from including these Tribal Lands in a spikedace and loach minnow critical habitat designation beyond what will be achieved through the implementation of their management plans. As noted above, the primary regulatory benefit of any designated critical habitat is that federally funded or authorized activities in such habitat require consultation pursuant to section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat. The Tribes of the San Carlos Apache and the White Mountain have already agreed under the terms of their management plans to protect spikedace and loach minnow habitat (PCEs), to ensure no net loss, to coordinate with the Service in order to prevent any habitat destruction, and to conduct activities consistent with the conservation of the spikedace and loach minnow and their PCEs.
As discussed above, we expect that little additional educational benefit would be derived from designating lands of the Tribes of the San Carlos Apache and the White Mountain Apache as critical habitat. The additional educational benefits that might arise from critical habitat designation are largely accomplished through the multiple notice and comments which accompany the development of this proposed critical habitat designation, as evidenced by the Tribes working with the Service to address habitat and conservation needs for the loach minnow. Additionally, we anticipate that the Tribes will continue to actively participate in working groups, and provide for the timely exchange of management information. The educational benefits important for the long-term survival and conservation of the spikedace and loach minnow are being realized without designating this area as critical habitat. Educational benefits will continue on these lands whether or not critical habitat is designated because the Tribes already recognizes the importance of those habitat areas to the spikedace and loach minnow.
Another possible benefit is the additional funding that may be generated for habitat restoration or improvement by having an area designated as critical habitat. In some instances, having an area designated as critical habitat may improve the ranking a project receives during evaluation for funding. The Tribes often require additional sources of funding in order to conduct wildlife-related activities. Therefore, having an area designated as critical habitat could improve the chances of the Tribes receiving funding for spikedace or loach minnow related projects. Additionally, occupancy by spikedace or loach minnow also provides benefits to be considered in evaluating funding proposals. Because there are areas of occupied habitat on these Tribal lands this may also help secure funding for management of these areas.
For these reasons, then, we believe that designation of critical habitat would provide some additional benefits.
The benefits of excluding San Carlos Apache and White Mountain Apache Tribal lands from critical habitat include: (1) The advancement of our Federal Indian Trust obligations and our deference to Tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the spikedace and loach minnow and other Federal trust species; (2) the maintenance of effective working relationships to promote the conservation of the spikedace and loach minnow and their habitats; (3) the allowance for continued meaningful collaboration and cooperation on spikedace and loach minnow management and other resources of interest to the Federal government; and (4) the provision of conservation benefits to riparian ecosystems and a host of species, including the spikedace and loach minnow and their habitat, that might not otherwise occur.
During the development of the spikedace and loach minnow critical habitat proposal (and coordination for other critical habitat proposals), and other efforts such as conservation of native fish species in general, we have met and communicated with each of these Tribes to discuss how they might be affected by the regulations associated with spikedace and loach minnow conservation and the designation of critical habitat. As such, we established relationships with the San Carlos Apache and White Mountain Apache Tribes specific to spikedace and loach minnow conservation. As part of our relationship, we provided technical assistance to the Tribes to develop measures to conserve the spikedace and loach minnow and their habitat on their lands. These measures are contained within their management plans that we have in our supporting record. This proactive action was conducted in accordance with Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental
The designation of critical habitat on these Tribal lands would be expected to adversely impact our working relationship with them. In fact, during our discussions with the Tribes, we were informed that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. To this end, we found that the Tribes would prefer to work with us on a government-to-government basis. We view this as a substantial benefit.
In addition to management/conservation actions described for the conservation of the spikedace and loach minnow, we anticipate future management/conservation plans to include conservation efforts for other listed species and their habitat. We believe that many Tribes and Pueblos are willing to work cooperatively with us to benefit other listed species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntary management actions for other listed species will likely be contingent upon whether the San Carlos Apache and White Mountain Apache Tribal lands are designated as critical habitat for the spikedace and loach minnow. Thus, the benefit of excluding these lands would be future conservation efforts that would benefit other listed species.
Another benefit of excluding these Tribal lands from the critical habitat designation includes relieving additional regulatory burden and costs associated with the preparation of portions of section 7 documents related to critical habitat. While the cost of adding these additional sections to assessments and consultations is relatively minor, there could be delays which can generate real costs to some project proponents. However, because in this case critical habitat is being proposed for exclusion in occupied areas already subject to section 7 consultation and a jeopardy analysis, it is anticipated this reduction would be minimal.
We anticipate that our final decision will make the following determination, unless information submitted in response to the proposal causes us to reach a different conclusion.
We find that the benefits of designating critical habitat for the spikedace and loach minnow on these Tribals lands are small in comparison to the benefits of the proposed exclusion. Exclusion would enhance the partnership efforts focused on recovery of the spikedace and loach minnow within these river reaches. Excluding these areas also would reduce some of the administrative costs during consultation pursuant to section 7 of the Act.
We anticipate that our final decision will make the following determination, unless information submitted in response to the proposal causes us to reach a different conclusion.
Because these river reaches on the tribal lands are occupied by the spikedace and loach minnow, which is protected from take under section 9 of the Act, any actions that might kill spikedace or loach minnow, including habitat modification that would cause death of either species, must either undergo a consultation with the Service under the requirements of section 7 of the Act or receive a permit from us under section 10 of the Act. Additionally, we believe that the proposed exclusion of these lands from critical habitat would not result in the extinction of the spikedace or loach minnow because their management plans specifically addresses conservation of these species. The tribal management plans outline actions to conserve, enhance, and restore spikedace and loach minnow habitat, including efforts to eliminate nonnative fishes from their habitat. Such efforts provide greater conservation benefit than would result from a designation of critical habitat. This is because section 7 consultations for critical habitat only consider listed species in the project area evaluated and Federal agencies are only committed to prevent adverse modification to critical habitat caused by the particular project and are not committed to provide conservation or long-term benefits to areas not affected by the proposed project. Such efforts provide greater conservation benefit than would result for designation as critical habitat. As a result, there is no reason to believe that this proposed exclusion would result in extinction of the species.
The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies only to activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Individuals, organizations, States, local governments, and other non-Federal entities are affected by the designation of critical habitat only if their actions occur on Federal lands, require a Federal permit, license, or other authorization, or involve Federal funding.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to insure that their actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. This requirement is met through section 7 consultation under the Act. Our regulations define “jeopardize the continued existence of” as to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02). “Destruction or adverse modification of designated critical habitat” for this species would include habitat alterations that appreciably diminish the value of critical habitat by significantly affecting any of those physical or biological features that were the basis for determining the habitat to be critical.
Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist Federal agencies in eliminating conflicts that may be caused by their proposed actions. The conservation measures in a conference report are advisory.
We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if the species was listed or critical habitat
If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the Federal action agency would ensure that the permitted actions do not destroy or adversely modify critical habitat.
If we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide “reasonable and prudent alternatives” to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Service's Regional Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions under certain circumstances, including instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiating of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat, or adversely modify or destroy proposed critical habitat.
Federal activities that may affect spikedace or loach minnow or their critical habitat will require consultation under section 7. Activities on private, State, or county lands, or lands under local jurisdictions requiring a permit from a Federal agency, such as Federal Highway Administration or Federal Emergency Management Act funding, or a permit from the Corps under section 404 of the Clean Water Act, will continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on non-Federal lands that are not federally funded, authorized, or permitted, do not require section 7 consultations.
Section 4(b)(8) of the Act requires us to evaluate briefly and describe, in any proposed or final regulation that designates critical habitat, those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that alter the primary constituent elements to an extent that the value of critical habitat for both the survival and recovery of spikedace or loach minnow is appreciably reduced. We note that such activities may also jeopardize the continued existence of the species. Each of the specific areas designated in this rule as critical habitat for spikedace and loach minnow have been determined to contain sufficient PCEs to provide for one or more of the life history functions of spikedace and/or loach minnow. In some cases, the PCEs exist as a result of ongoing Federal actions. As a result, ongoing Federal actions at the time of designation will be included in the baseline in any consultation pursuant to section 7 of the Act conducted subsequent to this designation. Activities that, when carried out, funded, or authorized by a Federal agency and appreciably reduce the value of critical habitat for the survival and recovery of the spikedace or loach minnow may directly or indirectly destroy or adversely modify critical habitat include, but are not limited to: (1) Channelization, impoundment, road and bridge construction, deprivation of substrate source, destruction and alteration of riparian vegetation, reduction of available floodplain, removal of gravel or floodplain terrace materials, and excessive sedimentation from mining, livestock grazing, road construction, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances; (2) any Federal activity that would significantly and detrimentally alter the water chemistry in any of the stream segments listed above could destroy or adversely modify the critical habitat of either or both species. Such activities include, but are not limited to, release of chemical or biological pollutants into the surface water or connected groundwater at a point source or by dispersed release (non-point source); (3) any Federal activity that would introduce, spread, or augment nonnative fish species could destroy or adversely modify the critical habitat of either or both species. Such activities include, but are not limited to, stocking for sport, aesthetics, biological control, or other purposes; construction and operation of canals; and interbasin water transfers.
The designation of critical habitat does not imply that lands outside of critical habitat do not play an important role in the conservation of spikedace and loach minnow. Federal activities outside of critical habitat are still subject to review under section 7 if they may affect spikedace or loach minnow. Prohibitions of Section 9 also continue to apply both inside and outside of designated critical habitat.
All lands proposed as critical habitat are within the geographical area occupied by the species and are necessary for the conservation of spikedace and loach minnow. Federal agencies already consult with us on actions that may affect spikedace or loach minnow to ensure that their actions do not jeopardize the continued existence of the species. Thus, we do not anticipate substantial additional regulatory protection will result from critical habitat designation.
If you have questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat, contact the Supervisor of the appropriate Fish and Wildlife Service Ecological Services Office, as follows. For activities in Arizona, please contact the Arizona Ecological Services Office (see
An analysis of the economic impacts of proposing critical habitat for spikedace and loach minnow is being prepared. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available online at
In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We will send these peer reviewers copies of this proposed rule immediately following publication in the
We will consider all comments and information received during the comment period on this proposed rule as we prepare our final rulemaking. Accordingly, the final designation may differ from this proposal.
The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days of the date of publication of the proposal in the
Executive Order 12866 requires each agency to write regulations and notices that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed rule clearly stated? (2) Does the proposed rule contain technical jargon that interferes with the clarity? (3) Does the format of the proposed rule (grouping and order of the sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the description of the notice in the
Send a copy of any comments on how we could make this proposed rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may e-mail your comments to this address:
In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but it is not anticipated to have an annual effect on the economy of $100 million or more or adversely affect the economy in a material way. Due to the timeline for publication in the
This draft economic analysis will be made available for public review and comment before we finalize this designation. At that time, copies of the analysis will be available for downloading from the Arizona Ecological Services Office's Internet website at
Under the Regulatory Flexibility Act (5 U.S.C. 601
At this time, the Service lacks the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, the RFA finding is deferred until completion of the draft economic analysis prepared pursuant to section 4(b)(2) of the ESA and E.O. 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, the Service will publish a notice of availability of the draft economic analysis of the proposed designation and reopen the public comment period for the proposed designation for an additional 60 days. The Service will include with the notice of availability, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. The Service has concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that the Service makes a sufficiently informed determination based on adequate economic information and provides the necessary opportunity for public comment.
On May 18, 2001, the President issued an Executive Order (E.O. 13211) on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule to designate critical habitat for the spikedace and loach minnow is considered a significant regulatory action under Executive Order 12866 as it may raise novel legal and policy issues. However, this designation is not expected to significantly affect energy supplies, distribution, or use because there are no pipelines,
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute or regulation that would impose an enforceable duty upon State, local, tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities who receive Federal funding, assistance, or permits or who otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; additionally, critical habitat would not shift the costs of the large entitlement programs listed above on to State governments. We will further evaluate this issue as we conduct our economic analysis and, as appropriate, review and revise this assessment as warranted.
In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), this rule is not anticipated to have significant takings implications. A takings implication assessment is not required. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Due to current public knowledge of these species protections and the prohibition against take of these species both within and outside of the proposed areas, we do not anticipate that property values will be affected by the critical habitat designation. However, we have not yet completed the economic analysis for this proposed rule. Once the economic analysis is available, we will review and revise this preliminary assessment as warranted.
In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior policies, we requested information from and coordinated development of this proposed critical habitat designation with appropriate State resource agencies in all affected states.
The proposed designation of critical habitat in areas currently occupied by spikedace or loach minnow imposes no additional significant restrictions beyond those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The proposed designation of critical habitat may have some benefit to the State and local resource agencies in that the areas containing features essential to the conservation of this species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of this species are specifically identified. While this definition and identification does not alter where and what federally sponsored activities may occur, it may assist local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).
In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We are proposing to designate critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of spikedace and loach minnow.
This proposed rule does not contain new or revised information collection for which OMB approval is required under the Paperwork Reduction Act. Information collections associated with certain Act permits are covered by an existing OMB approval and are assigned clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, with an expiration date of July 31, 2004. Detailed information for Act documentation appears at 50 CFR 17. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, 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 currently valid OMB control number.
It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA in connection with designating critical habitat under the Endangered Species Act of 1973, as amended. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit (
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are Tribal lands containing features essential for the conservation of spikedace and loach minnow and have sought government-to-government consultation with these Tribes. We will continue to seek consultation during the proposal portion of developing the final critical habitat designation.
A complete list of all references cited herein, as well as others, is available upon request from the Arizona Ecological Services Office (see
The primary authors of this notice are the Arizona Ecological Services Office staff (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend section § 17.95(e) by revising critical habitat for the loach minnow and the spikedace to read as follows:
(e)
(1) Critical habitat units are depicted for Apache, Graham, Greenlee, and Pinal Counties, Arizona; and Catron, Grant, and Hidalgo Counties, New Mexico, on the maps and as described below.
(2) Within these areas, the primary constituent elements of critical habitat for loach minnow are the following:
(i) Permanent, flowing, water with low levels of pollutants, including:
(A) Living areas for adult loach minnow with moderate to swift flow velocities between 9.0 to 32.0 in/second (24 to 80 cm/second) in shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with gravel, cobble, and rubble substrates;
(B) Living areas for juvenile loach minnow with moderate to swift flow velocities between 1.0 to 34 in/second (3.0 to 85.0 cm/second) in shallow water between approximately 1.0 to 30 in (3 cm to 75 cm) with sand, gravel, cobble, and rubble substrates;
(C) Living areas for larval loach minnow with slow to moderate velocities between 3.0 and 20.0 in/second (9.0 to 50.0 cm/second) in shallow water with sand, gravel, and cobble substrates;
(D) Spawning areas with slow to swift flow velocities in shallow water where cobble and rubble and the spaces between them are not filled in by fine dirt or sand; and
(E) Water with low levels of pollutants such as copper, arsenic, mercury, and cadmium; human and animal waste products; pesticides; suspended sediments; and gasoline or diesel fuels and with dissolved oxygen levels greater than 3 parts per million (ppm).
(ii) Sand, gravel, and cobble substrates with low or moderate amounts of fine sediment and substrate embeddedness. Suitable levels of embeddedness are generally maintained by a natural, unregulated hydrograph that allows for periodic flooding or, if flows are modified or regulated, a hydrograph that allows for adequate river functions, such as flows capable of transporting sediments.
(iii) Streams that have:
(A) Low gradients of approximately 2.5 percent or less;
(B) Water temperatures in the approximate range of 35-85 °Fahrenheit (F) (1.7-29.4 °C) (with natural diurnal and seasonal variation);
(C) Pool, riffle, run, and backwater components; and
(D) An abundant aquatic insect food base consisting of mayflies, true flies, black flies, caddisflies, stoneflies, and dragonflies.
(iv) Habitat devoid of nonnative fish species detrimental to loach minnow or habitat in which detrimental nonnative fish species are at levels that allow persistence of loach minnow.
(v) Areas within perennial, interrupted stream courses that are periodically dewatered but that serve as connective corridors between occupied or seasonally occupied habitat and through which the species may move when the habitat is wetted.
(3) Each stream segment includes a lateral component that consists of 300 feet on either side of the stream channel measured from the stream edge at bank full discharge. This lateral component of critical habitat is intended as a surrogate for the 100-year floodplain.
(4) Critical Habitat Map Areas. Data layers defining map areas, and mapping of critical habitat areas, was done using Arc GIS and verifying with USGS 7.5′ quadrangles. Legal descriptions for New Mexico and Arizona are based on the Public Lands Survey System (PLSS). Within this system, all coordinates reported for New Mexico are in the New Mexico Principal Meridian (NMPM), while those in Arizona are in the Gila and Salt River Meridian (GSRM). Township has been abbreviated as “T”, Range as “R”, and section as “sec.” Where possible, the ending or starting points have been described to the nearest quarter-section, abbreviated as “1/4”. Cardinal directions are also abbreviated (N = North, S = South, W = West, and E = East). All mileage calculations were performed using GIS.
(5)
(6) Complex 2—Black River, Apache and Greenlee Counties, Arizona.
(i) East Fork Black River—5.5 miles (8.8 km) of river extending from the confluence with the West Fork Black River at Township 4 North, Range 28
(ii) North Fork East Fork Black River—11.2 miles (18.0 km) of river extending from the confluence with Deer Creek at Township 5 North, Range 29 East, section 30 upstream to the confluence with an unnamed tributary at Township 6 North, Range 29 East, section 30. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest).
(iii) Boneyard Creek—1.4 miles (2.3 km) of creek extending from the confluence with the East Fork Black River at Township 5 North, Range 29 East, section 5 upstream to the confluence with an unnamed tributary at Township 6 North, Range 29 East, section 32. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest).
(iv)
(7) Complex 3—Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal and Graham counties, Arizona.
(i) Aravaipa Creek—28.1 miles (45.3 km) of creek extending from the confluence with the San Pedro River at Township 7 South, Range 16 East, section 9 upstream to the confluence with Stowe Gulch at Township 6 South, Range 19 East, section 35. Land ownership: Bureau of Land Management, Tribal, and State lands.
(ii) Turkey Creek—2.7 miles (4.3 km) of creek extending from the confluence with Aravaipa Creek at Township 6 North, Range 19 East, section 19 upstream to the confluence with Oak Grove Canyon at Township 6 South, Range 19 East, section 32. Land ownership: Bureau of Land Management.
(iii) Deer Creek—2.3 miles (3.6 km) of creek extending from the confluence with Aravaipa Creek at Township 6 South, Range 18 East, section 14 upstream to the boundary of the Aravaipa Wilderness at Township 6 South, Range 19 East, section 18. Land ownership: Bureau of Land Management.
(iv)
(8) Complex 4—San Francisco and Blue Rivers, Pinal and Graham counties, Arizona and Catron County, New Mexico.
(i) Eagle Creek—45.3 miles (72.9 km) of creek extending from the Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 23 upstream to the confluence of Dry Prong and East Eagle Creeks at Township 1 North, Range 28 East, section 31. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos) lands, and private.
(ii) San Francisco River—126.5 miles (203.5 km) of river extending from the confluence with the Gila River at Township 5 South, Range 29 East, section 28 upstream to the mouth of The Box, a canyon above the town of Reserve, at Township 6 South, Range 19 West, section 2. Land ownership: Bureau of Land Management, U.S. Forest Service (Apache-Sitgreaves National Forest), State, and private in Arizona, and U.S. Forest Service (Gila National Forest) and private in New Mexico.
(iii) Tularosa River—18.6 miles (30.0 km) of river extending from the confluence with the San Francisco River at Township 7 South, Range 19 West, section 23 upstream to the town of Cruzville at Township 6 South, Range 18 West, section 12. Land ownership: U.S. Forest Service (Gila National Forest) and private.
(iv) Negrito Creek—4.2 miles (6.8 km) of creek extending from the confluence with the San Francisco River at Township 7 South, Range 18 West, section 19 upstream to the confluence with Cerco Canyon at Township 7 South, Range 18 West, section 21. Land ownership: U.S. Forest Service (Gila National Forest), and private lands.
(v) Whitewater Creek—1.1 miles (1.8 km) of creek extending from the confluence with the San Francisco River at Township 11 South, Range 20 West, section 27 upstream to the confluence with the Little Whitewater Creek at Township 11 South, Range 20 West, section 23. Land ownership: private lands.
(vi) Blue River—51.1 miles (82.2 km) of river extending from the confluence with the San Francisco River at Township 2 South, Range 31 East, section 31upstream to the confluence of Campbell Blue and Dry Blue Creeks at Township 6 South, range 20 West, section 6. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and private lands in Arizona; U.S. Forest Service (Gila National Forest) in New Mexico.
(vii) Campbell Blue Creek—8.1 miles (13.1 km) of creek extending from the confluence of Dry Blue and Campbell Blue Creeks at Township 6 South, Range 20 West, section 6 in New Mexico upstream to the confluence with Coleman Canyon at Township 4 North, Range 31 East, section 32 in Arizona. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest) and private lands in Arizona; U.S. Forest Service (Gila National Forest) in New Mexico.
(viii) Dry Blue Creek—3.0 mile (4.8 km) of creek extending from the confluence with Campbell Blue Creek at Township 6 South, Range 20 West, section 6 upstream to the confluence with Pace Creek at Township 6 South, Range 21 West, section 28. Land ownership: U.S. Forest Service (Gila National Forest).
(ix) Pace Creek—0.8 mile (1.2 km) of creek extending from the confluence with Dry Blue Creek at Township 6 South, Range 21 West, section 28 upstream to a barrier falls at Township 6 South, Range 21 West, section 29. Land ownership: U.S. Forest Service (Gila National Forest).
(x) Frieborn Creek—1.1 miles (1.8 km) of creek extending from the confluence with Dry Blue Creek at Township 6 South, Range 20 West, section 6 upstream to an unnamed tributary at Township 6 South, range 20 West, section 8. Land ownership: U.S. Forest Service (Gila National Forest).
(xi) Little Blue Creek—2.8 miles (4.5 km) of creek extending from the confluence with the Blue River at Township 1 South, range 31 East, section 5 upstream to the mouth of a canyon at Township 1 North, Range 31 East, section 29. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest).
(xii)
(9) Complex 5—Upper Gila River Complex, Catron, Grant, and Hidalgo counties, New Mexico
(i) Upper Gila River—102.1 miles (164.3 km) of river extending from the confluence with Moore Canyon (near the Arizona/New Mexico border) at Township 18 South, Range 21 West, section 32 upstream to the confluence of the East and West Forks of the Gila River at Township 13 South, Range 13 West, section 8. Land ownership: Bureau of Land Management, U.S. Forest Service (Gila National Forest), State, and private lands.
(ii) East Fork Gila River—26.1 miles (42.0 km) of river extending from the confluence with the West Fork Gila River at Township 11 South, Range 12 West, section 17 upstream to the confluence of Beaver and Taylor creeks at Township 13 South, Range 13 West, section 8. Land ownership: U.S. Forest Service (Gila National Forest) and private lands.
(iii) Middle Fork Gila River—11.9 miles (19.1 km) of river extending from the confluence with the West Fork Gila River at Township 12 South, Range 14 West, section 25 upstream to the confluence with Brothers West Canyon at Township 11 South, Range 14 West, section 33. Land ownership: U.S. Forest Service (Gila National Forest) and private lands.
(iv) West Fork Gila River—7.7 miles (12.4 km) of river extending from the confluence with the East Fork Gila River at Township 13 South, Range 13 West, section 8 upstream to the confluence with EE Canyon at Township 12 South, Range 14 West, section 22. Land ownership: U.S. Forest Service (Gila National Forest), National Park Service, and private lands.
(v)
(1) Critical habitat units are depicted for Graham, Greenlee, Pinal, and Yavapai Counties, Arizona; and Catron, Grant, and Hidalgo Counties, New Mexico, on the maps and as described below.
(2) Within these areas, the primary constituent elements of critical habitat for spikedace are the following:
(i) Permanent, flowing, water with low levels of pollutants, including:
(A) Living areas for adult spikedace with slow to swift flow velocities between 20 and 60 cm/second (8-24 inches/second) in shallow water between approximately 10 cm (4 inches) to 1 meter (40 inches) with shear zones where rapid flow borders slower flow, areas of sheet flow (or smoother, less turbulent flow) at the upper ends of mid-channel sand/gravel bars, and eddies at downstream riffle edges;
(B) Living areas for juvenile spikedace with slow to moderate water velocities of approximately 18 cm/second (8 inches/second) or higher in shallow water between approximately 3 cm (1.2 inches) to 1 meter (40 inches);
(C) Living areas for larval spikedace with slow to moderate flow velocities of approximately 10 cm/second (4 inches/second) or higher in shallow water approximately 3 cm (1.2 inches) to 1 meter (40 inches) and;
(D) Water with low levels of pollutants such as copper, arsenic, mercury and cadmium; human and animal waste products; pesticides; suspended sediments; and gasoline or diesel fuels and with dissolved oxygen levels greater than 3 parts per million (ppm).
(ii) Sand, gravel, and cobble substrates with low or moderate amounts of fine sediment and substrate embeddedness. Suitable levels of embeddedness are generally maintained by a natural, unregulated hydrograph that allows for periodic flooding or, if flows are modified or regulated, a hydrograph that allows for adequate river functions, such as flows capable of transporting sediments.
(iii) Streams that have:
(A) Low gradients of approximately 1.0 percent or less;
(B) Water temperatures in the approximate range of 35-85 °Fahrenheit (F) (1.7-29.4 °C) (with natural diurnal and seasonal variation);
(C) Pool, riffle, run, and backwater components; and
(D) An abundant aquatic insect food base consisting of mayflies, true flies, caddisflies, stoneflies, and dragonflies.
(iv) Habitat devoid of nonnative fish species detrimental to spikedace, or habitat in which detrimental nonnative fish species are at levels that allow persistence of spikedace.
(v) Areas within perennial, interrupted stream courses that are periodically dewatered but that serve as connective corridors between occupied or seasonally occupied habitat and through which the species may move when the habitat is wetted.
(3) Each stream segment includes a lateral component that consists of 300 feet on either side of the stream channel measured from the stream edge at bank full discharge. This lateral component of critical habitat is intended as a surrogate for the 100-year floodplain.
(4) Critical Habitat Map Areas. Data layers defining map areas, and mapping of critical habitat areas, was done using Arc GIS and verifying with USGS 7.5′ quadrangles. Legal descriptions for New Mexico and Arizona are based on the Public Lands Survey System (PLSS). Within this system, all coordinates reported for New Mexico are in the New Mexico Principal Meridian (NMPM), while those in Arizona are in the Gila and Salt River Meridian (GSRM). Township has been abbreviated as “T”, Range as “R”, and section as “sec.” Where possible, the ending or starting points have been described to the nearest quarter-section, abbreviated as “
(5)
(6) Complex 1—Verde River, Yavapai County, Arizona.
(i) Verde River—106.5 miles (171.4 km) of river extending from the confluence with Fossil Creek at Township 11 North, Range 6 East, section 25 upstream 106.9 miles to Sullivan Dam at Township 17 North, Range 2 West, section 15. Land ownership: U.S. Forest Service (Prescott National Forest), Yavapai Apache Nation, State, and private.
(ii)
(7) Complex 3—Middle Gila/Lower San Pedro/Aravaipa Creek, Pinal and Graham counties, Arizona.
(i) Gila River—39.0 miles (62.8 km) of river extending from the Ashurst-Hayden Dam at Township 4 South, Range 11 East, section 8 upstream to the confluence with the San Pedro River at Township 5 South, Range 15 East, section 23. Land ownership: Bureau of Reclamation, Bureau of Land Management, State, and private.
(ii) Lower San Pedro River—13.4 miles (21.5 km) of river extending from the confluence with the Gila River at Township 5 South, Range 15 East, section 23 upstream to the confluence with Aravaipa Creek at Township 7 South, Range 16 East, section 9. Land ownership: Bureau of Land Management, Tribal, State, and private.
(iii) Aravaipa Creek—28.1 miles (45.3 km) of creek extending from the confluence with the San Pedro River at Township 7 South, Range 16 East, section 9 upstream to the confluence with Stowe Gulch at Township 6 South, Range 19 East, section 35. Land ownership: Bureau of Land Management, Tribal, and State lands.
(iv)
(8) Complex 4—San Francisco and Blue Rivers, Pinal and Graham counties, Arizona.
(i) Eagle Creek—45.3 miles (72.9 km) of creek extending from the Phelps-Dodge Diversion Dam at Township 4 South, Range 28 East, section 23 upstream to the confluence of Dry Prong and East Eagle Creeks at Township 1 North, Range 28 East, section 31. Land ownership: U.S. Forest Service (Apache-Sitgreaves National Forest), Tribal (San Carlos) lands, and private.
(ii)
(9) Complex 5—Upper Gila River Complex, Catron, Grant, and Hidalgo counties, New Mexico.
(i) Upper Gila River—102.1 miles (164.3 km) of river extending from the confluence with Moore Canyon (near the Arizona/New Mexico border) at Township 18 South, Range 21 West, section 32 upstream to the confluence of the East and West Forks of the Gila River at Township 13 South, Range 13 West, section 8. Land ownership: Bureau of Land Management, U.S. Forest Service (Gila National Forest), State, and private lands.
(ii) East Fork Gila River—26.1 miles (42.0 km) of river extending from the confluence with the West Fork Gila River at Township 11 South, Range 12 West, section 17 upstream to the confluence of Beaver and Taylor creeks at Township 13 South, Range 13 West, section 8. Land ownership: U.S. Forest Service (Gila National Forest) and private lands.
(iii) Middle Fork Gila River—7.7 miles (12.3 km) of river extending from the confluence with the West Fork Gila River at Township 11 South, Range 14 West, section 33 upstream to the confluence with Big Bear Canyon at Township 12 South, Range 14 West, section 25. Land ownership: U.S. Forest Service (Gila National Forest) and private lands.
(iv) West Fork Gila River—7.7 miles (12.4 km) of river extending from the confluence with the East Fork Gila River at Township 13 South, Range 13 West, section 8 upstream to the confluence with EE Canyon at Township 12 South, Range 14 West, section 22. Land ownership: U.S. Forest Service (Gila National Forest), National Park Service, and private lands.
(v)
Federal Energy Regulatory Commission, DOE.
Final rule.
In this final rule, the Federal Energy Regulatory Commission (Commission) is amending its regulations to implement the repeal of the Public Utility Holding Company Act of 1935 and the enactment of the Public Utility Holding Company Act of 2005, by adding a new subchapter and part to its regulations and removing its exempt wholesale generator rules as they are no longer necessary.
This final rule will become effective on February 8, 2006.
1. On August 8, 2005, the Energy Policy Act of 2005 (EPAct 2005)
2. On September 16, 2005, the Commission issued a notice of proposed rulemaking (NOPR)
3. Section 1264 of PUHCA 2005 concerns Commission access to the books and records of holding companies and other companies in holding company systems, and section 1275 of PUHCA 2005 addresses the Commission's review and authorization of the allocation of costs for non-power goods or administrative or management services when requested by a holding company system or state commission. As we stated in the NOPR, the federal books and records access provision, section 1264, and the non-power goods and services provision, section 1275, of PUHCA 2005 supplement the Commission's existing authorities under the Federal Power Act (FPA)
4. In responding to the comments on the NOPR and in deciding whether to adopt the proposals in the NOPR, our decisionmaking has been guided by the clear intent of Congress to repeal the regulatory regime established by PUHCA 1935 and to rely on state regulatory authorities and the Commission to protect energy customers, by supplementing the Commission's books and records authority under PUHCA 2005 and by enhancing our already significant authority over public utility mergers, acquisitions and dispositions of jurisdictional facilities.
5. Our primary means of protecting customers served by jurisdictional companies that are members of holding company systems continues to be the FPA and NGA. In particular, the Commission's rate authorities and information access authorities under the FPA and NGA enable the Commission to detect and disallow from jurisdictional rates any imprudently-incurred, unjust or unreasonable, or unduly discriminatory or preferential costs resulting from affiliate transactions between companies in the same holding company system.
6. It is against this backdrop that we have determined not to require in this final rule all of the filing requirements that we originally proposed to adopt. In addition, in response to the numerous comments filed, we have determined that it is appropriate to permit certain exemptions from those requirements that are being adopted, based upon an expedited notification process. An overview of the final rule's requirements and exemptions is provided below. We emphasize, however, that this final rule (including its exemptions) does not affect the Commission's independent ability to obtain access to books and records under the FPA and NGA. Further, to the extent additional rulemakings or orders may be needed to protect customers, the Commission will take appropriate actions in the future. The Commission will hold a technical conference no later than one year from the effective date of PUHCA 2005 to assess whether additional actions are needed.
7. In the NOPR, the Commission proposed to incorporate in part 366 of its regulations, largely without modification, the provisions of PUHCA 2005, and we have adopted a number of those proposals in the final rule. However, based on the very constructive comments received, the final rule modifies or departs from the approach in the NOPR in several respects, and we summarize the final rule below.
8. In the NOPR, we proposed adopting several of the Securities and Exchange Commission's (SEC) accounting and record-retention requirements into our own regulations and stated that we did not intend to broaden their applicability beyond the types of companies to which they now apply. Specifically, the NOPR proposed to adopt the following portions of the SEC's accounting and record-keeping requirements: 17 CFR 250.26 (financial statement and recordkeeping requirements for registered holding companies and subsidiaries); 17 CFR 250.27 (classification of accounts prescribed for utility companies not already subject thereto); 17 CFR 250.80 (definitions of terms used in rules under section 13 of PUHCA 1935); 17 CFR 250.93 (accounts and records of mutual and subsidiary service companies); 17 CFR 250.94 (annual reports by mutual and subsidiary service companies); 17 CFR part 256 (uniform system of accounts for mutual and subsidiary service companies) (SEC Uniform System of Accounts); and 17 CFR part 257 (preservation and destruction of records for registered holding companies and of mutual and subsidiary service companies) (SEC record-retention rules).
9. Additionally, the NOPR proposed to require companies to file certain SEC forms with the Commission, including: SEC Form U-13-60 (annual report for mutual and subsidiary service companies); SEC Form U-5S (annual report for registered holding companies); and a version of SEC Form U-5A (notification of registration status).
10. As discussed further below, the Commission has concluded that there is no statutory basis for continuing to apply the statutory exemptions contained in PUHCA 1935, which Congress has repealed.
(1) Predominantly intrastate holding companies;
(2) Public-utility holding companies whose operations as such do not extend beyond the State in which they are organized and states contiguous thereto;
(3) Holding companies that are only incidentally a holding company;
(4) Holding companies that are temporarily holding companies; or
(5) Primarily foreign utility holding companies. 15 U.S.C. 79c(a)(1)-(5) (2000).
11. The final rule adopts modified, streamlined versions of 17 CFR 250.1, 250.26, 250.80, 250.93, 250.94, and 259.313 in Part 366 of its regulations. Section 366.4(a) of our regulations will be a modified and simplified version of 17 CFR 250.1(a), which originally required registered holding companies to file SEC Form U-5A, notification of registration. Section 366.4 requires holding companies to file a FERC-65 (Notification of Holding Company Status), and, if they wish to claim an exemption from PUHCA 2005 or a waiver of the Commission's regulations thereunder, FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification). The final rule does not adopt the 17 CFR 250.1(b) (registration statement) and 250.1(c) (annual report for holding companies, to be filed on SEC Form U-5S). Section 366.21 of our regulations instead contains a modified version of 17 CFR 250.26 (financial statement and recordkeeping requirements for holding companies and subsidiaries), including subparagraph (a)(2) (requirement to maintain books and records for auditing purposes), paragraphs (d) and (f) (compliance with Commission and other agencies' record-retention rules), and paragraph (e) (savings clause for previous accounting orders). It does not adopt paragraphs (a)(1) (mandating compliance with SEC Regulation S-X), (b) (information to be supplied with form SEC Form U-5S), (c) (mandating use of the equity method of accounting), or (g) (cross reference to section 250.26). In section 366.1, we adopt the definitions contained in 17 CFR 250.80 (definitions of terms),
12. Specifically, the final rule also adopts the following requirements:
(1) Holding companies will file FERC-65 (Notification of Holding Company Status), which will be treated as an informational filing.
(2) Holding companies seeking to claim an exemption from PUHCA 2005 or waiver of the Commission's regulations thereunder may file FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification).
(3) Traditional, centralized service companies will be required to file a newly-created FERC Form No. 60 (Annual Report for Service Companies), which is based on a streamlined version of SEC Form U-13-60. The FERC Form No. 60 eliminates the following supporting schedules originally contained in SEC Form U-13-60: Outside Services Employed—Account 923; Employee Pensions and Benefits—Account 926; General Advertising Expenses—Account 930.1; Rents—Account 931; Taxes Other Than Income Taxes—Account 408; Donations—Account 426.1; and Other Deductions—Account 426.5. The schedules were eliminated to remove information that is either duplicative or that the Commission has determined is not necessary to carry out its statutory responsibilities under PUHCA 2005.
(4) Unless otherwise exempted by Commission rule or order, all holding companies and service companies must maintain and make available to the Commission their books and records. In addition, all holding companies and all service companies that do not currently follow the Commission's record-retention requirements in Parts 125 and 225 of the Commission's regulations, as applicable, will be required to transition to the Commission's requirements by January 1, 2007. Holding companies registered under PUHCA 1935 that currently follow the SEC's record-retention rules in 17 CFR Part 257, and their service companies, have the option to follow either the Commission's or the SEC's record-retention rules, as they exist on the day before the effective date of PUHCA 2005, for calendar year 2006, but these entities must transition to the Commission's record-retention rules by January 1, 2007. And, as noted above, holding companies, unlike traditional, centralized service companies, will not be required to comply with the Commission's Uniform System of Accounts.
13. The NOPR did not propose any specific exemptions from the books and records requirements of PUHCA 2005, except as required by section 1266 (
(1) Passive investors, including mutual funds and other financial institutions;
(2) Commission-jurisdictional utilities that have no captive customers;
(3) Certain holding company and affiliate transactions that will not affect jurisdictional rates;
(4) Electric power cooperatives;
(5) Local distribution companies;
(6) Single-state holding companies;
(7) Holding companies that own 100 MW or less of generation used fundamentally for their own load or for sales to affiliated end-users;
(8) Investors in independent transmission companies.
14. With respect to Commission review of service company cost allocations in section 1275(b) and the exemption for single-state holding companies in section 1275(d), the Commission sought comments as to whether the Commission should require the formal filing of service company cost-allocation agreements under the FPA and NGA, and whether the Commission should apply its traditional “market” standard for the pricing of non-power goods and services provided by system service companies or instead adopt the SEC “at-cost” standard. We conclude below that we will not require the formal filing of cost allocation agreements and that we will not require any entities that are currently using the SEC's “at-cost” standard for traditional centralized service companies to switch to our “market” standard. With respect to traditional, centralized service companies that use the “at cost” standard, we will apply a presumption that “at cost” pricing of the non-power goods and services they provide to public utilities within their holding company system is reasonable, but persons may file complaints if they believe that use of at cost pricing results in costs that are above market price. We will also retain the Commission's existing “market” standard for non-power goods or services transactions between special-purpose subsidiaries and public utilities.
15. With respect to EWGs, we proposed to cease making case-by-case determinations of exempt wholesale generator status in the future and we proposed to delete our EWG regulations. In light of the comments received, we have determined that it is reasonable to interpret PUHCA 2005 to permit new wholesale sellers to obtain EWG status. We will thus establish procedures in section 366.7 of our regulations for both self-certification of EWG and FUCO status, and Commission determinations of EWG and FUCO status, similar to the options available for entities seeking QF status.
16. Additionally, for those definitions and other aspects of PUHCA 1935 that have been re-enacted as part of PUHCA 2005, we will, where appropriate, follow the past practice and precedent of the SEC in interpreting these provisions of PUHCA 2005 to the extent that they are consistent with the statutory language adopted by Congress in PUHCA 2005.
17. Finally, we do not view this final rule as the only opportunity to address the books and records requirements and related reporting requirements under PUHCA 2005, exemptions from and waivers of these requirements, and any other issues that may arise as a result of the repeal of PUHCA 1935 and the implementation of PUHCA 2005. We intend to hold a technical conference no later than one year after PUHCA 2005 becomes effective to evaluate whether additional exemptions, different reporting requirements, or other regulatory actions (under PUHCA 2005 or the FPA or NGA) need to be considered. The technical conference will also address any needed changes or additions to accounting, cost allocation, recordkeeping, cross-subsidization, encumbrances of utility assets, and related rules, including any changes necessary to address difficulties with compliance encountered by companies within previously-exempt holding company systems during this transition period. In addition, while we do not adopt the SEC Uniform System of Accounts and record-retention rules in 17 CFR parts 256 and 257 into the Commission's regulations at this time, we will initiate a separate rulemaking proceeding to address how the Commission's Uniform System of Accounts and record-retention rules in Parts 101, 125, 201, and 225 of its regulations can be modified to adopt or otherwise integrate the relevant parts of the SEC's Uniform System of Accounts and record-retention rules. The
18. The Commission proposed in the NOPR to largely incorporate in section 366.1 of its regulations the text of section 1262 of EPAct 2005, which contains the definitions of relevant terms used in PUHCA 2005 and in our proposed regulations. Commenters suggested a number of changes to these definitions. As these definitions are taken from section 1262 of EPAct 2005, any modification would likely create undesirable discrepancies between our regulations and the statutory language. Accordingly, we will address these comments below under the heading “Additional Technical and Conforming Amendments,” below. However, to the extent that a given comment requesting clarifications of the definitions proposed in section 366.1 of the Commission's regulations can be addressed consistent with the statutory text, they are addressed below.
19. American Public Power Association and National Rural Electric Cooperative Association (APPA/NRECA) note that section 1268 of EPACT 2005 expressly exempts States and any political subdivision of a state from the provisions of PUHCA 2005, while the definition of “electric utility company” in the proposed section 366.1 includes “any company that owns or operates facilities used for the generation, transmission, or distribution of electric energy for sale,” which appears to come directly from section 1262(5) of EPACT 2005. According to APPA/NRECA, this section, read standing alone, could be construed to state that the regulations apply to all electric utilities. APPA/NRECA thus urge the Commission to make explicit the exclusion of states and their political subdivisions from the regulations by cross-referencing in its regulations the exclusion in section 1268 of the statute.
20. Coral Power, L.L.C. and Shell WindEnergy, Inc. (Coral Power and Shell WindEnergy) request that the Commission deem EWGs, FUCOs, and QFs not to be “electric utility companies” under PUHCA 2005, so that their upstream owners will not be “holding companies” under PUHCA 2005.
21. With respect to the definition of “public-utility companies,” the Edison Electric Institute (EEI) urges the Commission to clarify that energy marketers are not “public-utility companies” under the PUHCA 2005 definition. EEI notes that, under PUHCA 2005, a “public-utility company” is either an “electric utility company,” which is an entity that owns or operates facilities used for the generation, transmission or distribution of electric energy for sale, or a “gas utility company,” which is basically an entity that owns or operates facilities used for distribution at retail of natural or manufactured gas. EEI further asserts that the SEC has found that the ownership of only contracts and related books and records are not facilities used for the generation of electric energy, but that only physical facilities are used for the generation of electric energy. According to EEI, if power marketers are not electric utility companies, their parent companies would not be considered utility holding companies under PUHCA 2005 by reason of their ownership of such marketers. The same logic would apply to gas marketers, and they too, therefore, should not be considered gas utility companies, provided they own no physical gas distribution assets and their gas retail sales are made through contracts.
22. Goldman Sachs Group (Goldman Sachs) and Morgan Stanley Capital Group (Morgan Stanley) urge the Commission to adopt a rule similar to the SEC's 7(d) that excludes owner-lessor and owner participants in lease financing transactions involving utility assets from the definition of “public-utility company” and their parent companies from the definition of “holding company.”
23. NiSource Inc. (NiSource) requests that the Commission clarify that gas utility companies authorized to make sales for resale of natural gas pursuant to a blanket certificate are not subject to new part 366 of the Commission's regulations.
24. Finally, a number of commenters urge the Commission to amend certain definitions to exclude rural electric cooperatives from the scope of PUHCA 2005. APPA/NRECA argue that the Commission should recognize that, under longstanding SEC precedent, electric cooperatives were not regulated as public utility holding companies under PUHCA 1935 because member interests in cooperatives do not constitute a “voting security” interest.
25. We will grant the request of APPA/NRECA and others to clarify that section 1268 exempts from PUHCA 2005 states and any political subdivision of a state. Accordingly, we clarify in section 366.2(a) that, for the purposes of this subchapter, no provision of PUHCA 2005 shall apply to or be deemed to include: (1) The United States; (2) a state or political subdivision of a state; (3) any foreign governmental authority not operating in the United States; (4) any agency, authority, or instrumentality of any entity referred to in subparagraphs (1), (2) or (3); or (5) any officer, agent, or employee of any entity referred to in subparagraphs (1), (2), (3), or (4) as such in the course of his or her official duty.
26. In response to the request of Coral Power and ShellWindEnergy that we consider EWGs, FUCOs, and QFs not to be “electric utility companies” so that their upstream owners would not be holding companies under PUHCA 2005, we note that Congress has exempted from section 1264 of EPAct 2005 entities that are holding companies solely with respect to EWGs, FUCOs, and QFs and that exemption is reflected in the regulations we adopt herein. However, we clarify that EWGs themselves are not considered “electric utility companies” under PUHCA 2005. The purpose of creating “exempt” wholesale generators in the amendments to section 32 of PUHCA 1935 made by the Energy Policy Act of 1992 (EPAct 1992)
27. With respect to FUCOs and QFs, we clarify as follows. Section 1262(6) of PUHCA 2005 contains the term “foreign utility company,” and cross-references section 33 of PUHCA 1935. Section 33 of PUHCA 1935, as amended by EPAct 1992,
28. With respect to EEI's request that we clarify that power marketers are not “public-utility companies,” we note that EEI's reference to the “Commission” appears to be to the SEC rather than to this Commission. While the SEC has not treated power marketers as electric utility companies under PUHCA 1935, the Commission has determined that electric marketers own facilities used for wholesale sales,
29. We will grant the request for clarification from Goldman Sachs and Morgan Stanley that we not treat owner-lessors and owner participants in lease financing transactions involving utility assets as “public-utility companies” and their parents as “holding companies” under PUHCA 2005, so long as the ownership arrangements are passive.
30. We find that, as discussed below, electric power cooperatives should not be regulated as holding companies under PUHCA 2005.
31. Sections 1264(a) and (b) of EPAct 2005 generally provide that each holding company and each associate company of a holding company, as well as each affiliate of a holding company or any subsidiary company of a holding company, shall maintain, and shall make available to the Commission, such books, accounts, memoranda, and other records (books and records) as the Commission determines are relevant to the costs incurred by a public utility or natural gas company that is an associate company of such holding company and necessary or appropriate for the protection of public utility or natural gas company customers with respect to jurisdictional rates. Moreover, section 1264(c) empowers the Commission to examine the books and records of any company in a holding company system, or any affiliate thereof, that the Commission determines are relevant to the costs incurred by a public utility or natural gas company within such holding company system and necessary or appropriate for the protection of public utility or natural gas company customers with respect to jurisdictional rates. Finally, section 1264(d) forbids any member, officer, or employee of the Commission from divulging any fact or information that has come to his or her knowledge during the course of the examination of such books and records, except as may be directed by the Commission or a court of competent jurisdiction.
32. In the NOPR, the Commission also proposed to adopt certain accounting, cost-allocation, recordkeeping, and related rules promulgated by the SEC for holding companies and their service companies, as they existed on the date of enactment of EPAct 2005, specifically 17 CFR 250.1, 250.26, 250.27, 250.80, 250.93, 250.94, 259.5S, and 259.313 and 17 CFR parts 256 and 257. The Commission invited comments on which SEC reporting requirements the Commission should retain, which ones it should not retain, and whether the Commission should adopt any additional accounting, cost-allocation, recordkeeping and related rules to carry out its statutory duties under PUHCA 2005. Finally, the Commission stated that it does not intend to broaden the applicability of any adopted reporting requirements beyond the types of companies to which they now apply and invited comments as to whether the proposed scope of applicability is appropriate.
33. The comments below focused primarily on the Commission's proposal to adopt certain SEC regulations and are organized as follows: (a) Scope of applicability,
34. The majority of commenters urged the Commission to apply any SEC regulations adopted equally to all holding companies, without regard to whether an entity was registered or exempt under PUHCA 1935, primarily because PUHCA 2005 does not state that PUHCA 1935 exemptions should continue in force.
35. However, a number of commenters argue that the Commission should continue to exempt under PUHCA 2005 those holding companies exempted under PUHCA 1935 and SEC precedent. MidAmerican Energy Company (MidAmerican) states that the Commission should not impose a new set of accounting and reporting requirements on entities that have been exempt from the requirements developed by the SEC to enforce PUHCA 1935. According to MidAmerican, the information required under the SEC rules would require these entities to prepare and file reports that are duplicative of information contained in reports already filed with the Commission (
36. FirstEnergy suggests that, if the Commission adopts this proposal, it should clarify the regulatory text of proposed section 366.2(e) to delineate between those holding company systems to which the rules apply and those that are exempt from such provisions, and should explain the reasons justifying such distinction.
37. With respect to the general applicability of the federal access to books and records requirements in section 1264 of EPAct 2005, there is no basis in PUHCA 2005 for distinguishing between holding companies based on their registered or exempt status under PUHCA 1935. Accordingly, the Commission will subject all holding company systems, whether previously exempt or registered, to the books and records requirements that PUHCA 2005 imposes on holding companies and affiliates, associate companies, and subsidiaries thereof, unless they qualify for one of the statutory exemptions provided for under section 1266 of PUHCA 2005.
38. Specifically, the Commission will require the following for entities that are not otherwise exempted from PUHCA 2005 requirements or granted a waiver of the Commission's regulations thereunder:
(1) Unless otherwise exempted by Commission rule or order or granted a waiver, all holding companies and all service companies that do not currently follow the Commission's record-retention requirements in Parts 125 and 225 of the Commission's regulations must, effective January 1, 2007, comply with the Commission's record-retention requirements. Formerly-registered holding companies and service companies in such holding company systems that currently follow the SEC's record-retention rules in 17 CFR part 257 have the option, until December 31, 2006, to follow either the Commission's or the SEC's record-retention requirements. But these service companies must transition to the Commission's rules by January 1, 2007. Formerly-exempt holding companies and service companies within such holding company systems, which currently do not follow either the SEC's or the Commission's record-retention requirements will not be required to comply with the Commission's record-retention requirements until January 1, 2007.
(2) Unless otherwise exempted by Commission rule or order or granted a waiver, traditional, centralized service companies (
(3) All entities that are currently or become holding companies under PUHCA 2005, whether previously exempt or registered under PUHCA 1935, must file FERC-65 (Notification of Holding Company Status), which will be treated as an informational filing, and holding companies seeking to claim an exemption from PUHCA 2005 or waiver of the Commission's regulations there under may file FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification). All persons that are holding companies on the effective date of PUHCA 2005 must file FERC-65 within 30 days of the effective date of PUHCA 2005, and any person that becomes a holding company thereafter must file FERC-65 within 30 days after becoming a holding company; and
(4) All traditional, centralized service companies will be required to submit an annual report on FERC Form No. 60. Such service companies in formerly-registered holding company systems must submit their first annual report, for calendar year 2005, by May 1, 2006. Such service companies in formerly-exempt holding company systems will be required to submit their first FERC Form No. 60, for calendar year 2007, by May 1, 2008.
39. The Commission will
40. APPA/NRECA suggest that, rather than incorporate the SEC rules by reference, the Commission should import the actual wording (with appropriate revisions as discussed below) into its own regulations. Merely cross-referencing existing SEC regulations (as proposed section 366.2(e) would do) would fail in its purpose if the SEC subsequently revises its own regulations to eliminate its PUHCA 1935-related regulations. Moreover, rather than adopt the SEC rules word-by-word, APPA/NRECA urge the Commission to make certain wording adjustments and offer rationales based on the current and likely future industry structure.
41. EEI urges the Commission to integrate whatever it adopts from SEC practice into current Commission procedures and forms. According to EEI, repeal of PUHCA 1935 was intended to reduce the level of holding company regulation, but if current exempt holding companies suddenly are required to contend with unfamiliar SEC practice, it would have precisely the opposite effect. These formerly-exempt companies in effect would become subject to a new level of complex regulation. To avoid this unintended consequence of repealing PUHCA 1935, EEI believes that the Commission should seek to integrate whatever it adopts from SEC practice into current Commission procedures and forms, which would involve simply including existing public filings, in particular a holding company's SEC Form 10-K, as exhibits to the Commission's Form 1.
42. For the same reasons, EEI requests that the Commission provide a reasonable period between the effective date of its new rules and the date on which the initial filings will be due. EEI proposes that the initial filings should be due in April 2007, giving companies time to adopt any new recordkeeping and reporting requirements and to file information starting with the next round of Form 1 for which the new information would be available. The Commission also should specify the format that will be required for filings under its new rules, and the Commission should make clear when adopting the final rule, the date(s) on which companies will first be required
43. Georgia Public Service Commission (Georgia PSC) urges the Commission to ensure that the rules to implement PUHCA 2005 provide that the Commission will have access to all of the information and documents previously provided to the SEC under PUHCA 1935. Georgia PSC emphasizes that state commissions have relied upon the filings made by holding companies with the SEC and on audits of holding companies performed by the SEC as a crucial source of information necessary in setting rates for the holding companies' subsidiaries that are regulated by state commissions. Accordingly, the Commission should adopt all provisions of the SEC rules and retain all SEC reporting requirements.
44. Entergy Services, Inc. states that it agrees with the Commission's proposal to adopt the SEC regulations, but that the Commission should limit the applicability of these rules to those items that are “relevant to costs incurred by a public utility or natural gas company” and “necessary or appropriate for the protection of utility customers with respect to jurisdictional rates” as required by EPAct 2005 section 1264(a).
45. Several commenters argued that the Commission lacks the authority to adopt SEC regulations under PUHCA 2005
46. Electric Power Supply Association (EPSA) argues that the adoption of the SEC rules as a means of implementing PUHCA 2005 is neither wise nor necessary or appropriate for the protection of utility customers with respect to jurisdictional rates. According to EPSA, the two statutory regimes are completely different and the PUHCA 1935 regulations are incompatible with the considerably more narrow scope of PUHCA 2005, which the Commission itself notes is primarily a books and records access statute and a statute that does not give the Commission authority to pre-approve holding company activities.
47. We agree with the comments of APPA/NRECA and EEI that any SEC regulations that the Commission adopts should be imported into and integrated with the Commission's regulations, rather than, for example, being incorporated by reference. However, the Commission does not find it appropriate to incorporate all of the relevant SEC rules at this time. Accordingly, the Commission will adopt in Part 366 of its regulations certain provisions of 17 CFR parts 250 and 259, which are discussed further below. We will not adopt the SEC Uniform System of Accounts and record-retention rules in 17 CFR parts 256 and 257 into the Commission's regulations at this time. Instead, the Commission will initiate a separate rulemaking proceeding, which we intend to complete well in advance of the January 1, 2007 deadline, to address how the Commission's Uniform System of Accounts and record-retention rules in parts 101, 125, 201, and 225 of its regulations can be modified to adopt or otherwise integrate the relevant parts of the SEC's Uniform System of Accounts and record-retention rules into the Commission's regulations. As discussed above, unless otherwise exempted or granted a waiver, both holding companies and service companies will be required to comply with the Commission's record-retention requirements effective January 1, 2007, but only traditional, centralized service companies will be required to comply with the Commission's Uniform System of Accounts. We will give holding companies registered under PUHCA 1935 and service companies within formerly-registered holding company systems that currently follow the SEC's record-retention rules in 17 CFR part 257 the option to follow either the Commission's or the SEC's record-retention rules, as they exist on the day before the effective date of PUHCA 2005, for calendar year 2006. Similarly, traditional, centralized service companies in formerly-registered holding company systems that currently follow the SEC's Uniform System of Accounts in 17 CFR part 256 may follow either the SEC's or the Commission's Uniform System of Accounts for calendar year 2006. But, as discussed above, these entities must transition to the Commission's rules, by January 1, 2007.
48. We also agree with the comments of EEI that it is appropriate to provide a reasonable transition period between the effective date of this Final Rule and the date on which the initial filings will be due. As discussed above, we will give traditional, centralized service companies until January 1, 2007 to conform their accounts and records to the requirements of the Commission's Uniform System of Accounts and record-retention rules. Similarly, we
49. However, as discussed below, this transition period will not apply to the filing of FERC-65 (Notification of Holding Company status). Accordingly, all persons that are holding companies within the meaning of PUHCA 2005 on the effective date of PUHCA 2005 will be required to file FERC-65 within 30 days of the effective date of PUHCA 2005 to inform the Commission of their holding company status (and by the same date, holding companies seeking exemption or waiver must file a separate FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification) to assert their claims that they qualify for the statutory exemptions contained in section 1266(a) of EPAct 2005 or the other exemptions and waivers adopted in this Final Rule). Any entities that become holding companies after the effective date of PUHCA 2005 will be required to file FERC-65 no later than 30 days after becoming a holding company. FERC-65 is in lieu of the NOPR proposal to adopt SEC Form U-5A, but will contain a subset of the information that the Commission originally proposed to be filed. FERC-65 will be an information-only filing. We find that it is appropriate to impose this notification requirement on all holding companies equally because it will permit the Commission to identify the companies that may have books and records relevant to jurisdictional responsibilities under the FPA and the NGA. This notification requirement, moreover, will impose only a
50. We reject the recommendation of Georgia PSC that the Commission retain all SEC regulations and ensure collection of the same information as under PUHCA 1935. As we emphasized above, Congress repealed PUHCA 1935 and nowhere in PUHCA 2005 did it give us the same substantive regulatory authority that the SEC had under PUHCA 1935. Accordingly, we will adopt only those SEC regulations that would be consistent with Congress' intent in enacting PUHCA 2005, namely, those that provide the Commission with access to books and records relevant to the costs incurred by a public utility or natural gas company and necessary or appropriate for the protection of public utility or natural gas company customers with respect to jurisdictional rates.
51. With respect to FirstEnergy's request that we amend section 366.2(e), we note that we are not adopting this paragraph in the Final Rule. Instead, to avoid ambiguity, we have imported the text of these SEC regulations that the Commission is adopting, with appropriate modifications, into part 366 of the Commission's regulations. Furthermore, as explained above, we will not adopt into the Commission's regulations the SEC's Uniform System of Accounts and record-retention rules at this time. Instead, we will initiate a separate rulemaking proceeding to address how the Commission's Uniform System of Accounts and record-retention rules in parts 101, 125, 201, and 225 of its regulations can be modified to adopt or otherwise integrate the relevant parts of the SEC's Uniform System of Accounts and record-retention rules.
52. We reject the contention submitted by EPSA and others that the Commission lacks the authority under PUHCA 2005 to adopt SEC regulations (or versions thereof) and that doing so is contrary to Congress' intent in repealing PUHCA 1935. The accounting, record-retention and filing requirements adopted herein impose no substantive restrictions and prior approval requirements such as those contained in PUHCA 1935. Moreover, sections 1264(a) and 1264(b) of EPAct 2005 expressly require each holding company and each associate company, affiliate or subsidiary thereof to “maintain” and “make available” books and records as the Commission determines are relevant to costs incurred by a public utility or natural gas company and necessary or appropriate for the protection of utility customers with respect to jurisdictional rates. In turn, section 1272(1) of EPAct 2005 directs the Commission to issue such regulations as may be necessary or appropriate to implement PUHCA 2005, including section 1264. In addition, section 1270 of EPAct 2005 states that that the Commission shall have the same powers as set forth in sections 306 through 317 of the FPA to enforce the provisions of PUHCA 2005. In this regard, we note that section 309 of the FPA grants the Commission the power to perform any and all acts and to prescribe by order, rule or regulation, as it may find necessary or appropriate to carry out the provisions of the FPA, “the form of all statements, declarations, applications, and reports to be filed with the Commission.”
53. For the same reasons, we similarly reject the argument submitted by AGL Resources, who notes that the SEC was empowered to require the filing of reports by section 14 of PUHCA 1935, which has been repealed, and concludes from the fact that Congress has not enacted an identically-worded provision in PUHCA 2005 that the Commission lacks the authority to require entities to file any reports under PUHCA 2005. AGL Resources' interpretation appears to rest on the erroneous assumption that, by using the terms “maintain” and “make available,” Congress necessarily meant that entities were only required to make these books and records available to the Commission on the entities' premises, rather than in the form of a report filed with the Commission. Had Congress meant to restrict the Commission's access to books and records in this manner, it clearly could have done so, as it did with respect to state commissions under section 1265; section 1265 provides that entities are to “produce for inspection” “upon * * * written request” of a state commission a much more limited range of documents. Here, in section 1264 (and sections 1272 and 1270), Congress chose not to adopt such a restriction.
54. Finally, we note that, where appropriate, we have removed from the SEC regulations adopted herein all references to PUHCA 1935 and related SEC regulations and, where appropriate, replaced them with references to PUHCA 2005 or to the relevant Commission regulations. Therefore, we will not further address in this Final Rule the various comments received suggesting that we remove such references.
55. SEC Form U-5A requires each non-exempt holding company to submit a complete list of corporate affiliates and brief description of the kind of business each affiliate transacts. APPA/NRECA support the adoption of 17 CFR 250.1, which will require each public utility holding company to inform the Commission of its status. As to exemptions, APPA/NRECA argue that the Commission should distinguish
56. Energy East Corporation (Energy East) opposes the adoption of this section because it contends that the notification requirement is inconsistent with the statement in the NOPR indicating that the Commission does not intend to reimpose the registration requirement. Energy East states that the Commission could simply instead rely on disclosure in FERC Forms 1 and 2 which require a public utility or natural gas company to state the name of any controlling corporation, the manner in which control is held and the extent of control.
57. Dominion agrees with retention of the Form U-5A filing requirement because this form is considerably less burdensome than either Form U-5B or U-5S. Dominion also suggests that this form be revised to provide for a claim of exemption under section 1266 of EPAct 2005.
58. The Commission will adopt in section 366.4(a) of its regulations a provision analogous to that contained in paragraph (a) of 17 CFR 250.1. However, the Commission will not require holding companies to submit a Commission-adopted version of SEC Form U-5A and will instead require persons that are holding companies on the effective date of PUHCA 2005 to submit FERC-65 (Notification of Holding Company status) and, for companies seeking exemption or waiver, FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification) within 30 days of the effective date of PUHCA 2005, February 8, 2006. Furthermore, any entity that becomes a holding company after the effective date of PUHCA 2005 must submit FERC-65 (and, if appropriate, FERC-65A or FERC-65B) within 30 days of the date on which such entity becomes a holding company. This filing will be for informational purposes and will not be noticed in the
59. As discussed above, entities seeking exemption or waiver may do so by filing FERC-65A or FERC-65B, along with their FERC-65. All notifications of exemption or waiver submitted on FERC-65A and FERC-65B will be noticed in the
60. However, we will limit the use of FERC-65A and FERC-65B to those persons who claim that they qualify for one of the mandatory statutory exemptions in section 1266(a) (i.e., that they are a holding company solely with respect to one or more EWGs, FUCOs, or QFs) or for one of the class exemptions or waivers that the Commission adopts in this Final Rule, which are listed in section 366.3(b) and (c) of the Commission's regulations, or in subsequent rules or orders. Persons will be considered to have a temporary exemption or waiver upon a good faith filing of FERC-65A or FERC-65B and the exemption or waiver will be deemed granted after 60 days from the date of the filing, absent Commission action to the contrary before that date. The Office of the Secretary will periodically issue a notice listing the persons whose notifications of exemption or waiver have gone into effect by operation of the Commission's regulations, i.e., in the absence of Commission action to the contrary within 60 days after the date of filing.
61. Persons seeking any other type of exemption or waiver must file a petition for declaratory order pursuant to section 385.207(a) of the Commission's regulations, as required by section 366.3(d) of the regulations adopted herein. These petitions for declaratory order will be noticed in the
62. We reject the assertion of Energy East and others that the adoption of a Commission analogue to 17 CFR 250.1(a) (i.e., the SEC's registration requirement) is tantamount to re-imposing the registration requirement under PUHCA 1935. First and foremost, the Commission in the NOPR proposed to use a version of the SEC Form U-5A as a notification requirement,
63. 17 CFR 250.26 directs registered holding companies and their subsidiaries to comply with a number of SEC accounting and record-keeping rules, including Regulation S-X, the equity accounting method, and the record-retention rules in 17 CFR Part 257. E.ON and LG&E Energy assert that section 250.26(c), which requires holding companies to use the equity method of accounting for investments in subsidiaries, is outside the jurisdiction of the Commission under section 1264 of EPAct 2005 and should not be adopted by the Commission.
64. With respect to the concerns expressed by E.ON and LG&E Energy on the use of the equity method of accounting for investments in subsidiaries and Energy East and EPSA regarding SEC Regulation S-X, the Commission is not adopting paragraph (a)(1) of 17 CFR 250.26 (a)(1), which mandates compliance with this SEC Regulation S-X, or paragraph (c), which mandates use of the equity method of accounting. In addition, the Commission is not adopting paragraph (b), which requires certain information to be supplied with the Form U-5S, or paragraph (g), which is a cross reference to 17 CFR 250.26. Also, as recommended by Dominion and EEI, the Commission will not adopt paragraph (d) regarding the SEC rules on record retention in 17 CFR Part 257. Instead, as discussed above, we will permit holding companies registered under PUHCA 1935 and service companies within such holding company systems that currently follow the SEC's record-retention rules in 17 CFR Part 257 to follow either the Commission's or the SEC's record-retention rules, as they exist on the day before the effective date of PUHCA 2005, for calendar year 2006. These entities must transition to the Commission's rules by January 1, 2007.
65. 17 CFR 250.27 requires registered holding companies and public-utility company subsidiaries thereof that are not subject to the Commission's or a state commission's system of accounts to conform to a classification of accounts prescribed by the Commission. If the public-utility company subsidiary is a gas utility company, it must conform to the system of accounts recommended by NARUC. According to Dominion and EEI, it is questionable whether this rule currently applies to any companies and whether there are any public utility companies under PUHCA 1935 that would not be subject to the Commission's Uniform System of Accounts or the requirements of a state utility commission. In addition, Dominion and EEI assert that section 250.27 is potentially inconsistent with the waiver of Part 101 of the Commission's regulations commonly received in connection with an authorization to sell power at market-based rates because this section would subject to Part 101 any public utility under the FPA that is not required to comply with it.
66. APPA/NRECA oppose the adoption of this section because it does not seem to add anything presently required by the Commission's Uniform System of Accounts.
67. We agree with commenters that this provision should not be adopted as part of the Commission's regulations because it does not add anything to the Commission's Uniform System of Accounts. All public utilities and natural gas companies, except those that have been granted waiver of the Commission's accounting, record-retention, and reporting requirements (
68. Section 250.80 defines the terms “construction,” “goods,” and “services,” as used in the SEC regulations under PUHCA 1935. APPA/NRECA support the adoption of section 250.80, but suggest that the Commission should import the definitions of “service,” “goods,” and “construction” in this section into its own rules.
69. We agree with APPA/NRECA and other commenters, and as these terms and their definitions are relevant under PUHCA 2005, we will adopt the definitions contained in 17 CFR 250.80 in section 366.1 of the Commission's regulations and thereby import the SEC's definitions of these terms for the purposes of PUHCA 2005. In addition, we will remove references to PUHCA 1935, where appropriate, as we have done with the other regulations adopted in this final rule.
70. Section 250.93 requires service companies to adopt the SEC's Uniform System of Accounts in 17 CFR Part 256 and its record-retention rules in 17 CFR Part 257. Some commenters opposed the adoption of these SEC regulations, while others supported their adoption or suggested various ways in which their application could be limited, in particular, by allowing holding companies and service companies to adopt the Commission's Uniform System of Accounts in Part 101 of its regulations and its record-retention rules under Part 125 of its regulations.
71. Dominion and EEI agree with the Commission's proposal to adopt the SEC's Uniform System of Accounts. However, they state this system of accounts closely tracks the requirements of SEC Form U-13-60 and therefore includes a number of components that no longer will be relevant following repeal of PUHCA 1935. They thus recommend that the Commission adopt only those portions of 17 CFR Part 256 that correspond to the information it
72. Dominion and EEI also argue that holding company service companies should have the option of adopting the Commission's Uniform System of Accounts and record-retention rules instead of the SEC's. They further contend that there is no reason that any company that currently follows the Commission's record-retention regulations should be required to adopt those found in 17 CFR part 257 and that the Commission could reconcile the differences between the two sets of requirements in a subsequent rulemaking.
73. Entergy encourages the Commission to consider limiting the applicability of these requirements to service companies and, in the case of the record-retention requirements imposed under 17 CFR part 257, limiting the scope of these requirements to information that bears a direct relationship to costs incurred by service companies or other associate companies whose costs are reflected in the jurisdictional rates or charges of public utilities.
74. Energy East also opposes the adoption of 17 CFR part 257 because, it contends, some of the SEC's records retention requirements are outdated, particularly as to the storage media specified, given information storage and retrieval technologies that are now available and in common use. The Commission's rules are more flexible because a public utility or licensee may select its own storage media subject to conditions related to life expectancy and internal control procedures to assure data reliability. Energy East thus urges the Commission to expand its Part 125 rules, making them applicable to public utilities, service companies, and holding companies.
75. Finally, APPA/NRECA suggest that the Commission adjust the requirements of the SEC's Uniform System of Accounts to make them consistent with the Commission's Uniform System of Accounts under the FPA applicable to public utilities.
76. As discussed above, the requirements of section 1264 of EPAct 2005 to maintain and make available books and records apply equally to all holding companies and affiliates, associate companies, and subsidiaries thereof, regardless of their registered or exempt status under PUHCA 1935, absent a prospective exemption or waiver. Nevertheless, the Commission recognizes the long-standing differences in the treatment of these classes of entities under PUHCA 1935 and SEC regulations, namely, that companies in formerly-registered holding companies systems were subject to PUHCA 1935 and the SEC's accounting and other regulations thereunder, while companies in formerly-exempt holding company systems were not. We will therefore provide all holding companies and service companies with a reasonable period of time to transition to the Commission's regulations under PUHCA 2005. Specifically, all traditional, centralized service companies that do not currently follow the Commission's Uniform System of Accounts (Parts 101 and 201) will have until January 1, 2007 to comply with the Commission's Uniform System of Accounts, and all holding companies and service companies that do not currently follow the Commission's record-retention requirements (Parts 125 and 225) will have until January 1, 2007 to comply with the Commission's record-retention requirements. Furthermore, traditional, centralized service companies within registered holding company systems that currently follow the SEC's Uniform System of Accounts in 17 CFR part 256 have the option to follow either the Commission's or the SEC's Uniform System of Accounts, as they exist on the day before the effective date of PUHCA 2005, for calendar year 2006. Similarly, all holding companies and service companies within registered holding company systems that currently follow the SEC's record-retention rules in 17 CFR part 257 have the option to follow either the Commission's or the SEC's record-retention requirements, as they exist on the day before the effective date of PUHCA 2005, for calendar year 2006. But, as discussed above, these entities must transition to the Commission's rules by January 1, 2007.
77. However, traditional, centralized service companies following the Commission's Uniform System of Accounts must also comply with the General Instructions and other requirements contained in the SEC's Uniform System of Accounts. These instructions and requirements pertain specifically to service company accounts and are not, at present, adequately addressed in the Commission's Uniform System of Accounts.
78. Service companies are required by 17 CFR 250.94 and 259.313 to file SEC Form U-13-60, which is the annual report for service companies in registered holding company systems. It requires the submission of the service company's financial statements for each calendar year prepared using the SEC's Uniform System of Accounts. It also contains certain supporting schedules providing a more detailed analysis of amounts recorded in individual accounts, an analysis of billings to associated and non-associated companies, expense distribution by service company department, and an accompanying statement of methods of cost allocation.
79. Several commenters support the adoption of 17 CFR 250.94 and 259.313. APPA/NRECA support the retention of 17 CFR 250.94 and Form U-13-60.
80. Dominion and EEI also note that the current Form U-13-60 requires companies to file a substantial amount of information that is not relevant to the Commission's duties under PUHCA 2005. EEI therefore proposes that the balance sheet and income statement portions of the Form U-13-60 be retained, but that a number of accounts and schedules not relevant to cost-allocation issues be eliminated, as these accounts and schedules in question are extremely time consuming to prepare and in some cases require invoice level detail to complete, and EEI offers suggestions as to accounts and schedules that should be modified.
81. E.ON and LG&E Energy contend that the implementation of section 250.94 and Form U-13-60 is beyond the scope of the jurisdiction granted to the Commission in section 1275 of EPAct 2005, which is much more limited than that granted to the SEC to authorize the organization and conduct of service companies under section 13 of PUHCA 1935. They suggest that, if it is nonetheless appropriate for the Commission in its administration of PUHCA 2005 to impose reporting requirements under the FPA, the nature and extent of such reports should be limited to those matters over which the Commission is granted jurisdiction. They further contend that Form U-13-60 largely contains information which is not relevant to the jurisdiction of the Commission and propose that the Commission should instead require that FERC Form 1 be supplemented to include the following information: (i) Annual filing of cost-allocation methodology used by the service company to allocate costs; (ii) annual filing of statement of receivables from and payables to associated companies, identified by associate company name; and (iii) annual filing of all charges received by associate companies from a services company, identified by associate company and by FERC account.
82. Based on the comments received, the Commission has decided not to adopt SEC Form U-13-60, and the Commission will instead require traditional, centralized service companies to file their annual reports on FERC Form No. 60, attached as Appendix 2, which is based on a streamlined version of SEC Form U-13-60. FERC Form No. 60 substantially reduces the amount of information required by SEC Form U-13-60 by deleting certain schedules not necessary to fulfill our jurisdictional responsibilities. Section 366.23 of the Commission's regulations, which are based on 17 CFR 250.94 and 259.313, will thus require all traditional, centralized service companies to file with the Commission FERC Form No. 60 by May 1 of the year following the calendar year that is the subject of the report. Traditional, centralized service companies in formerly-registered holding company systems must submit their first FERC Form No. 60, for calendar year 2005, by May 1, 2006, while traditional, centralized service companies in formerly-exempt holding company systems will have until May 1, 2008, to submit their first annual report, for calendar year 2007, on FERC Form No. 60.
83. SEC Form U-13-60 contains a set of financial statements for service companies, detailed supporting schedules, organizational charts, a list of cost-allocation methods they use, and other information. Prior to the repeal of PUHCA 1935, the companies to which these reporting requirements applied were entities formed specifically for the purpose of providing non-power goods and services to a public-utility company, as defined in section 366.1 of the Commission's regulations, of a holding company system. In 17 CFR 250.80, the SEC defined the type of specialized services that these traditional, centralized service companies provided to public-utility companies within their holding company systems, and we have taken over this definition in section 366.1 of our regulations.
84. The annual financial reporting requirement for service companies in FERC Form No. 60, which is based on a truncated version of SEC Form U-13-60, will provide transparency and will enable the Commission and others to better monitor for cross-subsidization. Such information will aid the Commission in carrying out its statutory duties in a number of contexts, including in its assessment of whether a given disposition of jurisdictional facilities under section 203 of the FPA will result in cross-subsidization, in its ratemaking under sections 205 and 206 of the FPA and sections 4 and 5 of the NGA, and in its review and approval of cost-allocations under section 1275 of EPAct 2005. The accounting, record-retention, and reporting rules for service companies that we are adopting in this Final Rule are a measured response to the need for information about service company costs and functions necessary for the Commission to carry out its statutory responsibilities. Finally, in response to EEI's request that the Commission provide a definition of service company that tracks the language in section 1275(b), we note that we have added a definition of service company in section 366.1 of the Commission's regulations.
85. While we believe an annual reporting requirement for service companies is an important tool to aid the Commission in carrying out its responsibilities under the FPA and NGA, and its review of cost allocations requested under section 1275 of PUHCA 2005, as noted above, we have considered the comments received regarding the current content of SEC Form U-13-60 and concluded that some, but not all, recommendations for modifications and deletions of certain schedules should be adopted. Specifically, there are a number of schedules currently contained in the SEC Form U-13-60 that provide a greater level of detail for some items than the Commission will require in FERC Form No. 60 to carry out its statutory responsibilities. Therefore, we will not carry over from SEC Form U-13-60 to FERC Form No. 60 the requirement to submit supporting schedules for Outside Services Employed, Employee Pensions and Benefits, General Advertising Expenses, Rents, Taxes Other than Income Taxes, Donations, and Other Deductions.
86. We will not, however, adopt EEI's request to delete Schedule XIII—Current and Accrued Liabilities. This schedule contains information about the outstanding balances of accounts and notes payable to associated companies. We consider this information to be integral to understanding inter-company transactions and cost allocations within the holding company system.
87. We also will not adopt requests to modify or delete the Schedule of Expense by Department or Service Function or the Departmental Analysis of Salaries. This information is relevant to affiliate costs recovered in jurisdictional rates. Section 1275(b) of EPAct 2005 specifically requires the Commission in certain circumstances to review and authorize the allocation of costs for non-power goods or services provided by service companies to public utilities within the same holding
88. Finally, the Commission will not adopt EEI's recommendation to delete the supporting schedule for Account 930.2, Miscellaneous General Expenses. Account 930.2 is a catch-all account for recording expenses not provided for elsewhere. A single-sum total for this account simply does not provide sufficient information about the nature of the items included in the account or the associated amounts for each item. The additional disclosure that this schedule provides therefore remains important for understanding service company costs and functions. Additionally, we note that a similar schedule is required for the FERC Form No. 1 submitted by public utilities.
89. SEC Form U-5S is the annual report registered holding companies must submit, which includes information about the company's corporate structure, board of directors, acquisitions or sales of utility assets, securities transactions, investments in companies outside the holding company family, political contributions, contracts between the service company and utility affiliates; relations between the holding company and any EWG or FUCO, and a copy of the company's yearly financial reports.
90. APPA/NRECA support the retention of Form U-5S.
91. The majority of commenters, however, oppose the adoption of Form U-5S. EEI argues that the Form U-5S filing requirement should not be adopted because it imposes burdensome and duplicative information collection requirements. EEI states that, although the Office of Management and Budget estimates that companies need approximately 13 hours to complete Form U-5S, in the experience of EEI's registered holding company members this form requires hundreds of hours to complete and as a result imposes millions of dollars in costs on ratepayers and shareholders. Much of the information required by Form U-5S is contained in other public filings, including the Commission's Form 1 and 3Q and the quarterly and annual reports that companies file with the SEC on Forms 10-Q and 10-K. Other information included in the Form U-5S relates to matters that repeal of PUHCA 1935 has made irrelevant and that holding companies no longer should be required to file.
92. Similarly, AGL Resources and Emera Incorporated (Emera) argue that the information solicited by this SEC form is generally irrelevant to the Commission's ratemaking jurisdiction. They further contend that the Commission already obtains the information that it needs to regulate public utilities and natural gas companies on FERC Forms 1 and 2 and that the Commission's need for holding company-level information can be satisfied by reviewing regular SEC reports on Forms 10-K, 10-Q and 8-K, and by soliciting targeted information on a case-by-case basis should particular issues arise. Finally, they argue that the Commission should delay the imposition of additional reporting requirements until it has had sufficient time to evaluate the extent of its information needs.
93. FirstEnergy suggests that, to the extent that the Commission desires to utilize information contained in those forms, it should modify those forms so that the only information required to be maintained is information that is deemed to be necessary or appropriate for the protection of utility customers with respect to jurisdictional rates. The Commission should also provide a clear explanation of why each category of information that is to be maintained is within the statutory limits.
94. Entergy submits that the proposed implementation of the comprehensive reporting requirements of the Form U-5S is unduly burdensome and unnecessary for the Commission to prevent cross-subsidization or otherwise to achieve purposes within the scope of its jurisdiction. Entergy asserts that, at a minimum, the Commission should at least review the individual items in the rules and SEC Forms and determine what, if any, additional information is really necessary for it to discharge its statutory obligations under PUHCA 2005 or the FPA.
95. We will not require entities that are holding companies under PUHCA 2005 to continue to file SEC Form U-5S. We agree with commenters that the information in this form is available in other Commission or SEC filings and/or is not relevant to costs incurred by jurisdictional entities and is not necessary or appropriate for the protection of utility customers with respect to jurisdictional rates.
96. NARUC submits that the Commission should retain the reporting requirement set forth in 17 CFR
97. Detroit Edison requests that the Commission narrow the scope of the rule by clarifying that the Commission will not require any holding company (or its associate companies) to maintain books, records or memoranda that are not used in preparing quarterly and annual filings for the Commission.
98. The FERC-65 (Notification of Holding Company Status) and FERC Form No. 60 (Service Company Report) adopted above will provide us with information to carry out our statutory rate responsibilities under PUHCA 2005. It is neither necessary nor appropriate to require the submission of additional forms at this time, though, in light of the first year's submissions, the comments received at the technical conference within the next year, and our day-to-day experience in implementing PUHCA 2005, we do not foreclose the possibility that additional filing requirements will later be found necessary.
99. With respect to PacifiCorp and Scottish Power's concerns, we will not adopt 17 CFR 250.24. However, as discussed below with respect to previously authorized activities, we have concluded that filings directed by prior SEC financing authorizations should continue to be made, but should now be made with the Commission.
100. We will not grant Detroit Edison's requested clarification that the Commission will not require any holding company (or its associate companies) to maintain books and records that are not used in preparing quarterly and annual filings for the Commission. The clarification Detroit Edison requests could produce loopholes in holding company obligations to maintain and make available to the Commission their books and records in sufficient detail to permit examination, audit, and verification of the financial statements, schedules, and reports they are required to file with the Commission or that are issued to shareholders, as required by sections 366.21 and 366.22. For example, we will not carry over from SEC Form U-13-60 to FERC Form No. 60 the requirement to submit a schedule that provides a more detailed breakdown of outside services, but the removal of this schedule does not relieve the traditional, centralized service company of its obligation to provide this information upon request by the Commission. If we were to adopt Detroit Edison's suggested clarifying language, the traditional, centralized service company (which is an associate company within the holding company system) could argue that it does not have to provide the requested information because it was not kept as it was not necessary to complete FERC Form No. 60.
101. Several commenters urge the Commission to clarify its standard for relevance under section 1264.
102. Detroit Edison submits that section 366.2 as currently worded is far too open-ended, and leaves holding companies in an untenable state of uncertainty with respect to the relevance of any “books, accounts, memoranda” or “other records.”
103. In PUHCA 2005, Congress left it to the Commission's discretion to determine what books and records are relevant to the costs incurred by a public utility or natural gas company and necessary or appropriate for the protection of public utility or natural gas company customers with respect to jurisdictional rates. We do not find it appropriate here to follow APPA/NRECA's suggestion that we provide a general definition of relevance. We have instead adopted the requirements in Part 366 of the Commission's regulations. In particular, sections 366.21 and 366.22 require that holding companies and service companies maintain books and records of their transactions in sufficient detail to permit examination, audit, and verification of the financial statements, schedules, and reports they are required to file with the Commission or that are issued to shareholders. We will provide further guidance as to what books and records are relevant at the technical conference that we will convene within one year of the effective date of PUHCA 2005 and in the separate rulemaking proceeding we will institute to address changes in the Commission's Uniform System of Accounts and record-retention requirements. We believe that these provisions provide adequate certainty as to which books and records that holding companies and service companies need to maintain and make available to the Commission.
104. Several commenters request that the Commission confirm that its own access under section 1264 does not preempt rights to access information by state commissions under section 1265. In order to prevent future arguments that the federal access provisions of section 1264 preempt state commission access under section 1265, Santa Clara urges the Commission to grant this clarification in the final rule.
105. We agree with NARUC that there is no inherent conflict between state access under either section 1265 or state law and federal access under section 1264. We find that our own access under section 1264 does not preempt rights to access information by state commissions under section 1265. With respect to IURC's argument, we do not find it necessary to adopt regulatory text on this point, in light of the clear statutory language.
106. APPA/NRECA urge the Commission to explicitly state in the final rule that the data access granted under section 1264(a) of EPAct 2005 supplements, rather than supplants, the Commission's pre-EPAct 2005 access to books and records and that this pre-existing access stems from the Commission's ratemaking authority and from the general provisions of section 301 of the FPA and section 8 of the NGA.
107. The Commission grants APPA/NRECA's proposed clarification. The Commission's pre-EPAct 2005 access to books and records pursuant to section 301 of the FPA and section 8 of the NGA remains unchanged. As provided in section 1271 of EPAct 2005, nothing in PUHCA 2005 limits the Commission's authority under the FPA or the NGA.
108. Oklahoma Corporation Commission recommends that the Commission consider language that would allow state commissions to continue to receive notices of any investigations of regulated public utility companies.
109. In response to the request of Oklahoma Corporation Commission that state commissions be apprised of any investigations of regulated public utility companies, we believe our current practices regarding the disclosure of investigations are appropriate and should not be broadened at this time. We are open to further consideration on this point at the technical conference. However, Congress set forth the rights of state commissions to obtain access to the books and records of companies within a holding company system in section 1265 of EPAct 2005, and they may seek to obtain access to the books and records of holding companies in accordance with that provision. With respect to Public Citizen's request that the Commission use section 301 of the FPA to give states the opportunity to request the maintenance and preservation of books and records that state commissions determine affect their retail rates, we do not interpret section 301 to give the Commission the authority to provide a process for states to request maintenance of books and records for retail purposes. Congress has addressed in section 1265 the issue of state access to books and records of holding company systems and their members.
110. Section 1266(a) of EPAct 2005 directs the Commission to issue a final rule within 90 days after the effective date of Subtitle F exempting from the requirements of section 1264 of EPAct 2005 any person that is a holding company, solely with respect to one or more:
(1) Qualifying facilities under the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601
(2) Exempt wholesale generators; or
(3) Foreign utility companies.
111. Section 1266(b) further directs the Commission to exempt a person or transaction from the requirements of section 1264 if, upon application or
(1) The Commission finds that the books and records of a person are not relevant to the jurisdictional rates of a public utility or natural gas company; or
(2) The Commission finds that a class of transactions is not relevant to the jurisdictional rates of a public utility or natural gas company.
112. PUHCA 2005 requires the Commission to exempt any person that falls within the classes designated by section 1266(a) from the requirements of section 1264, and therefore, the Commission proposed to adopt such an exemption. In the NOPR, however, the Commission did not propose to categorically exempt classes of entities or transactions described in section 1266(b) from the requirements of section 1264. Rather, we proposed to rely on case-by-case applications for these exemptions until we have gained further experience subsequent to the repeal of PUHCA 1935. However, we sought comment on whether the Commission should exempt classes of transactions involving mutual fund passive investors or other groups of passive investors from the new federal books and records access requirements.
113. Finally, we noted that, although a person that is a holding company
114. As discussed further below, the Commission is adopting certain specific exemptions and waivers proposed by commenters. We are also providing in section 366.4(b) and (c) of our regulations the procedures for filing for exemption or waiver, which are available for specified persons or classes of transactions. A holding company that falls into one of the identified categories may file for exemption or waiver by submitting FERC-65A (Exemption Notification) or FERC-65B (Waiver Notification) and shall be deemed to have a temporary exemption or waiver upon a good faith filing. Notices of all such notifications of exemption or waiver will be published in the
115. Holding companies that seek exemptions or waivers other than those specifically identified in section 366.3(b) or (c) of the Commission's regulations may not do so by means of FERC-65A or FERC-65B. Such holding companies must instead seek an individual exemption or waiver by filing a petition for declaratory order pursuant to sections 366.3(e), 366.4(b)(2) and 366.4(c)(2). Such petitions will be noticed in the
116. Finally, if a holding company that has been granted an exemption or waiver under section 366.4(b) or (c) fails to conform with any material facts or representations presented in its submittals to the Commission in FERC-65A or FERC-65B, the exemption or waiver may no longer be relied on. Also, the Commission may, on its own motion or on the motion of any person, revoke the exemption or waiver granted under section 366. 4(b), if the holding company fails to conform to any of the Commission's criteria under this part for obtaining the exemption or waiver.
117. Commenters expressed near-unanimous support for an exemption for mutual fund and other passive investors from the requirements of section 1264.
118. Some commenters expressed general support for the proposed exemption, but argued that passive investors should not be exempted when certain circumstances were present. NARUC submits that the Commission should not exempt passive investors where either of the following conditions occurs or is present: (1) The transaction involves and will result in an ownership interest of ten percent or more of the debt or equity capital of any entity within the holding company system; or (2) the transaction will result in the mutual fund or other passive investor groups holding two or more seats or ten percent or more of the voting representation seats on the board of directors of any entity within the holding company system.
119. We agree with the majority of commenters that the Commission should exempt passive investors from section 1264. Passive investors do not exercise control over jurisdictional companies, and thus the Commission does not need access to their books and records for purposes of ensuring just and reasonable rates. In response to the comments of Barclay's and Morgan Stanley, we will also clarify here that the exemption for passive investors applies to the following entities: Mutual funds; passive investments in collective investment vehicles whose assets are managed by banks, savings and loan associations and their operating subsidiaries, or brokers/dealers; and persons that directly, or indirectly through their subsidiaries or affiliates, buy and sell the securities of public utilities in the ordinary course of business as a broker/dealer, underwriter or fiduciary, and not exercising operational control over the public utility.
120. We will not adopt a specific definition of “passive investor” at this time. Our precedent under the FPA on whether certain asset owners are “passive” and thus not public utilities provides guidance for purposes of claiming exemption under PUHCA 2005; further guidance may be provided in the Commission's rulemaking to implement EPAct 2005 amendments to section 203 of the FPA. In addition, claimants should describe the relevant facts in their FERC-65 (Notification of Holding Company Status), FERC-65A (Exemption Notification), or petition for declaratory order.
121. EPSA proposes that the following classes of entities be exempted from section 1264's requirements: (i) Utilities that do not serve captive customers and are not affiliated with a utility that serves captive customers (nontraditional utilities); and (ii) a holding company that owns only nontraditional utilities and/or EWGs, FUCOs, or QFs.
122. EPSA proposes that the Commission should not consider energy marketers (
123. The Commission will exempt power marketers and other utilities that do not serve captive customers and are not affiliated with a utility that serves captive customers (
124. MidAmerican proposes that the Commission exempt from proposed section 366.2(e) the following classes of transactions: (i) Where the holding company affirmatively certifies on behalf of itself and its subsidiaries, as applicable, that it will not charge, bill or allocate to the public utility or natural gas company any costs or expenses in connection with goods and service transactions, and will not engage in financing transactions with any public utility except as authorized by a state commission or the Commission; (ii) transactions between or among affiliates that are independent of and do not include a public utility or natural gas company; and (iii) transactions between a public utility company or a natural gas company and an affiliate if such transactions are conducted in the ordinary course of business, occur at prevailing market prices or on terms not different from those made available to unaffiliated entities and do not exceed individually or in the aggregate in cost to the public utility company or natural gas company one-half of one percent of its operating revenue during its most recent fiscal year, or are conducted in accordance with and pursuant to an approved rate or service tariff.
125. MidAmerican states that, by granting an exemption where a holding company certifies that it will not charge, bill or allocate to the public utility or natural gas company any costs in connection with goods and service transactions, the Commission will be encouraging additional investments from outside the utility industry in the country's energy infrastructure.
126. MidAmerican proposes exemptions for transactions in the ordinary course of business between and among a public utility holding company's non-utility subsidiaries and affiliates and
127. We will grant MidAmerican's first and second requests for exemptions: (i) In cases where the holding company affirmatively certifies on behalf of itself and its subsidiaries, as applicable, that it will not charge, bill or allocate to the public utility or natural gas company any costs or expenses in connection with goods and service transactions, and will not engage in financing transactions with any public utility except as authorized by a state commission or the Commission; and (ii) transactions between or among affiliates that are independent of and do not include a public utility or natural gas company. These classes of transactions are not relevant to jurisdictional rates and will therefore be exempted from the books and records requirements of section 1264.
128. The Commission will deny MidAmerican's request for an exemption of transactions between a public utility or a natural gas company and an affiliate if such transactions are conducted in the ordinary course of business, occur at prevailing market prices or on terms not different from those made available to unaffiliated entities and do not exceed individually or in the aggregate in cost to the public utility or natural gas company one-half of one percent of its operating revenue during its most recent fiscal year, or are conducted in accordance with and pursuant to an approved rate or service tariff. These transactions involve regulated companies, and we do not believe they should be exempted because of the potential for cross-subsidization between regulated and non-regulated companies in the same holding company system, which could adversely affect jurisdictional rates.
129. Several commenters urge the Commission to exempt rural electric cooperatives from section 1264. APPA/NRECA argue that the Commission should recognize that under longstanding SEC precedent, electric cooperatives were not regulated as public utility holding companies under PUHCA 1935 and that, read together with the plain language of PUHCA 2005, that precedent shows that rural cooperatives fall outside PUHCA 2005. In addition, APPA/NRECA contend that, at an absolute minimum, the Commission should make clear that those cooperatives that have received no-action letters or other assurances in the past from the SEC can continue to rely on those assurances without any need to seek additional confirmation or a no-action assurance or waiver from the Commission and adopt a class exemption from PUHCA 2005 for cooperatives that are organized and operate in reliance on such well-settled precedent.
130. The Commission finds the arguments of APPA/NRECA and other commenters in this regard persuasive. We find that all electric power cooperatives, including those that are regulated by the Commission under the FPA,
131. American Gas Association requests that the Commission clarify that local distribution companies that are not regulated by the Commission are not embraced within the phrase “natural-gas company.”
132. The Commission finds that the books and records of local distribution companies that are not regulated by the Commission are not relevant to jurisdictional rates. Therefore, we will amend the proposed rules to reflect that local distribution companies are exempt from the regulations.
133. Consolidated Edison (ConEd) contends that customers of single-state holding companies are adequately protected by the Commission's existing regulatory authority under the FPA and NGA, so that the imposition of additional books-and-records requirements would be superfluous. Accordingly, ConEd requests that the proposed regulations be revised to expressly exempt from the provisions of section 366.2 all single-state holding companies that were exempt under PUHCA 1935 as of the date of enactment of PUHCA 2005 and all companies that subsequently demonstrate to the Commission their status as a single-state holding company. Those companies should remain exempt pending a change
134. In its reply comments, Public Citizen argues that the single state exemption, for example, requires that both a utility and its holding company primarily operate in a single state, so that the state is capable of regulating the holding company, as well as the utility, under state law. Such companies at a minimum should be required to file an annual statement, as they do now, to show that they continue to meet the standards for such an exemption.
135. We cannot approve a categorical exemption for single-state holding companies. Congress has chosen not to re-enact this exemption from PUHCA 1935, and ConEd has not demonstrated that single-state holding companies satisfy the criterion for exemption pursuant to section 1266(b) of PUHCA 2005 (
136. Barrick Goldstrike Mines argue that the Commission should exempt the holding companies of small industrial generators and their transactions from regulatory oversight because the exemptions that have existed until now, have encouraged the development of additional electrical generation.
137. The Commission is not persuaded by the arguments of Barrick and Mittal Steel to provide a blanket exemption for holding companies owning industrial small generators, since they have not demonstrated that the statutory criterion is satisfied,
138. With respect to Mittal Steel's request regarding good faith applications, we note that in section 366.4(b) of our regulations, we have provided that the filing of FERC-65B provides temporary waiver upon a good faith filing and that after 60 days a waiver is deemed to be granted, absent timely Commission action to the contrary.
139. International Transmission Company submits that investors in independent transmission companies that are subject to Commission jurisdiction should be exempted and that, without this exemption, this requirement creates a new barrier to investment.
140. The Commission will grant waiver of the our regulations under PUHCA 2005 for investors in independent transmission companies. The rate issues that may arise in connection with entities that serve retail customers or that generate or sell electricity at wholesale are not present with respect to an independent transmission company. Further, the Commission has sufficient authority under sections 205 and 206 of the FPA, as well as informational authority under section 301 of the FPA and section 1264 of EPAct 2005, to obtain the relevant books and records of a jurisdictional independent transmission company, and any company that controls or is controlled by such jurisdictional company. Therefore, the Commission will grant a waiver of our requirements in sections 366.21, 366.22, and 366.23 of our regulations for investors in independent transmission-only companies.
141. Section 1275(b) of EPAct 2005 provides that, in the case of non-power goods or administrative or management services provided by an associate company organized specifically for the purpose of providing such goods or services to any public utility in the same holding company system, at the election of certain holding company systems or a state commission having jurisdiction over the public utility, the Commission, after the effective date of PUHCA 2005, shall review and authorize an allocation of costs for such goods and services to the extent relevant to that associate company. In the NOPR, we proposed to reflect this statutory provision in new section 366.5(b) of our regulations.
142. In the NOPR, we noted that, irrespective of the new section 1275(b) of PUHCA 2005, with the repeal of PUHCA 1935 and the elimination of SEC review of the allocation of costs for non-power goods and services, we have authority under sections 205 and 206 of the FPA and sections 4 and 5 of the NGA to review the rate recovery in jurisdictional rates of such associate and affiliated company non-power goods
143. A number of commenters supported the Commission's proposal to require holding companies that were registered under PUHCA 1935 to file cost-allocation agreements under section 205 of the FPA and section 4 of the NGA.
144. Some commenters suggest expansion of the Commission's proposed filing requirement. APPA/NRECA noted that the risk of misallocation of costs and cross-subsidization does not depend on whether the public utility holding company was registered or statutorily exempted under PUHCA 1935 and urge the Commission to require the filing of all cost-allocation practices between public utility and non-utility activities, including both formerly registered and exempted utility holding companies.
145. Several commenters opposed the Commission's proposed filing requirement as contrary to Congress' intent and inconsistent with the statutory scheme established by PUHCA 2005 and the FPA. FirstEnergy contends that there is nothing in PUHCA 2005 to suggest that the Congress intended to grant the Commission the authority to regulate the agreements for procurement of non-power goods and services by public utility companies from associated service companies in the same way that it regulates the sale of electricity for resale and that, if the Commission found that such agreements are “* * * contracts affecting jurisdictional rates” within the meaning of section 205(c) of the FPA it would be asserting jurisdiction over virtually every agreement for procurement of non-power goods and services by all regulated electric utilities.
146. EPSA opposes the mandatory filing requirement because it contends that the Commission lacks jurisdiction to impose this requirement under the FPA. EPSA asserts that section 205 of the FPA requires only public utilities as defined in section 201(e) of the FPA to file with the Commission the schedules, tariffs and agreements under which they provide FPA jurisdictional services. Registered holding companies, by contrast, (and non-registered holding companies) may have public utility subsidiaries, but they are not public utilities under section 201(e) of the FPA. In addition, EPSA claims that being required to make filings under section 205 of the FPA could force a holding company to become a fully regulated public utility. Under existing Commission precedent, upon the acceptance of a filing under section 205 of the FPA, the Commission has deemed that the filing entity owns FPA jurisdictional facilities within the meaning of section 201(e) of the FPA. Hence, they argue, if registered holding companies are required to file cost-allocation agreements under section 205, this could have the unintended effect of forcing such companies to become public utilities.
147. A number of commenters state that the Commission already has authority under sections 205, 206, and 301 of the FPA and PUHCA 2005 to require the public utility to file any relevant cost-allocation agreements with affiliates to the extent they affect jurisdictional rates. Thus, they argue, there is no need to impose an additional filing requirement.
148. Finally, Coral Power and Shell WindEnergy argue that holding companies that own only EWGs, FUCOs, and QFs and are not affiliated with traditional utilities with captive ratepayers should be exempted from the filing requirement. They argue that such entities typically sell energy at negotiated or market-based rates, not at cost-based rates, so there can be no issue of cost allocation when rates are not based on the generator's costs, so that they cannot pass through excessive costs associated with affiliate transactions without pricing themselves out of the market.
149. We reject arguments that the Commission does not have the authority under the FPA to require public utilities that are members of a holding company system to file agreements involving the allocation of costs of non-power goods and services to public utilities and other members of the holding company. Clearly, if one or more of the public utility members of the holding company seeks to recover their share of the allocated costs in jurisdictional rates, the agreement is a contract affecting rates and may be reviewed by the Commission insofar as it pertains to jurisdictional rates.
150. We also disagree with Entergy's argument that, if the Commission were to require cost-allocation agreements affecting jurisdictional rates to be filed, this would be inconsistent with section 1275(b) of PUHCA 2005, which allows holding company systems or state commissions to obtain a Commission determination of appropriate cost allocations under such agreements. While the Commission has
151. The Commission will not mandate the blanket filing of cost-allocation agreements governing the costs of non-power goods and services purchased by jurisdictional public utilities from affiliated service companies under section 1275(b) of EPAct 2005. As discussed above, although we have the authority to require the filing of cost-allocation agreements pursuant to our ratemaking authority under sections 4 and 5 of the NGA and sections 205 and 206 of the FPA, we do not find it necessary to do so in light of the requirement that traditional, centralized service companies (i.e., service companies that are not special-purpose companies such as a fuel supply company or a construction company) file relevant cost-allocation information on FERC Form No. 60. FERC Form No. 60 is a less burdensome method for collecting this information from service companies. Furthermore, where appropriate, we will rely on our ratemaking authority to examine these agreements or require them to be filed on an as-needed basis to determine whether the regulated utility's purchases of non-power goods and services were prudently incurred and just and reasonable.
152. We agree with the numerous commenters who express a desire to protect captive customers from inflated affiliate transactions. However, imposing a blanket requirement to file each cost-allocation agreement for non-power goods and services is not necessary to fulfill our jurisdictional responsibilities. Instead, we believe that the review of cost-allocation information contained in FERC Form No. 60 submissions by traditional, centralized service companies, review of service agreements and other information in the context of rate proceedings, and/or review of cost information through the audit function provide sufficient protection for customers.
153. In the NOPR, we also noted that section 1275(b) provides that holding companies and state commissions may under certain circumstances require Commission review and authorization of cost allocations for non-power goods or services provided by service companies to public utilities, but it does not provide for such determinations where such non-power goods and services are provided to gas utility companies and natural gas companies. We invited comments as to whether the Commission should recommend an amendment clarifying that holding company systems and state commissions having jurisdiction over gas utility companies and natural gas companies in the holding company systems are included within the scope of section 1275(b).
154. Commenters were generally supportive of the Commission's proposal in this regard. Dominion and EEI state that such a clarification would be appropriate with respect to holding companies with combined electric utility company and gas utility company systems because cost allocations in those systems will affect both types of companies and the inclusion of both in section 1275(b) would help ensure that a consistent approach is applied throughout the system.
155. Duke opposes the inclusion of natural gas companies under section 1275(b) because, unlike public utilities, natural gas companies are not subject to the ratemaking authority of state regulatory commissions, and therefore are not in danger of incurring trapped or otherwise unrecoverable costs as a result of conflicting state commission decisions.
156. In the report to Congress mandated by section 1272(2) of EPAct 2005, we intend to request that Congress clarify whether it intended section 1275(b) to include natural gas companies and, if so, to adopt a conforming amendment. As EEI and
157. The SEC and state commissions previously have been primarily responsible for determining allocations of costs for non-power goods and services among the various associate companies in registered holding company systems, and these allocations have been made on an “at cost” basis. By contrast, the Commission's long-standing policy is that registered holding company special-purpose subsidiaries must provide non-power goods and services to a public utility regulated by the Commission at a price no higher than market. For at least a decade, we have imposed this standard as a condition for approval of mergers that result in the creation of a new registered holding company.
158. The comments as to whether the Commission should adopt the SEC's “at cost” standard were mixed, with a number of entities expressing general support for a lower of cost or market standard.
159. APPA/NRECA note that the argument made for service companies is the efficiency of centralization, but argue that the use of such companies can do damage to auditability. The damage arises from the holding company practice, endorsed by the SEC, of charging service company costs to FERC Account 923—Outside Services. According to APPA/NRECA, what appears on the public utility's books is not detail about each service company cost, but instead a single large charge representing the public utility's allocated share of total service company cost. They further argue that the use of the Commission's “Outside Services” account implies an arm's-length relationship between the buyer of the outside services and the supplier; but in fact the relationship between service company and public utility is not at arm's length. APPA/NRECA contend that the solution for this problem would be for the Commission to require an accounting process that treats the public utility operating company incurring these inter-affiliate costs as if the public utility had incurred the costs directly. The public utility then would post the charges to the appropriate accounts (making sure to segregate the costs passed through by the service company from the public utility's own directly incurred costs), thereby facilitating oversight by the Commission and by outside auditors.
160. NARUC supports a lower of cost or market standard, noting that the NARUC Guidelines state that: “Generally, the price for services, products and the use of assets provided by a non-regulated affiliate to a regulated affiliate should be at the lower of fully allocated cost or prevailing market prices. Under appropriate circumstances, prices could be based on incremental cost, or other pricing mechanisms as determined by the regulator.” Although the NARUC Guidelines call for more flexibility than was reflected in the NOPR, NARUC asserts that its position and the Commission's standard for the allocation of costs for non-power goods and services are consistent.
161. In their reply comments, Xcel and Progress Energy submit that there are a number of fallacies to the arguments in favor of the market standard. Xcel states that, first, if the affiliated service company charges for its services at cost, it does not and cannot profit from its activities. Second, the notion that at cost pricing could cause a utility to pay a service company more for services than it would otherwise incur is, as a practical matter, also wrong. Third, the underlying premise of service company formation is that such administrative and general activities can be performed more efficiently and at a less costly rate by a service company on behalf of a utility than a utility could perform the service for itself.
162. On the other hand, the majority of commenters favor the continued use of the SEC's at-cost standard. Dominion and EEI argue that the Commission has not demonstrated the need to revise the current standards. They assert that the cost-allocation factors found in registered holding company system service agreements have been worked out in cooperation with both the SEC
163. Dominion and EEI further argue that there is no need to revise these standards because the Commission can address this issue in ratemaking proceedings. Given the repeal of PUHCA 1935 and section 318 of the FPA, they assert that there is no longer an impediment to the exercise of the Commission's powers under sections 205 and 206 of the FPA to disallow particular expenditures made at cost that the Commission finds to be imprudent.
164. EEI further asserts that a market test can be difficult to apply for highly-specialized goods or services because there is no market for the services supplied by a system service company and, thus, it can be extremely difficult to calculate a market price for such services. None of these difficulties accompany the at-cost standard.
165. Energy East and EPSA contend that the Commission lacks the authority to impose its pricing standard. Energy East asserts that the plain language of section 1275(b) indicates Congress' intent that the Commission should retroactively review costs and then properly allocate them. Nothing in section 1275(b), argues Energy East, indicates that Congress intended that the Commission pre-approve the cost of non-power goods and services rendered to associated public utilities under a lower of cost or market pricing standard.
166. Finally, some commenters suggest alternatives to switching to the SEC's at-cost standard. Dominion argues that service companies that have been subject to the SEC at-cost standard under PUHCA 1935 should be permitted to continue using that standard if they so elect.
167. As an initial matter, some commenters appear to misconstrue the purposes of the Commission's request for comments on the use of the SEC's “at-cost” standard. Contrary to EPSA's implication that the Commission seeks to approve the formation and corporate structure of companies within a holding company system, this was not the subject of the Commission's proposal or request for comments. Rather, there are two circumstances in which the “at-cost” or “market” standard may arise in the context of the Commission's jurisdictional responsibilities. First, the Commission has a responsibility to ensure that the costs of non-power goods and services provided by a traditional, centralized service company to public utilities within the holding company system are just, reasonable, and not unduly discriminatory or preferential. This can arise in the context of a review of the prudence of costs incurred when a public utility seeks to flow through the costs in jurisdictional rates or a general review of the justness and reasonableness of the public utility's costs. It can arise in the context of an individual public utility within the holding company system or in the context of the appropriate non-discriminatory allocation
168. The second context in which the “at-cost” or “market” standard is likely to arise is when a service company that is a special-purpose company within a holding company (
169. With these two types of situations in mind—traditional, centralized service companies and service companies that are special-purpose companies—we reach the following conclusions based on the comments. The Commission will not require traditional, centralized service companies currently using the SEC's at-cost standard to comply with the Commission's market standard for their sales of non-fuel, non-power goods and services to regulated affiliates. Fundamentally, we agree with commenters such as American Transmission Company and Progress Energy that centralized provision of accounting, human resources, legal, tax and other such services benefits ratepayers through increased efficiency and economies of scale. Further, we recognize that it is frequently difficult to define the market value of the specialized services provided by centralized service companies. Accordingly, the Commission will apply a rebuttable presumption that costs incurred under “at cost” pricing of such services are reasonable. However, we will entertain complaints that “at cost” pricing for such services exceeds the market price, but complainants will have the burden of demonstrating that that is the case.
170. We also agree with commenters such as Dominion and EEI that the Commission has the power to disallow any expenditures that it finds to be imprudent under sections 205 and 206 of the FPA, and sections 4 and 5 of the NGA. Additionally, the audit function can be used to identify and protect against any cross-subsidization between regulated public utilities and non-regulated affiliates.
171. With respect to non-power goods and services transactions between holding company affiliates other than traditional, centralized service companies,
172. APPA/NRECA note that section 12(c) of PUHCA 1935 prohibits a public utility from providing financial support to affiliated non-utility ventures, and they suggest that the Commission continue this prohibition through its regulations. Congress did not reenact this provision of PUHCA 1935 in PUHCA 2005, and, although we believe we have authority under the FPA and NGA to impose such a restriction, we do not believe such a restriction is necessary at this time.
173. We find that APPA/NRECA raise some valid points concerning service company billings and how those amounts should be reflected in the accounts of a public utility company. However, resolution of this issue may have policy implications as well as practical accounting system implementation issues that should be
174. We disagree with Energy East and EPSA that section 1275 of PUHCA 2005 in any way restricts this Commission's authority to impose either the market standard or the at-cost standard. By remaining silent on the standard to be employed, Congress has placed the matter squarely within the Commission's discretion. Contrary to assertions by EPSA and others, the Commission is not exceeding its authority by establishing policies governing the sale or provision of non-power goods and services by a non-regulated company to an affiliated public utility. The standard used affects jurisdictional rates, and the Commission has the authority to establish a standard insofar as it pertains to jurisdictional rates pursuant to its ratemaking authority under sections 205 and 206 of the FPA and section 4 and 5 of the NGA, as well as pursuant to the additional authority to review and authorize cost allocations requested under section 1275 of EPAct 2005.
175. APPA/NRECA assert that the language of proposed section 366.5(b) could be misinterpreted to mean that a company “organized specifically” for one purpose (say, providing legal services to the system's utility members) and that later takes on other responsibilities (like providing accounting services to the system's utility members) can escape review under this section (for example, at the request of a state commission). Such “after-acquired” functions should not preclude Commission review.
176. A number of commenters expressed concern about the potential preemptive effect of Commission review of cost-allocation agreements. In order to avoid any preemption issue, NARUC suggests that the filing of such agreements occur under section 304 of the FPA and section 10 of the NGA, instead of under section 205 of the FPA and section 4 of the NGA.
177. By contrast, Xcel and NiSource contend that any Commission-approved cost allocations under section 1275 will necessarily preempt state determinations. Xcel argues that it would negate the intent of Congress to give the Commission the authority to review these allocations if state commissions could undertake their own cost allocations and urges the Commission to avoid any kind of actions or statements that would support the argument that the preemptive effect of section 1275 is dependent on the form of filing of service agreements with the Commission.
178. Dominion and EEI contend that the primary situation in which the Commission would need to impose a specific methodology would be a situation in which a multi-state holding company system finds that all state commissions do not approve a single allocation agreement. In such cases, the multi-state holding company system would apply to the Commission to impose consistent requirements that would eliminate the possibility of trapped costs.
179. In response to APPA/NRECA's concerns regarding the “organized specifically” language, we clarify that we do not interpret this to allow a cost allocation to escape review if the associate company later takes on additional responsibilities. In response to the comments from MBIA Insurance, the Commission has authority to review any intra-system costs to any jurisdictional company under FPA and NGA authority.
180. In response to the requests for clarification of the potential preemptive effect of section 1264 and the Commission's regulations thereunder, we believe that issues related to preemption are more appropriately addressed on a case-by-case basis to give the Commission the opportunity to consider the potential preemptive effect of section 1264 in specific circumstances. However, we anticipate that such issues would arise only in unusual circumstances.
181. Section 1275(d) of EPAct 2005 directs the Commission to issue rules no later than four months after the date of enactment of EPAct 2005 to exempt from the requirements of section 1275 (service allocation requests by holding
182. While section 1275(d) states that companies in single-state holding company systems are exempt from the “requirements” of section 1275, section 1275 does not impose any requirements on holding company systems or companies within these systems, but rather grants holding company systems and relevant state commissions the right to obtain Commission review and authorization of cost allocations. Instead, the only requirements in section 1275 are directed toward the Commission, in particular that “the Commission shall review and authorize” cost allocations if asked to do so by the holding company system or the relevant state commission. Based on the structure of section 1275, we suggested that the most reasonable interpretation of the exemption in section 1275(d) is that Congress intended to deny single-state holding company systems and state commissions having jurisdiction over a public utility in such systems the right to obtain Commission review of cost allocations pursuant to section 1275. Accordingly, we proposed to reflect this limitation by excluding single-state holding company systems from the scope of Commission review under section 366.5(b) of the Commission's regulations. The Commission invited comments on this interpretation of section 1275(d).
183. Some commenters agree with the Commission's interpretation that section 1275(d) exempts single-state holding company systems whose public utilities operations are confined substantially to a single state (
184. A number of commenters who agree with the Commission's interpretation also suggest various modifications to the scope of the single-state holding company exemption and propose definitions of the phrase “confined substantially to a single state.” EEI suggests that the Commission follow SEC practice and precedent in interpreting this exemption, in particular, section 3(a)(1) of PUHCA 1935 which provides an exemption for intrastate holding companies. According to EEI, under current SEC practice, a holding company will qualify for the intrastate exemption if it derives no more than approximately 13 percent of its utility revenues from out-of-state public utility company operations. EEI further suggests that, in administering this exemption, the Commission should follow current SEC practice and require the annual submission of information in Part 3 of Form U-3A-2 by companies seeking an exemption under section 1275(d).
185. NARUC submits that the exemption should apply to any company in a holding company system whose public utility operations are confined substantially to a single state, rather than applying the exemption to the holding company system that is confined substantially to a single state. Thus, the relevant inquiry should involve an analysis of the extent to which the individual company operates in a single state rather than the extent to which the holding company system is predominately single-state in nature.
186. Commenters also suggested revisions to the Commission's proposed regulatory text in section 366.5. NiSource notes that the current language can be read so that a holding company with operations in multiple states falls under section 1275(b) even if its public utility is confined substantially (or entirely) to a single state. NiSource urges the Commission to modify the first sentence in section 366.5(c) to read that “any company in a holding company system whose public utility operations are confined substantially to a single state, as defined herein, is exempt from paragraph (b) of this section.”
187. Despite the ambiguous language of section 1275(d), we believe that the most reasonable interpretation of section 1275(b) and (d) together is that section 1275(b) is designed to offer this Commission as a forum for holding company systems and state commissions to obtain cost allocations within holding companies whose public utility operations are not confined substantially to a single state. Specifically, section 1275(b) is designed to allow multi-state holding companies, or the regulatory agencies of states in which the holding company's public utility subsidiaries operate, to obtain Commission review and authorization of cost allocations. However, Congress in section 1275(d) does not permit single-state holding companies to take advantage of the procedures in section 1275(b).
188. Several commenters agree that a holding company should be considered to be a single-state holding company if it complies with current SEC practice on granting a similar exemption under PUHCA 1935, which requires that a certain percentage of public-utility revenues be derived from operations within a single state. We believe it is reasonable to adopt a standard that is consistent with SEC rules and will define a single-state holding company as one that does not derive more than 13 percent of its public-utility revenues from outside a single state.
189. We agree with several commenters that the relevant analysis should be whether a holding company's regulated public utility operations are confined substantially to a single state, not whether the holding company itself is confined substantially to a single state. As discussed above, we interpret the single-state holding company exemption in section 1275(d) to apply in cases where a holding company has multiple non-utility subsidiaries operating in more than one state, but one public utility subsidiary that operates primarily in a single state. In such a case, the holding companies' public utility operations would be subject to the jurisdiction of a single state commission, while the holding companies' operations would not. Accordingly, we find that Public Citizen's interpretation is inconsistent with the text of section 1275(d).
190. In the NOPR, we concluded that an exemption under section 1275(d) forecloses Commission review under section 1275(b). In section 366.5(c) of the Commission's regulations, we proposed to establish a procedure by which the Commission, either upon petition for declaratory order or upon its own motion, may exclude from the scope of Commission review and authorization under section 366.5(b) any class of transactions that we determine are not relevant to the jurisdictional rates of a public utility. The Commission invited comments as to other classes of transactions that, pursuant to section 1275(d), should be exempted from the requirements of section 1275.
191. No comments were received on this subject. Accordingly, we will not at this time establish any blanket exemptions for certain classes of transactions.
192. Section 1271 of EPAct 2005 states essentially that a person may continue to engage in activities or transactions authorized by rule or order as of the date of enactment of EPAct 2005 if that person continues to comply with the terms of the authorization. In the NOPR, the Commission proposed to reflect this statutory provision in section 366.6 of the Commission's regulations. The Commission also proposed to require that, if any such activities are challenged in a formal Commission proceeding, the person claiming prior authorization shall be required to provide the full text of any such authorization (whether by rule, order, or letter) and the application(s) or pleading(s) underlying such authorization (whether by rule, order, or letter).
193. A number of commenters have noted that proposed section 366.6 states that persons will be able to continue to engage in activities or transactions authorized under PUHCA 2005, and that it should instead refer to PUHCA 1935. In response to the comments, we have corrected this error in the regulations adopted here.
194. The majority of the comments supported the Commission's proposal to allow entities to rely on SEC orders, in particular, SEC financing authorizations.
195. EEI further suggests that, to the degree it deems necessary, the Commission could condition its acceptance of SEC financing authorizations on specific requirements related to the provisions of FPA section 204, such as the restrictions on secured and unsecured debt set forth in
196. Entergy supports the Commission's proposed interpretation of the savings provision in section 1271, but asserts that there are several technical concerns regarding the manner in which the proposed rule is drafted that, if not corrected, may prevent the rule from achieving its intended purpose. Entergy urges the Commission to clarify the condition in the proposed rules insofar as it provides authority to continue to engage in “activities or transactions” approved by the SEC “[u]nless, otherwise provided by Commission rule or order.” Entergy inquires if, for example, a Commission section 204 financing order imposes a condition that is not present in an existing SEC financing order issued to another public utility under PUHCA 1935, can the other public utility continue to rely on its PUHCA 1935 order or is the applicability of the saving provision negated by the referenced condition? Similarly, Entergy asserts that there may be a question whether the “unless otherwise provided language” will necessitate compliance with the requirements of Part 34 of the Commission's regulations or other regulatory conditions or requirements adopted by the Commission, to the extent that such requirements are absent from an existing PUHCA 1935 financing order (which otherwise would continue in effect beyond the PUHCA 1935 repeal date as a result of the saving provision).
197. Entergy also seeks clarification as to the statement in the NOPR that existing PUHCA 1935 authorizations are to remain “in effect for the period of time provided in such authorization” with respect to authorizations that do not contain a specified expiration date, in particular, orders authorizing creation of service companies, which typically do not reference any expiration date. Entergy recommends that authorizations granted by the SEC under PUHCA 1935 should remain in effect after repeal, unless and until such time as such authorization would otherwise expire under the applicable PUHCA 1935 order, rule or statutory provision, or until such time as the Commission issues a new order expressly modifying the authorization previously granted to the applicable company by the SEC under PUHCA 1935.
198. Finally, Entergy requests clarification of the statement in the NOPR that such authorizations will remain effective only “so long as that person continues to comply with the terms of such authorization.” According to Entergy, many orders issued by the SEC require periodic reporting to the SEC of financing transactions that are consummated pursuant to the authorization set forth in the order, so the question arises as to whether such reporting requirements will be considered “terms” of the PUHCA 1935 authorization that must be satisfied in order to continue to engage in the SEC-approved financing transactions subsequent to the February 8, 2006. Entergy requests that the Commission clarify that following February 8, 2006, such reports (originally required to be filed with the SEC pursuant to Rule 24, adopted under PUHCA 1935) are to be filed with the Commission, rather than with the SEC.
199. PacifiCorp requests that the Commission clarify that SEC financing authorizations will be preserved for a sufficient period of time to permit a reasonable transition period (through December 31, 2007) to the requirements of section 204 for both utilities and the Commission. PacifiCorp further requests that the Commission provide a mechanism for such further approvals until February 8, 2006, and to preserve tax treatment by retaining the right of holding companies to avail themselves of Internal Revenue Code section 1081, which section 1271 also preserves.
200. MGTC requests that the Commission clarify that prior status determinations by the SEC remain valid and are grandfathered by the operation of section 1271, so that, for example, if a person was declared not to be a “gas utility company” by the SEC, and the facts on which that determination was made have not materially changed, that person will not be a “natural gas company” under PUHCA 2005 and implementing regulations. MGTC further contends that, if the Commission is not willing at this time to issue a broad declaration that prior SEC status determinations are grandfathered by section 1271, the Commission should nonetheless hold that a person that the SEC found was not a “gas utility company” under PUHCA 1935 will not be required to comply with the Commission's new regulations until the Commission makes an affirmative finding that the person is a “natural gas utility” under PUHCA 2005.
201. Northeast Utilities Service Company (Northeast Utilities) notes that some registered holding companies may have obtained amendments to existing SEC orders or new orders after August 8, 2005, i.e., date of enactment of EPAct 2005, and thus urges the Commission to make clear that such modified and/or new orders should also be grandfathered, if possible.
202. Some commenters, however, emphasized that section 1271 of EPAct 2005 does not insulate activities previously approved by the SEC from Commission review under the FPA or NGA.
203. Finally, Oklahoma Corporation Commission suggests that the Commission should amend proposed section 366.6 to include language that clearly articulates that said person or
204. In the NOPR, we noted that the repeal of PUHCA 1935 and section 318 of the FPA would give the Commission jurisdiction under section 204 of the FPA over certain issuances of securities and assumptions of liabilities by companies within holding company systems that are currently subject to the jurisdiction of the SEC. Furthermore, Congress expanded the Commission's jurisdiction over holding company acquisitions of securities through its amendments to section 203 of the FPA in section 1289 of EPAct 2005. Finally, Congress explicitly stated in section 1271(b) that nothing in PUHCA 2005 limits the Commission's authority under the FPA and the NGA. Thus, it is clear that in EPAct 2005 Congress intended to preserve, and in some ways expand, the Commission's authority over issuances of securities, assumptions of liabilities by companies within holding company systems, and holding company acquisitions of securities. However, Congress also included in PUHCA 2005 a transition provision, which allows persons to continue to rely on previously-granted SEC authorizations.
205. We will adopt section 366.6 as proposed in the NOPR and allow entities to continue to rely on SEC orders, including SEC financing authorizations. We will also grant a number of the clarifications with respect to SEC financing authorizations requested by commenters. However, the Commission will require all holding companies that intend to rely on their SEC financing authorizations to issue securities, assume liabilities, or engage in securities transactions that would otherwise be reportable under section 203 of the FPA, as amended by EPAct 2005, or section 204 of the FPA to file with the Commission a copy of these SEC orders by the effective date of PUHCA 2005. The filing of these orders will permit the Commission to maintain effective oversight of the previously-authorized activities and transactions that, due to the repeal of PUHCA 1935, are now subject to the Commission's jurisdiction under the FPA.
206. Section 1271(a) states that nothing in PUHCA 2005 or PUHCA 1935 and the rules, regulations, and orders thereunder, prohibits a person from engaging in or continuing to engage in activities or transactions in which it is legally engaged or authorized to engage on the date of enactment of PUHCA 2005, if that person continues to comply with the terms (other than an expiration date or termination date) of any such authorization. This provision, and section 366.6 of our regulations that we adopt herein, permit persons to rely on the SEC multi-year financing authorizations for the period of time provided in that authorization. Accordingly, we clarify that, to the extent companies in a holding company system engage in authorized financing transactions, in compliance with the terms of that authorization, we will not require those entities to seek additional authorization under sections 203 or 204 at this time.
207. We find that EEI's concerns regarding
208. Section 1271(a) permits a person to engage in previously-authorized activities if that person continues to comply with the terms of that authorization, other than an expiration date or termination date. We agree that it is necessary to provide a reasonable transition period for entities subject to the requirements of PUHCA 2005 and, therefore, we agree with Dominion and EEI that these authorizations should continue through
209. We will also grant Entergy's clarification that, after the effective date of PUHCA 2005 (
210. PacifiCorp appears to be requesting that the Commission grant further financing approvals under PUHCA 1935 until February 8, 2006, since it could not do so under PUHCA 2005, which does not take effect before that date. While the Commission has no authority to take any action under PUHCA 1935, which was entrusted to the SEC, to the extent necessary to permit continuity of financing authorizations or to preserve tax treatment referenced in section 1271(c) of PUHCA 2005,
211. As noted, section 1271(c) explicitly states that tax treatment under section 1081 of the Internal Revenue Code of 1986 as a result of transactions ordered in compliance with PUHCA 1935 shall not be affected in any manner due to the repeal of PUHCA 1935 and the enactment of PUHCA 2005, and we will comply with this provision insofar as such tax treatment is reflected in jurisdictional rates or in the Commission's Uniform System of Accounts and the SEC's Uniform System of Accounts, as they exist on the day before the date of enactment of PUHCA 2005.
212. We will also grant Northeast Utilities' request that section 1271 will apply to modifications of SEC orders made between the date of enactment and the effective date of PUHCA 2005.
213. We will also grant the clarification requested by APPA/NRECA and others that transactions entered into pursuant to prior SEC authorizations are not insulated from Commission review under the FPA and the NGA. Previously, certain securities transactions were exempted from Commission jurisdiction due to section 318 of the FPA, which Congress has repealed. While we agree that section 1271(a) permits companies within
214. We will not adopt Oklahoma Corporation Commission's suggestion that we amend section 366.6 to include language that clearly articulates that said person or entity should also bear the burden of proof that that person or entity has complied with the rule, order, or letter. We find that such an amendment is unnecessary at this time.
215. EPAct 2005 repeals PUHCA 1935 in its entirety, including section 32, which requires the Commission to make EWG determinations on a case-by-case basis, upon application. Although the definitional section of PUHCA 2005 references section 32 of PUHCA 1935, the Congress nevertheless repealed section 32 in its entirety and did not re-enact that provision in the new PUHCA 2005. The Commission stated in the NOPR that it believed that the most reasonable interpretation of EPAct 2005, given the omission of section 32 in the new PUHCA 2005, is that Congress did not intend the Commission to continue to make case-by-case determinations of EWG status in the future (
216. We further noted that the benefit of EWG status under PUHCA 1935 was that entities that the Commission determined to have met the definition of EWG were exempted from the myriad requirements of PUHCA 1935. The principal benefit of being an EWG under PUHCA 2005 is exemption from the new federal books and records access requirements. To the extent that these new federal books and records access requirements add to the Commission's existing very broad books and records access authority under FPA section 301 and NGA section 8, we concluded that our interpretation served to err on the side of greater customer protection.
217. We also noted that, in any event, entities that qualified as EWGs under PUHCA 1935 were not exempted from the Commission's authority under the FPA if they met the FPA definition of “public utility,” including the very broad access to books and records provisions of FPA section 301. Nor will they be exempt from these FPA provisions as a result of PUHCA 2005.
218. In addition, we noted that Congress repealed section 33 of PUHCA 1935, which addresses FUCOs. As with EWGs, we stated our belief that Congress intended to limit the exemption for persons that are holding companies with respect to FUCOs to those attaining FUCO status before repeal of PUHCA 1935. The Commission invited comments as to this interpretation of EPAct 2005.
219. Some commenters expressed support for the Commission's decision to no longer make determinations of EWG status. These commenters note that, while Congress repealed the section of PUHCA 1935 addressing EWGs, the exemption in subsection 1266(a)(2) refers to these repealed designations, they have to apply to something, and they agree with the Commission's position that the exemptions must apply only to the existing EWGs and FUCOs.
220. The majority of commenters, however, opposed the Commission's proposal to stop making determinations of EWG status as contrary to Congress' intent and the plain meaning of the statute.
221. Other commenters believe that the Commission's interpretation is not a permissible one because the decision to eliminate Part 365 and future EWG determinations would produce unreasonable or unduly discriminatory results. Calpine argues that, under the Commission's interpretation of the statute, if Calpine added one more wholesale generator that would have been an EWG under Part 365, Calpine and its subsidiaries will lose the exemption and thus it is not reasonable for the addition of one wholesale generator that is identical to Calpine's EWG affiliates in every respect but one (
222. With respect to determinations of FUCO status, Calpine disagrees with the Commission's proposal in the NOPR. Calpine asserts that, by incorporating the definition of FUCO into PUHCA 2005 and relying on that definition to permit holding companies with respect to only EWGs, QFs, and/or FUCOs to be exempt from the federal books and records access requirement, Congress recognized the continuing need for FUCOs after the repeal of PUHCA 1935 takes effect. As with EWGs, Calpine contends that it is not reasonable for the addition of a single foreign subsidiary having no potential to impact the operations of its domestic affiliates to subject such affiliates to the books and records access requirement and the SEC rules when they were not subject to such rules under PUHCA 1935.
223. EEI proposes that the Commission should exempt FUCOs from the requirement that they maintain their books and records under proposed Rule 366.2(e), but that they otherwise should be subject to the books and records access provisions of section 366.2 of the Commission's proposed regulations. According to EEI, the Commission should continue to have access to FUCO records to the extent that such records are relevant to the costs incurred by a public utility or natural gas company that is an associate of a holding company and necessary and appropriate for the proper exercise of the Commission's statutory charge under the FPA and NGA with respect to jurisdictional rates.
224. Some commenters suggested that the Commission should adopt a self-certification process similar process to that used by the SEC. For example, Scottish Power argues that FUCOs that operate exclusively outside of the U.S. should not be subject to Commission oversight. The Commission should continue the SEC's practice of allowing for the creation of FUCOs by submittal of a notice filing. FUCOs and their subsidiary operations are generally separate from that of the domestic utility operations and therefore would not bear in any way on the jurisdiction rates of such utility company.
225. Having again reviewed the ambiguities in statutory construction, and balancing the facts that Congress repealed section 32 of PUHCA 1935 in its entirety, yet referred to section 32 in the definitional sections of PUHCA 2005, we conclude that it is reasonable to interpret PUHCA 2005 to allow entities to obtain EWG status under PUHCA 2005. However, we will reject the requests from various commenters that we retain part 365 of our regulations, which permit only case-by-case applications for EWG status.
226. Instead, in line with the comments received from Scottish Power and others, we will establish a self-certification process for companies that believe they satisfy the criteria for EWG or FUCO status. This process is similar to that used for self-certifications for QFs under the Public Utility Regulatory Policies Act of 1978, and is set forth in section 366.7. Section 366.7(a) provides that the owner or operator of an EWG or FUCO, or its representative, may file with the Commission a notice of self-certification demonstrating that it satisfies the definition of EWG or FUCO. In the case of EWGs, the owner or operator must also file a copy of the notice with the state regulatory authority of each state in which the facility is located. Notices of self-certification or self-recertification will be published in the
227. For entities that require a higher degree of legal certainty as to their status, we will permit them to seek a Commission determination of their EWG and FUCO status as defined under section 366.1 of the Commission's regulations. Specifically, section 366.7(b) provides that they may seek such a determination by filing a petition for declaratory order pursuant to Rule 207(a) of the Commission's Rules of Practice and Procedure justifying the request for EWG or FUCO status. These petitions will be noticed in the
228. The self-certification procedure established herein, along with the continued availability of Commission determinations of EWG and FUCO status, ensures that the EWG and FUCO exemptions will continue to be available to any persons who satisfy the statutory criteria. Moreover, we note that the self-certification procedures established herein, and advocated by various commenters, are less burdensome than the procedures established under section 32 of PUHCA 1935.
229. We disagree with commenters such as Calpine and EEI who argue that Congress, by incorporating the definition of EWGs and FUCOs into PUHCA 2005, carried over the requirement from PUHCA 1935 that the Commission make case-by-case determinations of EWG status. This argument appears to rest on the erroneous assumption that Congress effectively reenacted (only) section 32(a) of PUHCA 1935. Had Congress meant to do so, it could have simply so stated in PUHCA 2005; alternatively, it could have imported the text from section 32(a) of PUHCA 1935, with appropriate modifications, into section 1262(6) of EPAct 2005, as it did for many of the other definitions carried over from PUHCA 1935. Instead, however, Congress directed that “[t]he terms ‘exempt wholesale generator’ and
230. As noted earlier, with respect to FUCOs, section 33 of PUHCA 1935, as amended by EPAct 1992 provided that FUCOs would be exempt from PUHCA 1935 and not deemed an electric utility company, but the exemption would not apply or be effective unless relevant state commission(s) certified that they had the authority and resources to protect ratepayers of public utility companies associated or affiliated with the FUCO. Given that PUHCA 2005 is largely a books and records statute, we will waive our accounting and reporting requirements for FUCOs. However, we will not exempt them from section 366.2 of our regulations, which allows us to obtain access as necessary with respect to jurisdictional rates. The case-by-case approach that we adopt here is consistent with our precedent concerning the treatment of FUCOs under the FPA and will allow us to ensure adequate protection of captive customers in the United States.
231. In the NOPR, we noted that PUHCA 2005 is primarily a “books and records access” statute and does not give the Commission any new substantive authorities, other than the requirement in section 1275 of EPAct 2005 that the Commission review and authorize certain non-power goods and services cost allocations among holding company members upon request. Nor does it give the Commission authority to pre-approve holding company activities. Accordingly, outside the context of reviewing a holding company transaction requiring approval under section 203 of the FPA or a proposed issuance of securities under section 204 of the FPA, the Commission will continue to rely primarily on its ratemaking authorities under sections 205 and 206 of the FPA and sections 4 and 5 of the NGA to protect jurisdictional customers against inappropriate cross-subsidization or encumbrances of utility assets on an ongoing basis.
232. In the NOPR, we also noted that the Commission already has in place, pursuant to the FPA and NGA, certain reporting requirements regarding money pools and cash management activities that affect jurisdictional companies.
233. Commenters were largely opposed to the adoption of any new rules on cross-subsidization, encumbrances of utility assets, diversification into non-utility businesses, or the extension of existing cash management rules.
234. With respect to rules on diversification, several commenters argued that the Commission lacks the statutory authority to adopt such rules.
235. With respect to the Commission's cash management rules, Dominion and EEI contend that there is no need to extend the Commission's current cash management rules to apply to holding companies. According to Dominion and EEI, the rules already effectively apply to holding companies because, where a jurisdictional utility is a participant in a cash management arrangement with a holding company, that arrangement must comply with Commission cash management rules and the agreement must be filed. The only “extension” of the rules would be to require a holding company to comply with the rule in a cash management arrangement that involved only non-utility companies. That would be an inappropriate expansion of the Commission's authority.
236. A number of commenters, however, argued that the Commission should adopt additional rules to protect against the dangers of cross-subsidization and diversification into non-utility businesses,
237. NASUCA argues that, in the case of captive customers, the proper structural protection would be to prohibit a utility's affiliation with non-utility businesses, unless there is no risk involved. If a customer has power supply options, dealings between utilities and their non-utility affiliates could be approved if: (a) the information on the risk is fully disclosed; (b) the potential gains to the customer are commensurate with the risk; and (c) there can be no possible level of harm so large as to render the utility unable to comply with its duty to provide service reliably and economically.
238. With respect to the procedure for implementing these structural measures to protect customers against the risks of diversification into non-utility businesses, APPA/NRECA urge the Commission to create a procedure for evaluating a public utility's acquisition of, or acquisition by, a non-utility business to ensure: (a) Compliance with aforementioned limits; (b) non-interference by the non-utility side in the management of the public utility side; and (c) that holders of the public utility's debt, and credit rating agencies which rate that debt, have confirmed that there is no risk of adverse effect on their position.
239. These commenters argue that the Commission has sufficient authority to issue additional rules on cross-subsidization and diversification. For example, Arkansas PSC contends that the Commission has authority under sections 203, 205, and 206 of the FPA to issue such rules.
240. A number of entities also supported the extension of the Commission's cash management rules to public utility holding companies.
241. We interpret section 1275(c) of EPAct 2005 to be a savings clause, which does not give the Commission the authority to issue additional Commission rules regarding cross-subsidization, encumbrances of utility assets, diversification into non-utility businesses, or the extension of existing cash management rules. Rather, any such authority resides in the FPA and NGA. In addition, as noted by E.ON and LG&E Energy, current Commission and state regulations already provide oversight regarding cross-subsidization and encumbrances of utility assets. Accordingly, we will monitor industry activities, and we will adopt new regulations on cross-subsidization or encumbrances of utility assets, pursuant to our FPA and NGA authorities, only at such time as our current regulations appear to be insufficient. However, these matters will be further addressed at the technical conference that we will be holding within the next year.
242. The Commission finds persuasive Dominion's argument that Congress repealed the investment diversification limitations that have been applicable to registered holding companies, and therefore we will not propose additional rules regarding diversification into non-utility businesses at this time. Moreover, we note that, if the Commission were to propose such rules, we would have to do so under our FPA and NGA authorities, as we lack the authority to do so under PUHCA 2005.
243. Finally, we will not propose to extend our cash management rules to holding companies. As noted by Dominion and EEI, the cash management rules adopted under the FPA and NGA already effectively apply to holding companies because, where a jurisdictional utility is a participant in a cash management arrangement with a holding company, that arrangement must comply with Commission cash management rules and the agreement must be filed. Therefore, the Commission will not propose to extend existing cash management rules.
244. Section 1272(2) of EPAct 2005 directs the Commission to submit to Congress detailed recommendations on technical and conforming amendments to federal law necessary to carry out PUHCA 2005 within four months after the date of enactment. In the NOPR, the Commission invited comments as to what technical and conforming amendments the Commission should include in this submission to Congress.
245. We received comments on recommendations we should make to Congress, as well as comments on how we should interpret certain terms in PUHCA 2005 or modifications we should make to our proposed regulatory text.
246. Oklahoma Corporation Commission requests that the definitions of “affiliate” and “subsidiary” in PUHCA 2005 be amended. Oklahoma Corporation Commission contends that the difference in the two percentages,
247. A number of entities requested amendments to the definition of “electric utility company.” Morgan Stanley contends that the definition of “electric utility company” is not in accord with other definitions in PUHCA 2005 and that Congress intended that the two types of “public-utility companies,”
248. Morgan Stanley also urges the Commission to recommend to Congress that at least the entire definition of “exempt wholesale generator” from PUHCA 1935 be incorporated into PUHCA 2005, including other terms that appear within that defined term, namely, “eligible facility” from 15 U.S.C. 79z-5(a)(2), and “affiliate” from 15 U.S.C. 79b(a)(11)(B).
249. Emera and National Grid recommend that the Commission adopt a definition of “foreign utility company” clarifying that a FUCO is not a “public-utility company”, an “electric utility company,” or a “gas utility company.” Emera contends that such a definition would be consistent with section 33 of PUHCA 1935 which
250. Emera and National Grid argue that the Commission should implement the exemption for passive investors by seeking an amendment the definition of “holding company” to exclude passive investors in a public-utility company or holding company securities, such as investment companies.
251. Some commenters have requested that local distribution companies be exempted from the requirements of PUHCA 2005 and suggest that the Commission exclude them from the definition of “natural gas company.” For example, American Gas Association requests that the Commission clarify that local gas distribution companies that are not regulated by the Commission are not embraced within the phrase “natural-gas company,” noting that EPAct 2005 defines the separate term “gas utility” as a local distribution company. AGA asserts that, while many local distribution companies are technically “natural-gas companies” under the NGA because the natural gas in their systems flows in interstate commerce, the Commission does not regulate local distribution companies that are exempted under section 1(b) of the NGA, Hinshaw pipelines exempted under section 1(c) of the NGA, entities subject to service-area determinations under section 7(f) of the NGA, and local distribution companies with blanket certificates.
252. We will reject Oklahoma Corporation Commission's request to modify the definitions of “affiliate” and “subsidiary.” Congress chose to carry over these long-standing definitions from PUHCA 1935 to PUHCA 2005 and thus clearly expressed its intent to retain these statutory thresholds. However, we emphasize that section 1262(16)(B) gives the Commission the authority to deem someone a “subsidiary” if necessary for the rate protection of utility customers, even for ownership interests of less than ten percent. Further, section 1264 gives the Commission the authority to examine the books and records of any company in a holding company system, including affiliates and subsidiaries. Thus, we believe that the Commission has sufficient authority to protect customers without seeking a modification of these definitions.
253. We will reject the requests of Morgan Stanley and others to amend the definitions of “electric utility company.” The definitions of “electric utility company” and “gas utility company” in PUHCA 1935 similarly differed in that the definition of “electric utility company” was not limited to retail activities. By carrying over this distinction into PUHCA 2005, it is clear that Congress did not intend that these two definitions should be consistent. Moreover, if adopted, Morgan Stanley's proposal would deprive the Commission of jurisdiction over holding companies that own public utilities, and Morgan Stanley has not provided any evidence that Congress meant to do so. With respect to the definition of “exempt wholesale generator,” we will grant Morgan Stanley's request to carry over the definition of “eligible facility” since that term is used within the definition of EWG. The definition of eligible facility and other relevant provisions are cross-referenced in the regulatory text of this final rule.
254. We deny Emera and National Grid's requests that we change the definition of FUCO to state that a FUCO shall “not be deemed a public utility company, electric utility company or gas company under this part.” However, we clarify the definition of FUCO to state that these companies shall not be subject to any of the requirements of this subchapter other than section 366.2. Therefore, FUCOs are not required to follow PUHCA 2005 accounting and reporting requirements, but must continue to grant the Commission access to their accounts, books, memoranda, and other records.
255. We will reject Emera's and National Grid's request that we recommend an amendment to the definition of “holding company” to reflect the exemption for passive investors. We have already adopted this exemption in our regulations, and thus it is unnecessary to amend the statutory definition.
256. With respect to the requests by various commenters on an amendment concerning local distribution companies that are not regulated by the Commission as natural gas companies under the NGA, we find that such a statutory amendment is unnecessary, as we have exempted local distribution companies from the books and records requirements of PUHCA 2005 in section 366(c) of our regulations, pursuant to our exemption authority under section 1266(b).
257. EEI suggests that Commission recommend a technical amendment to section 3(c)(8) of the Investment Company Act of 1940 (ICA). According to EEI, section 3(c)(8) currently provides that, notwithstanding the definition of “investment company” found in section 3(a) of the ICA, a company subject to regulation under PUHCA 1935 shall not be an investment company. By the date repeal of PUHCA 1935 becomes effective, many holding companies will need to assert their exempt status under section 3(b)(1) of the ICA, or seek an order of exemption from the SEC under section 3(b)(2) of the ICA; if section 3(c)(8) is not amended, holding companies may be expected to seek the certainty provided by an SEC order under section 3(b)(2), rather than to rely on “self-certification” under section 3(b)(1). EEI asserts that an amendment to section 3(c)(8) would, by continuing the exemption from investment company status that holding companies have enjoyed to date, make sure that holding company financing may proceed without disruption after the date repeal of PUHCA 1935 becomes effective.
258. NARUC notes that section 1270 of EPAct 2005 indicates that the Commission has the same powers to enforce the provisions of PUHCA 2005
259. EEI submits that the Commission should recommend that section 1274(a) of EPAct 2005 be amended to specify that the savings provisions of section 1271 are effective as of the date EPAct 2005 was enacted.
260. EEI submits that the Commission should provide a procedure similar to the SEC's general procedural rules, for submitting information on a confidential basis.
261. FirstEnergy further contends that, because of the very limited time available to the Commission to adopt rules needed to implement PUHCA 2005, the Commission should make clear that any rules that may be adopted in this proceeding are only interim rules that will be in effect for no longer than one year. Such a procedure would enable the Commission to meet its obligation to adopt rules required for implementation of PUHCA 2005 within four months after its enactment, but would provide assurance that such hastily-crafted rules would not be in effect indefinitely. FirstEnergy contends that this approach would give the Commission and interested parties additional time in which to learn from their experience under the final rules that are adopted in this proceeding, to give further consideration to the many issues that have been raised by the Commission in the NOPR, and to work toward development of final rules that are properly designed to protect the public interest.
262. EEI recommends an amendment to section 3(c)(8) of the Investment Company Act of 1940, which provides that a company subject to regulation under PUHCA 1935 shall not be an “investment company” as defined in and regulated under the Investment Company Act of 1940.
263. We agree with the comments of NARUC and will recommend an amendment to section 1270 clarifying that the Commission is able to enforce the provisions of PUHCA 2005 concerning natural gas companies using the equivalent powers granted under the NGA.
264. We also agree with the suggestions of EEI and others regarding the effective date of the savings provisions in section 1271, and we will recommend that section 1274(a) of EPAct 2005 be amended to specify that the savings provisions of section 1271 are effective as of the date EPAct 2005 was enacted.
265. In response to the requests of EEI and others concerning the protection of confidential information, we note that section 1264(d) provides that no member, officer, or employee of the Commission shall divulge any fact or information that may come to his or her knowledge during the course of examination of books and records as provided in this section, except as may be directed by the Commission or by a court of competent jurisdiction. Furthermore, the Commission already has in place procedures governing the treatment of confidential and other non-public information in Part 388 of its regulations. Commenters have not demonstrated that the Commission's current rules are inadequate, and we conclude that it is unnecessary to adopt further rules at this time.
266. We will also reject FirstEnergy's request that the Commission clarify that any rules adopted in this final rule are of an interim nature. Nevertheless, the Commission will evaluate the rules it adopts here on an ongoing basis based on its own experience and the submissions received from parties in individual proceedings and the technical conference.
267. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.
268. In particular, we are adopting a FERC Form No. 60 (annual reports for service companies), a substantially streamlined version of what had previously been SEC Form U13-60 implemented by the SEC. In addition, we will require entities that are or become holding companies within the meaning of PUHCA 2005 to submit a simple one-time filing, FERC-65 (Notification of Holding Company Status), as compared to the more substantial filings and forms previously required by SEC Form U-5A. We establish a similar, simplified filing, as compared to the SEC's existing filings and forms, for exemptions and waivers, namely FERC-65A (Exemption Notification) and FERC-65B (Waiver Notification).
269. The Commission also eliminates the requirements contained in its own regulations in 18 CFR part 365; the corresponding information collection is
270. For information on the requirements, submitting comments on these collection of information including ways to reduce the burden imposed by these requirements, please send your comments to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 (Attention: Michael Miller, Office of the Executive Director, (202-502-8415)) or send comments to the Office of Management and Budget (Attention: Desk Officer for the Federal Energy Regulatory Commission, fax: 202-395-7285, e-mail:
271. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
272. The Regulatory Flexibility Act of 1980 (RFA) requires rulemakings to contain either a description and analysis of the effect that the rule will have on small entities or to contain a certification that the rule will not have a significant economic impact on a substantial number of small entities.
273. In addition to publishing the full text of this document in the
274. From the Commission's Home Page on the Internet, this information is available in the Commission's document management system, eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
275. User assistance is available for eLibrary and the Commission's website during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at
This final rule will take effect February 8, 2006. The Commission has determined with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a major rule within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.
Electric power, Natural gas, Public utility holding companies and service companies, Reporting and recordkeeping requirements, and Cost allocations.
By the Commission.
Sections 1261
For purposes of this part:
(i) Derives no part of its income, directly or indirectly, from the generation, transmission, or distribution of electric energy for sale or the distribution at retail of natural or manufactured gas for heat, light, or power, within the United States; and
(ii) Neither the company nor any of its subsidiary companies is a public utility company operating in the United States.
(2) A foreign utility company shall not be subject to any requirements of this subchapter other than § 366.2.
(1)
(i) Any company that directly or indirectly owns, controls, or holds, with power to vote, 10 percent or more of the outstanding voting securities of a public-utility company or of a holding company of any public-utility company; and
(ii) Any person, determined by the Commission, after notice and opportunity for hearing, to exercise directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more persons) such a controlling influence over the management or policies of any public-utility company or holding company as to make it necessary or
(2)
(i) A bank, savings association, or trust company, or their operating subsidiaries that own, control, or hold, with the power to vote, public utility or public utility holding company securities so long as the securities are—
(A) Held as collateral for a loan;
(B) Held in the ordinary course of business as a fiduciary; or
(C) Acquired solely for purposes of liquidation and in connection with a loan previously contracted for and owned beneficially for a period of not more than two years; or
(ii) A broker or dealer that owns, controls, or holds with the power to vote public utility or public utility holding company securities so long as the securities are—
(A) Not beneficially owned by the broker or dealer and are subject to any voting instructions which may be given by customers or their assigns; or
(B) Acquired in the ordinary course of business as a broker, dealer, or underwriter with the bona fide intention of effecting distribution within 12 months of the specific securities so acquired.
(1) Any company, 10 percent or more of the outstanding voting securities of which are directly or indirectly owned, controlled, or held with power to vote, by such holding company; and
(2) Any person, the management or policies of which the Commission, after notice and opportunity for hearing, determines to be subject to a controlling influence, directly or indirectly, by such holding company (either alone or pursuant to an arrangement or understanding with one or more other persons) so as to make it necessary for the rate protection of utility customers with respect to rates that such person be subject to the obligations, duties, and liabilities imposed by this subtitle upon subsidiary companies of holding companies.
(a)
(1) the United States;
(2) A state or political subdivision of a state;
(3) Any foreign governmental authority not operating in the United States;
(4) Any agency, authority, or instrumentality of any entity referred to in paragraphs (a)(1), (2), or (3) of this section; or
(5) Any officer, agent, or employee of any entity referred to in paragraphs (a)(1), (2), (3), or (4) of this section as such in the course of his or her official duty.
(b)
(c)
(d)
(a)
(1) Qualifying facilities under the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601
(2) Exempt wholesale generators; or
(3) Foreign utility companies.
(b)
(1) Passive investors, so long as the ownership remains passive, including:
(i) Mutual funds,
(ii) Collective investment vehicles whose assets are managed by banks, savings and loan associations and their operating subsidiaries, or brokers/dealers; and
(iii) Persons that directly, or indirectly through their subsidiaries or affiliates, buy and sell the securities of public utilities in the ordinary course of business as a broker/dealer, underwriter or fiduciary, and not exercising operational control over the utility;
(2) Commission-jurisdictional utilities that have no captive customers and that are not affiliated with any jurisdictional utility that has captive customers, and holding companies that own or control only such utilities;
(3) Transactions where the holding company affirmatively certifies on behalf of itself and its subsidiaries, as applicable, that it will not charge, bill or allocate to the public utility or natural gas company in its holding company system any costs or expenses in connection with goods and services transactions, and will not engage in financing transactions with any such public utility or natural gas company, except as authorized by a state commission or the Commission;
(4) Transactions between or among affiliates that are independent of and do not include a public utility or natural gas company;
(5) Electric power cooperatives;
(6) Local distribution companies that are not regulated as “natural gas companies” pursuant to sections 1(b) or 1(c) of the Natural Gas Act, 15 U.S.C. 717(b), (c)).
(c)
(1) Single-state holding company systems as defined in § 366.1;
(2) Holding companies that own generating facilities that total 100 MW or less in size and are used fundamentally for their own load or for sales to affiliated end-users; or
(3) Investors in independent transmission-only companies.
(d)
(1) The Commission finds that the books, accounts, memoranda, and other records of any person are not relevant to the jurisdictional rates of a public utility or natural gas company; or
(2) The Commission finds that any class of transactions is not relevant to the jurisdictional rates of a public utility or natural gas company.
(e)
(a)
(b)
(2) Persons or companies that do not qualify for exemption pursuant to § 366.3(a) or § 366.3(b) may seek an individual exemption from this subchapter. They may not do so by means of filing FERC-65A and instead must file a petition for declaratory order as required under § 366.3(e). Such petitions will be noticed in the
(c)
(2) Persons or companies that do not qualify for waiver pursuant to § 366.3(c) may seek an individual waiver from this subchapter. They may not do so by means of filing FERC-65B and instead must file a petition for declaratory order pursuant as required under § 366.3(e). Such petitions will be noticed in the
(d)
(2) The Commission may, on its own motion or on the motion of any person, revoke the exemption or waiver granted under paragraphs (b) or (c) of this section, if the person or company fails to conform to any of the Commission's criteria under this part for obtaining the exemption or waiver.
(a)
(b)
(c)
(d) Nothing in paragraphs (a) through (c) of this section shall affect the authority of the Commission under the Federal Power Act (16 U.S.C. 791
(a)
(b)
(a)
(b)
(c)
(2) The Commission may, on its own motion or on the application of any person, revoke the status of a facility or company, if the facility or company fails to conform to any of the Commission's criteria under this part.
(a)
(b) Unless otherwise exempted or granted a waiver by Commission rule or order, beginning January 1, 2007, all holding companies must comply with the Commission's record-retention requirements for public utilities and licensees or for natural gas companies, as appropriate (parts 125 and 225 of this chapter). Until December 31, 2006, holding companies registered under the Public Utility Holding Company Act of 1935 (16 U.S.C. 79a
(c) Nothing in this section shall relieve any company subject thereto from compliance with the requirements as to recordkeeping and record-retention that may be prescribed by any other regulatory agency.
(a)
(2)
(3) Nothing in this section shall relieve any service company subject thereto from compliance with requirements as to record-retention that may be prescribed by any other regulatory agency.
(b)
(i) Records other than accounts;
(ii) Records required by federal or state law;
(iii) Subaccounts or supporting accounts which are not inconsistent with the accounts required either by the Uniform System of Accounts in parts 101 and 201 of this chapter; and
(iv) Such other accounts as may be authorized by the Commission.
(2)
(3) Nothing in this section shall relieve any service company subject thereto from compliance with requirements as to accounting that may be prescribed by any other regulatory agency.
(a)
(b)
The following appendixes will not appear in the Code of Federal Regulations.
On or before the first day of May in each calendar year, each mutual service company and each subsidiary service company shall file with Commission an annual report on Form 60 and in accordance with the Instructions for that form.
Each annual report shall be filed in duplicate. The company should prepare and retain at least one extra copy for itself in case correspondence with reference to the report becomes necessary.
The first report filed by the company shall cover the period from the date the Uniform System of Accounts was required to be made effective as to that company to the end of that calendar year. Subsequent reports should cover a calendar year.
Reports shall be submitted on the forms prepared by the Commission. If the space provided on any sheet of such form is inadequate, additional sheets may be inserted of the same size as a sheet of the form or folded to each size.
All money amounts required to be shown in financial statements may be expressed in whole dollars, in thousands of dollars or in hundred thousands of dollars, as appropriate and subject to provisions of Regulation S-X (210.3-01).
Deficits and other like entries shall be indicated by the use of either brackets or a parenthesis with corresponding reference in footnotes (Regulation S-X, 210.3-01(c)).
Any company desiring to amend or correct a major omission or error in a report after it has been filed with the Commission shall submit an amended report including only those pages, schedules and entries that are to be amended or corrected. A cover letter shall be submitted requesting the Commission to incorporate the amended report changes and shall be signed by a duly authorized officer of the company.
Definitions contained in Instruction 01-8 to the Uniform System of Accounts for Mutual Service Companies and Subsidiary Service Companies, Public Utility Holding Act of 2005, shall be applicable to words or terms used specifically within this Form 60.
The Service Company shall submit with each annual report a copy of its current organization chart.
The Service Company shall submit with each annual report a listing of the currently effective methods of allocation being used by the service company and on file and approved previously by the Securities and Exchange Commission pursuant to the Public Utility Holding Company Act of 19355.
The service company shall submit with each annual report a copy of the annual statement supplied to each associate company in support of the amount of compensation for use of capital billed during the calendar year.
The information requested by this form is being collected under authority of the Public
File Form 60 at the following address:
Federal Transit Administration (FTA), DOT.
Notice.
The “Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006” (Pub. L. 109-115), signed into law by President Bush on November 30, 2005, appropriates funds for all of the surface transportation programs of the Department of Transportation for the fiscal year ending September 30, 2006. This notice provides information on the FY 2006 transit appropriations for the FTA assistance programs, and apportions and allocates FY 2006 funds. The Notice also makes corrections to information in the SAFETEA-LU implementation Notice published in the
For general information about this notice contact Mary Martha Churchman, Director, Office of Transit Programs, (202) 366-2053. Please contact the appropriate FTA regional office for any specific requests for information or technical assistance. The Appendix at the end of this notice includes contact information for FTA regional offices.
This document apportions or allocates annual appropriations among potential program recipients. In addition, the document contains specific instructions or guidance for FTA programs and funding, in the “Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006” (Pub. L. 109-115, November 30, 2005; hereafter called the 2006 Appropriations Act).
On November 30, 2005, the FTA Notice entitled “FTA Transit Program Changes, Authorized Funding Levels and Implementation of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” was published in the
The three major FTA program areas included in the notice are formula and bus grants, capital investments, and research. Of the 17 separate FTA programs contained in this notice that fall under the major program area headings, the funding for 10 is apportioned by statutory formula. Funding for the other seven is allocated on a discretionary or competitive basis.
The 2006 Appropriations Act provides funding from the General Fund of the Treasury and Mass Transit Account of the Highway Trust Fund that totals $8.59 billion for FTA programs. This amount is slightly less than the $8.62 billion authorized for FY 2006 in SAFETEA-LU. Table 1 shows the SAFETEA-LU authorized funding levels for transit programs. Table 2 of this document shows the appropriated funding levels for FTA programs for FY 2006. The 2006 Appropriations Act made funding available for the entire fiscal year.
An apportionment or allocation table is included in this Notice for each program, except for the Section 5340 Growing States and High Density States Formula. The apportionments for this formula were combined with the Section 5307 or Section 5311 apportionments, as appropriate, and shown as a single amount, as directed by Congress in the SAFETEA-LU conference report. The amount shown in a table for an urbanized area, State, or specific project or recipient is available for obligation or award to a grant, under the respective FTA program.
Because we combined Sections 5307 and 5340 apportionments as directed by Congress, we did not include in this Notice a separate breakout of the apportionment amounts to urbanized areas (UZAs) or States for Small Transit Intensive Cities (STIC) or for Section 5340 formulas. However, this information is available and may be obtained from the FTA regional offices for your UZA or State.
Unless the law provides otherwise, earmarked project allocations for Clean Fuels, Bus and Bus Facility, New Starts, Alternative Analysis, and the National Research Program must conform to the eligibility requirements of the particular program. Prospective recipients are encouraged to contact the appropriate FTA regional office to discuss project eligibility. The regional office can provide technical assistance to help develop an eligible project.
The 2006 Appropriations Act and accompanying conference report include instructions on the use or disposition of selected program funding,
(1) The Appropriations Act transfers $47,766,000 from the Fixed Guideway Modernization program to New Starts for activities under that program.
(2) The Appropriations Act transfers $25,215,000 available for the Clean Fuels program to the Bus and Bus Facility program. Of the $43,000,000 made available for the Clean Fuels program, $17,785,000 remains available for Clean Fuels projects authorized by SAFETEA-LU.
(3) The Conference Report directs FTA not to reallocate funds designated for certain Bus and New Starts projects designated in FY 2003 and prior years. These extended earmarks are listed in Table 19, along with several other bus projects extended by previous Congressional action.
(4) Section 113 provides that “notwithstanding any other provision of law, projects and activities described in the statement of managers accompanying this Act under the headings “Federal-Aid Highways” and “Federal Transit Administration” shall be eligible for fiscal year 2006 funds made available for the project for which each project or activity is so designated: Provided, That the Federal share payable on account of any such projects and activities subject to this section shall be the same as the share required by the Federal program under which each project or activity is designated unless otherwise provided in this Act.” This general provision makes the Section 5309 bus projects and activities designated in the FY 2006 conference report eligible for the purposes indicated. The specific bus and clean fuels projects designated in SAFETEA-LU are also eligible by virtue of being in statute. In some instances, FTA may approve use of the funds under the Section 5309 Bus and Bus Facilities or Clean Fuels program for eligible activities other than those designated in statute or report language upon clarification from the relevant House and Senate committees on authorization or appropriations respectively.
(5) The New Starts project allocations listed in Table 12 include some projects which may not have yet conducted or completed alternatives analysis. Pursuant to SAFETEA-LU, FY 2006 New Starts funds may only be used for preliminary engineering, final design, and construction. A New Starts project designated to receive Section 5309 New Starts funds in the FY 2006 Appropriations Act must complete alternatives analysis and be approved by FTA to enter preliminary engineering before expending FY 2006 New Starts funds for preliminary engineering.
(6) Section 112 provides funding for activities eligible under Title 23 or Title 49 at 100 percent Federal share, and are available until expended. Surface Transportation Projects and Highway Priority Projects to be funded under this section are designated in the conference report. These earmarks include some transit projects, similar to Section 115 and Section 117 in the FY 2004 and FY 2005 appropriations acts. Recipients of designations for transit projects under Section 112 should initiate discussions with the appropriate FHWA division office to identify transit projects that may be administered by FTA and request that FHWA allot the funds to FTA.
(7) Section 145 states that amounts made available from the bus category of the Capital Investment Grants Account or Discretionary Grants Account in this or any other previous Appropriations Act that remain unobligated or unexpended in a grant for a multimodal transportation facility in Burlington, Vermont, may be used for site-preparation and design purposes of a multimodal transportation facility in a different location within Burlington, Vermont, than originally intended notwithstanding previous expenditures incurred for such purposes at the original location.
(8) Section 146 provides that notwithstanding any other provision of law, funds designated in the conference report accompanying Public Law 108-447 and Public Law 108-199 for the King County Metro Park and Ride on First Hill, Seattle, Washington, shall be available to the Swedish Hospital parking garage, Seattle, Washington, subject to the same conditions and requirements of section 125 of Division H of Public Law 108-447.
(9) Section 147 provides that funds in this Act that are apportioned to the Charleston Area Regional Transportation Authority to carry out section 5307 may be used to acquire land, equipment, or facilities used in public transportation from another governmental authority in the same geographic area. The non-Federal share under section 5307 may include revenues from the sale of advertising and concessions.
(10) Section 148 provides that notwithstanding any other provision of law, any unobligated funds designated to the Jacksonville Transportation Authority, Community Transportation Coordinator Program under the heading “Job Access and Reverse Commute Grants” in the statement of the managers accompanying Public Law 108-199, may be made available to the Jacksonville Transportation Authority for any purpose authorized under the Job Access and Reverse Commute program.
(11) Section 149 provides that notwithstanding any other provision of law, any funds made available to the South Shore Commuter Rail, Indiana, project under the Federal Transit Administration Capital Investment Grants Account in Division H of Public Law 108-447 that remain available may be used for remodernization of the South Shore Commuter Rail system.
The following corrections are made to information in the
1. In the description of eligibility of intercity bus and intercity rail facilities in section IV part (A), subsection 4 “Intercity Bus and Intercity Rail” on page 71952, the phrase “physical and functional relationship to public transportation” should read “physical or functional relationship to public transportation.”
2. In the description of the Job Access Reverse Commute Program in section VI part (M), page 71967, under subsection 2, “Basis for Formula Apportionment,” in the 2nd paragraph, the phrase “persons with disabilities” should read “low-income individuals and welfare recipients.”