Animal and Plant Health Inspection Service
Energy Policy and New Uses Office, Agriculture Department
Farm Service Agency
Forest Service
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Presidential Documents
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Reclamation Bureau
Drug Enforcement Administration
Information Security Oversight Office
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Surface Transportation Board
Internal Revenue Service
Public Debt Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the Asian longhorned beetle regulations by expanding the boundaries of the quarantined areas in New Jersey and restricting the interstate movement of regulated articles from these areas. This action is necessary to prevent the artificial spread of the Asian longhorned beetle to noninfested areas of the United States.
This interim rule was effective October 4, 2006. We will consider all comments that we receive on or before December 11, 2006.
You may submit comments by either of the following methods:
•
•
Mr. Michael B. Stefan, ALB National Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 20737-1231; (301) 734-7338.
The Asian longhorned beetle (ALB,
The regulations in 7 CFR 301.51-1 through 301.51-9 restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of ALB to noninfested areas of the United States. Recent surveys conducted in New Jersey by inspectors of State, county, and city agencies and by inspectors of the Animal and Plant Health Inspection Service (APHIS) have revealed that infestations of ALB have occurred outside the existing quarantined areas. Officials of the U.S. Department of Agriculture and officials of State, county, and city agencies in New Jersey are conducting intensive survey and eradication programs in the infested area, and the State of New Jersey has quarantined the infested area and is restricting the intrastate movement of regulated articles from the quarantined area to prevent the further spread of ALB within that State. However, Federal regulations are necessary to restrict the interstate movement of regulated articles from the quarantined area to prevent the spread of ALB to other States and other countries.
The regulations in § 301.51-3(a) provide that the Administrator of APHIS will list as a quarantined area each State, or each portion of a State, where ALB has been found by an inspector, where the Administrator has reason to believe that ALB is present, or where the Administrator considers regulation necessary because of its inseparability for quarantine enforcement purposes from localities where ALB has been found. Less than an entire State will be quarantined only if (1) the Administrator determines that the State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are equivalent to those imposed by the regulations on the interstate movement of regulated articles; and (2) the designation of less than an entire State as a quarantined area will be adequate to prevent the artificial spread of ALB. In accordance with these criteria and the recent ALB
This rulemaking is necessary on an emergency basis to to prevent the artificial spread of ALB to noninfested areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This interim rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
This interim rule amends the ALB regulations by expanding the boundaries of the quarantined areas in New Jersey and restricting the interstate movement of regulated articles from these areas. This action is necessary to prevent the artificial spread of the ALB to noninfested areas of the United States.
The Regulatory Flexibility Act (RFA) requires that agencies consider the economic impact of their rules on small entities, i.e. small businesses, organizations, and governmental jurisdictions. We estimate that about 124 small entities, including 4 local governments, may be affected. Types and numbers of entities located within the newly quarantined areas, and corresponding small-entity criteria, are shown in table 1. We expect that most if not all of the affected entities are small.
The regulations in § 301.51-4 set conditions for the interstate movement of regulated articles from quarantined areas. An affected entity may (1) enter into a compliance agreement with APHIS for the inspection and certification of regulated articles to be moved interstate, or (2) present its regulated articles for inspection and obtain a certificate or a limited permit, issued by an inspector, for the interstate movement of regulated articles. Inspections may be inconvenient, but they should not be costly in most cases, even for entities operating under a compliance agreement that would perform the inspections themselves. For those entities that elect not to enter into a compliance agreement, APHIS provides the services of an inspector without cost. There is also no fee for the compliance agreement, certificate, or limited permit for the interstate movement of regulated articles.
Second, there is a possibility that, upon inspection, a regulated article could be determined by the inspector to be potentially infested by ALB and, as a result, the inspector would not be able to issue a certificate. In this case, the entity's ability to move regulated articles interstate would be restricted. However, the affected entity could conceivably obtain a limited permit under the conditions of § 301.51-5(b). Whether an affected entity would be denied certificates as a result of inspections of regulated articles is unknown. However, because the newly regulated area is primarily urban, the entities located in that area are more likely to be receiving regulated articles from outside the quarantined area than they are to be shipping regulated articles interstate to nonquarantined areas. It is unlikely, therefore, that most entities located in the newly regulated area would be moving regulated articles that would require inspection in the first place.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This interim rule contains no information collection or recordkeeping requirements under the Paperwork
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
(c) * * *
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
This document publishes in the
This AD becomes effective October 16, 2006 to all persons except those persons to whom it was made immediately effective by emergency AD 2006-20-51, issued September 30, 2006, which contained the requirements of this amendment.
We must receive comments on this AD by December 11, 2006.
Use one of the following addresses to submit comments on this AD.
•
•
•
•
•
Margaret Langsted, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6500; fax (425) 917-6590.
On September 30, 2006, we issued emergency AD 2006-20-51, which applies to all Boeing Model 777-200LR series airplanes powered by General Electric (GE) Model GE90-110B engines, and Model 777-300ER series airplanes powered by GE Model GE90-115B engines.
We have received a report of two occurrences of engine thrust rollback (reduction) during takeoff on Boeing Model 777-300ER series airplanes powered by GE Model GE90-115B engines. In both cases, only one engine was affected. The N1 (fan speed—the normal thrust setting parameter for this engine type) thrust level on the affected engine progressively dropped resulting in a thrust loss of 65 to 77% due to an erroneous N1 command computed by the Full Authority Digital Engine Control (FADEC). In both cases, the engine recovered to the proper N1 thrust level as the airplane climbed beyond 400 feet above ground level. In one case,
Investigation indicates that these events are the results of a software algorithm in the FADEC that was introduced in software version A.0.4.5 (GE90-100 Service Bulletin 73-0021). Investigation also indicates that a dual-engine thrust rollback could occur just after V1 (takeoff decision speed after which takeoff is to proceed even after an engine failure), which would result in the airplane not having adequate thrust to safely complete the takeoff. A de-rated or a reduced thrust takeoff, in combination with specific ambient conditions, can result in the FADEC commanding a progressive reduction in the engine thrust. Airplane takeoffs are often performed with engine thrust levels at less than the maximum engine thrust approved for the airplane. This is done to reduce wear on the engines, increase fuel efficiency, and maximize passenger comfort. Operators are permitted to calculate airplane takeoff performance and required engine thrust using two different methods referred to as “derated takeoff thrust” (also known as fixed de-rate) and “reduced takeoff thrust” (also known as the assumed temperature method). Full-rated thrust takeoffs with the thrust levers at the full forward position are not exposed to the potential thrust rollback caused by the software anomaly described above.
A dual-engine thrust rollback, if not corrected, could result in the airplane failing to lift off before reaching the end of the runway or failing to clear obstacles below the takeoff flight path.
The FADEC software, version A.0.4.5, on certain Model 777-200LR powered by GE Model 90-110B engines is identical to that on the affected Model 777-300ER series airplanes powered by GE Model GE90-115B engines. Therefore, both of these airplane models may be subject to the same unsafe condition.
Although the software anomaly was introduced by this version of software, the affected operators have a mixed fleet of airplanes with and without the affected software version. To avoid reliance on flight crews determining which software version is installed as they operate different airplanes, we have determined that this AD should apply to all airplanes equipped with the affected engines. If operators develop an acceptable method to ensure flight crews will consistently perform the correct procedure on affected airplanes, they may request approval for an alternative method of compliance in accordance with paragraph (h) of this AD.
Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, we issued emergency AD 2006-20-51 to prevent dual-engine thrust rollback, which could result in the airplane failing to lift off before reaching the end of the runway or failing to clear obstacles below the takeoff flight path. The AD requires revising the Airplane Flight Manual to prohibit takeoffs at less than full-rated thrust.
We found that immediate corrective action was required; therefore, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on September 30, 2006, to all known U.S. owners and operators of all Boeing Model 777-200LR series airplanes powered by General Electric (GE) Model GE90-110B engines, and Model 777-300ER series airplanes powered by GE Model GE90-115B engines. These conditions still exist, and the AD is hereby published in the
This is considered to be interim action. The engine manufacturer has advised that it currently is developing a modification that will eliminate the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking.
This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this 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
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.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If this emergency regulation is later deemed significant under DOT Regulatory Policies and Procedures, we will prepare a final regulatory evaluation and place it in the AD Docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective October 16, 2006, to all persons except those persons to whom it was made immediately effective by emergency AD 2006-20-51, issued on September 30, 2006, which contained the requirements of this amendment.
(b) None.
(c) This AD applies to airplanes in Table 1 of this AD certificated in any category.
(d) This AD results from a report of two occurrences of engine thrust rollback during takeoff. The Federal Aviation Administration is issuing this AD to prevent dual-engine thrust rollback, which could result in the airplane failing to lift off before reaching the end of the runway or failing to clear obstacles below the takeoff flight path.
(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 24 hours after the effective date of this AD, revise the Certificate Limitations Section of the AFM to include the following statement. This may be done by inserting a copy of this AD into the AFM.
“Use of reduced thrust takeoff ratings determined by either the assumed temperature method or the fixed de-rate method or a combination of both, is prohibited. Full-rated thrust must be used for takeoff.”
When a statement identical to that in paragraph (f) of this AD has been included in the general revisions of the AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.
(g) Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.
(h)(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.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is requiring that manufacturers and processors of human food and cosmetics that are manufactured from, processed with, or otherwise contain, material from cattle establish and maintain records sufficient to demonstrate that the human food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle materials. These recordkeeping requirements provide documentation for the provisions in FDA's interim final rule entitled “Use of Materials Derived From Cattle in Human Food and Cosmetics.” FDA is requiring recordkeeping because manufacturers and processors of human food and cosmetics need records to ensure that their products do not contain prohibited cattle materials, and records are necessary to help FDA ensure compliance with the requirements of the interim final rule.
This rule is effective on January 9, 2007.
Rebecca Buckner, Center for Food Safety and Applied Nutrition (HFS-306), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1486.
On July 14, 2004, FDA proposed a rule entitled “Recordkeeping Requirements for Human Food and Cosmetics Manufactured From, Processed With, or Otherwise Containing, Material From Cattle” (the proposed rule) (69 FR 42275) to require that manufacturers and processors of human food and cosmetics that are manufactured from, processed with, or otherwise contain, material from cattle establish and maintain records sufficient to demonstrate the food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle materials. The proposed rule was a companion rulemaking to FDA's interim final rule (IFR) entitled “Use of Materials Derived From Cattle in Human Food and Cosmetics” (the IFR) (69 FR 42256). We believe that records sufficient to demonstrate the absence of prohibited cattle materials in human food and cosmetics are critical for manufacturers, processors, and FDA to ensure compliance with the ban on prohibited cattle materials. Therefore, we are finalizing the proposed rule to require that manufacturers and processors of human food and cosmetics that are manufactured from, processed with, or otherwise contain, material from cattle establish and maintain records sufficient to demonstrate that human food and cosmetics are not manufactured from, processed with, or do not otherwise contain, prohibited cattle materials. We also are finalizing the provision in the proposed rule that these records must be made available to FDA for inspection and copying. FDA notes that the requirement in the IFR that existing records relevant to compliance be made available to FDA remains and has been incorporated into the final record provisions.
In response to the December 2003 finding of an adult cow—imported from Canada—that tested positive for bovine spongiform encephalopathy (BSE) in the State of Washington, FDA published the IFR requiring that specified risk materials (SRMs), small intestine of all cattle, tissue from nonambulatory disabled cattle, tissue from cattle not inspected and passed for human consumption, and mechanically separated beef (MS beef) not be used for FDA-regulated human food and cosmetics.
The U.S. Department of Agriculture (USDA) also published an IFR (69 FR 1862, January 12, 2004) to prohibit certain cattle material from use in human food. FDA's IFR extended the protection from BSE provided under USDA's BSE IFR to FDA-regulated human food and cosmetics. On September 7, 2005, both FDA (70 FR 53063) and USDA (70 FR 53043) published amendments to their respective IFRs to allow the use of small intestine in human food and cosmetics provided the distal ileum has been removed. This final rule on recordkeeping will help ensure compliance with the provisions of FDA's IFR and, thereby, will serve as an additional safeguard to reduce human exposure to the agent that causes BSE that may be present in human food and cosmetics that are manufactured from, processed with, or otherwise contain, material from cattle.
FDA believes that these recordkeeping requirements are necessary for manufacturers and processors to ensure that all cattle material they use is free from prohibited cattle materials. Furthermore, these requirements are necessary for FDA to ensure compliance with the provisions of the IFR. There is currently no validated premortem test to reliably detect the presence of the BSE agent or the presence of prohibited cattle material in human food and cosmetics. Once cattle material such as brain or spinal cord is separated from the source animal, it may not be possible to determine the age of the animal from which the material came without records and, therefore, whether the material is an SRM. In addition, without records, it may not be possible to determine whether a product contains material from cattle that were not inspected and passed for human consumption. Also, a product might contain MS beef without its presence being evident from the appearance of the product.
FDA received 32 responses, each containing one or more comments, from industry, consumers, and other stakeholder groups in response to the proposed rule. We have responded in this document to the comments that were within the scope of this rulemaking. We received several comments that pertained to the prohibitions on the cattle materials themselves, as opposed to the recordkeeping requirements, and other issues that are covered in the IFR. We will be responding to those comments when we finalize the IFR.
(Comment) We received several comments stating that only the manufacturer or processor of a finished product should have to maintain the required records. Conversely, other comments suggested that only the manufacturer or processor of an ingredient that directly incorporates cattle material from a slaughterhouse or a rendering establishment should have to keep records. The comments requesting that finished product manufacturers keep records stated that it was appropriate that the recordkeeping responsibility should be placed at the finished product stage because, in some cases, an ingredient manufacturer would be making an ingredient that may or may not be incorporated into a food or cosmetic; therefore, the ban on the use of prohibited cattle materials should not apply to the ingredient at the time of production. The comments that stated the opposite view maintained that only the ingredient manufacturers who are obtaining cattle material from slaughterhouses or rendering establishments know whether or not prohibited cattle materials were incorporated into the ingredient, so it is appropriate that the records be maintained by those who have firsthand knowledge of the source of the cattle material.
Comments also requested that rendering establishments and other similar establishments maintain additional records because they handle prohibited cattle materials. These records would include plans to prevent cross-contamination and cleaning and disinfection records.
We also received several comments requesting that we clarify that manufacturers and processors of certain cattle-derived products (e.g., tallow derivatives and milk and milk products) do not have to keep records because their products are exempt in the IFR.
(Response) We believe that manufacturers and processors of human food and cosmetics as well as ingredients used to produce human food and cosmetics must maintain records. To ensure that a finished human food or cosmetic does not contain prohibited cattle materials, it is necessary to ensure that all of the ingredients are free of prohibited cattle materials. This
We are not specifying particular additional records that must be kept by establishments that handle both prohibited and nonprohibited cattle materials. We note that food establishments are subject to the current good manufacturing practice requirements in 21 CFR part 110 and that the failure to take adequate measures to prevent cross-contamination could result in unsanitary conditions whereby the food may be rendered injurious to health and, therefore, adulterated under section 402(a)(4) of the Federal Food, Drug, and Cosmetic Act (the Act) (21 U.S.C. 342(a)(4)).
Comments asked that we clarify that manufacturers and processors of certain cattle-derived products (e.g., tallow derivatives and milk and milk products) are exempt from the recordkeeping requirements because these products are exempt from the provisions of the IFR. In the
(Comment) We received several comments related to the type of records that must be kept. Most stated that a requirement for lot-by-lot records for human food and cosmetics was overly burdensome relative to the risk posed by BSE. Many comments suggested that maintenance of a continuing letter of guarantee, renewable annually, would be sufficient to ensure that manufacturers and processors are not using prohibited cattle materials in their products.
Other comments stated that lot-by-lot records were necessary, particularly for imports. Some comments suggested that lot-by-lot records should be kept and should contain enough information to allow downstream tracing of the product and upstream tracing of products or ingredients.
(Response) We are requiring in §§ 189.5(c)(1) and 700.27(c)(1) that manufacturers and processors of human food and cosmetics manufactured from, processed with, or that otherwise contain, material from cattle maintain records sufficient to demonstrate that the human food and cosmetics are not manufactured from, processed with, or otherwise contain, prohibited cattle material. We recommend that manufacturers and processors accomplish this in part by maintaining records, which they renew at least annually, from suppliers of cattle materials and of products that are manufactured from, processed with, or otherwise contain, cattle material documenting that the products obtained from the supplier do not contain prohibited cattle materials. In addition, we recommend that manufacturers and processors maintain a record of the source, type, volume, and date of receipt for the cattle material or product manufactured from, processed with, or otherwise containing, cattle material. We intend to publish guidance describing in detail the types of records we recommend that manufacturers and processors maintain to demonstrate compliance with the ban on prohibited cattle materials.
Because we do not easily have access to records maintained at foreign establishments, we have included in this final rule a requirement, in §§ 189.5(c)(6) and 700.27(c)(6), that when filing entry with U.S. Customs and Border Protection, the importer of record of a human food or cosmetic manufactured from, processed with, or otherwise containing, cattle material must affirm that the human food or cosmetic is manufactured from, processed with, or otherwise contains, cattle material and must affirm that the human food or cosmetic was manufactured in accordance with the applicable requirements. In addition, if a human food or cosmetic is manufactured from, processed with, or otherwise contains, cattle material, the importer of record must, if requested, provide within 5 days records sufficient to support the affirmation (i.e., to demonstrate that the human food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle material). The importer of record must retain or have access to the same records that domestic manufacturers and processors must maintain to demonstrate compliance.
We have made several changes to the import provision in the proposed rule. First, we have clarified that the import provision is applicable to the importer of record because the importer of record is responsible for compliance with import requirements. Second, we have added a requirement for the importer of record to affirm that a human food or cosmetic is manufactured from, processed with, or otherwise contains, cattle material. FDA believes that the addition of this affirmation will minimize the number of importers affirming compliance based on the complete absence of cattle material and will help FDA focus its compliance efforts on products manufactured from, processed with, or otherwise containing, cattle material. We have also changed the time period for providing records from a “reasonable time” to 5 days. FDA believes that providing a specific time period will eliminate ambiguity and thereby facilitate compliance. FDA further believes that 5 days is a reasonable amount of time for the importer of record to provide the records while still allowing FDA sufficient time to review the documents to make an initial admissibility decision before the conditional release period for the product expires. If the importer of record fails to provide adequate records within 5 days, the product will be subject to detention because it appears to be adulterated under section 801 of the act (21 U.S.C. 381), and the owner or consignee will be afforded notice and an opportunity for hearing in accordance with section 801(a) of the act.
With regard to the comments that stated that the records required should allow tracing of the product in the event
(Comment) Several comments suggested that any records required should be certified by an appropriate government authority or that the required records be traceable to a record certified by a government authority. Other comments requested that FDA accept the certification of records by foreign governments, if those authorities choose to certify compliance with our records requirements. One comment suggested that records be certified for compliance through independent audit, though not necessarily by a government, and that FDA require documentation of the certification.
(Response) We do not agree that records need to be certified by an appropriate authority, governmental or otherwise. We did not propose certification in the proposed rule because we did not believe it was necessary to ensure compliance with the rule. In addition, we do not traditionally require certification for other FDA-regulated human food and cosmetic products with records requirements (e.g., seafood and juice hazard analysis critical control points (HACCP) records).
(Comment) We received several comments regarding the length of time that records must be retained. Several comments stated that the required records should be maintained for 1 year after the date they were created to be consistent with USDA's IFR. One comment suggested that the required records be maintained for 3 years after the date they were created to cover the potential shelf life of the products and any potential need to trace back products. Another comment suggested that records be retained for 40 years after the date they were created because variant Creutzfeldt-Jakob disease (vCJD) has a long incubation period, and the records retention requirement should be commensurate with the potential for outbreak of disease. Finally, several comments requested that the records retention requirement vary with the expected shelf life of the human food or cosmetic, but should be no longer than 2 years.
(Response) We proposed in §§ 189.5(c)(2) and 700.27(c)(2) that all required records be retained for 2 years after the date the records were created. The comments received have not persuaded us to change this requirement. The recordkeeping requirement is intended to ensure compliance with the ban on the use of prohibited cattle material. FDA will verify compliance during inspections of facilities that use cattle material directly or that use human food or cosmetics manufactured from, processed with, or that otherwise contain, cattle material. We believe that a 2-year record retention requirement is an appropriate length of time for achieving the goal of this rulemaking. A 2-year record retention requirement will create a compliance history for the establishment. Furthermore, many of the products (e.g., canned soups, gelatin, dietary supplements, and cosmetics) that include material from cattle have shelf lives of several years. A 2-year record retention period will enable FDA to determine compliance of products on the market.
We do not agree that the records retention time should vary with the shelf life of the product as it does in the Bioterrorism Act recordkeeping rule. It is the goal of that rule to allow for trace-back or trace-forward activities of food in an emergency; thus, shelf life of products was the critical determinant of the records retention period. In contrast, our goal in this rulemaking is to ensure compliance with the ban on the use of prohibited cattle material. As stated previously, the 2-year record retention requirement will enable creation of a compliance history for establishments over an extended period of time. Finally, we do not agree that the long incubation period of vCJD necessitates that records be retained for 40 years. This rulemaking is not intended to create a consumption or use history for individuals. Because vCJD has a long incubation period, potentially decades, it would be impractical to try to match disease development with previous consumption or use of a specific commodity.
It will be necessary for inspectors to review and copy records during an inspection. A review of records is one way that we can determine whether an establishment is complying with the ban on the use of prohibited cattle material. It is also important that we be able to copy the required records. We may consider it necessary to copy records when, for example, our investigators need assistance in reviewing a certain record from relevant experts in our headquarters. If we are unable to copy records, we would have to rely solely on our investigator's notes and reports when drawing conclusions. Finally, copying records will facilitate followup regulatory actions.
(Comment) We received several comments requesting that industry be given 90 days after publication of this final rule to comply with the recordkeeping requirements, rather than the proposed 30 days. The comments requested the additional time because they stated that 30 days was not long enough to implement a new recordkeeping protocol in their establishments.
(Response) As we stated in the proposed rule, the agency believes that recordkeeping and records access requirements are necessary immediately. However, because we recognized that recordkeeping systems could not be put in place immediately, we did not include such provisions in the IFR but rather proposed them. The requirements in this rule are no more than are necessary for manufacturers, processors, and importers of record to ensure their compliance with the rule, and we informed industry of the anticipated timeframe for implementation in the proposed rule. These recordkeeping requirements are vital to ensuring compliance with the ban on the use of prohibited cattle material, and we strongly encourage industry to begin keeping them as soon as possible. However, in light of these comments we have decided to make these recordkeeping requirements become effective 90 days after the publication of this final rule in the
(Comment) We received a comment that maintained that FDA has no authority to require manufacturers to disclose company records to inspectors.
(Response) We disagree with this comment because the agency has authority under the act both to require maintenance of records and to compel official access to such records for the
In
Whether the regulation is justified thus depends, not only, as petitioners appear to suggest, on whether Congress refused to include a specific section of the Act authorizing such inspections, although this factor is to be sure a highly relevant one, but also on whether the statutory scheme as a whole justified promulgation of the regulation. This will depend not merely on the inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets.
In
There is no persuasive evidence that Congress intended to immunize food manufacturers from * * * record-keeping. Therefore, in assessing the validity of regulations promulgated under section 701(a) for the efficient enforcement of the Act, we must consider “whether the statutory scheme as a whole justified promulgation of the regulation.”
In
The comment questioning FDA's authority to inspect records cites the Bioterrorism Act's specific grant of authority to FDA to access certain records as “proof that neither FDA nor Congress believes that the agency has general statutory power to require records inspection for food.” FDA's belief in its statutory power to inspect food records is evident in the records requirements it has previously issued, such as regulations that provide FDA with access to records for fish and fishery products (21 CFR 123.9(c)) and records for juice (21 CFR 120.12(e)). Further, the Bioterrorism Act provides in section 306 (21 U.S.C. 414), Maintenance and Inspection of Records, that “[t]his section shall not be construed * * * to limit the authority of the Secretary to inspect records or to require establishment and maintenance of records under any other provision of this Act.” In addition, Congress indicated its understanding of FDA's records authority in the legislative history of the Bioterrorism Act. The Conference Committee responsible for the Bioterrorism Act acknowledged FDA's recordkeeping authority independent of the Bioterrorism Act in a joint explanatory statement:
The Managers did not adopt a Senate proposal to authorize the Secretary to require the maintenance and retention of other records for inspection relating to food safety, because the Secretary has authority under section 701(a) of the [Act] to issue regulations for the “efficient enforcement of this Act” and this authority, in combination with other
The comment questioning FDA's authority to inspect food records further argues that “if Congress had intended FDA to have broad records inspection authority, section 703, [Records of Interstate Shipment], would have been completely superfluous and meaningless.” As FDA recognized in a previous rulemaking, the
The recordkeeping requirement in this rule satisfies the three criteria in
Second, the recordkeeping requirement not only clearly assists the efficient enforcement of the act, but is critical to its enforcement because it is vital to determining compliance with the ban on prohibited cattle material. There is currently no test to detect reliably the presence of prohibited cattle material in human food and cosmetics. If FDA cannot require and access records demonstrating compliance, FDA may not be able to determine whether a human food or cosmetic contains cattle material that is prohibited. For example, without records, FDA may not be able to determine whether cattle material that may be specified risk material (e.g., brain or spinal cord) came from an animal that was less than 30 months old, whether the source animal for cattle material was inspected and passed, whether the source animal for cattle material was nonambulatory disabled, and whether tallow in a human food or cosmetic contains less than 0.15 percent insoluble impurities.
Under the IFR, failure of a manufacture or processor to operate in compliance with the ban on prohibited cattle materials renders a food or cosmetic adulterated as a matter of law. The introduction or delivery for introduction into interstate commerce of an adulterated food or cosmetic is a prohibited act under section 301(a) of the act (21 U.S.C. 331(a)), and the adulteration of any food or cosmetic in interstate commerce violates section 301(b) of the act (21 U.S.C. 331(b)). Thus, in order for us to determine whether a human food or cosmetic is adulterated and whether a manufacturer or processor has committed a prohibited act, we must have access to the manufacturer or processor's records.
Third, the burden of the recordkeeping requirement in this rule is not unreasonably onerous. The only records that must be retained are those sufficient to demonstrate that a human food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle materials. First and foremost, FDA believes that it is only requiring records that a manufacturer or processor itself would need to keep to ensure its compliance with the rule. Just as there is no way for FDA to determine whether a product contains prohibited cattle material because there is currently no test to detect such material, there is no way for a manufacturer or processor to know without records. For example, without records, a manufacturer or processor of human food or cosmetics manufactured from, processed with, or otherwise containing, cattle material cannot determine whether cattle material that may be specified risk material (e.g., brain or spinal cord) came from an animal that was less than 30 months old, whether the source animal for cattle material was inspected and passed, whether the source animal for cattle material was nonambulatory disabled, and whether tallow in a human food or cosmetic contains less than 0.15 percent insoluble impurities.
Further, the rule does not dictate specific records but allows for covered manufacturers and processors to comply in the way that is least burdensome for them while demonstrating compliance. Also, many of the records that covered manufacturers and processors of human food may choose to retain are similar to those that are required by FDA's Bioterrorism Act recordkeeping rule. Finally, by allowing for efficient enforcement of the requirements that minimize human exposure to materials that scientific studies have demonstrated are highly likely to contain the BSE agent in cattle infected with the disease, FDA's recordkeeping rule “reflect[s] the objective of the [Federal Food, Drug, and Cosmetic] Act and carr[ies] out its mandate” (
The recordkeeping provisions of this rule apply to food and cosmetics covered by the IFR, including food additives, dietary supplements, and dietary ingredients.
As discussed in section II of this document, we have modified the codified section based on comments we received on the proposed rule. In this final rule, in §§ 189.5(c)(1) and 700.27(c)(1), we are requiring that manufacturers and processors of human food and cosmetics that are manufactured from, processed with, or otherwise contain, material from cattle establish and maintain records sufficient to demonstrate that the human food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle materials. We intend to publish guidance that will describe in detail the records we recommend that manufacturers and processors maintain to demonstrate compliance with the ban on the use of prohibited cattle materials.
In §§ 189.5(c)(2) and 700.27(c)(2), we specify the period of time (2 years) that records must be retained. In §§ 189.5(c)(3) and 700.27(c)(3), we require that records be maintained at the manufacturing or processing establishment or at a reasonably accessible location. Sections 189.5(c)(4) and 700.27(c)(4) provide that maintenance of electronic records is acceptable and that electronic records are considered to be reasonably accessible if they are accessible from an onsite location. Sections 189.5(c)(5) and 700.27(c)(5) provide that records required by these sections and existing records relevant to compliance with these sections must be available to FDA for inspection and copying.
Because we do not easily have access to records maintained at foreign establishments, we are requiring in §§ 189.5(c)(6) and 700.27(c)(6), respectively, that when filing entry with U.S. Customs and Border Protection, the importer of record of a human food or cosmetic manufactured from, processed with, or otherwise containing, cattle material must affirm that the human food or cosmetic is manufactured from, processed with, or otherwise contains, cattle material and must affirm that the human food or cosmetic was
Sections 189.5(c)(7) and 700.27(c)(7) provide that records established or maintained to satisfy the requirements of this subpart that meet the definition of electronic records in part 11 (21 CFR part 11) in § 11.3(b)(6) are exempt from the requirements of part 11. Records that satisfy the requirements of this rulemaking, but that are also required under other applicable statutory provisions or regulations, remain subject to part 11.
FDA has examined the economic implications of this final rule as required by Executive Order 12866. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions, including the following conditions: Having an annual effect on the economy of $100 million, adversely affecting a sector of the economy in a material way, adversely affecting competition, or adversely affecting jobs. A regulation is also considered a significant regulatory action if it raises novel legal or policy issues. FDA has determined that this final rule is a significant regulatory action because it raises novel policy issues; however, we have determined that this final rule is not an economically significant regulatory action.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. FDA finds that this final rule will have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) Implicit Price Deflator for the Gross Domestic Product (Ref 1). FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
The Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law No. 104-121) defines a major rule for the purpose of congressional review as having caused or being likely to cause one or more of the following: An annual effect on the economy of $100 million or more; a major increase in costs or prices; significant adverse effects on competition, employment, productivity, or innovation; or significant adverse effects on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets. In accordance with the Small Business Regulatory Enforcement Fairness Act, OMB has determined that this final rule will not be a major rule for the purpose of congressional review.
As explained in this document, USDA's amended BSE IFR requires that SRMs, tissue from nonambulatory disabled cattle, material from cattle not inspected and passed for human consumption, and MS beef not be used for human food. SRMs include the brain, skull, eyes, trigeminal ganglia, spinal cord, vertebral column (excluding the vertebrae of the tail, the transverse process of the thoracic and lumbar vertebrae, and the wings of the sacrum), and dorsal root ganglia of cattle 30 months and older, as well as the tonsils and distal ileum of the small intestine of all cattle. USDA's BSE IFR requires that all of the prohibited materials be destroyed or sent to inedible rendering. This final rule implements recordkeeping for the provisions of the IFR on use of materials from cattle and responds to the same public health concerns. This final rule will not affect the incidence of BSE in cattle, which is addressed in other FDA regulations. This final rule will serve as an additional safeguard to reduce human exposure to the agent that causes BSE that may be present in cattle-derived products from domestic and imported sources. Without the recordkeeping requirements in this final rule manufacturers and processors might not establish and maintain records to ensure that cattle material does not contain prohibited cattle materials, it may not be possible to determine whether cattle material that may be specified risk material (
This final rule will require recordkeeping to ensure and document compliance with the provisions of the IFR (on use of materials from cattle) that prohibit the use of “prohibited cattle materials.” This final rule will require that manufacturers and processors of human foods and cosmetics that are manufactured from, processed with, or otherwise contain, cattle materials maintain records indicating that prohibited cattle materials have not been used in the manufacture or processing of a human food or cosmetic, and make such records available to FDA for inspection and copying. Because we do not easily have access to records maintained at foreign establishments, we have included in this final rule a requirement that, when filing entry with U.S. Customs and Border Protection, importers of human food and cosmetics manufactured from, processed with, or otherwise containing, cattle material must affirm that the food or cosmetic was manufactured from, processed with, or otherwise contains, cattle material and must affirm that the food or cosmetic was manufactured in accordance with this rule. In addition, if a human food or cosmetic is manufactured from, processed with, or otherwise contains, cattle material, then the importer of record must, if requested, provide within 5 days records sufficient to demonstrate that the human food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle material.
(Comment) We received several comments that stated that FDA underestimated the economic impact of the proposed rule by omitting entire industries that would be subject to the rule. According to the comments, FDA had only estimated the costs of the rule to end-users of cattle material and had not considered the costs of the rule to those persons that produce intermediate
(Response for gelatin) In the case of gelatin, FDA did estimate the impact of the proposed rule on food manufacturers of intermediate products that are from cattle-derived gelatin. Depending on the product, FDA had information on cattle-derived materials manufactured by intermediate producers (e.g., input suppliers to cosmetics manufacturers) or information on end products that contained cattle materials (e.g., foods). Whether our information was on intermediate manufacturers or end products, we estimated the impact of the rule on both the upstream and downstream facilities. FDA did not include estimates of bovine gelatin use in cosmetics in the analysis of the proposed rule. We have included these estimates in the final analysis.
(Response for small intestine) FDA did not estimate any costs, other than recordkeeping, for the requirement that the distal ileum be removed from the small intestine because costs other than recordkeeping are linked to the prohibition in FDA's IFR.
(Response for flavoring extracts) In the case of flavoring extracts, manufacturers and the buyers of flavoring extracts for use in food products were accounted for in the proposed rule. We assessed recordkeeping costs for the 32 facilities (out of 127 facilities) that we estimated were likely to manufacture flavoring extracts using cattle-derived materials and for the buyers of these flavoring extracts. FDA assumed three scenarios for sensitivity analyses: (1) Recordkeeping costs are borne entirely by the flavoring extract manufacturers as the input supplier, (2) recordkeeping costs are borne entirely by the manufacturers of products that use flavoring extracts as an ingredient in their products, and (3) recordkeeping costs are shared between the two types of firms.
(Response for collagen) FDA did not estimate the impacts of our proposed rule on collagen manufacturers or collagen casing manufacturers. This rule does not require recordkeeping for hide-derived collagen. Therefore we do not include the costs of recordkeeping to manufacturers who use hide-derived collagen. We do include costs for some collagen use in cosmetic manufacturing.
This final rule will require manufacturers and processors of FDA-regulated human food and cosmetics manufactured from, processed with, or otherwise containing, cattle material to maintain records demonstrating that prohibited cattle materials are not used in their products. This final rule will require that the manufacturer or processor retain records for 2 years from the date they were created. Records must be kept at the manufacturing or processing establishment or another reasonably accessible location. Manufacturers and processors must provide FDA with access to the required records and other records relevant to compliance for inspection and copying.
a.
FDA research shows that 42 establishments with U.S. addresses supply cattle-derived ingredients that are used in cosmetics (Ref. 3). These cattle-derived ingredients include bovine serum albumin, cholesterol and cholesterol compounds, fibronectin, sphingolipids, spleen extract, tallow, gelatin, and keratin and keratin compounds. From FDA's dietary supplement database (Ref. 4), we are able to tell that there are about 131 U.S.-based dietary supplement brand names that use cattle material as ingredients in their products. We assume that each brand name represents a facility that produces multiple dietary supplement products containing cattle-derived ingredients.
Recordkeeping costs include one-time costs and recurring costs. One-time costs include the costs of designing records and training personnel in the maintenance of the records. The recurring costs are the costs of ensuring that the records adequately document that the shipment of cattle materials to an FDA-regulated facility is free of prohibited cattle materials. The costs of retaining records and planning for an FDA request for records access are assumed to be negligible. Current business practices already dictate that records are kept for at least 1 year for tax purposes and product liability purposes. FDA has found that records are usually kept much longer for internal business purposes; therefore, in most cases the marginal private benefits to facilities from retaining records for a second year are apparently greater than the private marginal costs, so they keep most records. Because records retention is already standard practice in many cases, we assume that the additional retention costs associated with this final
We assume that the one-time training burden incurred for each facility is approximately one-third of an hour. This time includes both the training required for personnel to learn how to verify that the appropriate records have been received or created, and the training required for personnel to learn how to file and maintain those records. As part of current business practices, personnel are familiar with recordkeeping. Therefore, the requirement to maintain additional records will be learned quickly. This training burden estimated for recordkeeping in this final rule is consistent with the recordkeeping training burden in the analysis for the Bioterrorism Act recordkeeping rule and the records maintenance burden in the analysis of the juice hazard analysis critical control points (HACCP) rule (66 FR 6137-6202). Consistent with the analysis conducted for the Bioterrorism Act recordkeeping rule, FDA assumes an hourly cost of an administrative worker, $25.10 per hour, which includes overhead costs.
We use the FDA Labeling Cost Model to estimate the one-time records design costs per facility of $1,190 per stock keeping unit (SKU) (Ref. 5). It is likely that facilities using cattle-derived ingredients, whether the ingredients are for human food or cosmetics, will take advantage of their economies of scope and produce more than one product with these ingredients. It is probable that each establishment has several SKUs associated with products containing cattle-derived ingredients that will now require recordkeeping. To account for additional products and SKUs we take the record design costs per facility times 1.5 for a total design cost per facility of $1,785 ($1,095 in labor costs and $690 in capital costs).
We multiplied the cost per product per SKU by 1.5 to account for the additional records design required for the additional SKUs. The record design cost for the first affected product or SKU will be more expensive than the marginal cost of adding records for additional SKUs. This marginal cost of record design for additional SKUs could be negligible, or it could come close to doubling the costs. We therefore pick 1.5, the midpoint of 1 and 2, to be the cost multiplier.
Consistent with the analysis conducted for the Bioterrorism Act recordkeeping rule, this record design cost is assumed to be shared between two facilities—the upstream facility and the downstream facility—as both will need to be involved in record production that meets the needs of both the supplier and customer for the product containing cattle-derived material.
Unlike for the analysis of the Bioterrorism Act recordkeeping rule (69 FR 71562, December 9, 2004), we do not have direct information on all the facilities covered; we do not have data on all the intermediate cattle material suppliers or finished product manufacturers that make use of cattle-derived material for human food and cosmetics under FDA jurisdiction. Using information on the number of human food manufacturers and cosmetic ingredient suppliers that may use cattle-derived ingredients subject to this final rule, we can account for the total shared records costs by assuming that each food manufacturer or processor in table 1 of this document procures ingredients from one upstream input supplier for particular cattle-derived ingredients. Even if multiple input suppliers are used by the manufacturing facility, or an input supplier is used by multiple manufacturing facilities, the marginal record setup costs would decrease for additional suppliers or additional manufacturers. Once a facility has designed the required records, it is less costly to generate records for additional input suppliers or additional end product manufacturers. Table 1 of this document shows estimated set-up costs for U.S. facilities. Dietary supplement facilities listed represent end product manufacturers of dietary supplements that contain cattle-derived material; cosmetics facilities are represented by intermediate cattle-derived ingredients used in cosmetics products from domestic cosmetic input suppliers.
The recurring recordkeeping cost is the cost of ensuring that appropriate records document the absence of prohibited cattle materials in human food and cosmetics. The framework for estimating the amount of time required for FDA-regulated facilities to ensure adequate records for each shipment of materials is based on the regulatory impact analysis of the Bioterrorism Act recordkeeping rule (69 FR 71562, December 9, 2004). In that analysis we estimated that 30 minutes per week would be needed to ensure that records on each shipment to and from a facility contain adequate information regarding the contents of the package, the transporter, supplier, and receiver.
The recordkeeping requirements of this final rule will cover only a small fraction of all ingredients used in food and cosmetic manufacturing and only require that records of cattle-derived ingredient origin from the input supplier be verified and maintained by the food or cosmetic manufacturer and processor. Because this recordkeeping requirement is less complex than the recordkeeping requirements under the Bioterrorism Act and affects fewer ingredients, we estimate the average burden per facility to be about one-half of the burden estimated for the Bioterrorism Act recordkeeping rule: 15 minutes per week, or 13 hours per year. FDA assumes that this recordkeeping burden will be shared between two entities (
In addition to the recurring costs to domestic firms in the industry, as new firms enter the industry they will bear one-time costs. As in the analysis of the Bioterrorism Act recordkeeping rule, we assume that the average annual rate of turnover is 10 percent. We therefore estimate the annual one-time costs for new domestic firms entering the industry to be 10 percent of the one-time costs of existing domestic firms estimated in table 1 of this document.
Table 2 of this document shows the recurring recordkeeping costs that would be incurred by food and cosmetics input suppliers and manufacturers to comply with this final rule. As stated earlier, information on food producing facilities in table 2 represents U.S. facilities; dietary supplement facilities listed represent end product manufacturers of dietary supplements that contain cattle-derived material and cosmetics facilities are represented by intermediate cattle-derived ingredients used in cosmetics products from domestic cosmetic input suppliers.
b.
The affirmation that foods or cosmetics are manufactured from, processed with, or otherwise contain, cattle material and are manufactured in accordance with the rule will be made by the importer of record to FDA through the Agency's Operational and Administrative System for Import Support (OASIS). Table 3, using OASIS data from fiscal year 2004, shows 2,195,000 entry lines of food and cosmetics for the product codes that FDA expects may contain products with cattle materials entered the U.S.; 0 to
We do not expect many imported food products under FDA jurisdiction will actually contain cattle-derived materials. Table 4 below revises table 3 to only include the percentage (10 percent) of certain imported products likely to contain cattle materials and whose manufacturing firms will keep records. We do not include the categories of food from table 3 where affirmation could be required but it is not likely that products from that category actually contain cattle-derived materials. We estimate only 10 percent of lines rather than 25 percent or 75 percent as we did for domestic products because import category codes tend to be broader in scope than the categories we used for determining the number of domestic facilities that produced products using cattle-derived materials.
To estimate the number of foreign firms associated with the 10 percent of line entries listed in table 4, we take
Table 4 below shows that about 916 foreign firms will need to keep records of cattle-derived materials. The startup costs to keeping these records will be about $1.6 million. Since we do not have good information on the number of firms that actually produce and export products that contain cattle-derived materials to the U.S., the costs in table 4 below may overestimate recordkeeping costs to firms in some product categories and may
The recurring recordkeeping cost to importers whose products contain cattle-derived materials is the cost of ensuring that appropriate records document the absence of prohibited cattle materials in human food and cosmetics. We use the same method and rationale to calculate the recurring recordkeeping cost burden to foreign facilities that we used for domestic facilities.
In addition to the recurring costs to foreign firms in the industry, as new firms enter the industry they will bear one-time costs. As in the analysis of the Bioterrorism Act recordkeeping rule, we assume that the average annual rate of turnover is 10 percent. We therefore estimate the annual one-time costs for new foreign firms entering the industry to be 10 percent of the one-time costs of existing foreign firms estimated in table 4.
Also shown in table 5 are the annual costs to importers to affirm that the human food or cosmetics that they are importing do contain cattle material and are in compliance with this rule. Importers of approximately 54,825 lines of food and cosmetics are expected to affirm annually that the products they are importing contain cattle materials. This total represents 10 percent of the total lines imported for fiscal year 2004 for products under FDA product codes that FDA will be looking to for importer affirmation. Using an importer hourly wage cost of $46.58 (Ref. 6), which includes overhead, FDA estimates that importer affirmation will take about two minutes per line at a cost of $1.55 per affirmation for total annual affirmation costs of $84,979.
c.
If we define the baseline risk as the expected annual number of cases of variant Creutzfeldt-Jakob disease (vCJD) per year, then the annual benefits of banning prohibited cattle materials for use in foods and cosmetics would be: (baseline annual cases of vCJD −annual cases of vCJD under FDA IFR on use of materials from cattle) × (value of preventing a case of vCJD).
An alternative way to characterize benefits is:
We do not know the baseline expected annual number of cases. But based on the epidemiology of vCJD in the United Kingdom, we anticipate much less than one case of vCJD per year in the United States. Because the IFR on use of materials from cattle and this final rule will reduce, rather than eliminate, risk of exposure to BSE infectious materials, the reduction in the number of cases will be some fraction of the expected number. The value of preventing a case of vCJD is the value of a statistical life plus the value of preventing a year-long or longer illness that precedes certain death for victims of vCJD. In a recent rulemaking regarding labeling of
As discussed in FDA's IFR on use of materials from cattle, the Harvard-Tuskegee study has stated that a ban on SRMs, including cattle brains, spinal cord, and vertebral column, from inclusion in human and animal food would reduce the very few potential BSE cases in cattle by 88 percent and potential human exposure to infectivity in meat and meat products by 95 percent (Ref. 7). The FDA IFR on use of materials from cattle, in conjunction with USDA's BSE IFR, will help achieve this reduction in potential human exposure. FDA's IFR on use of materials from cattle will also reduce potential human exposure to BSE infectivity in other human food not covered by the Harvard-Tuskegee study and from cosmetics. This final rule will help ensure that the provisions of the IFR on use of materials from cattle are carried out. For example, this final rule will require documentation that a domestically-produced or foreign-produced dietary supplement or ingredient contains cattle material (
d.
The benefits of this final rule are to ensure that cattle-derived products that may possibly be contaminated with BSE do not find their way into food and cosmetic products, thus further reducing the risk of vCJD to humans.
FDA has examined the economic implications of this final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). If a rule has a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires agencies to analyze regulatory options that would lessen the economic effect of the rule on small entities. FDA finds that this final rule will have a significant economic impact on a substantial number of small entities.
First-year costs of this final rule are about $1,800 per facility pair, with this cost divided between the upstream facility (ingredient input supplier) and downstream facilities (manufacturers of food or cosmetics). FDA cannot determine if the cost sharing between the two firms would be equal. If the cost sharing is equal, then each facility would have to bear about a $900 first-year cost to comply with the recordkeeping required by the final rule; if the cost sharing is not equal, then one facility in the partnership may bear zero costs all the way up to the total first-year costs of $1,800. Recurring costs of this final rule are about $326 per facility relationship, which may be borne by only one facility or may be shared between facilities.
Using FDA's Small Business Model, we can estimate, when recordkeeping costs are shared and when they are not shared, the number of facilities that may go out of business as a result of this final rule. Table 7 of this document shows
We would expect the potential for small business shutdown would be similar for foreign firms that continue to import their products with cattle-derived materials into the United States. It is possible that some foreign firms would choose to cease doing business with the United States if the recordkeeping requirements of this rule are too burdensome.
This final rule contains information collection provisions that are subject to review by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). A description of these provisions follows with an estimate of the annual recordkeeping burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
These requirements are necessary because, once materials are separated from an animal, it may not be possible without records to know the following: (1) Whether cattle material that may be specified risk material (
FDA estimates the burden for this information collection as follows:
FDA has determined that there are 697 domestic facility relationships, consisting of the following facilities: An input supplier of cattle-derived materials that require records (the upstream facility) and a purchaser of cattle-derived materials requiring documentation—this may be a human food or cosmetic manufacturer or processor. Together, the upstream and downstream facilities are responsible for designing records, verifying records, and storing records that contain information on sources of cattle materials.
In this hour burden estimate, as in the economic analysis, we treat these recordkeeping activities as shared activities between the upstream and downstream facilities. It is in the best interests of both facilities in the relationship to share the burden necessary to comply with this final rule; therefore we estimate the time burden of developing these records as a joint task between the two facilities.
The one-time burden of the final recordkeeping requirement consists of the facilities training their employees on how to keep the records necessary to comply with this rule and designing the records. The one-time training burden incurred for each facility is assumed to be approximately one-third of an hour. This time includes both the training required for personnel to verify that appropriate records have been received or created, and also the training required by personnel to file and maintain those records. Therefore, the total one-time training burden is 697 × 0.33 hrs = 230 hours.
We use the FDA Labeling Cost Model to estimate the one-time records design costs per facility of $1,785 (Ref. 5). This cost includes the costs of designing records for multiple products and consists of $1,095 in labor costs (and $690 in capital costs which we deal with in the next section of this document). Dividing the $1,095 of labor costs by the hourly wage for workers of $25.10 (doubled to include overhead), we have a design-time burden per facility of about 44 hours; we multiplied the burden per facility by 697 facilities to get an estimated total training and design burden of 30,668 hours.
Row 1 of table 8 of this document shows the total hour burden from training and records design to be 44.33 hours per facility × 697 recordkeepers = 30,898 hours for the year.
The recurring recordkeeping burden is the burden of sending and verifying documents regarding shipments of cattle material that is to be used in human food and cosmetics. We estimate that this recurring recordkeeping burden will be about 15 minutes per week, or 13 hours per year. FDA assumes that this recordkeeping burden will be shared between two entities (
There will also be a recurring recordkeeping burden for importers of human food and cosmetics that are manufactured from, processed with, or otherwise contain, cattle material. Importers of these products must affirm that the food or cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle materials. Affirmation by importers is expected to take approximately 2 minutes per entry line. Row 3 of table 8 of this document shows that 54,825 lines of food and cosmetics that likely contain cattle materials are imported annually. This total represents 10 percent of the total lines imported for fiscal year 2004 for products under FDA product codes that FDA will be looking to for importer affirmation. The annual reporting burden of affirming whether import entry lines contain cattle-derived materials is estimated to take 1,809 hours annually (54,825 lines × 2 minutes per line).
In addition, there will be an annual burden associated with new firms entering the industry. As in the analysis of the Bioterrorism Act recordkeeping rule, we assume that the average annual rate of turnover is 10 percent. We therefore estimate (row 4 of table 8 of this document) the annual one-time burden for new firms entering the industry to be 10 percent of the one-time burden of existing firms estimated.
We use the FDA Labeling Cost Model to estimate the one-time record design costs per facility of $1,875 per facility, based on the facility producing multiple products with ingredients that now require records (Ref. 5). Over $1,000 of the record design cost is due to labor, but $690 of the records design represents capital costs to each facility. The total capital costs for records design for all facilities is $690 × 697 = $480,930. These one time costs are shown in row 1 of table 5 of this document. We estimate the annual capital costs for new firms entering the industry to be 10 percent of the one-time burden of existing firms, or $48,093. These annual costs are shown in row 4 of table 8.
The information collection provisions of this final rule have been submitted to OMB for review. Prior to the effective date of this final rule, FDA will publish a notice in the
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the final rule does not
The following references have been placed on public display in the Division of Dockets Management (see
1. Department of Commerce, Bureau of Economic Analysis, National Economic Accounts,
2. Model for Estimating the Impacts of Regulatory Costs on the Survival of Small Businesses and its Application to Four FDA-Regulated Industries, Final Report, Eastern Research Group, July 2002.
3. CTFA International Buyer's Guide, produced by the Cosmetic, Toiletry, and Fragrance Association (CTFA),
4. FDA Database of Dietary Supplement Products that Contain Animal Ingredients (DSPD-A), RTI International, September 2002.
5. FDA Labeling Cost Model, Final Report, RTI International, January 2003.
6. May 2004 Occupational Employment and Wage Estimates, National Cross-Industry estimates, U.S. Department of Labor, Bureau of Labor Statistics, accessed October 2, 2006,
7. Harvard Center for Risk Analysis, Harvard School of Public Health, “Evaluation of the Potential for Bovine Spongiform Encephalopathy in the United States,” accessed online at
Food additives, Food packaging, Reporting and recordkeeping requirements.
Cosmetics, Packaging and containers, Reporting and recordkeeping requirements.
21 U.S.C. 321, 342, 348, 371, 381.
(c)
(2) Records must be retained for 2 years after the date they were created.
(3) Records must be retained at the manufacturing or processing establishment or at a reasonably accessible location.
(4) The maintenance of electronic records is acceptable. Electronic records are considered to be reasonably accessible if they are accessible from an onsite location.
(5) Records required by this section and existing records relevant to compliance with this section must be available to FDA for inspection and copying.
(6) When filing entry with U.S. Customs and Border Protection, the importer of record of a human food manufactured from, processed with, or otherwise containing, cattle material must affirm that the food was manufactured from, processed with, or otherwise contains, cattle material and must affirm that the food was manufactured in accordance with this section. If a human food is manufactured from, processed with, or otherwise contains, cattle material, then the importer of record must, if requested, provide within 5 days records sufficient to demonstrate that the food is not manufactured from, processed with, or does not otherwise contain, prohibited cattle material.
(7) Records established or maintained to satisfy the requirements of this subpart that meet the definition of electronic records in § 11.3(b)(6) of this chapter are exempt from the requirements of part 11 of this chapter. Records that satisfy the requirements of this subpart but that are also required under other applicable statutory provisions or regulations remain subject to part 11 of this chapter.
21 U.S.C. 321, 331, 352, 355, 361, 362, 371, 374.
(c)
(2) Records must be retained for 2 years after the date they were created.
(3) Records must be retained at the manufacturing or processing establishment or at a reasonably accessible location.
(4) The maintenance of electronic records is acceptable. Electronic records are considered to be reasonably accessible if they are accessible from an onsite location.
(5) Records required by this section and existing records relevant to compliance with this section must be available to FDA for inspection and copying.
(6) When filing entry with U.S. Customs and Border Protection, the importer of record of a cosmetic manufactured from, processed with, or otherwise containing, cattle material must affirm that the cosmetic was manufactured from, processed with, or otherwise contains, cattle material and must affirm that the cosmetic was manufactured in accordance with this section. If a cosmetic is manufactured from, processed with, or otherwise contains, cattle material, then the importer of record must, if requested, provide within 5 days records sufficient to demonstrate that the cosmetic is not manufactured from, processed with, or does not otherwise contain, prohibited cattle material.
(7) Records established or maintained to satisfy the requirements of this subpart that meet the definition of electronic records in § 11.3(b)(6) of this chapter are exempt from the requirements of part 11 of this chapter. Records that satisfy the requirements of this subpart but that are also required under other applicable statutory
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations under section 752 for taking into account certain obligations of a business entity that is disregarded as separate from its owner under section 856(i) or section 1361(b)(3) of the Internal Revenue Code, or §§ 301.7701-1 through 301.7701-3 of the Procedure and Administration Regulations. These final regulations clarify the existing regulations concerning when a partner may be treated as bearing the economic risk of loss for a partnership liability based upon an obligation of a disregarded entity. The rules affect partnerships and their partners.
Charlotte Chyr, 202-622-3070 (not a toll-free number).
The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1905. Response to this collection of information is mandatory.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection of information displays a valid control number.
The estimated annual burden per respondent varies from 6 minutes to 4 hours, depending on individual circumstances, with an estimated average of 2 hours. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service,
Books and records relating to these collections of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and return information are confidential, as required by 26 U.S.C. 6103.
On August 12, 2004, the IRS and the Treasury Department issued proposed regulations under section 752 providing rules for taking into account certain obligations of disregarded entities (69 FR 49832). Comments were received in response to the notice of proposed rulemaking, and a public hearing was scheduled. However, the public hearing was later cancelled when no one requested to speak. After consideration of all the comments, the proposed regulations are adopted as amended by this Treasury decision.
The proposed regulations provide that a payment obligation under § 1.752-2(b)(1) (§ 1.752-2(b)(1) payment obligation) of a disregarded entity for which a partner is treated as bearing the economic risk of loss is taken into account only to the extent of the net value of the disregarded entity. Certain commentators disagreed with the approach taken in the proposed regulations, arguing that the regulations will result in inconsistent treatment of similar economic situations and unwarranted complexity.
Some commentators argued that the presumption of deemed satisfaction of § 1.752-2(b)(1) payment obligations of partners and related persons that is provided in § 1.752-2(b)(6) (presumption of deemed satisfaction) should be applied to disregarded entities that have § 1.752-2(b)(1) payment obligations. Other commentators argued that the presumption of deemed satisfaction should apply only to certain disregarded entities, such as disregarded entities that comprise substantially all of the owner's assets, or disregarded entities that hold active trades or businesses.
The IRS and the Treasury Department believe that applying the presumption of deemed satisfaction to a disregarded entity that shields the federal tax partner from liability for the entity's obligations would, in many cases, cause partnership liabilities that are economically indistinguishable from nonrecourse liabilities to be classified as recourse for purposes of section 752. Applying the presumption of deemed satisfaction to disregarded entities would distort the allocation of partnership liabilities in those cases. Accordingly, these comments are not adopted in the final regulations.
One commentator suggested that § 1.752-2 be amended to provide that, in addition to statutory and contractual obligations, statutory and contractual limitations should be taken into account in determining a partner's economic risk of loss. The IRS and the Treasury Department believe that such limitations are already taken into account under § 1.752-2(b)(3). As a result, the comment is not adopted.
Another commentator suggested that the goal of the proposed regulation could be better achieved by adding an example to the current anti-abuse rule in § 1.752-2(j) (or by publishing a revenue ruling) to illustrate a situation under which a partner's § 1.752-2(b)(1) payment obligation is limited because the partner holds its interest in a partnership through a disregarded entity with a principal purpose to eliminate the partner's economic risk of loss with respect to the partnership's liabilities. The IRS and the Treasury Department agree that, in certain circumstances, the current anti-abuse rule under section 752 prevents allocation of partnership liabilities to a partner that is a disregarded entity. However, if a partner holds a partnership interest through a disregarded entity, and only the assets of the disregarded entity are available to satisfy § 1.752-2(b)(1) payment obligations undertaken by the disregarded entity, the IRS and the Treasury Department believe that a partner should be treated as bearing the economic risk of loss for a partnership liability only to the extent of the net value of a disregarded entity's assets, whether or not the principal purpose of the arrangement is to limit the partner's economic risk of loss. As a result, the comment is not adopted.
The proposed regulations requested comments regarding whether the rules of the proposed regulations should be extended to the § 1.752-2(b)(1) payment obligations of other entities, such as entities that are capitalized with nominal equity. Some commentators opposed expanding the approach of the proposed regulations to thinly capitalized entities as unnecessary. Other commentators suggested that the anti-abuse rule of § 1.752-2(j) could be expanded to cover certain situations involving thinly capitalized entities. Specifically, a commentator suggested that the anti-abuse rule should apply if a substantially undercapitalized subsidiary of a consolidated group of corporations or a substantially undercapitalized passthrough entity (other than a disregarded entity) is utilized as the partner (or related obligor) for a principal purpose of limiting its owner's risk of loss in respect of existing partnership liabilities, and obtaining tax benefits for its owners (or other members of the consolidated group) that would not be available but for the additional tax basis in the partnership interest that results from the presumption of deemed satisfaction rule. The commentator also suggested that the regulations provide a safe harbor for determining entities that are not substantially undercapitalized.
Under the anti-abuse rule of § 1.752-2(j), a § 1.752-2(b)(1) payment obligation of a partner or a related person may be disregarded if the facts and circumstances indicate that a principal purpose of the arrangement between the parties is to eliminate the partner's economic risk of loss with respect to that obligation or to create the appearance of the economic risk of loss where the substance of the arrangement is otherwise. Thus, the anti-abuse rule of § 1.752-2(j) can apply to abusive transactions involving thinly capitalized entities. Although these regulations do not modify the anti-abuse rule of § 1.752-2(j) and do not extend the net value approach to thinly capitalized entities, the IRS and the Treasury Department may continue to study these issues in connection with future guidance projects.
Under the proposed regulations, the net value of a disregarded entity equals the fair market value of all assets owned by the disregarded entity that may be subject to creditors' claims under local law, including the disregarded entity's enforceable rights to contributions from its owner but excluding the disregarded entity's interest in the partnership for which the net value is being determined (if any) and the fair market value of property pledged to secure a partnership liability (which is already taken into account under § 1.752-2(h)(1)), less obligations of the disregarded entity that do not constitute, and are senior or of equal priority to, § 1.752-2(b)(1) payment obligations of the disregarded entity.
One commentator suggested that the final regulations should provide (or clarify) that the net value of a disregarded entity can vary depending upon the priority of the § 1.752-2(b)(1) payment obligation for which the value is being computed. A commentator also suggested that obligations of the disregarded entity that are of equal priority to § 1.752-2(b)(1) payment obligations of the disregarded entity should not be subtracted in their entirety. Instead, the commentator suggested that in determining the net value of the disregarded entity, the final regulations should subtract only the pro rata portion of the amount of any obligation of the disregarded entity that is not a § 1.752-2(b)(1) payment obligation of the disregarded entity and that is of equal priority to the § 1.752-2(b)(1) payment obligation of the disregarded entity. Other commentators suggested that prorating a disregarded entity's net value among equal priority obligations would add unnecessary complexity.
The comments illustrate the difficulty of taking into account priorities among obligations of the disregarded entity in determining the net value of the entity and the divergent views regarding the approach that best measures the economic risk of loss of a partner. The IRS and the Treasury Department believe that the regulations should provide clear and administrable rules that avoid unwarranted complexity. As a result, the final regulations provide that the net value of a disregarded entity is determined by subtracting all obligations (regardless of priority) of the disregarded entity that do not constitute § 1.752-2(b)(1) payment obligations from the fair market value of the assets of the entity. That net value is reported by the owner to each partnership for which the disregarded entity may have one or more § 1.752-2(b)(1) payment obligations. Each such partnership independently takes the net value of the disregarded entity into account under § 1.752-2(k)(3) and allocates the net value among liabilities of that partnership in a reasonable and consistent manner, taking into account the relative priorities of those liabilities.
One commentator suggested that the final regulations clarify that a disregarded entity's interest in another partnership (other than the one for which the net value is being determined) is included as an asset to be valued for purposes of the net value calculation. This comment is adopted.
Under the proposed regulations, after the net value of a disregarded entity is initially determined, the net value of the disregarded entity is not redetermined unless (1) the obligations of the disregarded entity that do not constitute, and are senior or of equal priority to, § 1.752-2(b)(1) payment obligations of the disregarded entity change by more than a de minimis amount or (2) there is more than a de minimis contribution to or distribution from the disregarded entity, of property other than property pledged to secure a partnership liability under § 1.752-2(h)(1). In the preamble to the proposed regulations, the IRS and the Treasury Department requested comments on whether other events (such as a sale of substantially all of a disregarded entity's assets) should be specified as valuation events.
One commentator suggested that the disposition of a non-de minimis asset should require an adjustment to the net value of the disregarded entity only to the extent such asset changed in value, without valuing other assets held by the disregarded entity. The final regulations adopt this suggestion.
A commentator suggested that the regulations provide that changes in the owner's legally enforceable obligation to contribute to the disregarded entity be a valuation event. The final regulations adopt this comment.
Commentators suggested that certain events that would require the net value of a disregarded entity to be redetermined under the proposed regulations be eliminated as valuation events. For example, one commentator suggested that net value should not be redetermined if a disregarded entity refinances an obligation of the disregarded entity in the same amount. The IRS and the Treasury Department believe that the refinancing of a disregarded entity's obligation is an appropriate and administrable time to redetermine the net value of a disregarded entity. Accordingly, this suggestion is not adopted.
Another commentator suggested that the net value of a disregarded entity should not be redetermined with respect to a particular partnership in which the
Commentators requested that the final regulations clarify the timing of the reallocation of partnership liabilities that may occur as a result of a change in the net value of a disregarded entity. The commentators suggested that, under the proposed regulations, a change in net value could result in a deemed distribution under section 752(b) that would require a determination of a partner's share of partnership liabilities for basis purposes under §§ 1.705-1(a) and 1.752-4(d).
The final regulations clarify when the net value of a disregarded entity initially must be determined if a partnership interest is held by a disregarded entity, and the partnership has or incurs a liability, all or a portion of which may be allocable to the owner of the disregarded entity under § 1.752-2(k). The final regulations clarify that a disregarded entity's net value generally is determined as of the earlier of (A) the first date occurring on or after the date on which the requirement to determine the net value of a disregarded entity arises on which the partnership otherwise determines a partner's share of partnership liabilities under §§ 1.705-1(a) and 1.752-4(d), or (B) the end of the partnership's taxable year in which the requirement to determine the net value of a disregarded entity arises. For example, if a valuation event occurs during the partnership's taxable year, and subsequently, but before the end of the taxable year, the partnership makes a distribution that requires a determination of the distributee partner's basis in the partnership, the net value of the disregarded entity must be redetermined as of the date of the distribution.
Several commentators requested that the final regulations permit an election to redetermine the net value of a disregarded entity annually, regardless of the occurrence of a valuation event, and that if only one valuation event occurs during a partnership's taxable year, the owner have the option of using the net value of the disregarded entity as of the date of the valuation event rather than as of the date on which the partnership allocates liabilities under section 752. Because a change in the net value of a disregarded entity may require a shift of liabilities among partners, the IRS and the Treasury Department believe that valuations should be limited and should be required only as the result of a valuation event. Moreover, the timing of the net value determination should generally coincide with the date on which the partnership otherwise determines partners' shares of partnership liabilities. Accordingly, the final regulations do not adopt these comments.
Some commentators suggested that the final regulations conform the rules regarding the valuation of property pledged by partners as security for partnership liabilities with the rules regarding the determination of the net value of a disregarded entity. The commentators also suggested allowing, but not requiring, partners to revalue pledged property annually. In response to these comments, the final regulations provide that if additional property is made subject to a pledge, the addition is treated as a new pledge and the net fair market value of all of the pledged property must be determined at that time. The IRS and the Treasury Department may continue to study whether further modifications to the pledge rule are necessary.
Some commentators asked that the regulations provide that the partnership may make certain assumptions if a partner does not provide the information required. The IRS and the Treasury Department believe that partnerships are responsible for obtaining the required information in order to allocate partnership liabilities correctly among the partners, and that the partnership agreement should require that partners comply with the reporting requirements in the regulations. Thus, the final regulations do not adopt this comment.
Some commentators suggested that the estimated burden of complying with the paperwork requirements in the proposed regulations was too low. The estimated number of respondents has been increased from 500 to 1,500, and the average estimated time per respondent has been increased from 1 hour to 2 hours.
A commentator also suggested certain grandfathering provisions for partnerships with existing liabilities as of the effective date of the regulations. The IRS and the Treasury Department believe that the same rules should apply to all partnership liabilities incurred or assumed by a partnership on or after the date the regulations are final. Accordingly, this comment is not adopted.
The final regulations apply to liabilities incurred or assumed by a partnership on or after October 11, 2006 other than liabilities incurred or assumed by a partnership pursuant to a written binding contract in effect prior to October 11, 2006.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that the amount of time necessary to report the required information will be minimal. Accordingly, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Charlotte Chyr, Office of Associate Chief Counsel (Passthroughs and Special Industries).
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The revisions and addition read as follows:
(f) * * *
(2) * * * A partner is not subject to the minimum gain chargeback requirement to the extent the partner's share of the net decrease in partnership minimum gain is caused by a recharacterization of nonrecourse partnership debt as partially or wholly recourse debt or partner nonrecourse debt, and the partner bears the economic risk of loss (within the meaning of § 1.752-2) for the liability.
(g) * * *
(3) * * * A partner's share of partnership minimum gain is increased to the extent provided in this paragraph (g)(3) if a recourse or partner nonrecourse liability becomes partially or wholly nonrecourse. * * *
(i) * * *
(4) * * * A partner is not subject to this minimum gain chargeback, however, to the extent the net decrease in partner nonrecourse debt minimum gain arises because a partner nonrecourse liability becomes partially or wholly a nonrecourse liability. * * *
(l) * * *
(1) * * *
(iv) Paragraph (f)(2), the first sentence of paragraph (g)(3), and the third sentence of paragraph (i)(4) of this section apply to liabilities incurred or assumed by a partnership on or after October 11, 2006 other than liabilities incurred or assumed by a partnership pursuant to a written binding contract in effect prior to October 11, 2006. The rules applicable to liabilities incurred or assumed (or subject to a binding contract in effect) prior to October 11, 2006 are contained in this section in effect prior to October 11, 2006. (See 26 CFR part 1 revised as of April 1, 2006.)
The revisions and additions read as follows:
(a) * * * A partner's share of a recourse partnership liability equals the portion of that liability, if any, for which the partner or related person bears the economic risk of loss. The determination of the extent to which a partner bears the economic risk of loss for a partnership liability is made under the rules in paragraphs (b) through (k) of this section.
(b) * * *
(6) * * * See paragraphs (j) and (k) of this section.
(h) * * *
(3)
(k)
(2)
(A) The fair market value of all assets owned by the disregarded entity that may be subject to creditors' claims under local law (including the disregarded entity's enforceable rights to contributions from its owner and the fair market value of an interest in any partnership other than the partnership for which net value is being determined, but excluding the disregarded entity's interest in the partnership for which the net value is being determined and the net fair market value of property pledged to secure a liability of the partnership under paragraph (h)(1) of this section); less
(B) All obligations of the disregarded entity that do not constitute § 1.752-2(b)(1) payment obligations of the disregarded entity.
(ii)
(B)
(iii)
(A) A more than de minimis contribution to a disregarded entity of property other than property pledged to secure a partnership liability under paragraph (h)(1) of this section, unless the contribution is followed immediately by a contribution of equal
(B) A more than de minimis distribution from a disregarded entity of property other than property pledged to secure a partnership liability under paragraph (h)(1) of this section, unless the distribution immediately follows a distribution of equal net value to the disregarded entity by the partnership for which the net value of the disregarded entity otherwise would be determined, taking into account any obligations assumed or taken subject to in connection with such distributions.
(C) A change in the legally enforceable obligation of the owner of the disregarded entity to make contributions to the disregarded entity.
(D) The incurrence, refinancing, or assumption of an obligation of the disregarded entity that does not constitute a § 1.752-2(b)(1) payment obligation of the disregarded entity.
(E) The sale or exchange of a non-de minimis asset of the disregarded entity (in a transaction that is not in the ordinary course of business). In this case, the net value of the disregarded entity may be adjusted only to reflect the difference, if any, between the fair market value of the asset at the time of the sale or exchange and the fair market value of the asset when the net value of the disregarded entity was last determined. The adjusted net value is taken into account for purposes of § 1.752-2(k)(1) as of the allocation date.
(iv)
(A) The first date occurring on or after the date on which the requirement to determine the net value of a disregarded entity arises under paragraph (k)(2)(ii)(A) or (B) of this section on which the partnership otherwise determines a partner's share of partnership liabilities under §§ 1.705-1(a) and 1.752-4(d); or
(B) The end of the partnership's taxable year in which the requirement to determine the net value of a disregarded entity arises under paragraph (k)(2)(ii)(A) or (B) of this section.
(3)
(4)
(5)
(6)
(i) In 2007, A forms a wholly owned domestic limited liability company, LLC, with a contribution of $100,000. A has no liability for LLC's debts, and LLC has no enforceable right to contribution from A. Under § 301.7701-3(b)(1)(ii) of this chapter, LLC is a disregarded entity. Also in 2007, LLC contributes $100,000 to LP, a limited partnership with a calendar year taxable year, in exchange for a general partnership interest in LP, and B and C each contributes $100,000 to LP in exchange for a limited partnership interest in LP. The partnership agreement provides that only LLC is required to make up any deficit in its capital account. On January 1, 2008, LP borrows $300,000 from a bank and uses $600,000 to purchase nondepreciable property. The $300,000 debt is secured by the property and is also a general obligation of LP. LP makes payments of only interest on its $300,000 debt during 2008. LP has a net taxable loss in 2008, and under §§ 1.705-1(a) and 1.752-4(d), LP determines its partners' shares of the $300,000 debt at the end of its taxable year, December 31, 2008. As of that date, LLC holds no assets other than its interest in LP.
(ii) Because LLC is a disregarded entity, A is treated as the partner in LP for Federal tax purposes. Only LLC has an obligation to make a payment on account of the $300,000 debt if LP were to constructively liquidate as described in paragraph (b)(1) of this section. Therefore, under this paragraph (k), A is treated as bearing the economic risk of loss for LP's $300,000 debt only to the extent of LLC's net value. Because that net value is $0 on December 31, 2008, when LP determines its partners' shares of its $300,000 debt, A is not treated as bearing the economic risk of loss for any portion of LP's $300,000 debt. As a result, LP's $300,000 debt is characterized as nonrecourse under § 1.752-1(a) and is allocated as required by § 1.752-3.
(i) The facts are the same as in
(ii) A's contribution of $250,000 to LLC on January 1, 2009, constitutes a more than de minimis contribution of property to LLC under paragraph (k)(2)(iii)(A) of this section and the debt incurred by LLC on January 5, 2009, is a valuation event under paragraph (k)(2)(iii)(D) of this section. Accordingly, under paragraph (k)(2)(ii) of this section, LLC's value must be redetermined as of the end of the partnership's taxable year. At that time LLC's net value is $175,000 ($275,000 land—$100,000 debt). Accordingly, $175,000 of LP's $300,000 debt will be recharacterized as recourse under § 1.752-1(a) and allocated to A under this section, and the remaining $125,000 of LP's $300,000 debt will remain characterized as nonrecourse under § 1.752-1(a) and is allocated as required by § 1.752-3.
(i) The facts are the same as in
(ii) Both LLC and LLC2 have obligations to make a payment on account of LP's debts if LP were to constructively liquidate as described in paragraph (b)(1) of this section. Therefore, under paragraph (k)(1) of this section, A is treated as bearing the economic risk of loss for LP's $100,000 and $300,000 debts only to the extent of the net values of
(iii) No events have occurred that would allow a valuation of LLC under paragraph (k)(2)(iii) of this section. Therefore, LLC's net value remains $175,000. LLC2's net value as of December 31, 2010, when LP determines its partners' shares of its liabilities, is $140,000. Under paragraph (k)(3) of this section, LP must allocate the net values of LLC and LLC2 between its $100,000 and $300,000 debts in a reasonable and consistent manner. Because the $100,000 debt is senior in priority to the $300,000 debt, LP first allocates the net values of LLC and LLC2, pro rata, to its $100,000 debt. Thus, LP allocates $56,000 of LLC's net value and $44,000 of LLC2's net value to its $100,000 debt, and A is treated as bearing the economic risk of loss for all of LP's $100,000 debt. As a result, all of LP's $100,000 debt is characterized as recourse under § 1.752-1(a) and is allocated to A under this section. LP then allocates the remaining $119,000 of LLC's net value and LLC2's $96,000 net value to its $300,000 debt, and A is treated as bearing the economic risk of loss for a total of $215,000 of the $300,000 debt. As a result, $215,000 of LP's $300,000 debt is characterized as recourse under § 1.752-1(a) and is allocated to A under this section, and the remaining $85,000 of LP's $300,000 debt is characterized as nonrecourse under § 1.752-1(a) and is allocated as required by § 1.752-3. This example illustrates one reasonable method of allocating net values of disregarded entities among multiple partnership liabilities.
(ii) Because LLC is a disregarded entity, B is treated as the partner in LP1 and LP2 for federal tax purposes. Only LLC has an obligation to make a payment on account of Debts 1, 2, and 3 if LP1 and LP2 were to constructively liquidate as described in paragraph (b)(1) of this section. Therefore, under this paragraph (k), B is treated as bearing the economic risk of loss for LP1's and LP2's liabilities only to the extent of LLC's net value as of the allocation date, December 31, 2007.
(iii) LLC's net value with respect to LP1 is $115,000 ($100,000 cash + $15,000 interest in LP2). Therefore, under paragraph (k)(1) of this section, B is treated as bearing the economic risk of loss for $115,000 of Debt 1. Accordingly, $115,000 of LP1's $300,000 debt is characterized as recourse under § 1.752-1(a) and is allocated to B under this section. The balance of Debt 1 ($185,000) is characterized as nonrecourse under § 1.752-1(a) and is allocated as required by § 1.752-3.
(iv) LLC's net value with respect to LP2 is $145,000 ($100,000 cash + $45,000 interest in LP1). Therefore, under paragraph (k)(1) of this section, B is treated as bearing the economic risk of loss with respect to Debts 2 and 3 only to the extent of $145,000. Because Debt 2 is senior in priority to Debt 3, LP2 first allocates $60,000 of LLC's net value to Debt 2. LP2 then allocates $40,000 of LLC's net value to Debt 3. As a result, both Debts 2 and 3 are characterized as recourse under § 1.752-1(a) and allocated to B. This example illustrates one reasonable method of allocating the net value of a disregarded entity among multiple partnership liabilities.
(l)
26 U.S.C. 7805.
(b) * * *
This document was received at the Office of the Federal Register on October 4, 2006.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving revisions to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM) on November 18, 2005. The revisions include modifications to Alabama's Volatile Organic Compounds (VOCs) rules found at Alabama Administrative Code (AAC) Chapter 335-3-1. ADEM is taking an action that was similarly approved by EPA on November 29, 2004 (69 FR 69298). The revision adds several compounds to the list of compounds excluded from the definition of VOC on the basis that they make a negligible contribution to ozone formation. This action is being taken pursuant to section 110 of the Clean Air Act (CAA).
This direct final rule is effective December 11, 2006 without further notice, unless EPA receives adverse comment by November 13, 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-R04-OAR-2005-AL-0004,” by one of the following methods:
1.
2.
3.
4.
5.
Stacy DiFrank, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9042. Ms. DiFrank can also be reached via electronic mail at
On November 18, 2005, ADEM submitted proposed SIP revisions to EPA for review and approval into the Alabama SIP. The revisions include changes made by the State of Alabama to AAC Chapter 335-3-1, regarding VOCs. The rules became state effective on December 12, 2005. EPA is now taking direct final action to approve the proposed revisions, which include revising the definition of VOC, which is a part of the State's strategy to meet the national ambient air quality standards (NAAQS) by reducing emissions of VOCs. In summary, the revisions submitted by ADEM added four compounds to the list of those excluded from the definition of VOC, on the basis that these compounds make a negligible contribution to ozone formation. The revision modified the definition to say that: 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C
Tropospheric ozone, commonly known as smog, occurs when VOCs and nitrogen oxides (NO
It has been EPA's policy that compounds of carbon with a negligible level of reactivity need not be regulated to reduce ozone (see 42 FR 35314, July 8, 1977). EPA determines whether a given carbon compound has “negligible” reactivity by comparing the compound's reactivity to the reactivity of ethane. EPA lists these compounds in its regulations at 40 CFR 51.100(s), and excludes them from the definition of VOC. The chemicals on this list are often called “negligibly reactive.” EPA may periodically revise the list of negligibly reactive compounds to add compounds to or delete them from the list.
EPA finalized a similar rule on November 29, 2004 (69 FR 69298), approving the addition of the four compounds listed in Section I above to the list of those excluded from the definition of VOC.
EPA is approving revisions to the Alabama SIP to include changes made to Alabama's VOC regulations which are part of the State's strategy to meet the NAAQS. These changes are consistent with the CAA.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this
If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 11, 2006 and no further action will be taken on the proposed rule.
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 SIP 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 SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 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, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401 et seq.
(c) * * *
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
FRA is amending the Federal Track Safety Standards to improve the inspection of rail joints in continuous welded rail (CWR). On November 2, 2005, FRA published an Interim Final Rule (IFR) addressing the inspection of rail joints in CWR. FRA requested comments on the provisions of the IFR and stated that a final rule would be issued after a review of those comments. This final rule adopts a portion of the IFR and makes changes to other portions. This final rule requires track owners to develop and implement a procedure for the detailed inspection of CWR rail joints and also requires track owners to keep records of those inspections.
This final rule is effective October 31, 2006.
Kenneth Rusk, Staff Director, Office of Safety, FRA, 1120 Vermont Avenue NW., Washington, DC 20590, Telephone: (202) 493-6236; or Sarah Grimmer, Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont Ave NW., Washington, DC 20950, Telephone (202) 493-6390.
CWR refers to the way in which rail is joined together to form track. In CWR, rails are welded together to form one continuous rail that may be several miles long. Although CWR is normally one continuous rail, there can be joints
The Federal Railroad Administration (FRA) issued the first Federal Track Safety Standards in 1971.
In 1982, FRA deleted § 213.119, because FRA believed it was so general in nature that it provided little guidance to railroads and it was difficult to enforce.
The Rail Safety Enforcement and Review Act of 1992 (Public Law 102-365, September 3, 1992), required that FRA evaluate procedures for installing and maintaining CWR. In 1994, Congress required DOT to evaluate cold weather installation procedures for CWR (Federal Railroad Safety Reauthorization Act (Pub. L. 103-272, July 5, 1994)). In light of the evaluation of those procedures, as well as information resulting from FRA's own research and development, FRA addressed CWR procedures by adding § 213.119 during its 1998 revision of the Track Safety Standards.
Section 213.119, as added in 1998, requires railroads to develop procedures that, at a minimum, provide for the installation, adjustment, maintenance, and inspection of CWR, as well as a training program and minimal recordkeeping requirements. Section 213.119 does not dictate which procedures a railroad must use in its CWR plan. It allows each railroad to develop and implement its individual CWR plan based on procedures which have proven effective for it over the years. Accordingly, procedures can vary from railroad to railroad.
On August 10, 2005, President Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), (Pub. L. 109-59, August 10, 2005) into law. Section 9005(a) of SAFETEA-LU amended 49 U.S.C. 20142 by adding a new subsection (e) as follows:
(e) Track Standards.—
(1) In General.—Within 90 days after the date of enactment of this subsection, the Federal Railroad Administration shall—
(A) require each track owner using continuous welded rail track to include procedures (in its procedures filed with the Administration pursuant to section 213.119 of title 49, Code of Federal Regulations) to improve the identification of cracks in rail joint bars;
(B) instruct Administration track inspectors to obtain copies of the most recent continuous welded rail programs of each railroad within the inspectors' areas of responsibility and require that inspectors use those programs when conducting track inspections; and
(C) establish a program to review continuous welded rail joint bar inspection data from railroads and Administration track inspectors periodically.
(2) Inspection.—Whenever the Administration determines that it is necessary or appropriate, the Administration may require railroads to increase the frequency of inspection, or improve the methods of inspection, of joint bars in continuous welded rail.
Pursuant to this mandate, on November 2, 2005, FRA revised the Track Safety Standards of 49 CFR part 213 by publishing the IFR, 70 FR 66288, which addresses CWR. FRA requested comments on the IFR and provided the Railroad Safety Advisory Committee (RSAC) with an opportunity to review the comments on the IFR. On February 22, 2006, RSAC established the Track Safety Standards Working Group (working group). The working group was given two tasks: (1) Resolution of comments on the IFR, and (2) recommendations regarding FRA's role in oversight of CWR programs, including analysis of data to determine effective management of CWR safety by the railroads. The first task, referred to as “Phase I” of the CWR review, includes analyzing the IFR on inspection of joint bars in CWR territory, reviewing the comments to the IFR, and preparing recommendations for the final rule. The publication of this final rule concludes “Phase I” of RSAC's referral to the working group. The working group is currently reviewing “Phase II” of RSAC's referral, which involves an examination of all of § 213.119. The working group plans to
In March 1996, FRA established RSAC, which provides a forum for developing consensus recommendations to FRA's Administrator on rulemakings and other safety program issues. The RSAC includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of group members follows:
When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff plays an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation.
However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings.
After its establishment on February 22, 2006, the working group reconvened on April 4-5, 2006, April 26-28, 2006, May 24-25, 2006, and July 19-20, 2006 to discuss revisions to the IFR for this final rule. The working group considered all the comments and reached consensus on recommendations for a final rule. These recommendations were presented to the RSAC and on August 11, 2006, the RSAC accepted these recommendations. The RSAC voted to forward these recommendations to FRA as the basis for a final rule on the inspection of CWR joints.
FRA has worked closely with the RSAC in developing its recommendations and believes that the RSAC has effectively addressed inspection of CWR joints. FRA has greatly benefitted from the open, informed exchange of information during the meetings. There is a general consensus among the railroads, rail labor organizations, state safety managers, and FRA concerning the primary principles FRA sets forth in this final rule. The working group has also benefitted from participation of NTSB staff. FRA believes that the expertise possessed by the RSAC representatives enhances the value of the recommendations, and FRA has made every effort to incorporate them in this rule.
Since FRA's 1998 revision of the Track Safety Standards, there have been a number of train accidents in which the failure of a rail joint in CWR was a factor. The NTSB investigated three recent accidents and made recommendations to FRA concerning joints in CWR. The NTSB recommendations closely parallel the statutory mandate requiring this IFR. The three accidents and subsequent NTSB recommendations are described below.
On January 18, 2002, Canadian Pacific Railway (CPR) freight train 292-15 derailed 31 of its 112 cars about
In its Railroad Accident Report,
The NTSB issued several findings in its report. The NTSB found that the train derailed because joint bars at the east end of the plug rail
The NTSB also found that FRA's oversight of CPR's CWR program was ineffective, because FRA neither reviewed the CWR program nor ensured that its track inspectors had copies of the CWR programs to determine if the railroad was in compliance with it. As a result of these findings, the NTSB made seven safety recommendations, of which the most relevant are quoted below.
Require all railroads with continuous welded rail track to include procedures (in the programs that are filed with the Federal Railroad Administration) that prescribe on-the-ground visual inspections and nondestructive testing techniques for identifying cracks in rail joint bars before they grow to critical size. (R-04-1).
Establish a program to periodically review continuous welded rail joint bar inspection data from railroads and Federal Railroad Administration track inspectors and, when determined necessary, require railroads to increase the frequency or improve the methods of inspection of joint bars in continuous welded rail. (R-04-2).
Instruct Federal Railroad Administration track inspectors to obtain copies of the most recent continuous welded rail programs of the railroads that fall within the inspectors' areas of responsibility and require that inspectors use those programs when conducting track inspections. (R-04-3).
On April 6, 2004, National Railroad Passenger Corporation (Amtrak) train No. 58 (
In its Railroad Accident Report,
Emphasize to your track inspectors the importance of enforcing a railroad's continuous welded rail program as a part of the Federal Track Safety Standards, and verify that inspectors are documenting noncompliance with the railroad's program. (R-05-05).
On October 16, 2004, Union Pacific (UP) freight train ZLAMN-16 derailed 3 locomotives and 11 cars near Pico Rivera, California. Small amounts of hazardous materials were released from the transported cargo. There were no injuries to area residents, the train crew, or the emergency response personnel. UP estimated the monetary damage at $2.7 million.
In its Railroad Accident Brief,
The NTSB reiterated two of the recommendations that it had made to FRA after the Minot, North Dakota accident: (1) R-04-01 about on-the-ground visual inspections and nondestructive testing techniques and (2) R-04-02 about a program to review joint bar inspection data. The NTSB stated further in its brief:
The CWR track involved in the Pico Rivera accident had all the inspections required by the UP and the FRA. In some instances, the inspections were done more frequently than required. Nevertheless, the inspections failed to detect the developing problems and ultimate failure. Additionally, during the 2 days after the last inspection, more than 100 trains passed over the insulated joint bars without either discovering or reporting a defect. Trains traversed the area after the insulated joint bars were completely broken, as evidenced by the rail batter in both directions.
Several indications of an imminent or actual defect were present before this accident, which the inspection from a moving vehicle did not discover:
• The epoxy bead was missing from the center section of the insulated joint bar, indicating vertical movement.
• The joint bars cracked before they completely fractured. Part of each crack was visible on the lower outer portion of the bar for some time before its failure.
• Rail end batter developed when the joint bars completely fractured and trains continued to pass over them in both directions.
These indications developed over time, and a close visual inspection from the ground would have likely uncovered the emerging problem and allowed corrective action to be taken to avoid the accident.
Earlier versions of § 213.119 did not require track owners to include any provisions in their CWR plans related to joints in CWR. Track owners were required simply to address joints in CWR in the same manner as they addressed joints in conventional jointed rail.
To meet the statutory requirement that FRA issue this regulation within 90 days of the enactment of SAFETEA-LU, FRA issued the IFR on November 2, 2005. This final rule addresses 49 U.S.C. 20142(e)(1)(A) and (e)(1)(C) (hereinafter referred to as (e)(1)(A) and (e)(1)(C)). Because 49 U.S.C. 20142(e)(1)(B) does not require regulatory action on the part of FRA, FRA is not addressing it in this rulemaking.
Paragraph (e)(1)(A) mandates that FRA require each track owner to “include procedures * * * to improve the identification of cracks in rail joint bars.” Congress did not specify how FRA should effect that improvement. One way of improving the identification of such cracks is through on-foot inspection of joints in CWR. Because most cracks in joint bars can be detected by eye before they grow to failure, on-foot inspections can be of great value in identifying joint failure. Accordingly, FRA is requiring railroads to conduct periodic on-foot inspections of CWR joints.
Rather than limit these on-foot inspections to the identification of joint bar cracks, FRA is requiring track owners to also inspect for joint conditions that can lead to the development of joint bar cracks. Track owners should inspect all safety-critical aspects of joints, including any indications of potential failure of the joint itself; any indications of potential failure of any components of the joint (e.g., rails, bolts, supporting crossties, and track fasteners); and the track itself in the vicinity of the joint (including the effectiveness of rail anchors or other devices for restraint of longitudinal movement of the rail). In this final rule, FRA lists examples of conditions that may indicate potential failure. This list is not all-inclusive. There are other conditions that could indicate failure, and FRA urges track owners to consider all conditions, not just the listed examples.
In doing this, railroads will address a preemptive solution—i.e., preventing cracks from developing—rather than merely reacting to cracks after they have developed. It is understood that certain conditions involving rail joints and the surrounding CWR contribute to the development and propagation of cracks in rail joints. If track inspectors inspect for these conditions, detect these conditions, and provide information so that railroads can correct these conditions, it will reduce the probability of joint failures and subsequent train accidents.
Furthermore, this preventive approach is more appropriate given that the development of a crack in a rail joint bar can progress at an unpredictable rate. Some cracks might exist for years without causing a rupture of the joint, while other cracks can progress rapidly from an undetectable size to complete failure. For example, a joint can completely fail under a single impact load if the joint is subjected to low temperatures and very high-tension forces.
FRA believes that the time and effort it takes a track inspector to perform a complete inspection will be minimal while the benefit of a complete inspection will be high. Once a track inspector arrives at a location to inspect a joint and begins inspecting that joint, it takes little time and effort (beyond the effort to search for and identify cracks in joint bars) for him or her to note the condition of the entire joint and its surroundings. There are both safety and management benefits to a complete inspection. The safety benefit is obvious in that it prevents derailments. As for management benefits, track owners will save money and time, because it is easier and more cost effective to repair incipient joint conditions than actual joint cracks. For example, it is more economical to replace joint bolts or to reset rail anchors (i.e., potential failure conditions) than it is to replace a joint bar after it has developed a crack.
FRA realizes that inspections at a frequency that could detect incipient cracks prior to the possibility of failure in every case are not feasible given the current levels of railroad staffing and railroad traffic, and in light of the impediments to train operations that would result from restrictions required to provide for the safety and mobility of inspection personnel. Proper preparation and maintenance of joints, however, together with appropriate joint inspection instructions, can reduce the frequency of crack formation and also prevent rapid propagation in most cases—making a sound program of inspection both feasible and more cost effective.
Paragraph (e)(1)(C) requires that FRA “establish a program to [periodically] review continuous welded rail joint bar inspection data” from railroads and FRA track inspectors. Clearly, FRA can gather and review the joint bar inspection data from its own inspectors' inspections. In order for FRA to review railroad CWR joint bar inspection data, however, track owners must gather that data and make it available to FRA for review. Accordingly, this rule now requires track owners to compile a Fracture Report and submit it to FRA.
There is not yet an established, efficient method for detecting cracks in joint bars by traditional means of automated non-destructive testing (NDT). FRA believes that such a system might be developed, and that a requirement for effective joint bar inspection by either visual or other effective means can provide an incentive for the railroad industry to develop such a system. FRA is aware that some railroads do employ portable, hand-held equipment to conduct NDT of joint bars. The use of NDT will be discussed further in the section-by-section analysis of § 213.119(g)(8).
NDT technology, in addition to careful visual inspection, could be used where judged effective. FRA notes, however, that there is insufficient engineering data to establish the effectiveness of NDT techniques as applied to joint bars in the service environment. Further, as illustrated by the examination of NDT technology and services by the joint FRA/industry Rail Integrity Task Force,
The task force is comprised of subject-matter experts from the major heavy-haul railroads, the AAR, FRA's Office of Safety Assurance and Compliance, FRA's Office of Railroad Development, as well as technical support from the Volpe National Transportation Systems Center. The task force has also requested and received input from all of the service providers in the field of nondestructive testing of rail.
FRA received seventeen comments in response to the IFR. The comments addressed concerns over a variety of issues, including: inspection frequencies, the economic analysis of the regulation, the training of track inspectors, the availability of CWR plans, the joint inventory requirement of
The IFR required a track owner's CWR plan to specify the timing of joint inspections based on the configuration and condition of the particular joint. The IFR provided minimum inspection intervals of every 190 days for track classes 4 and higher and every 370 days for class 3 track and class 2 track on which passenger trains operate. Public comments on the required inspection frequency were numerous and varied. For example, BMWED desired much more frequent inspections (i.e., monthly), while other commenters suggested risk-based (variable) inspection intervals taking into account the presence of passenger trains, hazardous materials or the proximity of railroad operations to population centers. Suggestions to increase inspection frequency dominated comments addressing inspection frequency. Further, railroad commenters were almost unanimously opposed to the inventory requirements imposed by the IFR, and some implied that the inventory was far more burdensome than increased inspection frequency would be.
Several Senators urged FRA to increase the required inspection frequencies. In a filing supported by three members of the California congressional delegation and several local officials, the California Public Utilities Commission recommended that FRA require more frequent inspections and take into consideration more factors in determining inspection intervals, such as population density and risk associated with hazardous materials. FRA and the RSAC carefully considered these comments. FRA also took into account the fact that railroad CWR procedures filed in response to the IFR failed to address circumstances that might warrant more frequent inspection.
The FRA decided upon an inspection frequency in lieu of an inventory requirement after considering many different approaches. The inspection frequency was based upon model results developed by the Department of Transportation's Volpe Center (Volpe), the practical realities of railroad operations, as well as discussions, negotiations, and compromises combining practicality, enforceability, and effectiveness. The RSAC working group discussed all of these considerations at its meetings.
Volpe developed several engineering models to estimate the loads imposed on a rail joint. As is true of all models, they were simplifications of reality designed to give insight into underlying facts. The models considered the effects of various joint characteristics such as rail section, rail end gap, batter, height mismatch and vertical support. Loads were used to infer stresses in the joint bar which permitted the conduct of a fatigue analysis to determine the tonnage, expressed as million gross tons (MGT), required to develop a fatigue crack in the bar. The models were based on an assumed rectangular cross section, which, although very different from the actual joint bar shape, seemed to give adequate direction when later compared to actual experience. Under the assumed baseline joint conditions, bar fatigue life was estimated to be greater than 5,000 MGT.
Fatigue life is only tangentially related to a reasonable inspection interval. Crack growth life after crack initiation is far more important. Volpe applied fracture mechanics principles to estimate the tonnage required to grow the crack from a barely detectable size to the size at which the bar would fracture under the next train. For the same baseline joint conditions, the analysis yielded a fatigue crack growth life estimate of 13 MGT, using a minimum detectable crack size of one-sixteenth of an inch. Smaller initial crack sizes yielded dramatically longer fatigue lives, and larger initial crack sizes yielded dramatically shorter fatigue lives. Further, the fatigue and crack growth lives are extremely sensitive to the conditions of the joint. Poor joint conditions result in shorter estimated lifetimes, while better conditions increase the expected joint bar life. For each case, Volpe fatigue life estimates are conservative, as the analysis predicts first percentile life. That is, the fatigue life estimate is the tonnage at which one percent of joint population can be expected to have formed a crack—a standard engineering approach to estimating fatigue life. The Volpe crack growth models also have some conservative features. The Volpe model seemed to forecast slightly more failures than are being realized in actual railroad service, but FRA will compare the model to actual data once fracture reports become available.
These results were considered by the RSAC working group and compared to real life experiences. Many railroads already had inspection plans for their CWR joints. During the RSAC working group meetings, numerous inspection intervals were suggested. Certain parties suggested that 40 MGT be used, while others wanted 10 MGT. A consensus was reached that 20 MGT would be a reasonable inspection interval. Although Volpe's model had suggested 13 MGT, the Volpe representatives assured FRA that 20 MGT is an appropriate inspection interval. Given the practical realities of conducting the required on-foot visual inspections required under the new rule, and FRA's heightened concerns about tracks with 40-60 MGT per year, certain trade-offs were made by RSAC in recommending the inspection frequency schedule. FRA has adopted the RSAC recommendations regarding inspection frequency.
For freight-only operations, the inspection interval depends on the annual tonnage and the FRA track class. The inspection interval is approximately once every 20 MGT up to 60 MGT (or three times per year) for Class 4 and Class 5 track, with less frequent intervals for Class 3 track. These intervals are greater than the estimated crack growth life; however, they represent a practical baseline and account for the likely increased severity of accidents on higher track classes. They are also reflective of the vast majority of freight traffic in the U.S. as most lines accumulate an average of approximately 60 MGT per year. Higher annual tonnage lines generally represent unit train operations consisting of coal, for example. Track with higher speeds is subject to more frequent inspections, because higher speed accidents are likely on the average to be more severe. The inspection intervals provide some balance between risk and cost of inspection.
For track upon which passenger trains operate, a different schedule was developed which considers the potentially greater severity, especially in terms of loss of life, from possible future passenger train accidents. The inspection intervals are again graduated based on track class and whether the line experiences more or less than 20 MGT per year with more frequent inspections required for higher classes of track. If a track owner operates both freight and passenger trains over a given segment of track and there are two different possible inspection interval requirements, the more frequent inspection interval applies.
FRA also provided relief requested by ASLRRA on behalf of smaller railroads, which run occasional passenger service. Pursuant to the frequency chart in § 213.119(g)(6)(i), those railroads can run passenger trains at the maximum speed authorized for the next lower
FRA considered adding further complexity to the required inspection frequency, but decided that would not be either necessary or productive. It is not necessary because the inspection strategy embodied in this final rule should be sufficient to address joint integrity issues (conditions that foster development of cracks) and to detect cracks before failure in the vast majority of cases. Further complexity would not be productive because available information does not support development of a useful inspection strategy built on other factors. For instance, protecting nearby populations from hazardous material accidents is always a desirable objective; however, most hazardous materials releases (which are infrequent events) occur along the railroads in unpopulated areas or in small rural communities—thousands of which lie along major rail lines. Hazardous materials shipments traverse most rail lines, yet there is no data suggesting that the volume of shipments predicts the likelihood of a release in a train accident. After discussion of these issues, the RSAC agreed that an inspection strategy based on class of track, tonnage, and presence or absence of passenger traffic was the best approach. The RSAC also developed the Fracture Report process, which may lead to further refinement of inspection intervals over time.
AAR had extensive comments on the IFR's economic analysis. First, AAR stated that the recordkeeping costs were underestimated, and stressed that the IFR's proposed inventory requirement would be more costly than estimated by FRA. FRA agrees that the cost estimates developed in connection with the IFR were based on an excessively optimistic assumption regarding the extent of railroads' use of electronic technology which would have been necessary to keep inventory costs reasonable. As FRA is no longer requiring an inventory, these costs will not be analyzed further for the final rule.
AAR also stated that FRA underestimated the burden imposed upon inspectors by underestimating the time per inspection and by underestimating the number of joints to be inspected. In response to this comment, FRA will use a longer time period for inspection as part of a sensitivity analysis; four minutes will be allocated for each joint inspection in this analysis and the originally proposed one minute per joint inspection in a separate analysis. Although FRA worked with the AAR to obtain more accurate data to better estimate the number of joints to be inspected and the frequency to which they will be inspected, the AAR was not able to provide significantly improved data in the time available. In its comments, AAR had estimated the number of joints by extrapolating a total number from a six-and-a-half mile segment of track. FRA believes its estimates are at least as good as AAR's extrapolation from a six-and-a-half mile segment.
Commenters such as AAR, Long Island Railroad (LIRR) and Metro-North found the joint inventory requirements in the CFR to be extremely burdensome. In response to these comments and discussions of the RSAC working group, FRA has eliminated the inventory requirement of the IFR. The RSAC working group agreed that in lieu of the data supplied by a CWR Joint Inventory, the track owner would be required to submit Fracture Reports to the FRA twice annually. FRA will analyze the data provided in the reports to enhance industry knowledge with regard to the factors causing broken joint bars.
FRA received a comment from BMWED suggesting that there should be annual re-training of track inspectors on joint bar inspections. FRA interprets this comment as pertaining to CWR training in general. As FRA did not change the CWR training provision in the IFR, FRA has resolved to address training concerns in Phase II of the working group's task of reviewing all of § 213.119.
FRA received comments that CWR written procedures (designated “CWR plans” under this final rule) were not made readily available for inspectors. FRA has resolved this issue by making all CWR plans it receives pursuant to Part 213 available to all FRA and State inspectors. However, FRA agrees that greater clarity is desirable. FRA will ask the working group to include a more suitable process for submission and dissemination of CWR plans in Phase II of its activities.
FRA accepted AAR's suggestion to remove the reference to impact loads in the final rule. FRA also added an exception to the inspection frequency requirements to allow for irregularly scheduled passenger trains.
FRA is revising § 213.119 by requiring track owners to incorporate into their CWR plans written procedures on the inspection of joints in CWR. This will require most track owners to amend their existing CWR plans. Track owners must also create and maintain records of these inspections. FRA provides details of these new provisions below, which affect § 213.119(g)-(j). Paragraphs (a)-(f) of this section are not changed with this final rule.
In the IFR, this paragraph required track owners to specifically address joints in CWR in their respective CWR plans. This final rule adopts a number of changes to the IFR's provisions. Principal among those changes are the Fracture Report requirement and the increased minimum inspection frequencies. Both of these new requirements will be discussed in further detail below.
This paragraph requires each track owner to include in its CWR plan provisions for the scheduling and conducting of joint inspections. A person who is qualified under § § 213.7 to perform inspections of CWR track should perform the inspections required by this paragraph on foot at the joint.
This paragraph governs periodic inspections of CWR joints. Track owners are required to establish procedures for conducting these inspections. Upon identifying actual conditions of joint failures (
Periodic inspections, as referenced herein, are on-foot inspections of CWR joints that track owners must conduct on a regular basis. Track owners are required to conduct periodic inspections at the minimum intervals specified in paragraph (g)(6). Track owners, of course, are free to conduct such inspections more frequently than required.
The IFR had also included special inspections in this paragraph. As a result of working group discussions, FRA removed the discussion of special inspections from this paragraph. Although FRA has removed the discussion of special inspections from § 213.119(g), FRA intends to place it elsewhere in § 213.119. FRA will include the discussion of special inspections (
This paragraph requires track owners to identify joint bars with visible or otherwise detectable cracks and conduct remedial action pursuant to § 213.121. The IFR had included cracked joint bars under the list of actions items, which this final rule addresses in paragraph (g)(3). Although the working group placed the identification of cracked joint bars under the list of action items as well, FRA decided to address them separately in this final rule. As SAFETEA-LU mandates FRA to promulgate regulations to improve the identification of cracks in joint bars, FRA is distinguishing between joint bars that are already cracked and joint bars that have the potential of cracking in the future. When a track owner discovers a cracked joint bar, he must take the remedial action specified in § 213.121; however, if he discovers a joint bar with actual or potential joint failure, he must take the corrective action specified by his CWR plan. Corrective action will be further addressed in paragraph (g)(5).
This paragraph identifies those items relating to joint inspections that track owners must address in their CWR plans. FRA notes that these items are the minimum that track owners should address. Of course, track owners are free to include additional items in their respective CWR plans. Track inspectors should identify and record these listed items during their inspection of joints because these items are related to the integrity of the joint, and thus, to the safety of trains that operate over these joints.
The IFR mentioned these items, but it did not specifically state that they were conditions of potential joint failure. FRA notes this list is not all-inclusive. There are other conditions that could indicate failure, and FRA urges track owners to consider all conditions, not just these listed examples.
The IFR included the term “impact loads” as another defect to which rail end batter or mismatch could contribute. The RSAC working group determined that it was redundant to keep the term “impact loads” in the rule text, as it is understood that these conditions can cause extreme impact loads. Since other conditions, such as rail end gap, can have the same effect, FRA decided to remove the phrase “impact loads” from the final rule.
This paragraph requires track owners to include procedures in their CWR plans for the inspection of CWR joints that are imbedded in highway-rail grade crossings or in other structures that prevent a complete inspection of the joint (e.g., pans in fueling facilities, scales, passenger walkways at stations that cover the track, etc.). The plans must also include procedures for the removal of loose material or other temporary material from the joint. FRA is adding this paragraph in response to comments by AAR and to subsequent discussions at RSAC working group meetings, as the IFR did not mention “imbedded” joints.
Some working group members were concerned that they would be unable to inspect these “imbedded” joints, which are sometimes not fully visible on the sides and bottoms of the joint bars. Railroads did not want to be penalized for their inability to see, and therefore inspect, these joints. FRA understands that a small percentage of the joints in CWR are “imbedded” joints. FRA acknowledges that railroad engineering personnel have made efforts to remove these imbedded joints where possible, and that, nonetheless, some of these joints remain.
With respect to the procedures for “imbedded” joints, FRA does not expect that railroads will need to disassemble or remove the track structure (e.g., remove pavement or crossing pads) to
FRA is aware that CWR joints may sometimes be temporarily buried during maintenance (e.g where ballast is distributed in the middle of the track and along the track) and therefore unavailable for inspection. FRA expects that railroads will take necessary measures to conduct inspections of these CWR joints. FRA expects that railroads will schedule their maintenance so as to allow for a complete inspection of these joints. Where CWR joints are buried (e.g., by ballast), FRA expects that railroad maintenance personnel will wait for the completion of the track surfacing and dressing of the ballast before conducting their joint bar inspections. Alternatively, railroads may use hand tools or mechanical means to remove ballast from the sides of track joints, so that they can conduct an inspection of those track joints.
Finally, FRA notes that components of the track (such as crossties, fasteners, tie plates, etc.) are also not fully visible in highway-rail crossings and similar structures. FRA has never specifically exempted these items from the inspections required under Part 213. Instead, FRA expects that the railroads will inspect these areas to the maximum extent possible.
This paragraph requires track owners to specify in their CWR plans the appropriate corrective actions that must be taken when track inspectors find conditions of actual or potential joint failure. The IFR required track owners to specify in their plans the appropriate remedial actions. FRA notes the difference between the terms “remedial actions” and “corrective actions.” Remedial actions are those actions which track owners are required to take as a result of requirements of Part 213 to address a non-compliant condition. For example, if a track owner discovers a cracked joint bar, he must replace it.
Follow-up inspections, as referenced herein, are joint-specific and conducted in response to conditions that a track owner discovers during periodic inspections. Track owners will identify in their CWR plans the conditions that trigger follow-up inspections. For example, where a track owner identifies “replace bolt or inspect weekly” as a corrective action for a bent bolt, if a track inspector discovers a bent bolt during a periodic inspection and does not immediately replace it, then the track inspector will have to conduct follow-up inspections at that joint.
This paragraph requires railroad owners to specify the timing of periodic inspections. As previously mentioned, commenters criticized the IFR's minimum joint inspection frequency. The IFR provided minimum inspection intervals of every 190 days for track classes 4 and higher and every 370 days for class 3 track and class 2 track on which passenger trains operate. To address both public comments and discussions during RSAC working group meetings, FRA increased the minimum number of required joint inspections. The minimum number of required joint inspections are addressed in the table in paragraph (g)(6)(i). As previously discussed, the timing periods in this paragraph represent the minimum of what is expected. Railroad owners are encouraged to implement additional inspection periods as they determine necessary.
The IFR did not allow for any exceptions to the minimum joint inspection frequency. Pursuant to RSAC working group recommendations, in paragraphs (g)(6)(ii)-(iv), FRA is allowing exceptions to the minimum inspection frequencies for unscheduled detours, certain passenger trains, and items that are already inspected on a monthly basis pursuant to 49 CFR 213.235. Each of these exceptions will be discussed in more detail below.
The table contained in this paragraph provides guidance for the minimum required inspection frequency of CWR joints. The working group developed this table to specify inspection frequencies for each class of track. The table contains two footnotes clarifying the inspection frequencies in the table.
The first footnote provides that where a track owner operates both freight and passenger trains over a given segment of track, and there are two different possible inspection interval requirements, the more frequent inspection interval applies. This footnote was developed by the working group to address concerns over track shared by freight and passenger trains. It was anticipated that there could be a potential conflict with the inspection frequency required for the track if the track owner were to follow the chart for both types of trains. By requiring the more frequent inspections in situations of conflict, this footnote ensures greater safety and protection to track used for mixed purposes.
The second footnote is added in response to concerns over sensitivity of extreme regional weather conditions. This concern was raised in the working group by industry representatives with regard to the difficulty of inspecting CWR joints in northern regions when there is a large amount of snow. The working group acknowledged that there could be times when it would be extremely difficult for a track owner to clear snow and ice from the joint in order for it to be seen for inspection. This footnote allows some flexibility for track owners in such a situation.
This paragraph allows track owners to operate passenger trains without lowering the track speed for a limited period of time without adhering to the required inspection frequencies for passenger trains pursuant to the table in § 213.119(g)(6)(i). This provision accommodates for unplanned outages, derailments, accidents, and other emergency situations. Track owners are still required to adhere to the applicable freight inspection frequencies. This provision is intended to provide relief to railroads that operate passenger trains and that have a last minute emergency situation. However, if a track owner operates passenger trains at the normal track speed for more than fourteen days, the track must be inspected at the appropriate passenger train levels as detailed in the table at § 213.119(g)(6)(i).
As defined in § 213.119(j), tourist, scenic, historic, or excursion operations mean railroad operations that carry passengers with the conveyance of the passengers to a particular destination not being the principal purpose. These types of operations typically run less frequently than intercity or commuter passenger trains and occur most often on short-line railroads. If a track owner has an operation of this type on the track and does not want to take that operation into account in determining inspection frequency, the owner must drop the track speed one class with regard to that operation. This way, the track owner will still be in compliance with the inspection frequency mandated by the table in paragraph (g)(6)(i) regardless of the class of freight the owner runs on the track. As the first
In this paragraph, FRA exempts the following items from the periodic inspection frequency intervals: switches, turnouts, track crossings, lift rail assemblies or other transition devices on moveable bridges. Track owners already inspect these items on a monthly basis pursuant to 49 CFR 213.235. Rather than apply the additional periodic inspection requirements (i.e, apply the intervals in the table in § 213.119(g)(6)(i) to switches and turnouts, etc), FRA believes it is more appropriate to have track owners conduct their inspections of joints at these locations during their monthly 49 CFR 213.235 inspections.
With respect to turnouts, FRA has historically understood and operated under the assumption that a turnout extends from the point of the switch to the heel of the frog. FRA will continue to operate under that assumption, and accordingly, all joints in turnouts, switches, etc. must be inspected monthly pursuant to 49 CFR 213.235 and records of these inspections must be kept in accordance with 49 CFR 213.241. The final rule does not require that the data elements listed in § 213.119(g)(7)(i) appear on the 49 CFR 213.235 inspection record. The reason for this is that, with more frequent inspections, the track inspector should be better able to manage joint conditions without maintaining detailed records.
All joints that extend beyond the point of a switch or beyond the point of the heel of the frog need not be inspected monthly and instead can be inspected at the frequency intervals identified in § 213.119(g)(6)(i). However, track owners are free to include, in their monthly 49 CFR 213.235 inspection, these joints that are located in track structure that is adjacent to turnouts and switches. If track owners choose to do this, they must clearly define the parameters of that arrangement in their CWR plan. In other words, the track owner should clearly identify the physical limits of the adjacent track structure (e.g., insulated joints up until the signal), and they must clearly identify the inspection interval for joints in that adjacent track (e.g., “inspect all insulated joints to the signal during the monthly 49 CFR 213.235 inspection.”)
In addition, as long as track owners clearly define the parameters in the CWR plans, the track owner need not keep two sets of records (i.e., a record from the 49 CFR 213.235 inspection and a record from the § 213.119(g)(6)(i) inspection) for inspections of these “adjacent” joints. For example, if the track owner's CWR plan indicates that joints in crossovers between turnouts must be inspected during the monthly 49 CFR 213.235 inspection, and a railroad track inspector inspects the joints in the crossover during the monthly 49 CFR 213.235 inspection, then it is sufficient for the track owner to create and maintain only the 49 CFR 213.235 record.
FRA believes this option is useful, because it avoids the confusion and duplication that might otherwise result. Without this option, railroad track inspectors would be unsure what to note in their records and which track inspections require which records. In addition, FRA notes that it would be burdensome for track inspectors to inspect those “adjacent” joints monthly and make a note of the inspection in the monthly 49 CFR 213.235 record and also be required to make an additional § 213.119(g)(6)(i) record every couple of months.
This paragraph requires track owners to keep records specific to CWR joint bars. As previously mentioned, the IFR required track owners to maintain and submit to FRA a joint inventory. In response to comments that this requirement was too burdensome, FRA has eliminated the joint inventory requirement and replaced it with the new recordkeeping requirements in this paragraph. FRA has distinguished between two major categories of records: (i) records pertaining to periodic follow-up inspections, and (ii) fracture reports.
This paragraph addresses the inspection reports that have to be created after periodic inspections required by paragraph (g)(6)(i) and follow-up inspections as required by the track owner's CWR plan. The inspection reports of the periodic inspections shall be prepared on the day the inspection is made and are to contain the required information. The periodic inspection record can be combined with other records required pursuant to 49 CFR 213.241.
This paragraph requires railroads to submit Fracture Reports to the FRA. Railroads should complete Fracture Reports when they find cracks during routine inspections pursuant to §§ 213.119(g), 213.233, or 213.235 on track that is required under § 213.119(g)(6)(i) to be inspected. FRA encourages track owners to complete Fracture Reports whenever cracks are discovered, in addition to the required inspections. Track owners, however, do not need to complete a Fracture Report for cracks found in excepted track, Class 1 track, and Class 2 track without passenger service.
The Fracture Reports will enable the FRA to conduct an analysis to further the understanding of the factors causing CWR joint failures. The Fracture Reports are for data collection to expand the agency's expertise concerning joint failures; the FRA does not intend to use the Fracture Reports for enforcement purposes. Likewise, inadvertent errors on the Fracture Report will not be subject to civil penalties. Of course, should FRA encounter repeated failure to prepare and complete such reports, or come upon a persistent and recurring pattern of non-reporting, FRA will take appropriate enforcement action. Track owners are not required to keep the Fracture Reports pursuant to the requirements of 49 CFR 213.241. However, FRA intends for the Fracture Reports to be kept until the track owner has received confirmation that FRA has received the data.
FRA proposes to give the track owner a variety of means of submitting the Fracture Reports. The first option proposed is through an electronic data submission using eXtensible Markup Language (XML) format. FRA plans to have a transaction summary generated that will report the number of records submitted, the number of records accepted to the database, and the number of records rejected due to validation errors, which will be streamed back to the railroad. The second option involves FRA developing a special web page from which railroads can register and receive credentials to access a web data entry form (with validation capabilities) to input individual Fracture Reports. FRA is also considering making available a formatted Excel spreadsheet, into which railroads can input their Fracture Reports. This spreadsheet could be submitted via e-mail, electronic media, or uploaded to the FRA Office of Safety Analysis' Web site. As a final option, FRA plans to make available a printable version of the OMB approved Fracture Report form for download. More specific instructions regarding submission of the Fracture Reports will be made available prior to January 2, 2007, on the Office of Safety Analysis' Web site,
This paragraph requires that the Fracture Report be prepared on the day the cracked or broken CWR joint bar is found. The CWR Joint Bar Fracture Report was developed by a Task Force comprised of members of the RSAC working group. The Fracture Report is to be completed whenever a cracked or broken joint bar is discovered during the period inspections required by § 213.119(g)(6)(i), as well as those currently required by 49 CFR 213.233 and 213.235. The fracture reporting requirement was implemented in order to comply, in part, with 49 U.S.C. 20142 as amended by SAFETEA-LU (Pub. L. 109-59, August 10, 2005). The Fracture Reports will address 29 U.S.C. 20142(e)(1)(A)'s instruction to improve the identification of cracks in rail joint bars, § 20142(e)(1)(C)'s mandate to “establish a program to review continuous welded rail joint bar inspection data from railroads and Administration track inspectors periodically,” and § 20142(e)(2)'s direction to adjust the frequency of inspection or improve the method of inspection of CWR joint bars as necessary.
The Fracture Reports specifically address the statutory language in three specific ways. First, the report provides information on joint conditions as it addresses most joint attributes known to contribute to premature joint failure such as rail end batter and wide rail end gap. It is believed that the joint inspections and the reports generated when cracked or broken bars are discovered will provide useful data to the railroads regarding joint conditions which lead to bar failure and perhaps lead to early preventive measures when these conditions are discovered before a crack develops. Second, in addition to the joint bar inspection records retained by the railroads, the Fracture Reports provide FRA with additional insight into the effectiveness of the new inspection requirements. Finally, as the inspection frequency was developed based in part on modeling results, the Fracture Report data can be used to evaluate the reasonableness of the model predictions. Certain data elements in the report can be used to estimate joint bar crack growth rates, which is crucial to enabling establishment of proper inspection intervals. Based on the number of Fracture Reports submitted to the FRA and the data they provide, an assessment of the appropriateness of the inspection intervals can be made.
The annual gross million ton information requested in the Fracture Report should be entered on the report by an appropriate employee of the railroad, since the railroad track inspector may not have ready access to this information (even though the inspector should impliedly be aware of the range within which the value falls as a result of instructions provided concerning the frequency of inspection required).
This paragraph requires the track owner to submit the information contained in the Fracture Reports twice annually to the FRA. FRA is collecting the Fracture Report data and will analyze it because SAFETEA-LU mandates that FRA create and gather such data. This information will be periodically submitted so that FRA can analyze the conditions that exist where cracked or broken bars were discovered. FRA requested that railroads submit data more frequently than annually because the agency decided that this practice would foster better analysis. The RSAC working group proposed a semi-annual submission of data. The group determined that more frequent submissions would be burdensome on the railroads. After having collected and analyzed a few years of data, FRA will determine whether it is necessary to continue collecting the data and whether to propose that inspection methods and minimum inspection frequencies should be varied.
This paragraph allows any track owner to petition FRA after February 1, 2010, to conduct a technical conference to assess whether there is a continued need for the collection of Fracture Report data. During the technical conference, the FRA would review the data collected, the analysis done to date, and determine if sufficient data has been collected to enable FRA to make a technically competent determination of CWR joint bar failure causes and contributing conditions.
This paragraph, which maintains a provision from the IFR, permits a track owner to devise an alternate program for the inspection of joints in CWR. A track owner seeking to deviate from the minimum inspection frequencies specified in § 213.119(g)(6) should submit the alternate procedures and a supporting statement of justification to FRA's Associate Administrator for Safety (Associate Administrator). In the supporting statement, the track owner must include data and analysis that establishes to the satisfaction of the Associate Administrator that the alternate procedures provide at least an equivalent level of safety across the railroad.
If the Associate Administrator approves the alternate procedures, the Associate Administrator will notify the track owner of such approval in writing. In that written notification, the Associate Administrator will specify the date on which the alternate procedures will become effective. After that date, the track owner shall comply with the approved procedures. If the Associate Administrator determines that the alternate procedures do not provide an equivalent level of safety, the Associate Administrator will disapprove the alternate procedures in writing. While a determination is pending with the Associate Administrator, the track owner shall continue to comply with the requirements contained in § 213.119(g)(6).
FRA expects that the track owner will include a risk analysis in its supporting statement of justification for alternate procedures. The risk analysis, whether qualitative or quantitative, should demonstrate that the track owner's program is at least as good (as applied across the entire railroad) as the benchmark level of inspection that FRA mandates in this final rule. The risk analysis would likely address such issues as tonnage, grades, curvature, prior joint failure rates (with respect to frequency), type of traffic, average train speed, and proximity to populations. The track owner might use risk analysis techniques to focus more frequent inspections in areas of greater risk (
As mentioned earlier, FRA encourages the use of new technologies for inspecting joint bars and new means of determining information relevant to future joint integrity. FRA's Office of Research and Development has funded research to develop an automated, vehicle-mounted, visual imaging system that can survey joint bars across a territory by recording digital photographic images and generating the data to exception reports. Use of such a system in combination with less frequent walking inspections that employ appropriate attention to joint condition action items might reduce the cost of joint bar inspections while enhancing prevention of joint failure.
The Rail Integrity Task Force
Technology (including frequent automated track geometry surveys) and sound CWR management, including prompt removal of so-called “temporary” joints, may provide the additional information required to verify the ongoing integrity of joints in CWR. The alternative procedures provision of this final rule will allow track owners to take advantage of these new approaches as they become available.
With the addition of a new paragraph 213.119(g), FRA has renumbered the old paragraphs (g), (h), and (i). The training requirements previously located in paragraph (g) are now located in paragraph (h). The recordkeeping requirements previously located in paragraph (h) are now located in paragraph (i). The definitions section formerly located in paragraph (i) is now located in paragraph (j).
Paragraph (i) contains the recordkeeping requirements for railroads that have track constructed of CWR. At a minimum, a track owner must keep records of the items listed in paragraph (i)(1) through (i)(3). Paragraph (i)(1) requires a track owner to keep a record of the rail temperature, location and date of CWR installations. Paragraph (i)(2) requires a track owner to keep a record of any CWR installation or maintenance work that does not conform with the written procedures. Paragraph (i)(3) requires a track owner to keep records of information on inspection of rail joints as specified in paragraph (g)(7).
The IFR required the track owner to maintain a joint inventory in this paragraph. Pursuant to comments received and working group negotiations, FRA has eliminated the joint inventory requirement; alternatively, FRA now requires the track owner to keep records of each periodic and follow-up inspection, as specified in paragraph (g)(7).
This paragraph defines that terms used throughout § 213.119. In this final rule, FRA is adding definitions for “Action Item,” “Corrective Actions,” “CWR Joint,” and “Remedial Actions” to clarify their usage.
CWR Joint means (a) any joint directly connected to CWR, and (b) any joint(s) in a segment of rail between CWR strings that are less than 195 feet apart, except joints located on jointed sections on bridges. CWR joint had not been defined in the past, and the RSAC working group defined “CWR joint” to clarify to which joints the new provisions would apply. The working group agreed that the force exerted by CWR extends beyond the joint at the end of the string. This definition is intended to include joints affected by CWR, and joints that are intended to be in CWR but by the addition of temporary joints may not be directly attached to a CWR string, such as an insulated joint plug rail. As many bridges have jointed rail by design, this definition would not include jointed rail joints on bridges.
This final rule has been evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Order 128566 and DOT policies and procedures.
This final rule is not anticipated to have very much economic impact, as track owners are already inspecting many of the joints covered by the final rule. This final rule will create annual benefits of $790,000 for an initial cost of $58,000 and recurring annual costs of $85,000 to $120,000. This final rule is therefore expected to create net societal benefits in every year of its application, including the initial year.
The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601
Approximately 200 small railroads have CWR and are affected by this final rule. Relatively few Class 3 railroads have CWR. For the minority of Class 3 railroads that have CWR, the portion of their railroad which is CWR is more likely to be small. To the extent they have CWR, Class 3 railroads will be subject to most of the provisions of this rule. Small railroads were consulted frequently during the RSAC Working Group deliberations. Small railroads were most greatly concerned that the inventory requirements of the IFR was unduly burdensome. FRA has eliminated the requirement for an inventory in this final rule. Small railroads were also concerned about infrequent passenger service and its effect on inspection frequency. By allowing for such a scenario pursuant to § 213.119(g)(6)(ii), FRA has resolved this issue in a manner which will minimize any impact on small railroads.
The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget,
OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the
FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated these revised track safety regulations in accordance with its procedures for ensuring full consideration of the potential
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA 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” are 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 Executive Order 13132, the agency may not issue a regulation with 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, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has Federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
This final rule has preemptive effect. Subject to a limited exception for essentially local safety hazards, its requirements will establish a uniform Federal safety standard that must be met, and state requirements covering the same subject are displaced, whether those standards are in the form of state statutes, regulations, local ordinances, or other forms of state law, including common law. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety hazard that is not incompatible with a Federal law, regulations, or order and that does not unreasonably burden interstate commerce. This is consistent with past practice at FRA, and within the Department of Transportation.
FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. This final rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This final rule will not have federalism implications that impose any direct compliance costs on State and local governments.
FRA notes that RSAC, which endorsed and recommended the majority of this rule, has as permanent members two organizations representing State and local interests: AASHTO and ASRSM. Both of these State organizations concurred with the RSAC recommendation endorsing this rule. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or of any other representatives of State government. Consequently, FRA concludes that this final rule has no federalism implications, other than the preemption of state laws covering the subject matter of this final rule, which occurs by operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or order.
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 the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually 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. This final rule will not result in the expenditure, in the aggregate, of $128,100,000 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.”
Anyone is able to search the electronic form of all comments received into any of DOT's 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 published in the
This final rule is effective on October 31, 2006 in order to supersede the IFR's impracticable October 31, 2006 joint inventory compliance date. Accordingly, the good cause exception of the Administrative Procedure Act applies.
Penalties, Railroad safety, Reporting and recordkeeping requirements.
49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461, note; and 49 CFR 1.49(m).
Each track owner with track constructed of CWR shall have in effect and comply with a plan that contains written procedures which address: the installation, adjustment, maintenance, and inspection of CWR; inspection of CWR joints; and a training program for the application of those procedures. The plan shall be submitted to the Federal Railroad Administration. FRA reviews each plan for compliance with the following—
(g) Procedures which prescribe the scheduling and conduct of inspections to detect cracks and other indications of potential failures in CWR joints. On and after January 1, 2007, in formulating the procedures under this paragraph, the track owner shall—
(1) Address the inspection of joints and the track structure at joints, including, at a minimum, periodic on-foot inspections;
(2) Identify joint bars with visible or otherwise detectable cracks and conduct remedial action pursuant to § 213.121;
(3) Specify the conditions of actual or potential joint failure for which personnel must inspect, including, at a minimum, the following items:
(i) Loose, bent, or missing joint bolts;
(ii) Rail end batter or mismatch that contributes to instability of the joint; and
(iii) Evidence of excessive longitudinal rail movement in or near the joint, including, but not limited to; wide rail gap, defective joint bolts, disturbed ballast, surface deviations, gap between tie plates and rail, or displaced rail anchors;
(4) Specify the procedures for the inspection of CWR joints that are imbedded in highway-rail crossings or in other structures that prevent a complete inspection of the joint, including procedures for the removal from the joint of loose material or other temporary material;
(5) Specify the appropriate corrective actions to be taken when personnel find conditions of actual or potential joint failure, including on-foot follow-up inspections to monitor conditions of potential joint failure in any period prior to completion of repairs.
(6) Specify the timing of periodic inspections, which shall be based on the configuration and condition of the joint:
(i) Except as provided in paragraphs (g)(6)(ii) through (iv), track owners must specify that all CWR joints are inspected, at a minimum, in accordance with the intervals identified in the following table—
(ii) Consistent with any limitations applied by the track owner, a passenger train conducting an unscheduled detour operation may proceed over track not normally used for passenger operations at a speed not to exceed the maximum authorized speed otherwise allowed, even though CWR joints have not been inspected in accordance with the frequency identified in paragraph (g)(6)(i), provided that:
(A) All CWR joints have been inspected consistent with requirements for freight service; and
(B) The unscheduled detour operation lasts no more than 14 consecutive calendar days. In order to continue operations beyond the 14-day period, the track owner must inspect the CWR joints in accordance with the requirements of paragraph (g)(6)(i).
(iii) Tourist, scenic, historic, or excursion operations, if limited to the maximum authorized speed for passenger trains over the next lower class of track, need not be considered in determining the frequency of inspections under paragraph (g)(6)(i).
(iv) All CWR joints that are located in switches, turnouts, track crossings, lift rail assemblies or other transition devices on moveable bridges must be inspected on foot at least monthly, consistent with the requirements in § 213.235; and all records of those
(7) Specify the recordkeeping requirements related to joint bars in CWR, including the following:
(i) The track owner shall keep a record of each periodic and follow-up inspection required to be performed by the track owner's CWR plan, except for those inspections conducted pursuant to § 213.235 for which track owners must maintain records pursuant to § 213.241. The record shall be prepared on the day the inspection is made and signed by the person making the inspection. The record shall include, at a minimum, the following items: the boundaries of the territory inspected; the nature and location of any deviations at the joint from the requirements of this Part or of the track owner's CWR plan, with the location identified with sufficient precision that personnel could return to the joint and identify it without ambiguity; the date of the inspection; the remedial action, corrective action, or both, that has been taken or will be taken; and the name or identification number of the person who made the inspection.
(ii) The track owner shall generate a Fracture Report for every cracked or broken CWR joint bar that the track owner discovers during the course of an inspection conducted pursuant to §§ 213.119(g), 213.233, or 213.235 on track that is required under § 213.119(g)(6)(i) to be inspected.
(A) The Fracture Report shall be prepared on the day the cracked or broken joint bar is discovered. The record shall include, at a minimum: the railroad name; the location of the joint bar as identified by milepost and subdivision; the class of track; annual million gross tons for the previous calendar year; the date of discovery of the crack or break; the rail section; the type of bar (standard, insulated, or compromise); the number of holes in the joint bar; a general description of the location of the crack or break in bar; the visible length of the crack in inches; the gap measurement between rail ends; the amount and length of rail end batter or ramp on each rail end; the amount of tread mismatch; the vertical movement of joint; and in curves or spirals, the amount of gage mismatch and the lateral movement of the joint.
(B) The track owner shall submit the information contained in the Fracture Reports to the FRA Associate Administrator for Safety (Associate Administrator) twice annually, by July 31 for the preceding six-month period from January 1 through June 30 and by January 31 for the preceding six-month period from July 1 through December 31.
(C) After February 1, 2010, any track owner may petition FRA to conduct a technical conference to review the Fracture Report data submitted through December of 2009 and assess whether there is a continued need for the collection of Fracture Report data. The track owner shall submit a written request to the Associate Administrator, requesting the technical conference and explaining the reasons for proposing to discontinue the collection of the data.
(8) In lieu of the requirements for the inspection of rail joints contained in paragraphs (g)(1) through (7) of this section, a track owner may seek approval from FRA to use alternate procedures.
(i) The track owner shall submit the proposed alternate procedures and a supporting statement of justification to the Associate Administrator for Safety (Associate Administrator).
(ii) If the Associate Administrator finds that the proposed alternate procedures provide an equivalent or higher level of safety than the requirements in paragraphs (g)(1) through (g)(7) of this section, the Associate Administrator will approve the alternate procedures by notifying the track owner in writing. The Associate Administrator will specify in the written notification the date on which the procedures will become effective, and after that date, the track owner shall comply with the procedures. If the Associate Administrator determines that the alternate procedures do not provide an equivalent level of safety, the Associate Administrator will disapprove the alternate procedures in writing, and the track owner shall continue to comply with the requirements in paragraphs (g)(1) through (7) of this section.
(iii) While a determination is pending with the Associate Administrator on a request submitted pursuant to paragraph (g)(8) of this section, the track owner shall continue to comply with the requirements contained in paragraphs (g)(1) through (7) of this section.
(h) The track owner shall have in effect a comprehensive training program for the application of these written CWR procedures, with provisions for periodic re-training, for those individuals designated under § 213.7 as qualified to supervise the installation, adjustment, and maintenance of CWR track and to perform inspections of CWR track.
(i) The track owner shall prescribe and comply with recordkeeping requirements necessary to provide an adequate history of track constructed with CWR. At a minimum, these records must include:
(1) Rail temperature, location and date of CWR installations. This record shall be retained for at least one year;
(2) A record of any CWR installation or maintenance work that does not conform with the written procedures. Such record shall include the location of the rail and be maintained until the CWR is brought into conformance with such procedures;
(3) Information on inspection of rail joints as specified in paragraph (g)(7) of this part.
(j) As used in this section—
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to remove vapor heat treatment as an approved treatment for bell pepper, eggplant, Italian squash, and tomato moved interstate from Hawaii. This action is necessary because these four commodities can serve as hosts for the solanum fruit fly, which has been detected in Hawaii. Vapor heat treatment is not an approved treatment for that pest. We are also proposing to provide for the use of irradiation as an approved treatment for all
We will consider all comments that we receive on or before December 11, 2006.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0027, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0027.
Mr. David B. Lamb, Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-8758.
The Hawaiian fruits and vegetables regulations, contained in 7 CFR 318.13 through 318.13-17 (referred to below as the regulations), govern, among other things, the interstate movement of fruits and vegetables from Hawaii. Regulation is necessary to prevent the spread of dangerous plant diseases and pests that occur in Hawaii. Some fruits and vegetables regulated under the Hawaiian fruits and vegetables regulations are allowed to move interstate if they are treated with an approved treatment for certain plant pests. Lists of approved treatments for these fruits and vegetables and requirements for conducting these treatments are contained in 7 CFR part 305.
Four of the fruits and vegetables that are allowed to move interstate from Hawaii if treated with an approved treatment are bell pepper, eggplant, Italian squash, and tomato. The treatments approved for these commodities, as listed in the table in § 305.2(h)(2)(ii), include the vapor heat treatments numbered VH T106-b-1 (for bell peppers), VH T106-b-2 (for eggplant), VH T106-b-5 and VH T106-b-7 (for tomato), and VH T106-b-6 (for Italian squash). Despite their differing numbers, these treatment numbers all refer to the same treatment schedule, which is described in § 305.24(c). These commodities may also be treated with irradiation in accordance with § 305.34, which sets out requirements for the use of irradiation as a treatment for fruits and vegetables moved interstate from Hawaii. Both the vapor heat treatment and the irradiation treatment are approved to neutralize the Mediterranean fruit fly (
An additional species of fruit fly has been detected in Hawaii, the solanum fruit fly (
We have also determined that the four fruit flies named above—the Mediterranean fruit fly, the Oriental fruit fly, the melon fruit fly, and the solanum fruit fly—are the only pests for which treatment should be required for the interstate movement of all species of the genus
Therefore, we are proposing to add irradiation as an approved treatment for
• In paragraph (b) of § 318.13-4b, we would add “
• In § 318.13-4f, which lists fruits and vegetables from Hawaii for which irradiation in accordance with § 305.34 is an approved treatment, we would add “
• In § 305.34(a)(1), in the table that lists fruits and vegetables from Hawaii for which irradiation is an approved treatment and the irradiation dose that is approved for each commodity, we would add entries for “
• In § 305.2(h)(2)(ii), we would add entries in the table for “
In each of these locations, we would remove the separate entries for “bell pepper” and “Italian squash.”
Irradiation is already an approved treatment for eggplant and tomato in § 305.2(h)(2)(ii). We would update the entries for these commodities in § 305.2(h)(2)(ii) by indicating that irradiation would be approved to treat all fruit flies of the family Tephritidae associated with these commodities.
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
This proposed rule is in response to a species of fruit fly that has been detected in Hawaii, the solanum fruit fly (
While vapor heat treatment would no longer be an approved treatment, irradiation is an approved treatment for the interstate movement of bell peppers and Italian squash from Hawaii. We are proposing to amend the regulations to approve irradiation as a treatment for all species of the genus
Approximately $15.4 million worth of eggplant, green peppers, Italian squash, Oriental squash, and tomatoes were produced in the State of Hawaii in 2004, amounting to 52 million pounds (table 1). However, none of the eggplant, green peppers, Italian squash, or tomatoes produced in Hawaii in 2004 was moved interstate to the U.S. mainland. According to the Hawaii Department of Agriculture, none of these commodities has been moved interstate from Hawaii to the U.S. mainland within the last 2 years.
The proposed rule would continue to give Hawaiian entities the opportunity to move
Accordingly, we do not expect that this rule would have a significant economic impact on a substantial number of small entities. This proposed rule is necessary to safeguard the U.S. mainland from the introduction of solanum fruit fly (
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements.
Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin Islands.
Accordingly, we propose to amend 7 CFR parts 305 and 318 to read as follows:
1. The authority citation for part 305 would continue to read as follows:
7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. In § 305.2, in the table in paragraph (h)(2)(ii), the entry for Hawaii would be amended as follows:
a. By removing the entries for “Bell pepper” and “Squash, Italian”.
b. By adding, in alphabetical order, entries for “
c. By revising the entries for “Eggplant” and “Tomato” to read as set forth below.
(h) * * *
(2) * * *
(ii) * * *
3. In § 305.34, in paragraph (a)(1), the table would be amended as follows:
a. By removing the entries for “Bell pepper” and “Italian squash”.
b. By adding, in alphabetical order, entries for “
(a) * * *
(1) * * *
4. The authority citation for part 318 would continue to read as follows:
7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.
5. In § 318.13-4b, paragraph (b) would be amended as follows:
a. By removing the words “bell peppers” and adding the words “
b. By adding the words “
c. By removing the words “Italian squash,”.
6. Section 318.13-4f would be amended as follows:
a. By removing the words “bell pepper” and adding the words “
b. By adding the words “
c. By removing the words “Italian squash,”.
Internal Revenue Service, Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations under section 300 of the Internal
The public hearing, originally scheduled for October 17, 2006, at 10 a.m. is cancelled.
Kelly Banks of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration), at (202) 622-0392 (not a toll-free number).
A notice of proposed rulemaking and notice of public hearing that appeared in the
The public comment period for these regulations expired on September 29, 2006. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Monday, October 2, 2006, no one has requested to speak. Therefore, the public hearing scheduled for October 17, 2006, is cancelled.
Notice of meeting.
Notice is hereby given, in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App 1, section 10), of the sixth meeting of the Negotiated Rulemaking Advisory Committee for Dog Management at Golden Gate National Recreation Area (GGNRA).
The Committee will meet on Wednesday, November 8, 2006 in the Conference Center at Fort Mason Center in San Francisco. The meeting will begin at 3 p.m., and is open to the public.
Although the Committee may modify its agenda during the course of its work, the proposed agenda for this meeting is as follows: Agenda review, review and adopt September 21, 2006 meeting summary, update on activities since last meeting, NEPA update, report on and discussion of technical subcommittee meeting #3, next steps, public comment.
The Committee provides for a public comment period during the meeting; written comments may also be sent to: Superintendent, GGNRA, Ft. Mason, Bldg. 201, San Francisco, CA 94123, Attn: Negotiated Rulemaking.
To request a sign language interpreter, please call the Park TDD line (415) 556-2766, at least a week in advance of the meeting. Please note that Federal regulations prohibit pets in public buildings, with the exception of service animals.
Go to the
The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570) to consider developing a special regulation for dogwalking at GGNRA.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing approval of revisions to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM) on November 18, 2005. The revisions include modifications to Alabama's Volatile Organic Compounds (VOCs) rules found at Alabama Administrative Code (AAC) Chapter 335-3-1. ADEM is taking an action that was similarly approved by EPA on November 29, 2004 (69 FR 69298). The revision adds several compounds to the list of compounds excluded from the definition of VOC on the basis that they make a negligible contribution to ozone formation. This proposed action is being taken pursuant to section 110 of the Clean Air Act (CAA).
Written comments must be received on or before November 13, 2006.
Comments may be submitted by mail to: Stacy DiFrank, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303-8960. Comments may also be submitted electronically, or through hand delivery/courier. Please follow the detailed instructions described in the direct final rule,
Stacy DiFrank, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303-8960. The telephone number is (404) 562-9042. Ms. DiFrank can also be reached via electronic mail at
For additional information, see the direct final rule which is published in the Rules Section of this
Environmental Protection Agency (EPA).
Notification to the Secretary of Agriculture.
This document notifies the public that the Administrator of EPA
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2006-0642. All documents in the docket are listed on the regulations.gov web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at
Tom McClintock, Hazard Assessment Coordination and Policy Division (7202M), Office of Science Coordination and Policy, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number: 202-564-8488; e-mail address:
This action is directed to the public in general. It simply announces the submission of a draft proposed rule to the U.S. Department of Agriculture (USDA) and does not otherwise affect any specific entities. This action may, however, be of particular interest to people or companies involved with agricultural biotechnology that may develop and market plant-incorporated protectants. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult the person listed under
In addition to using regulations.gov, you may access this
Section 25(a)(2) of FIFRA requires the Administrator to provide the Secretary of Agriculture with a copy of any proposed regulation at least 60 days before signing it for publication in the
No. This document is not a proposed rule, it is merely a notification of submission to the Secretary of Agriculture. As such, none of the regulatory assessment requirements apply to this document.
Environmental protection, Administrative practice and procedures, Pesticides and pests.
Federal Railroad Administration (FRA), DOT.
Notice of proposed rulemaking.
FRA is proposing direct final rulemaking procedures to expedite the processing of noncontroversial regulatory changes to which no adverse comment is anticipated. Under the proposed procedures, FRA could choose to make routine or otherwise noncontroversial changes in a direct final rule which would become effective a specified number of days after its publication in the
Written comments must be received by December 11, 2006. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to November 13, 2006, one will be scheduled and FRA will publish a supplemental notice in the
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Patricia V. Sun, Trial Attorney, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20005 [telephone: (202) 493-6038].
On January 30, 2004, the Office of the Secretary of Transportation (OST) published a final rule adopting direct final rulemaking procedures intended to expedite the rulemaking process for noncontroversial rules. The rule published by OST applies only to regulations issued by the Office of the Secretary of Transportation and does not apply to the various operating administrations within DOT. By using direct final rulemaking, OST can reduce the time necessary to develop, review, clear and publish a rule to which no adverse public comment is anticipated by eliminating the need to publish separate proposed and final rules (69 FR 4455). In this notice, FRA proposes to amend its Rules of Practice (49 CFR Part 211) to adopt similar direct final rulemaking procedures to promulgate specified categories of rules it does not expect to be controversial and that are unlikely to result in adverse comments.
Many agencies have adopted direct final rulemaking procedures, including the Nuclear Regulatory Commission, the Food and Drug Administration, the Environmental Protection Agency, and the Department of Agriculture. For example, in 2003, the Department of Energy issued a direct final rule amending its test procedures for measuring the energy consumption of clothes washers (October 31, 2003, 68 FR 62197), and last year, the Occupational Safety and Health Administration issued a direct final rule to reinstate its original roll-over protective structures standards for the construction and agriculture industries (December 29, 2005, 70 FR 76795).
As stated above, the use of direct final rulemaking would allow FRA to eliminate an unnecessary second round of internal review and clearance, as well as public review, for noncontroversial proposed rules. FRA would employ the direct final rulemaking process for a particular rule if, for example, similar rules had been previously proposed and published without receiving adverse comment. FRA believes that direct final rulemaking would be appropriate for noncontroversial rules, including such rules that:
(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,
(2) are nonsubstantive clarifications or corrections to existing rules;
(3) update existing forms; and
(4) make minor changes in the substantive rules regarding statistics and reporting requirements, such as a lessening of the reporting frequency (for example, from monthly to quarterly) or elimination of a type of data that no longer needs to be collected by FRA.
After determining that a rule would be appropriate for direct final rulemaking, FRA would publish the rule in the final rule section of the
FRA would provide sufficient comment time to allow interested parties to determine whether they wish or need to submit adverse comments, and would answer any requests for clarification while the comment period was running. If FRA received no written adverse comment or request for oral hearing within the comment period, FRA would publish another notice in the
If, however, FRA received the timely submission of an adverse comment or notice of intent to submit adverse comment, FRA would stop the direct final rulemaking process and withdraw the direct final rule by publishing a notice in the final rule section of the
FRA believes that the additional time and effort required to withdraw the direct final rule and issue a Notice of Proposed Rulemaking would be an incentive for FRA to act conservatively in evaluating whether to use the direct final rulemaking process for a particular rule. As stated above, FRA would not use direct final rulemaking for complex or potentially controversial matters.
FRA has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with the proposed rule. There would be some cost savings in
The proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
FRA has determined that the requirements of Title II of the Unfunded
Administrative practice and procedure, Rules of practice.
In consideration of the foregoing, FRA proposes to amend 49 CFR part 211 as follows:
1. The authority citation for part 211 would continue to read as follows:
49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.49.
2. In part 211, Subpart B—Rulemaking Procedures, would be amended by adding a new § 211.33, Procedures for direct final rulemaking, as follows:
(a) Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the
(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,
(2) Are nonsubstantive clarifications or corrections to existing rules,
(3) Update existing forms, and
(4) Make minor changes in the substantive rules regarding statistics and reporting requirements.
(b) The
(c) If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the
(d) If the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the
(e) An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule.
Fish and Wildlife Service, Interior.
Proposed rule; withdrawal.
We, the Fish and Wildlife Service (Service), have determined that the proposed listing of the Cow Head tui chub (
Supporting documentation for this action is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office, 6610 Washburn Way, Klamath Falls, OR 97603.
Curt Mullis, Field Supervisor, at the above address (telephone, 541-885-8481, or facsimile, 541-885-7837).
The Cow Head tui chub,
The known range of the Cow Head tui chub is limited to the Cow Head Basin in extreme northeastern California and northwestern Nevada (Reid 2006a, pp. 15-19). The Cow Head Basin is relatively small (10,400 hectares (ha); 25,700 acres) and drains north into the Warner Basin of Oregon through Cow Head Slough. Historically, the basin contained a shallow, marshy lake when sufficient water was available. Cow Head Lake was altered in the 1930s, following the extended drought of the 1920-30s, to allow drainage of the lake in the spring and to facilitate agricultural uses of the lakebed.
Populations of Cow Head tui chub occupy all principal low gradient streams in the basin (Cow Head Slough and Barrel, West Barrel and Keno creeks) and a relatively large population still exists on the lakebed, where it is restricted to permanent water in drainage channels when the lake is dry (Scoppettone and Rissler 2006, pp. 108-109). Stream populations of Cow Head tui chub annually expand throughout most of the low gradient stream habitat in the basin during wet periods and contract as the summer progresses and streams dry up. Connectivity between stream populations of Cow Head tui chub is generally unobstructed during springtime flows, but during summer and fall, all populations are restricted to
Landownership in the Cow Head Basin is both private and Federal (U.S. Bureau of Land Management (BLM)). However, most perennial habitat of the chub is on private land (Reid 2006a, p. 10-11).
Cow Head tui chubs generally occupy pool areas in streams and open water channels having dense aquatic vegetation (Homuth 2000, p. 6; Moyle 2002, p. 124; Reid 2006a, p. 20). They grow about 50 millimeters (mm) (2 inches (in)) fork length (tip of nose to the fork in tail) during the first year and reach an average of 100 mm (4 in) at about 5 years of age, with larger individuals uncommon (Scoppettone and Rissler 2003, p. 5; Scoppettone and Rissler 2006, p. 110). The maximum recorded size for Cow Head tui chubs is 235 mm (9 in) (Scoppettone and Rissler 2006, p. 111).
Although there is no specific information on the reproductive behavior of the Cow Head tui chub, spawning by most tui chubs usually takes place from late April to late June, beginning in their second to fourth year (Moyle 2002, pp. 124-125). Fecundity is relatively high, and a female of 100 mm (4 in) produces about 4,000 eggs over a series of spawning events. Tui chubs typically spawn in groups, with several males attending each female. Eggs adhere to plants, or the bottom, and hatch in about 3-6 days (Moyle 2002, pp. 124-125).
Tui chubs in general evolved in the arid Great Basin where water bodies experience wide fluctuations in water conditions, and therefore they are highly tolerant of high alkalinity, high turbidity, and high temperatures (Moyle 2002, pp. 124-125). They also appear to tolerate relatively low levels of dissolved oxygen (Castleberry and Cech 1986, pp. 149-150; Moyle 2002, p. 124). While there have been no long-term diurnal studies of water quality in the Cow Head Basin, short-term surveys and measurements associated with distributional surveys in Cow Head streams and channels indicate that most water quality parameters are generally well within the documented tolerances of tui chubs, with the exception of localized low dissolved oxygen conditions near the bottom of desiccating pools and canals (Richey 1999, pp. 20-25; Homuth 2000, p. 6; Scoppettone and Rissler 2003, p. 6). There are no records of large fish die-offs caused by water quality in permanent pools or canals associated with the Basin, again indicating that water quality parameters are well within limits tolerated by tui chubs. Fish trapped in seasonal pools die as the season progresses and the pools dry up (Homuth 2000, p. 8), but this is not due to water quality.
On December 30, 1982, the Service published a revised notice of review for vertebrate wildlife in the
On March 30, 1998, the Service published in the
On October 22, 1999, stakeholders signed a conservation agreement (CA), including a conservation strategy, with the stated purpose of ensuring the long-term survival of the Cow Head tui chub (Service 1999, p. 2). Signatories included private landowners of Cow Head Lake, Cow Head Slough, and the California reach of Barrel Creek (four owners, all CA signatories); principal permittees on BLM lands within the drainage; California and Modoc County Cattlemen's Associations; the California Farm Bureau Federation; the BLM (Surprise Field Office); and California Department of Fish and Game (CDFG). The two owners on West Barrel Creek and the single owner for perennial reaches of Barrel and Keno creeks (Nevada) were not original signatories to the CA, as chub populations in those areas were unknown at the time; however, these landowners have been supportive by providing access to meet the goals and objectives of the conservation strategy.
The stated purpose of the conservation strategy is to identify specific procedures and strategies required for the long-term survival of the Cow Head tui chub. The strategy has two main objectives: Phase one—develop baseline data; and Phase two—use the baseline data to determine the most feasible conservation actions to implement the goals of the conservation strategy. Phase one included studies intended to increase our understanding of the species and its habitat. Most of the proposed actions in Phase one have been addressed or are part of ongoing projects.
Phase two builds upon the information developed in Phase one, or
By signing the October 22, 1999, CA, the Service and other stakeholders in the Cow Head Lake watershed committed to actions and goals intended to ensure the long-term survival of the Cow Head tui chub by balancing current practices in the watershed with the long-term needs of the subspecies. As previously stated, we opened a third comment period on the proposed rule on February 2, 2000, by request of signatories to the CA, so that the Service could also consider the conservation measures of the CA when making a final determination (65 FR 4940). The third comment period closed on February 16, 2000.
During the comment period for the March 30, 1998, proposed rule, we received 13 responses from local government, local organizations, and private individuals. Of those responses, none provided new information pertinent to the proposed listing. Six responses expressed views against the listing, one implied general support of the listing, and six were requests for a 60-day extension. There were no requests for a public hearing.
On June 17, 1998, the Service reopened the comment period on the proposed rule in response to requests from private organizations and private citizens (63 FR 33033). During the second comment period, only one comment letter was received. It provided additional information on historical conditions, past and current management, and trends in riparian conditions. The commenter did not state a position relative to the appropriateness of the proposed listing.
On February 2, 2000, we reopened the comment period on the proposed rule to allow consideration of the conservation agreement signed on October 22, 1999, and to solicit additional information on the biology, distribution, and status of the Cow Head tui chub (65 FR 4940). The reopening of comment period was in response to requests from signatories of the conservation agreement. During the third comment period, the Service received five responses from State and local governments and private individuals. Four responses were against the proposed listing, and one was in support. No new information pertinent to the proposed listing was obtained.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
Regarding the comment that listing the species and any resulting section 7 consultations would delay the establishment of additional populations, because we are withdrawing the proposal to list the Cow Head tui chub, this comment is no longer germane. Nevertheless, even if the species were listed, section 7 consultation would not have hampered efforts to establish additional populations. Section 7 consultation is a valuable tool to minimize adverse effects of Federal actions to listed species and, as such, provides benefits to species.
(14)
We also looked carefully into the role that current and future water availability could have on the conservation of the species. As described in more detail under the discussions of Factors A and E below, the Cow Head tui chub evolved in a low-precipitation region and has survived numerous droughts including a severe 16-year drought early in the 20th century. We have also found that current water management is compatible with the conservation needs of the species and that there is a lack of evidence to suggest water management will substantially change in the foreseeable future.
Furthermore, we have reached a similar conclusion regarding grazing management. As described under the discussion of Factor A below, the chub has coexisted with the current grazing management for decades, and we have no information that leads us to believe grazing management will substantially change in a manner that would
(15)
At the time the March 30, 1998, proposed rule was published (63 FR 15152), little information was available regarding the Cow Head tui chub. The CA has allowed us to obtain more extensive and accurate information on the Cow Head tui chub, including its distribution, population status, habitat use, and land management in the Cow Head basin. The CA has also resulted in the initiation of management activities by private and public stakeholders, which further secure the Cow Head tui chub and its habitat.
In 2005, in order to make a final determination on the listing status of the Cow Head tui chub given this crucial new information, we arranged for an independent scientific review of the Cow Head tui chub to obtain a comprehensive synthesis of all available data pertinent to the conservation of the species, including clarification of the complicated history and management of the basin, evaluation of biological information regarding the species, and compilation of previous population and habitat surveys in the basin. The purpose of the review was to assemble all scientific and commercial information on the Cow Head tui chub, as well as to assimilate the collective knowledge of local landowners and managers. The review did not evaluate the status of the Cow Head tui chub under the Act, as that is the Service's ultimate responsibility. The principal author of the review is Dr. Stewart Reid, an independent biologist, who is a recognized expert in the native fishes of this region and who is familiar with the Cow Head Basin. The review was peer reviewed in May-June 2006 and made available to stakeholders to ensure its accuracy and completeness (see Peer Review section, below). The revised synthesis (Reid 2006a) and its supporting documentation reflect the most recent information regarding the Cow head tui chub; this information significantly informs our determination to withdraw our previous proposal to list this subspecies (63 FR 15152, March 30, 1998).
In accordance with our July 1, 1994, Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities (59 FR 34270), we solicited the opinions of seven independent specialists. We provided the reviewers with the synthesis document (Reid 2006a) which contains new information, and a review of all available scientific, historical, and management information pertaining to the species. We specifically asked the reviewers to review the document for accuracy of the information, any missing information, and threats to the species not mentioned in the report. Reviewers were not asked to interpret the Act as it applies to this species or to make a recommendation as to the appropriate regulatory status for the Cow Head tui chub.
The Service's Policy for Peer Review requires that we: (1) Solicit the expert opinions of a minimum of three appropriate and independent specialists regarding pertinent scientific and commercial data and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for species under consideration for listing; and (2) summarize in the final decision document the opinions of all independent peer reviewers received on the species under consideration. The purpose of a peer review is to ensure that listing decisions are based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists.
Peer reviewers included two senior research scientists familiar with the Cow Head tui chub and the Cow Head Basin (one from the University of California, Davis and one from U.S. Geological Survey—Biological Resources Division, Reno), four scientists from agencies with management responsibilities in the Cow Head Basin (two from CDFG, one from BLM, and one from the U.S. Forest Service), and one representative of the Cow Head Irrigation District who could provide detailed information on local conditions, especially water management in the basin.
All reviewers confirmed the accuracy and completeness of the scientific information in the synthesis. Two reviewers (BLM and Cow Head Irrigation District) helped clarify details of management and hydrology in the Cow Head Basin, which have been incorporated into the final document used for this analysis, along with minor editorial suggestions from the various reviewers. The reviewers did not identify any additional factors that might threaten the Cow Head tui chub.
Section 4 of the Act and its implementing regulations (50 CFR 424) establishes procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether any of these five factors are a threat to the continued existence of the Cow Head tui chub throughout all or a significant portion of its range. Our evaluation of these threats is presented below.
In the 1998 proposed rule, reduction of historical range and modification of habitat were considered threats to the
In 1998, we also stated that stream habitat was restricted to 5.4 km (3.4 miles). New information developed by Reid (2006a, pp. 15-19) has shown that total linear stream and channel habitat was approximately 10.5 km (6.5 mi) in 2001, a very dry year (Scoppettone and Rissler 2006, p. 108). In the spring, and at times when there is sufficient water, the chub occupies the full lengths of the tributary streams (21.2 km; 13.2 mi).
Current information, based on more complete basin-wide surveys, demonstrates that the Cow Head tui chub is more widely distributed than previously thought and maintains populations throughout all of its historical range in all streams and lakebed channels that would have offered suitable habitat in the past.
Based on our knowledge of historical conditions, the species' habitat needs, and its current distribution, we assume the natural historical range (geographical distribution) of the Cow Head tui chub would have encompassed all low gradient streams with perennial reaches in the Cow Head Basin of California and Nevada, including: Cow Head Lake, Cow Head Slough, Barrel Creek, West Barrel Creek, and Keno Creek (Reid 2006a, pp. 5-6 and 15-19). Based on knowledge of the chub's biology, it is logical to assume there was some natural dispersal downstream into the Twelvemile Creek drainage during higher springtime flows, as there apparently is today, but the fate of these individuals is not known (Reid 2006a, pp. 18-19). Within the Cow Head Basin, the primary distribution of tui chubs, based on habitat needs, would have included any low-energy aquatic habitats, including stream pools, emergent marshes with open water, and Cow Head Lake itself, when present (Moyle 2002, p. 124-125; Reid 2006a, p. 20). Because tui chubs show a preference for low-energy habitats such as pools, it is unlikely they would have typically occupied higher-energy stream reaches with steep gradients, strong flow, or shallow riffles (
Recent surveys on public and private land, facilitated by the 1999 CA, have documented the presence of Cow Head tui chub in all historically perennial water bodies (Minto 1879; see map and discussion in Reid 2006a, pp. 5-8) containing suitable habitat in the Cow Head Basin (Scoppettone and Rissler 2006, p. 5). In 2001, populations were found in all eastern tributaries (Keno, West Barrel, and Barrel Creeks, as well as Cow Head Slough), including private land that had not been previously surveyed, and a large population (estimated to be in the 10,000s) exists on the historic lakebed in perennial canals (Scoppettone and Rissler 2002, p. 5; Reid 2006a, p. 22). Cow Head tui chub presumably disperse throughout Cow Head Slough and the various low-gradient tributaries in the spring and onto the lakebed when it is flooded, with their distribution contracting to the lakebed channels and perennial spring-fed stream reaches each year as the arid summer progresses. In 2001, a very dry year, perennial habitat occupied by the chub remained in all eastern tributaries (Keno Creek—0.5 km (0.3 mi) perennial, West Barrel Creek—1.0 km (0.6 mi) perennial, and Barrel Creek—4.0 km (2.5 mi) perennial), Cow Head Slough (approximately 3 km (1.9 mi) perennial) and the two principal lakebed channels (Pump and Eightmile canals—2 km (1.2 mi) perennial) (Scoppettone and Rissler 2006, pp.108-109; Reid 2006a, pp. 16-18).
Stream populations of Cow Head tui chub primarily occupy pool habitats, and available habitat area varies depending on the time of year and degree of drought severity (Homuth 2000, p. 10; Scoppettone and Rissler 2006, p.109). Historically, there were four low gradient stream drainages in the Cow Head Basin that had perennial flow and would have contained suitable Cow Head tui chub habitat; all still maintain Cow Head tui chub populations (Reid 2006a, pp. 15-19; Scoppettone and Rissler 2002, p. 5; Scoppettone and Rissler 2006, p. 109). These drainages are currently referred to as Cow Head Slough, which forms the outlet for the Cow Head Basin; Barrel Springs and West Barrel, both of which entered Cow Head Lake itself from the east in 1879; and Keno Spring, which enters Cow Head Slough from the east before it drops into the higher-gradient canyon section. All contain locally perennial pool habitat, which is naturally maintained by small springs.
Cow Head Slough flows out of Cow Head Lake. After flowing about 5 km (3.1 mi) to the north, the slough enters a short, half-mile-long canyon and then joins Twelvemile Creek in the Warner Basin. Historically, the slough apparently contained water along most of its length into the summer (Minto 1879; see map and discussion in Reid 2006a, pp. 5-8), but Minto's survey notes do not mention actual flow conditions, and local ranchers interviewed in the 1930s reported that the slough overflowed only during high spring runoff periods (Hubbs 1934, p. 1).
Under present management, Cow Head Slough only flows into Twelvemile Creek during the springtime runoff period and while the lakebed is being pumped down, with most continuous stream flow typically ending by late May or early June. Pools with marshy margins and herbaceous riparian vegetation are present all along the length of the slough, with perennial spring-fed reaches concentrated in the southern (upstream) 3 km (1.9 mi). The Barrel Springs drainage also carries considerable runoff in the spring, but summer flows are low, and in the 1879 Minto surveys, the stream channel did not have perennial flow between the Nevada border and Cow Head Lake (see Minto map in Reid 2006a, p. 6). Likewise, the Keno Springs drainage near its confluence with Cow Head Slough was surveyed by Minto in 1879, and was noted simply as a meadow with no creek.
The Cow Head Basin is in an arid landscape. (See Factor E—Natural Drought, below). Although surface water is present throughout most of the basin in the early spring, hot and dry summer conditions naturally reduce the quantity of aquatic habitat progressively through the summer and early fall. In drier years, much of Cow Head Slough and the reaches of tributary streams without perennial springs are reduced to isolated pools which often dry up. Permanent pool habitat suitable for Cow Head tui chubs is restricted to reaches maintained by perennial springs. Under historical conditions channel desiccation may have been retarded in Cow Head Slough by the storage capacity of the lake and associated wetlands, and in other streams by narrow wet meadows along the riparian corridors. However, in most dry years when the lake was not overflowing during the summer (which is similar to the current situation under present management), desiccation and loss of aquatic habitat would have progressed
The only direct modification of streams containing Cow Head tui chub occurred in the 1930s with the dredging of Cow Head Slough for a distance of about 1.3 km (0.8 mi) downstream of Cow Head Lake, and with construction of an earthen levy on the east side to divert flow from the eastern watershed (West Barrel and Barrel Spring drainages) directly into Cow Head Slough near the historical outlet of Cow Head Lake (Reid 2006a, p.8). These modified reaches have since developed into stream reaches with vegetated riparian corridors. There are no water diversions in Cow Head Slough or the eastern tributary streams. Modification of grazing management in the last decade has produced notable improvements and continuing upward trends in channel stability, riparian vegetation, and aquatic habitat quality (USBLM 1996, p. 2; USBLM 2003, p. 9; Reid 2006a, pp. 10, 15-16).
In 1879 a shallow lake covered much of the Cow Head valley floor (Minto 1879, pp. 47, 56, 59; see map, Reid 2006a, p. 8). The maximum depth of the lake was not recorded, but general depths of 40-60 cm (15-24 in) were noted. Its northwestern and southeastern shores were bounded by belts of wet meadow and tule marshes, which are dominated by hardstem bulrush (
Modification of the western tributaries to Cow Head Lake began in the late 1800s with the diversion of the upper reaches of Eightmile Creek itself to the south into Lake Annie (Reid 2006a, pp. 7-10). The upper Eightmile drainage would have historically provided considerable spring snow runoff into Cow Head Lake; however, late summer base flows from that elevation are minimal following loss of the snow pack. The lower Eightmile drainage is now primarily fed by the Schadler Ditch (built around 1904), which captures runoff from Mount Bidwell (not originally part of the Cow Head Basin) and carries it into Schadler Creek (labeled as Eightmile Creek on the U.S. Geological Survey, Lake Annie Quadrangle). Schadler Reservoir, which is approximately 250 acre-feet in size and was built in the 1960s, collects the flow of Schadler Creek and numerous small springs about 1.6 km (1 mi) upstream of the lake. Water from the reservoir (about 50 acre-feet/month) is used throughout the summer to irrigate downstream pastures, which drain into the Cow Head lakebed channels, or is sent downstream to maintain water in the lakebed channels themselves.
In the 1930s, following a period of extended drought, alterations were made to the lakebed to allow drainage of the lake in the spring for agricultural use. Three channels were dug to carry water out of the lakebed. The first comes from the center of the lake to the northwest (here referred to as Lakebed Canal), where it meets a second channel carrying flow from the Eightmile drainage (Eightmile Canal), and then enters a third channel (Pump Canal, also known as Cow Head Ditch) that runs 1 km (0.6 mi) northeast to a pumping station. At that point, water is pumped past a weir into a continuation of the channel (Discharge Channel) that continues on to Cow Head Slough. The outlet of Cow Head Lake into Cow Head Slough was also dredged in the 1930s for a distance of about 1.3 km (0.8 mi), and an earthen levy was constructed on the east side to divert flow from the eastern watershed (West Barrel and Barrel Spring drainages) directly into Cow Head Slough, reducing runoff into the lakebed.
Cow Head Lake is now flooded only in the springtime, when it receives local snowmelt and rain, as well as runoff primarily from the western slopes of the basin. Most runoff from the eastern tributaries either flows naturally (Keno Creek) or is now diverted by the earthen levy (Barrel and West Barrel Creeks) into Cow Head Slough. There was enough water to fill the lake in the mid-1980s, 1997, and 2006. When extensive standing water is present, it is pumped off the lakebed by May or June to allow for growth of hay or pasture grass. Pumping has not been necessary for more than a few days since about 1999; however, the high runoff year of 2006 required about 30 days of pumping to bring water levels off the lakebed and into the channels. During the summer, irrigation water is supplemented by local groundwater inputs and water brought down the Eightmile system with releases of water from Schadler Reservoir and perennial spring flow.
Perennial aquatic habitat on the lakebed is contained within the canals above the pump. The canal channels are about 10 meters (m) (33 ft) wide, with a depth up to about 4 m (13 ft). The Pump Canal is approximately 1 km (0.6 mi) long and contains water throughout the summer. Suitable chub habitat in Eightmile Canal is slightly less than 1 km (0.6 mi) long; while this reach has not been specifically surveyed for Cow Head tui chubs, it receives high quality water from the Eightmile drainage and carries it into the Pump Canal. The Lakebed Canal is approximately 1.3 km (0.8 mi) long; however this channel dries up through the summer, after water is pumped down off the lakebed, and rarely contains water much upstream of the confluence with the Pump Channel. Although the lakebed is no longer characterized by extensive emergent marsh habitat, the canals contain submerged aquatic vegetation that provides food, cover, and spawning habitat for the chub.
Modifications to the natural hydrology of Cow Head Lake, which occurred in the late 1800s and early 1900s, altered the characteristics and availability of suitable habitat for the Cow Head tui chub on the lakebed (reviewed in Reid 2006a, pp. 5-9). The annual diversion and pumping of water from Cow Head Lake, initiated in the
Some of the modifications to the lakebed now actually serve to maintain perennial habitat on the lakebed, which would not have been available to the fish prior to the modifications. The present-day lakebed channels, which provide approximately 2 km (1.2 mi) of perennial habitat, are deeper than the historical lakebed, and water management practices that maintain suitable habitat in the canals during dry periods have actually expanded the habitat available to the Cow Head tui chub during droughts (Reid 2006a, p. 9). The Cow Head tui chub population in the lakebed channels presumably still disperses onto the lakebed when it is flooded in the spring, as there are no barriers that would prevent such movement.
The Cow Head lakebed was generally farmed for grain from 1924 until about 1980, when farming was discontinued (Reid 2006a, p. 10). Since then, the lakebed has been managed solely for grazing and hay production, with no tillage and no application of fertilizers or pesticides. Changes in land management within the basin have resulted in a generally upward trend for Cow Head tui chub habitat. These changes include: (1) Runoff storage in west-side reservoirs to supplement late-season water supplies for the western channels; (2) the termination of farming and switch to grazing management on the lakebed itself in the early 1980s, which has resulted in reduced sedimentation in the lakebed channels and Cow Head Slough; (3) modifications in grazing management on public and private lands, which have resulted in improved conditions within stream corridors and upward trending riparian vegetation conditions; (4) acquisition of an additional 80-acre parcel by BLM in 2003, which places it under management guidelines established to improve aquatic and riparian habitat, including about 0.5 km (0.3 mi) of occupied habitat in Cow Head Slough containing perennial springs and permanent pools (USBLM 2003, p. 4; Reid 2006a, p. 10); and (5) ongoing cooperation between public and private stakeholders under a CA signed in 1999 with the stated purpose of conserving the Cow Head tui chub. Landownership in the basin is limited to seven families and the BLM, with most land dedicated to hay and grazing. Based on our knowledge of the area and on the general stability of the local ranching community, we know of no reason why current land use is likely to substantially change in the foreseeable future.
The range of the Cow Head tui chub has not changed substantially since 1879. Modification of low-gradient stream habitat in the Cow Head Basin occurred primarily in the early 20th century, with channelization of the southern end of Cow Head Slough in the 1930s and continued livestock grazing. Current management of riparian corridors has resulted in upward habitat trends (USBLM 1996, p. 2; USBLM 2003, p. 9; Reid 2006a, pp. 10, 15-16), and there has been no substantial loss of perennial stream habitat for the Cow Head tui chub. In contrast, the character of Cow Head Lake has changed considerably since the 1800s, with the dewatering of the lake and its associated emergent marshes as a generally perennial, though intermittent, landscape feature. However, even prior to such changes, Cow Head Lake would have been dry and would have provided no habitat during past periods of natural drought when the Cow Head tui chub population would have been most stressed by environmental conditions.
During natural droughts, perennial stream reaches associated with permanent springs provided habitat for the Cow Head tui chub, as they do today (Scoppettone and Rissler 2006, p. 109). Furthermore, management of the Cow Head Basin has been essentially stable since the late 1930s, following a 16-year period (1923-1938) of drought when the entire lake was naturally dry; during that time a large population of Cow Head tui chub nevertheless sustained itself throughout the basin and specifically in the drainage canals on the lakebed (Reid 2006a, pp. 5-10; Scoppettone and Rissler 2006, pp. 108-109).
There is no reason to expect substantial negative changes to the current management regime. Habitat conditions are generally upward trending and private and public land managers have incorporated and are continuing to implement strategies that have enhanced the availability of permanent water and suitable habitat for Cow Head tui chub (USBLM 1996, p. 2; USFWS 1999, pp. 2, 12; USBLM 2003, p. 9; Reid 2006a, pp. 10, 15-16). Therefore, destruction, modification, or curtailment of its habitat or range is not likely to threaten the Cow Head tui chub with extinction throughout all or a significant portion of its range within the foreseeable future.
Overutilization was not considered a threat to the species in the 1998 proposed rule (63 FR 15154). The Cow Head tui chub is not a commercial or recreational fish species, and there have been only a few documented scientific collections since 1939 (Reid 2006a, pp. 37-38). Future collections for scientific purposes presumably would be limited to small collections for genetic, morphological, or life history studies, and these would not substantially affect the population as a whole. Therefore, over-utilization is not likely to threaten the Cow Head tui chub with extinction throughout all or a significant portion of its range within the foreseeable future.
In the 1998 proposed rule, we indicated that the potential introduction of a catastrophic disease or a nonnative predatory fish could be harmful to Cow Head tui chub, particularly due to the small estimated population size and confined known range of the Cow Head tui chub at that time (63 FR 15154). We also noted that there were no documented instances of disease actually affecting the tui chub or detections of nonnative predatory fish in tui chub habitat. This factor was not considered a principal threat to the species.
The potential introductions of a disease or nonnative predators to the Cow Head Basin would be subject to a number of constraints that greatly reduce the likelihood of such occurrence and also reduce the likelihood that a nonnative predator would become established if introduced. These constraints include: (1) The isolated location of the Cow Head Basin; (2) the absence of existing nonnative fish populations in the basin; (3) the habitat characteristics of upper Twelvemile Creek (high gradient, cool water) and the lower canyon reach of Cow Head Slough (high gradient, generally dry or low flow, with no upstream passage except possibly during high spring flows), both of which would impede the upstream invasion of warm-water game fish from the Warner Valley floor; (4) the absence of source water bodies suitable for warm-water
The low likelihood of introductions also is supported by the lack of historical introductions of disease or nonnative fishes to the basin over the last century. In the event of an introduction of a nonnative fish, risks to the Cow Head tui chub are further ameliorated by its separation into at least six seasonally isolated populations, and the complete upstream isolation of the largest population (Cow Head lakebed channels) from other areas by the pump structure. We also note that stakeholders will continue to monitor the composition of the fish community in the Cow Head Basin through implementation of the CA and can notify CDFG and the Service if a nonnative fish is identified. The agencies could then remove the introduced fish.
While the outbreak of a catastrophic fish disease in the Cow Head Basin could theoretically threaten the Cow Head tui chub due to its relatively limited range, there is no evidence of fish disease in the Cow Head Basin, and we are aware of no documented loss of any native tui chub populations (
The Cow Head tui chub is most vulnerable to predation during droughts, when much of the drainage dries up and fish are concentrated in smaller pools. Natural predators of the Cow Head tui chub include garter snakes, aquatic insects, and fish-eating birds, with which the population has naturally coexisted under current conditions since the 1920s (Homuth 2000, pp. 6, 8). The original name of Cow Head Lake was Pelican Lake (see Minto 1879 map in Reid 2006a, p. 6), and therefore it is logical to assume that pelicans were among the historic natural predators of the chub. There is no indication that these natural predators represent an extinction threat to the Cow Head tui chub. Introduction of predatory nonnative fishes (e.g., bass, crappie, sunfish, and brown trout) would increase predation pressure on the Cow Head tui chub population. However, for a nonnative predator to represent a threat to the Cow Head tui chub, the nonnative species would have to successfully establish a resident population that spreads throughout a significant portion of basin. This is unlikely for the reasons given above, and during a severe drought, when the Cow Head tui chub would be most vulnerable, the various populations and even individual pools are generally isolated by dry reaches.
No known disease or predator currently threatens the Cow Head tui chub. For the reasons described above, the introduction and establishment of a disease or nonnative fish predator into the Cow Head Basin is not likely to occur and, in the unlikely event it were to occur, is not likely to threaten the Cow Head tui chub with extinction. Therefore, disease and predation are not likely to threaten the Cow Head tui chub with extinction throughout all or a significant portion of its range within the foreseeable future.
The 1998 proposed rule stated that there were no regulatory mechanisms that specifically protected the Cow Head tui chub or its habitat, and generally concluded that available regulatory mechanisms were inadequate to protect or appropriately manage the species (63 FR 15154, March 30, 1998). The proposed rule summarized the following regulatory mechanisms: (1) CDFG's designation of the Cow Head tui chub as a species of special concern, Class 1: Endangered; (2) The National Environmental Policy Act; (3) section 404 of the Clean Water Act; (4) the California Environmental Quality Act; and (5) section 1603 of the California Fish and Game Code (63 FR 15154). However, as discussed above, based on current information, we have determined that there are no significant threats to the Cow Head tui chub or its habitat that would trigger the need for additional regulation.
The Cow Head tui chub occurs on a mix of public (BLM) and private land, with the majority of the populations being on private land where there is more perennial water. On public lands (i.e., Cow Head Slough) and most adjoining riparian corridors on private lands used for grazing, Cow Head tui chub habitat is managed according to riparian health standards under BLM policy and receives protection from measures undertaken by BLM as a result of a Section 7 consultation with the Service on the Warner sucker,
We are not aware of threats to the continued existence of the Cow Head tui chub that would require or be ameliorated by further regulation. Therefore “inadequacy of existing regulatory mechanisms” is not a factor likely to threaten the Cow Head tui chub with extinction throughout all or a significant portion of its range within the foreseeable future.
The 1998 proposed rule briefly discussed several additional factors that were considered potential threats to the Cow Head tui chub, including the generalized vulnerabilities of species that have very small populations, pesticides, introduction of nonnative competitors, and natural drought (63 FR 15154-55, March 30, 1998). The vulnerabilities identified in the 1998 proposed rule (possible excessively high death or low birth rates, deleterious effects of genetic drift and inbreeding, and sensitivity to localized stochastic events) were based on the assumption that the Cow Head tui chub had been reduced to a single, small population, with an extremely restricted range and no additional populations available for recolonization in the event of a localized extinction (63 FR 15155, March 30, 1998). Current information demonstrates that the Cow Head tui chub population is considerably larger and more widely distributed than previously thought and is separated into six seasonally isolated populations in five subdrainages of the Cow Head Basin. (See Factor A discussion, above.) A recent genetic study of regional tui chubs also found that genetic diversity in the Cow Head tui chub is similar to other stream-resident chub populations, and shows no indication of genetic threats to the species (Chen 2006, pp. 46-48).
In the proposed rule we said: “Pest control programs * * * that introduce pesticides into the drainage are a threat to the Cowhead Lake tui chub.” We no
The introduction of nonnative competitors, such as bait minnows (e.g., shiners, fathead minnows) tui chubs introduced from other basins, and mosquito fish (
The northwestern corner of the Great Basin, where Cow Head Lake is located is subject to extended droughts, during which even the larger lakes are sometimes dry (Phillips and Van Denburgh 1971, p. B6; Negrini 2002, p. 40). Goose Lake, with an area over 100,000 acres, is located in the next basin to the west. It was recorded as essentially dry in the summers of 1846 and 1849 by early travelers, and more recently was dry in the late summers of 1926, 1929-34 and 1992 (Pease 1965, p. 30, 58; Phillips and Van Denburgh 1971, pp. 31-32; Johnson et al. 1985, p. 82). Crump Lake, which is the southernmost lake in the Warner Basin into which Cow Head and Twelvemile Creek waters ultimately flow, also has a history of natural desiccation and sometimes goes dry for several years at a time. Also, the large, shallow Alkali lakes in Surprise Valley to the south of the Cow Head Basin are dry or nearly dry in most summers (Phillips and Van Denburgh 1971, pp. 37-38; Johnson et al. 1985, p. 180). There is no record of how frequently Cow Head Lake went dry under natural conditions. However, residents of the Cow Head Basin reported that Cow Head Lake was dry in 1908, 1912, 1923 or 1924, 1928, and from 1930-34, all prior to alteration of the lakebed (Hubbs 1934, p.1; Reid 2006a, p. 8).
In the past, the Cow Head tui chub must have survived severe droughts by occupying perennial habitat such as natural spring-fed reaches of tributary drainages and more recently, in perennial canal habitat on the lakebed. The “dustbowl” drought of the 1920-30s appears to have been the most extreme regional drought in at least the last 270 years, and probably the last 700 years (Keen 1937, p.188; Knapp et al. 2004, p.144). The original collection of Cow Head tui chub in 1939 followed that drought. Since that time, periodic droughts have occurred every 10-20 years (Reid 2006a, p. 26-27).
A recent genetic study indicates that the population has maintained genetic diversity comparable to other stream populations of chubs, in spite of the relatively frequent constraints on its distribution and potential population size reductions caused by droughts (Chen 2006, pp. 46-48). The 2001 distribution surveys, undertaken in one of the driest years under current management regimes, showed Cow Head tui chubs were widely distributed, thus providing further evidence of the ability of the chub population to persist given availability of suitable habitat (Scoppettone and Rissler 2006, p.109; Reid 2006a, p.27).
Although it is impossible to accurately predict future climatic conditions, drought will very likely continue to play an important role in the biology of the Cow Head tui chub. Conservation of perennial spring-fed reaches in the tributary drainages and on the lakebed is, therefore, crucial to the long-term survival of the Cow Head tui chub. Public and private land managers are providing grazing management and efforts that have protected and continue to protect and enhance spring resources. We have no reason to believe this situation will change.
Although extreme natural drought has the potential to reduce the distribution of the Cow Head tui chub and its available habitat (and droughts are likely to occur periodically in the future), the chub has demonstrated considerable resiliency in its ability to survive substantial regional droughts experienced over the last century, all under the current management regime. Permanent habitat, provided by perennial spring-fed stream reaches in five subdrainages of the Cow Head Basin, including the lakebed channels, is likely to remain available in the foreseeable future.
As discussed above, based on the best scientific information currently available, we have determined that none of the natural or manmade factors identified as potential threats in the 1998 proposed rule (63 FR 15152, March 30, 1998), including vulnerabilities associated with local endemic species, pesticide use, nonnative competitors and natural droughts, individually or collectively rise to a level likely to threaten the Cow Head tui chub throughout all or significant portion of its range in the foreseeable future.
In making this determination, we carefully assessed the best scientific and commercial information available regarding past, present, and future threats to the Cow Head tui chub. Much of this information was developed or improved subsequent to the original 1998 proposal to list the Cow Head tui chub (63 FR 15152, March 30, 1998). As discussed under Factor A, the natural range of the Cow Head tui chub has not changed substantially since 1879. Modification of low-gradient stream habitat in the Cow Head Basin occurred primarily in the early 20th century, and there has been no substantial loss of perennial stream habitat for the Cow Head tui chub due to habitat modification. Although the character of Cow Head Lake itself has changed considerably since the 1800s, management of the Cow Head Basin has been essentially stable since the late 1930s. This is evidenced most dramatically by the fact that a large population of Cow Head tui chub has sustained itself throughout the basin (and specifically in the drainage canals on the lakebed), even following an especially severe, 16-year (1923-1938) drought when the entire lake was naturally dry. There is no reasonable expectation for substantial negative changes to the current management
As discussed under Factor B, the Cow Head tui chub is not a commercial or recreational fish species and there are only a few documented scientific collections since 1939. Future collections for scientific purposes presumably would be limited, and overutilization is not likely to threaten the Cow Head tui chub with extinction in the foreseeable future.
As discussed under Factor C, no disease or predator currently threatens the Cow Head tui chub. Furthermore, the introduction and establishment of a disease or nonnative predator into the Cow Head Basin is not likely to occur and, in the unlikely event it were to occur, is not likely to threaten the Cow Head tui chub with extinction in the foreseeable future.
As discussed under Factor D, there are currently no recognized threats to the continued existence of the Cow Head tui chub identified under the other factors that require or would be ameliorated by further regulation. Further, the chub has persisted, with populations still occurring throughout its historic range, with the existing regulatory mechanisms. Therefore, we conclude that the possible inadequacy of existing regulatory mechanisms is not likely to threaten the Cow Head tui chub with extinction in the foreseeable future.
As discussed under Factor E, we have not identified additional factors that rise to a level likely to threaten the Cow Head tui chub with extinction throughout all or a significant portion of its range. Extreme natural drought has the potential to severely constrain the distribution of the Cow Head tui chub and its available habitat as it has in the past, and droughts are likely to occur periodically in the future. However, the Cow Head tui chub has demonstrated considerable resiliency in its ability to survive substantial regional droughts experienced over the last century, all under the current management regime. Permanent habitat provided by perennial spring-fed stream reaches in five subdrainages of the Cow Head Basin is likely to remain available in the foreseeable future. Therefore, natural drought and the additional factors discussed in Factor E are not likely to threaten the Cow Head tui chub with extinction in the foreseeable future.
Based on the lack of present or foreseeable threats to its continued existence, we have determined that the Cow Head tui chub is not likely to become in danger of extinction in the foreseeable future throughout all or a significant portion of its range (section 3(6) of the Act) and, therefore, does not meet the Act's definition of threatened or endangered. Consequently, we withdraw our 1998 proposal to list the Cow Head tui chub as endangered (63 FR 15152, March 30, 1998).
We will continue to monitor the status of the species and to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. We will reconsider this determination in the event that new information indicates that such an action is appropriate.
A complete list of all references cited is available at the Service's Klamath Falls Fish and Wildlife Office (see
The primary authors of this notice are the staff of the Service's Klamath Falls Fish and Wildlife Office (see
The authority of this action is section 4(b)(6)(B)(ii) of the Endangered Species Act of 1973 (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of revised 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce our revised 12-month finding for a petition to list the Beaver Cave beetle (
This finding was made on October 11, 2006. Although no further action will result from this finding, we request that you submit new information concerning the taxonomy, biology, ecology, and status of the Beaver Cave beetle, as well as potential threats to its continued existence, whenever such information becomes available.
The complete file for this finding is available for inspection, by appointment and during normal business hours, at the U.S. Fish and Wildlife Service, 3761 Georgetown Road, Frankfort, Kentucky 40601. Submit new information, materials, comments, or questions concerning this species to us at the same address.
Dr. Michael A. Floyd, Kentucky Ecological Services Field Office at the address listed above, by telephone at 502-695-0468, by facsimile at 502-695-1024, or by e-mail at
The Act provides two mechanisms for considering species for listing. One method allows the Secretary, on his own initiative, to identify species for listing under the standards of section 4(a)(1). We implement this through an assessment process to identify species that are candidates for listing, which means we have on file sufficient information on biological vulnerability and threats to support a proposal to list the species as endangered or threatened, but for which preparation and publication of a proposal is precluded by higher-priority listing actions. Using this process, we identified the Beaver Cave beetle as a candidate for listing in 2001 and included it in the Candidate Notice of Review (CNOR) published in the
A second mechanism that the Act provides for considering species for listing is for the public to petition us to add a species to the Federal Lists of Threatened or Endangered Species (Lists) found at 50 CFR 17.11 (animals) and § 17.12 (plants). Under section 4(b)(3)(A), when we receive such a petition, we must determine within 90 days, to the extent practicable, whether the petition presents substantial scientific or commercial information that listing may be warranted (a “90-day finding”). If we make a positive 90-day finding, we must promptly commence a status review of the species and under section 4(b)(3)(B), we must make and publish one of three possible findings within 12 months of receipt of such a petition (a “12-month finding”):
1. The petitioned action is not warranted;
2. The petitioned action is warranted (in which case we are to promptly publish a proposed regulation to implement the petitioned action); or
3. The petitioned action is warranted but (a) the immediate proposal of a regulation and final promulgation of a regulation implementing the petitioned action is precluded by pending proposals, and (b) expeditious progress is being made to add qualified species to the Lists (i.e., a “warranted but precluded” 12-month petition finding). Our standard for making a species a candidate through our own initiative is identical to the standard for making a “warranted but precluded” 12-month petition finding.
On May 11, 2004, the Service received a petition from the Center for Biological Diversity to list 225 species we previously had identified as candidates for listing, including the Beaver Cave beetle. Pursuant to requirements in section 4(b)(3)(B) of the Act, the CNOR and Notice of Findings on Resubmitted Petitions published by the Service on May 11, 2005 (70 FR 24870) included a finding that the immediate issuance of a proposed listing rule and the timely promulgation of a final rule for each of these petitioned species, including the Beaver Cave beetle, was warranted but precluded by higher priority listing actions, and that expeditious progress was being made to add qualified species to the Lists.
Section 4(b)(3)(C)(i) of the Act directs that when we make a “warranted but precluded” finding on a petition, we are to treat the petition as being one that is resubmitted annually on the date of the finding; thus the Act requires us to reassess the petitioned actions and to publish a finding on the resubmitted petition on an annual basis. We included a “warranted but precluded” finding on the resubmitted petition on the Beaver Cave beetle in the CNOR and Notice of Findings on Resubmitted Petitions published in the
As a result of new information regarding conservation efforts for the Beaver Cave beetle, we have completed a reassessment of its status (FWS 2006a). The updated assessment document is available from our Kentucky Ecological Services Field Office (see
The Beaver Cave beetle (
Little detailed life history information is available for the rarest of the cave beetles, including the Beaver Cave beetle. However, the generalized summary that follows is accurate for the more common and more easily studied species and is believed to also apply to the rarer species (Barr 1998). Cave beetles copulate in the fall, and the eggs are deposited in the cave soil during late fall. The eggs hatch and larvae appear in late fall through early winter. Pupation occurs in late winter to early summer with the adult beetles emerging in early summer (Barr 1996).
The limestone caves in which these cave beetles are found provide a unique and fragile environment that supports a variety of species that have evolved to survive and reproduce under the demanding conditions found in cave ecosystems. No photosynthesis takes place within the dark zone of a cave. Therefore, all organisms that are adapted to life within a cave are dependent upon energy from the surface. This energy can be in the form of leaf litter, woody debris or small bits of organic matter that is washed or falls into the cave, or guano deposited by cave-dependent bats that feed on the surface and return to the cave to roost (Barr 1996).
The Beaver Cave beetle is restricted to Beaver Cave, a limestone cave located in the Bluegrass Region of central Kentucky. There are no other caves in the vicinity of Beaver Cave, and the Beaver cave beetle has not been found at any other locations. The only known entrance to Beaver Cave is located in an open pasture and hillside of a dairy farm in eastern Harrison County. The cave generally trends northeastward from its entrance for approximately 350 meters before terminating in a breakdown (i.e., a portion of the cave where the ceiling has collapsed) (Laudermilk 2006). Most of Beaver Cave is comprised of a simple, narrow passage approximately 1 meter wide and 2.5 meters high. However, there are several larger rooms present, and there are multiple levels in a few places (Laudermilk 2006). A more extensive description of the cave can be found in Barr (1996).
The Service's Partners for Fish and Wildlife (Partners) Program (Kentucky Ecological Services Field Office) began working with the owner of the Beaver Cave property in 2002, and other partners (Kentucky Department of Fish and Wildlife Resources (KDFWR), Natural Resource Conservation Service (NRCS), Farm Service Agency (FSA), Kentucky State Nature Preserves Commission, and Kentucky Division of Forestry) soon thereafter, to implement projects that would conserve Beaver Cave and the species that occupy it and in order to eliminate the threats to the Beaver Cave beetle and its habitat or reduce them to the point that listing was no longer warranted. The Partners Program coordinated several conservation efforts that were planned and implemented through five inter-related agreements/contracts between the landowner and the agencies listed above: (a) A Partners Program 15-year Wildlife Habitat Enhancement Agreement; (b) a Continuous Conservation Reserve Program (CCRP) 15-year contract through FSA; (c) a Wildlife Habitat Incentives Program (WHIP) 15-year contract through NRCS; and (d) two Landowner Incentive Program (LIP) 10-year agreements through KDFWR. These projects were initiated in the summer of 2003 and fully implemented by fall of 2005. Collectively, these agreements and contracts encompassed three general conservation efforts: (1) Maintain Beaver Cave and the landowner's surrounding property in a manner that (a) reduces or eliminates sediment and animal waste within the cave's watershed by excluding cattle from the cave entrance with fencing, developing and implementing a rotational grazing program, and installing hardened stream crossings and heavy use areas, and (b) establishes and maintains a forested buffer around the entrance to Beaver Cave; (2) construct and maintain the metal gate at the entrance to Beaver Cave; and (3) control and limit access to Beaver Cave and the landowner's surrounding property.
Many aspects of the conservation efforts identified in the five inter-related agreements are on-going, such as maintenance of the gate and control of access into the cave, and others have already been implemented (e.g., exclusion of cattle, construction of the cave gate, tree plantings, hardened stream crossings). Based on our evaluation of each of the three conservation efforts using the criteria provided in the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100), we have determined that each of the three efforts is sufficiently certain to be implemented and effective so as to have contributed to the elimination or reduction of threats to the species (FWS 2006b). Therefore, the Service can consider these conservation efforts in making a determination as to whether the Beaver Cave beetle meets the Service's definition of a threatened or endangered species.
Section 4 of the Act and implementing regulations at 50 CFR part 424 set forth procedures for adding species to the Lists. A species may be determined to be an endangered or threatened species based on the applicability of one or more of the five factors described in section 4(a)(1). These factors and their application to the Beaver Cave beetle are summarized below.
In our initial assessment of the Beaver Cave beetle in 2001, we identified this species as a candidate for listing due to the present and threatened destruction and modification of its habitat (66 FR 54800). The activities contributing to this threat factor have now been addressed, as summarized below.
In our initial 2001 assessment and subsequent CNORs and petition findings, we identified and recognized a potential risk of destruction or modification of the cave environment (the species' habitat) which could occur as a result of (1) polluted runoff from the farm operation, specifically animal waste, sediment, or spills of toxic materials in the watershed in which the cave occurs; and (2) unauthorized human entry to Beaver Cave (i.e., trash dumping, vandalism, physical habitat disturbance, and trampling of beetles). We now have determined that the potential risk of polluted stormwater runoff is limited, because these pollutants have been significantly reduced through full implementation of the CCRP contracts, LIP agreement, and Partners agreement specified above. These contracts and agreements and subsequent conservation efforts have eliminated these threats or reduced them to a point that any negative effects are unexpected or would be insignificant to the point that this listing factor no longer applies. The reduction in threats has been accomplished through the installation of two heavy-use feeding areas that are away from the cave and its entrance and associated exclusion fencing, the development of a rotational grazing program that concentrates cattle away from the cave entrance and its watershed, and the installation of a hardened stream crossing within the Beaver Cave watershed. Also, these agreements and contracts provided funding for cattle exclusion fencing and native vegetation plantings surrounding the cave entrance, thereby protecting it from cattle disturbance and establishing a natural filter (barrier) for any potential non-point source pollutants that could potentially enter the cave during storm events. Toxic material spills from external sources are improbable, because the Beaver Cave watershed is small and not in an area where toxic chemicals are produced or stored, nor is there likely to be transport of toxic materials in the area due to the rural nature of the surrounding area. A trash and debris-filled sinkhole that is connected to Beaver was also unclogged and cleaned, providing further protection against contamination of the underground drainage basin.
To address the unlawful human trespass, trash dumping, vandalism, and habitat degradation of Beaver Cave, a bat-friendly cave gate was constructed just inside the cave entrance in 2004. The WHIP contract provided 53 percent of the funding for the cave gate construction, and the remaining 47 percent was obtained through a second LIP agreement. Under these agreements and contracts, unlawful entry to Beaver Cave is prevented, and the landowner has assumed responsibility for maintaining and inspecting the gate. This includes periodic inspections of the gate, taking necessary steps to repair the gate as needed, and ensuring the gate does not become blocked with rock or other debris that would block access to the cave for native bats or other species or prevent organic matter from entering the cave. Bat guano and other organic matter from the surface are important components of energy flow for the cave environment. Fencing has been erected around an approximate 1-acre area containing the entrance to Beaver Cave to promote the development of natural habitat around the cave entrance, provide further protection to the property, and control access to the cave entrance. These actions promote energy flow and eliminate the threats from dumping, vandalism, and unauthorized trespass such that this listing factor no longer applies.
Many aspects of these conservation efforts are on-going, such as the growth and monitoring of the riparian plantings, maintenance of the cave gate,
Based on the information summarized above, the Beaver Cave beetle is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range.
We have no evidence of overutilization of the Beaver Cave beetle in the past for commercial, recreational, scientific, or educational purposes, and have no information that suggests such a threat exists in the foreseeable future. Under the inter-related agreements specified above, collection for scientific purposes would be allowed only with the permission of the landowner and the Service. The cave has been used for recreational purposes by spelunkers and by passive recreationists in the past, but placement of the locked metal gate across the cave entrance in 2004 has effectively eliminated such uses. Further, through maintenance of the metal gate at the cave entrance, as required by the LIP agreement and WHIP contract, all unauthorized access to the cave is prevented. Based on these considerations, overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the species.
Disease and predation are not known to be threats for this species and are, instead, a normal part of its life history. Mortality from disease or predation likely occurs but has not eliminated this species in the past, and we have no reason to expect disease or predation to pose a substantial risk to the species in the future. Based on these considerations, disease or predation is not a threat to the species.
Although the Beaver Cave beetle is listed as endangered in Kentucky by the Kentucky State Nature Preserves Commission, such listings provide no substantive protection under the current Kentucky law. However, there are no foreseeable reasons why specific regulatory mechanisms are necessary to ensure the conservation of this species, because the landowner and the involved agencies have committed to and are implementing various conservation efforts to protect Beaver Cave and the Beaver Cave beetle. These include, but are not limited to, strictly controlling access to the cave and the property surrounding the cave opening and restoring and enhancing the vegetation communities surrounding the cave and in its watershed. The metal gate is effective in preventing unauthorized entry into the cave, and as described above, the landowner has committed to and is implementing measures to strictly control access to the cave. Based on these considerations, the inadequacy of existing regulatory mechanisms is not a threat to the species.
Populations of this beetle species are restricted to Beaver Cave and are generally thought to be represented by a small number of individuals. Although this is a natural situation, their limited distribution and numbers make this species vulnerable to extirpation due to effects from various manmade factors, such as spills of toxic substances, non-point source pollutants, and habitat-related damage, as described above under Factor A. As described above, the conservation efforts included in the five inter-related agreements summarized above have removed or substantially reduced these habitat-related risks. Small population sizes for these species may also limit the natural interchange of genetic material within the population, which could affect long-term genetic and population viability. However, this is an endemic species that has persisted over time (i.e., from at least the time of its discovery to the present time) and under conditions that were worse than the current, more-protective situation despite the perceived risks of limited genetic interchange. For the reasons described above, the Beaver Cave beetle is not threatened by other natural or human-caused factors.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by the Beaver Cave beetle.
We have evaluated the threats to the Beaver Cave beetle and considered factors that, individually and in combination, presently or potentially could pose a risk to the species and its habitat. We conclude that listing this species under the Act is not warranted, because the species is not likely to become an endangered or threatened species within the foreseeable future throughout all or a significant portion of its range. This species no longer meets our definition of a candidate and is removed from candidate status.
We will continue to monitor the status of the Beaver Cave beetle, and to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding. We will reconsider this determination in the event that new information indicates that the threats to this species are of a considerably greater magnitude or imminence than identified here.
A complete list of all references cited herein is available upon request from the Kentucky Ecological Services Field Office, U.S. Fish and Wildlife Service (see
The primary author of this finding is Dr. Michael A. Floyd, U.S. Fish and Wildlife Service (see
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
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 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 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 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 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.
Farm Service Agency, USDA.
The Farm Service Agency (FSA) is issuing a Finding of No Significant Impact (FONSI) consistent with the National Environmental Policy Act of 1969 with respect to the implementation of the following Disaster Assistance Programs: (1) Hurricane Indemnity Program, (2) Feed Indemnity Program, (3) Livestock Indemnity Program, (4) Tree Indemnity Program, and (5) Aquaculture Grant Program as well as (6) the 2006 Livestock Assistance Grant Program.
This action is effective November 13, 2006.
The Final Programmatic Environmental Assessment and FONSI may be reviewed at
FSA prepared a Final Programmatic Environmental Assessment for disaster assistance programs supporting production loss and damage caused by damaging weather that occurred between 2005 and 2006. Consistent with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321,
Current disaster programs operated by USDA and other Federal and State agencies do not fully cover the types of loss and destruction experienced by a majority of producers within the States affected by these hurricanes and drought. Without the immediate financial assistance provided by these programs, producers would face delays and experience additional financial hardships in their efforts to return their farming or livestock operations to pre-disaster or pre-drought levels.
Under the Proposed Action Alternative, FSA would disburse up to $300 million either through direct payments to eligible producers or through grants administered by State agencies for the grant programs. In making direct payments, FSA does not require that payments be used for specific purposes. These programs solely provide payments to eligible producers for weather-related losses. The direct-payment programs are based on the producers documenting the type and amount of the weather-related loss.
Chugach National Forest, USDA Forest Service.
Notice of new fees.
The Chugach National Forest will begin charging fees for a group campsite, cabins, individual campsites, and a backcountry permit for the Whistle Stop project area. Fees for other group campsites, cabins, and individual campsites on the Chugach National Forest have shown that the public values the availability of these facilities. In addition, market research conducted for the Whistle Stop project shows that people understand the need for backcountry permits given the remote nature of the area. Fees will be commensurate with the benefits and services provided. Funds received from the fees will be used for the continued operation and maintenance of the facilities and enhanced services of the area.
Backcountry Permits will be available spring 2007 for the 2007 Whistle Stop season. The group campsite, individual campsites, and cabins are expected to be available in 2008.
Forest Supervisor, Chugach National Forest, 3301 C Street, Anchorage, AK 9503.
Adam McClory, Whistle Stop Project Manager, 907-754-2352.
The Federal Recreation Lands Enhancement
The Whistle Stop project is a partnership between the Forest Service and Alaska Railroad that will provide additional recreation opportunities using alternative transportation. This new service will allow the opportunity for visitors to access National Forest lands which were previously inaccessible to the majority of forest visitors. Market research demonstrates a demand for these sorts of recreation opportunities on the Kenai Peninsula. The Forest Service has identified a goal of achieving cost recovery through a combination of revenue sharing with the Alaska Railroad; fees from public-use cabin rentals and campsites; and fees obtained through backcountry permits.
Implementation of backcountry permits, as described in the Record of Decision, will provide the Forest Service with the ability to accurately track recreation use and ensure that use levels and numbers of encounters are not exceeding thresholds established in the Forest Plan and Recreation Opportunity Spectrum (ROS) guidelines. Chugach National Forest goals include maintaining a backcountry social experience and protecting the natural and cultural resources throughout the area. Backcountry permits will be required for visitors utilizing the enhanced amenities provided through the Whistle Stop Project area. Amenities include a developed trail system, backcountry campsites, interpretive materials, and Whistle Stop stations that will include a shelter, restroom facilities and bear-proof food storage containers. Issuance of the backcountry permit will allow for better public safety and result in improved visitor education and information about proper camping techniques, fir prevention, safety in bear country, and sanitation. Members of the public are welcome to comment.
DOC will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Given the rapid demographic changes experienced in recent years and the strong expectation that such changes will continue and accelerate, the once-a-decade data collection approach of a census is no longer acceptable as a source for the housing and socio-economic data collected on the census long-form. To meet the needs and expectations of the country, the Census Bureau developed the American Community Survey (ACS). This survey collects detailed socioeconomic data every month and provides tabulations of these data on a yearly basis. The ACS allows the Census Bureau to provide more timely and relevant housing and socio-economic data while also reducing operational risks in the census by eliminating the long-form historically given to one in every six addresses.
Full implementation of the ACS includes an annual sample of approximately three million residential addresses a year in the 50 states and the District of Columbia, and another 36,000 addresses in Puerto Rico. A sample this large allows for annual production and release of single-year estimates for areas with a population of 65,000 or more. Lower levels of geography require aggregates of three and five years' worth of data in order to produce estimates of comparable reliability to the census long-form. However, an ongoing data collection effort with an annual sample of this magnitude requires that the ACS continue to research possible methods for maintaining if not reducing data collection costs. If costs increase, the ACS would have to consider reductions in sample thus reducing the reliability of the data as compared to the reliability of the census long-form, especially at lower levels of geography.
One of the tests included in the 2007 Methods Panel addresses a method for potentially reducing data collection costs. In this test, we will implement the same mailing strategy as ACS production and send each sampled address a prenotice letter, an initial questionnaire (ACS-1(2005)) packet, and a reminder postcard and for those who haven't responded by a certain date, we will send a second questionnaire packet. However, for this test we will send the prenotice letter using standard postage. Current ACS production procedures send all mail pieces using a first-class postage rate. Using standard postage rather than first-class postage for this mail piece can potentially save the ACS approximately two hundred and thirty thousand dollars in data collection costs each year. The test will evaluate whether the use of standard mailing for the prenotice letter impacts mail response rates.
A second test included in the 2007 Methods Panel addresses another aspect of ACS data collection relative to the census. Both the ACS and the census collect a core set of basic demographic questions (age and date of birth, gender, relationship, Hispanic origin and race). However, the 2010 Census will use a different format (similar to the format for the 2000 Census) from the format used by the ACS for collecting this information on the mail questionnaire. The census format, referred to as a sequential person design, creates a column for each person that includes each question and associated response categories. The ACS format, referred to as the grid design, lists the names of all persons down the left side of the form, the questions across the top of the page, and the response categories fall in the ‘cells' created by crossing the person names by question.
This second test will compare the sequential person (ACS-1(X)Seq) and grid (ACS-1(X)Pro) formats for collecting the basic demographic information to measure the impact on data quality, specifically unit and item non-response rates, response distributions, and within household coverage. The outcome of the test will determine whether the different formats might contribute to differences in the estimates for the basic demographic questions. If the format does influence how people respond to these basic demographic questions, the Census Bureau will decide whether the ACS should alter its format of the collection of these data items to more closely reflect the census style format prior to the 2010 Census.
The 2007 Methods Panel may also include a third test contingent on the
Given that the ACS collects data every day of the year in every county in the U.S. and in every municipio in Puerto Rico, the ACS provides an opportunity to produce data not available from any other source or survey at the same low levels of geography. The Census Bureau, in conjunction with the Office of Management and Budget, has a policy for determining whether new content or questions will be added to the ACS. As part of the content determination process, the Census Bureau must test the proposed content to determine whether the ACS can produce data of sufficiently high quality for the proposed topic. In all likelihood, this test will fold into the grid versus sequential form design test noted above in an effort to reduce cost and burden. The test would, however, include a Content Follow-Up Reinterview of approximately 80 percent of the sample. The Census Bureau and OMB will consider these results in deciding whether to include the new content, per the Census Bureau's Policy on New Content for the ACS.
In order to provide data of comparable reliability as the census long-form at low levels of geography (
Similarly, the federal government as well as state and local governments uses the core, basic demographics collected as part of the census for funding and programmatic decisions. With full implementation of the ACS, those same data are available every year. From a data user's perspective, large differences in the estimates for those core data items between ACS and the census can be problematic in terms of funding and program decisions. Since the ACS is a sample survey rather than a census we expect some differences in results between the two. However, there are many other factors that contribute to different results, such as differences in the interviewing staff, social relevance of the census versus a current survey, and even form design.
Thus, the 2007 Methods Panel will investigate ways to reduce or at least maintain data collection costs so the Census Bureau can continue to provide data of comparable reliability as the census long-form did. Additionally, the 2007 Methods Panel will test whether differences in form design between the census and the ACS may contribute to differences in results for the basic demographic items used by federal, state and local governments for funding and programmatic decisions. Lastly, funding permitting, the Methods panel will test proposed content regarding major field of study for a person's bachelor degree in order to provide the National Science Foundation and the National Center for Education Statistics with current information regarding estimates of types of fields in which people receive bachelor's degrees.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or e-mail (
Department of Commerce.
Notice of Membership on the Office of the Secretary Performance Review Board.
In accordance with 5 U.S.C., 4314(c)(4), DOC announces the appointment of persons to serve as members of the Office of the Secretary (OS) Performance Review Board (PRB). The OS/PRB is responsible for reviewing performance appraisals and ratings of Senior Executive Service (SES) members. The appointment of these members to the OS/PRB will be for a period of 24 months.
Denise Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue, NW., Washington, DC 20230, (202) 482-3600.
The names, position titles, and type of appointment of the members of the OS/PRB are set forth below by organization:
Tracey S. Rhodes, Director, Executive Secretariat.
Richard Yamamoto, Director, Office of Security (Alternate).
Lisa Casias, Deputy Director for Financial Policy.
Mary Pleffner, Deputy Assistant Secretary for Management Services and CFO.
John E. Jones, Jr., Deputy Assistant Administrator for Weather Services.
Michael A. Levitt, Assistant General Counsel for Legislation and Regulation.
Department of Commerce.
Notice of membership on the Departmental Performance Review Board.
In accordance with 5 U.S.C., 4314(c)(4), Department of Commerce (DOC) announces the appointment of persons to serve as members of the Departmental Performance Review Board (DPRB). The DPRB is responsible for reviewing performance appraisals and ratings of Senior Executive Service (SES) members and serves as the higher level review of executives who report to an appointing authority. The appointment of these members to the DPRB will be for a period of 24 months.
Denise Yaag, Director, Office of Executive Resources, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue, NW., Washington, DC 20230, (202) 482-3600.
The names and position titles of the members of the DPRB are set forth below by organization:
Aimee L. Strudwick, Chief of Staff to the Deputy Secretary.
Michael A. Levitt, Assistant General Counsel for Legislation and Regulation.
Joan McGinnis, Assistant General Counsel for Finance and Litigation.
William J. Fleming, Deputy Director for Human Resources Management.
Dr. Hermann Habermann, Deputy Director.
Marvin Raines, Associate Director for Field Operations.
James K. White, Associate Under Secretary for Management.
Mary Pleffner, Deputy Assistant Secretary for Management.
Kathy D. Smith, Chief Counsel.
Bonnie Morehouse, Director, Program Analysis and Evaluation.
Maureen Wylie, Deputy Chief Financial Officer, Director of Budget.
Kathleen A. Kelly, Director, Office of Satellite Operations, NESDIS.
Ellen Herbst, Director, National Technical Information Service.
Richard F. Kayser, Director, Materials Science and Engineering Laboratory.
Kathleen M. Higgins, Director, Office of Law Enforcement Standards, EEEL.
The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on October 24, 2006, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
1. Welcome and Introductions.
2. Remarks from the Bureau of Industry and Security Management.
3. Industry Presentations.
4. Government Presentations.
5. New Business.
6. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Yvette Springer at
The Assistant Secretary for Administration, with the concurrence of the General Counsel, formally determined on September 29, 2006 pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § 10(d)), that the portion of this meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information contact Yvette Springer on (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
October 11, 2006.
We preliminarily determine that certain activated carbon from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice.
Catherine Bertrand or Anya Naschak, 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: 202-482-3207 or 202-482-6375, respectively.
On March 8, 2006, the Department of Commerce (“Department”) received a petition on imports of certain activated carbon from the People's Republic of China (“PRC”) from Calgon Carbon Corporation and Norit Americas Inc. (“Petitioners”). This investigation was initiated on March 28, 2006.
Since the initiation of this investigation, the following events have occurred. On April 4, 2006, the Department requested quantity and value (“Q&V”) information from the producers and exporters of certain activated carbon that Petitioners identified in the petition. Also, on April 4, 2006, the Department sent a letter requesting Q&V information to the China Bureau of Fair Trade for Imports & Exports (“BOFT”) of the Ministry of Commerce (“MOFCOM”) requesting that BOFT transmit the letter to all companies who manufacture and export subject merchandise to the United States, or produce the subject merchandise for the companies who were engaged in exporting the subject merchandise to the United States during the period of investigation (“POI”).
The Q&V information was due on April 19, 2006. The Department received twenty-three responses. The Department did not receive any type of communication from BOFT regarding its request for Q&V information. For a complete list of all parties from which the Department requested Q&V information,
On April 21, 2006, the United States International Trade Commission (“ITC”) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports from the PRC of certain activated carbon. The ITC's determination was published in the
On May 3, 2006, the Department selected Calgon Carbon (Tianjin) Co., Ltd. (“CCT”), Tianjin Jacobi Int'l Trading Co., Ltd. (“Jacobi Tianjin”), and Datong Huibao Activated Carbon Co., Ltd and its affiliated company Beijing Hibridge Trading Co., Ltd. (“Huibao/Hibridge”), as mandatory respondents in this investigation.
On May 15, 2006, the Department received a letter from Huibao/Hibridge, informing the Department that Huibao/Hibridge was withdrawing from this investigation.
On May 19, 2006, the Department selected an additional mandatory respondent, Jilin Province Bright Future Chemicals Co. Ltd. (“JBF Chemical”) and its affiliated company Jilin Province Bright Future Industry & Commerce Co. Ltd. (“JBF Industry”) (collectively, “Jilin Bright Future”).
On April 20, 2006, the Department requested comments from all interested parties on proposed product characteristics to be used in the designation of control numbers (“CONNUMs”) to be assigned to the subject merchandise. The Department received comments from Petitioners. On May 10, 2006, the Department released the product characteristics to be used in the designation of CONNUMs to be assigned the subject merchandise.
On June 1, 2006, the Department determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development.
On June 6, 2006, the Department invited interested parties to comment on the Department's surrogate country selection and/or significant production in the potential surrogate countries and to submit publicly available information to value the factors of production. On July 25, 2006, we received comments from Petitioners on the selection of a surrogate country. No other party to the proceeding submitted information or comments concerning the selection of a surrogate country. For a detailed discussion of the selection of the surrogate country,
On July 25, 2006, Jacobi Tianjin submitted comments on information with which to value the factors of production in this investigation. Petitioners and Jilin Bright Future submitted comments on information with which to value the factors of production in this investigation on August 10, 2006. Petitioners submitted additional comments on August 21, 2006.
We received questionnaire responses from the mandatory respondents in June and July 2006, and we issued supplemental questionnaires and received responses in July, August, and September 2006. We received separate rate applications from 20 companies.
On July 21, 2006, Petitioners made a timely request pursuant to 733(c)(1)(A) of the Act and 19 CFR 351.205(e) for a fifty-day postponement of the preliminary determination, until October 4, 2006. On August 2, 2006, the Department published a postponement of the preliminary antidumping duty determination on certain activated carbon from the PRC.
Section 735(a)(2) of the Act provides that a final determination may be postponed until no later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise or, in the event of a negative preliminary determination, a request for such postponement is made by the Petitioners. The Department's regulations at 19 CFR 351.210(e)(2) require that requests by respondents for postponement of a final determination be accompanied by a request for an extension of the provisional measures from a four-month period to not more than six months.
On September 26, 2006, CCT requested the Department postpone its final determination by 60 days until 135 days after the publication of the preliminary determination. Additionally, CCT requested that the Department extend the provisional measures under Section 733(d) of the Act. Accordingly, because we have made an affirmative preliminary determination and the requesting parties account for a significant proportion of the exports of the subject merchandise, pursuant to 735(a)(2) of the Act, we have postponed the final determination until no later than 135 days after the date of publication of the preliminary determination and are extending the provisional measures accordingly.
The period of investigation (“POI”) is July 1, 2005, through December 31, 2005.
This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition (March 8, 2006).
The merchandise subject to this investigation is certain activated carbon. Certain activated carbon is a powdered, granular, or pelletized carbon product obtained by “activating” with heat and steam various materials containing carbon, including but not limited to coal (including bituminous, lignite, and anthracite), wood, coconut shells, olive stones, and peat. The thermal and steam treatments remove organic materials and create an internal pore structure in the carbon material. The producer can also use carbon dioxide gas (CO
The scope of this investigation covers all forms of activated carbon that are activated by steam or CO
Excluded from the scope of the investigation are chemically-activated carbons. The carbon-based raw material used in the chemical activation process is treated with a strong chemical agent, including but not limited to phosphoric acid, zinc chloride sulfuric acid or potassium hydroxide, that dehydrates molecules in the raw material, and results in the formation of water that is removed from the raw material by moderate heat treatment. The activated carbon created by chemical activation has internal porosity developed primarily due to the action of the chemical dehydration agent. Chemically activated carbons are typically used to activate raw materials with a lignocellulosic component such as cellulose, including wood, sawdust, paper mill waste and peat.
To the extent that an imported activated carbon product is a blend of steam and chemically activated carbons, products containing 50 percent or more steam (or CO
Also excluded from the scope are reactivated carbons. Reactivated carbons are previously used activated carbons that have had adsorbed materials removed from their pore structure after use through the application of heat, steam and/or chemicals.
Also excluded from the scope is activated carbon cloth. Activated carbon cloth is a woven textile fabric made of or containing activated carbon fibers. It is used in masks and filters and clothing of various types where a woven format is required.
Any activated carbon meeting the physical description of subject merchandise provided above that is not expressly excluded from the scope is included within this scope. The products under investigation are currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 3802.10.00. Although HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.
In accordance with the preamble to our regulations (
On May 4, 2006, Carbochem Inc. (“Carbochem”) submitted timely scope comments in which it argued that the Department should issue a ruling that the scope of these investigations does not cover certain grades of Carbochem® activated carbon. Carbochem argued that these certain grades are not manufactured in the United States by the Petitioners. Carbochem further argued that it has developed a number of unique and proprietary grades of activated carbon that exceed the performance capabilities of the products produced by Petitioners.
On August 24, 2006, Petitioners submitted comments on Carbochem's scope request. Petitioners argued that
The Department has analyzed the comments received by Carbochem and Petitioners. For this preliminary determination, the Department has determined to deny the request by Carbochem. For a detailed discussion of this issue,
Section 777A(c)(1) of the Act directs the Department to calculate individual weighted-average dumping margins for each known exporter and producer of the subject merchandise. Section 777A(c)(2) of the Act gives the Department discretion, when faced with a large number of exporters/producers, to limit its examination to a reasonable number of such companies if it is not practicable to examine all companies. Where it is not practicable to examine all known producers/exporters of subject merchandise, this provision permits the Department to investigate either (A) a sample of exporters, producers, or types of products that is statistically valid based on the information available to the Department at the time of selection or (B) exporters/producers accounting for the largest volume of the merchandise under investigation that can reasonably be examined. After consideration of the complexities expected to arise in this proceeding and the available resources, the Department determined that it was not practicable in this investigation to examine all known producers/exporters of subject merchandise. Instead, we limited our examination to the three exporters accounting for the largest volume of shipments of the subject merchandise to the United States during the POI pursuant to section 777A(c)(2)(B) of the Act. We selected CCT, Jacobi Tianjin, and Huibao/Hibridge to be mandatory respondents, as they are the exporters accounting for the largest volume of exports to the United States during the POI of subject merchandise from the PRC. After Huibao/Hibridge informed the Department that it was withdrawing from this investigation, the Department selected Jilin Bright Future as a mandatory respondent. Jilin Bright Future was the next largest producer/exporter of those companies that submitted quantity and value responses.
For purposes of initiation, Petitioners submitted LTFV analyses for the PRC as a non-market economy (“NME”).
When the Department is investigating imports from an NME, section 773(c)(1) of the Act directs it to base normal value, in most circumstances, on the NME producer's factors of production valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise. The sources of the surrogate values we have used in this investigation are discussed under the normal value section below.
On July 25, 2006, the Department received comments from Petitioners on the appropriate surrogate country for valuing the factors of production (“FOP”). Petitioners argue that India is the most appropriate surrogate country in this investigation because India is at a comparable level of economic development with the PRC based on the Department's repeated use of India as a surrogate. Petitioners also provided evidence demonstrating that India is a significant producer of identical and comparable merchandise. Additionally, Petitioners contend that India provides publicly available information on which to base surrogate values. See Surrogate Country Memo for a complete description of Petitioners' surrogate country arguments.
As detailed in the Surrogate Country Memo, the Department has preliminarily selected India as the surrogate country on the basis that: (1) It is a significant producer of comparable merchandise; (2) it is at a similar level of economic development pursuant to 733(c)(4) of the Act; and (3) we have reliable data from India that we can use to value the FOP.
In accordance with 19 CFR 351.301(c)(3)(i), for the final determination in an antidumping investigation, interested parties may submit publicly available information to value the FOP within forty days after the date of publication of the preliminary determination.
Based on the evidence on the record of this investigation, we preliminarily find that Jacobi Tianjin, Jacobi Carbons AB (“Jacobi AB”), and Jacobi Carbons Inc. (“Jacobi US”) (collectively, “Jacobi”) are affiliated pursuant to sections 771(33)(D), (E), and (G) of the Act. Due to the proprietary nature of this issue, for a detailed discussion of our analysis,
With respect to Jilin Bright Future, JBF Chemical and JBF Industry submitted separate rate applications on May 4, 2006. In their applications, JBF Chemical and JBF Industry certified that they were affiliated with each other.
CCT has reported that it is wholly foreign-owned. CCT reported that 100 percent of its shares are held by Calgon Carbon Corporation, which is located in the United States. Therefore, there is no PRC ownership of CCT, and because we have no evidence indicating that it is under the control of the PRC, a separate rates analysis is not necessary to determine whether it is independent from government control.
As discussed in detail in the Jacobi Affiliation and Treatment of Sales Memo, the Department has preliminarily determined that Jacobi Tianjin should not be considered the mandatory respondent in this investigation. The Department has preliminarily determined that Jacobi Tianjin's affiliated company, Jacobi AB, conducted all sales-related activities with respect to exports made by Jacobi Tianjin of the merchandise under investigation and sold to unaffiliated U.S. customers through Jacobi US.
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. As explained below, Jilin Bright Future and certain companies who submitted separate rate applications have provided company-specific information in order to demonstrate that they operate independently of
The separate rate application issued in this investigation (see
We have considered whether each mandatory respondent and each separate rate applicant
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
The Department considers the following
The information provided by Jilin Bright Future and the separate rate applicants supports a preliminary finding of
Typically the Department considers four factors in evaluating whether each respondent is subject to
As noted above, the Department considers four factors in evaluating whether each respondent is subject to
With regard to Panshan, it failed to provide any evidence that it had autonomy in making decisions regarding the selection of management. The separate rate application requires that the applicant provide specific documentation that evidences independence in the selection of management. Panshan did not provide any evidence of independent selection of management in its application nor in its supplemental response in regard to a specific question from the Department asking for this documentation.
The evidence placed on the record of this investigation by Jilin Bright Future and the separate rate applicants, except for Panshan, demonstrates an absence of
CCT, Jacobi, Jilin Bright Future, and Huibao/Hibridge were given the opportunity to respond to the Department's questionnaire. As explained above, we received complete separate rates information from CCT, Jacobi, and Jilin Bright Future, and these entities will receive their own rate. The PRC-wide rate applies to all entries of subject merchandise except for entries from PRC producers/exporters that have their own calculated rate.
We note that Section 776(a)(1) of the Act mandates that the Department use the facts available if necessary information is not available on the record of an antidumping proceeding. In addition, section 776(a)(2) of the Act provides that if an interested party or any other person: (A) Withholds information that has been requested by
As addressed below separately for each company, we find that the PRC-wide entity, Huibao/Hibridge, and certain suppliers of CCT, did not respond to our request for information, and necessary information either was not provided, or the information provided cannot be verified and is not sufficiently complete to enable the Department to use it for this preliminary determination. Therefore, we find it necessary, under section 776(a)(2) of the Act, to use facts otherwise available as the basis for the preliminary determination of this review for the PRC-wide entity, Huibao/Hibridge, and certain suppliers of CCT.
In their pre-preliminary determination comments, Petitioners have argued for the application of total adverse facts available (“AFA”) with respect to Huibao/Hibridge, Datong Huibao Activated Carbon Co., Ltd. (“Datong Huibao”) as a supplier to CCT and Jacobi, as well as for total AFA for Jacobi and Jilin Bright Future. As discussed below, we find that total AFA is warranted for Huibao/Hibridge, but AFA is unwarranted for Datong Huibao as a supplier to CCT and Jacobi, and total AFA is unwarranted for Jacobi and Jilin Bright Future.
Petitioners argue that the Department should apply total AFA to Jacobi, as the U.S. sales and factors of production data provided are unreliable. Petitioners allege the information on the record demonstrates a lack of cooperation and that the data is of poor quality and is inconsistent. Petitioners argue that Jacobi's data are based on unsubstantiated estimates and certain documentation has been destroyed, and that, though Jacobi has been given an opportunity to remedy its mistakes, the mistakes still exist. Petitioners also assert that the application of partial AFA is not practicable due to the cumulative effect of the errors, which renders the data unusable. Specifically, Petitioners argue that the omissions and errors include: Failure to identify the composition of carbonized materials and coal inputs for appropriate surrogate valuation; failure to report factors of production for sales of powdered activated carbon; unsubstantiated electricity and water consumption; refusal to report product-specific consumption of impregnation inputs; and its use of standard consumption amounts without appropriate documentation.
The Department disagrees with Petitioners that the use of AFA is appropriate with respect to Jacobi. As noted above, Jacobi responded to the Department's original questionnaire, and several supplemental questionnaires.
Contrary to Petitioners' assertions, Jacobi has provided detailed and potentially verifiable information on its allocation methodologies (
For certain of its suppliers, CCT did not report the factors of production used to produce the subject merchandise. Therefore, in accordance with sections 776(a)(2)(A) and (B) of the Act, the
The Department preliminarily finds that, in accordance with sections 776 (a)(2)(A) and (B) of the Act, CCT did not cooperate to the best of its ability regarding its suppliers HD and NC and has determined to use adverse facts available for the preliminary determination with regard to these suppliers and will apply the highest calculated normal value for CCT to the sales of merchandise supplied by HD and NC.
Further, CCT also informed the Department that certain of its suppliers purchased activated carbon from other producers which was then sold to CCT. CCT did not provide the FOP information for these ultimate suppliers. On August 18, 2006, a full month after CCT's original Section D response was due, CCT informed the Department that certain of the companies that it had previously identified as producers, had in fact sourced activated carbon from upstream producers, which was then sold to CCT. CCT specifically identified suppliers Shanxi Xuanzhong Chemical Industry Co., Ltd. (“SXZ”), Huairen Jinbei Chemical Co. Ltd. (“JB”) and Jiaocheng Xinxin Purification Material Co., Ltd. (“XX”) as having sourced activated carbon from upstream producers. In CCT's September 12, 2006 response, CCT identified SXZ's suppliers as Datong Changtai Activated Carbon Co., Ltd. (“DCA”), and Yuyang Activated Carbon Co., Ltd. (“YAC”) and XX's suppliers as Datong Kangda Activated Carbon Factory (“DKA”) and Datong Runmei Activated Carbon Factory (“DRA”).
CCT provided documentation of its attempts to obtain the data from the companies, and also argued that alternative data is available to the Department because certain products are also produced by other suppliers from whom we have FOP information. CCT provided declarations from officials from DCA, DKA, and DRA which stated that these are small companies that do not have the time and labor to provide the requested data. See September 12, 2006, supplemental response at Exhibit D-42.
As stated above, CCT stated that its supplier XX purchased activated carbon produced by DKA and DRA which was then sold to CCT.
On September 19, 2006, CCT informed the Department that it was also supplied by Ningxia Yinchuan Lanqiya Activated Carbon Co., Ltd. (“LQY”), and that sales of merchandise produced by LQY were made by CCT pursuant to municipal contracts awarded during the POI. As discussed below in the “Date of Sale” Section, CCT reported that the appropriate date of sale for municipal contracts is the date of the contract award, which is the date when the price and quantity are fixed. Therefore, although certain sales of LQY were invoiced in 2006, which is after the POI, they were made pursuant to municipal contracts from the POI and the appropriate date of sale for these sales is the date the municipal contract was awarded. CCT did include these sales in its U.S. sales database, but did report the FOP information for these sales.
On September 28, 2006, CCT also informed the Department that it was also supplied by Dushanzi Chemical Factory (“DSZ”).
The Department's original questionnaire asked CCT to report the factors of production for the ultimate producer of the merchandise under consideration. The original questionnaire states, “If your company did not produce the merchandise under consideration, we request that this section be immediately forwarded to the company that produces the merchandise and supplies it to you or to your customers.”
We are also requiring CCT to report the FOP information for the ultimate producer of the merchandise under consideration. Therefore, for those suppliers of CCT who purchased merchandise under consideration from another supplier, whether affiliated or unaffiliated, which was then sold to CCT, we
CCT did not provide any FOP data from SXZ, DCA, YAC, DSZ, TX, LQY, DRA, or DKA. Furthermore, XX purchased most of the activated carbon it sold to CCT from DRA and DKA. As such, since CCT did not provide the FOP data from these suppliers after being given two opportunities to do so, the Department finds that the application of adverse facts available is warranted because CCT did not act to the best of its ability. It is the Department's practice to obtain the FOP data from the actual producer of the merchandise under consideration. CCT was therefore required to provide this FOP information and did not do so. Pursuant to section 776(b) of the Act, the Department may use information that is adverse to the interest of that party when the party fails to cooperate by not acting to the best of its ability in responding to the Department's request for information.
In order for the Department to fulfill its obligation to calculate dumping margins as accurately as possible, it is essential that respondents provide the Department with accurate, complete, and verifiable information. In striving to obtain this information, the Department has discretion to modify its reporting requirements when an interested party explains why it is unable to submit the information in the requested form and manner and suggests alternative reporting forms. However, if the necessary information is not on the record, section 776(a)(1) of the Act provides for the use of facts available.
Moreover, if an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information, the Department may apply adverse inferences where the use of facts available is appropriate.
In the instant investigation, as partial AFA, we have assigned the highest calculated normal value for CCT to the sales of the following suppliers for which CCT did not provide FOP information: SXZ (which includes its ultimate suppliers DCA and YAC); DSZ; TX; LQY; and, XX (which includes its ultimate suppliers DKA and DRA). It was not necessary to apply the highest calculated normal value for CCT to JB's supplier, Fangyuan Carbonization Co., Ltd., because all activated carbon sold in that supply chain was further manufactured in the United States and was subject to exclusion pursuant to the special rule.
Petitioners also argue in their pre-preliminary comments on Jilin Bright Future, dated September 13, 2006, that total AFA is warranted with respect to Jilin Bright Future because Jilin Bright Future has failed to provide reliable factors of production data. Petitioners assert that Jilin Bright Future's submissions to date demonstrate a lack of cooperation due to the low quality and internal inconsistency of the data. Petitioners allege that the information submitted is based on unsubstantiated and unexplained estimates based on aggregate allocations irrespective of product characteristics. Petitioners argue that despite an opportunity to remedy its errors, Jilin Bright Future failed to do so. Therefore, Petitioners argue, the totality of the deficiencies support the application of total AFA. Petitioners assert that the range of the problems with Jilin Bright Future's response precludes the application of partial AFA. Further, Petitioners argue that some of the information with respect to normal value is not available on the record making the data unusable, and AFA is warranted. Petitioners argue that Jilin Bright Future does not warrant a separate rate due to unexplained connections with its predecessor companies. Further, Petitioners assert that it has provided no support for the reported FOPs of Zuoyun Bright Future Activated Carbon Plant (“ZBF”), one of Jilin Bright Future's suppliers of subject merchandise during the POI. Petitioners discuss in detail claimed deficiencies with ZBF's reported FOPs in their September 13, 2006, submission, a proprietary discussion that cannot be summarized here. In addition, Petitioners assert that Jilin Bright Future's reported standard consumption amounts for ZBF are based on a value-based allocation methodology rather than the physical amounts actually consumed, an allocation methodology that Jilin Bright Future has not supported. Petitioners also argue that the basis for this value-based allocation, that granular activated carbon has higher costs than powdered activated carbon, is unsupported by Jilin Bright Future's own statements that the production process for these products is the same prior to the screening process.
The Department disagrees with Petitioners that the use of total AFA is appropriate with respect to Jilin Bright Future. As noted above, Jilin Bright Future responded to the Department's original questionnaire, and several supplemental questionnaires.
In addition, Petitioners' allegation that Jilin Bright Future's data are based on unsubstantiated estimates is unfounded. Jilin Bright Future has provided potentially verifiable information on the standards used in the ordinary course of business by its suppliers for raw materials, including coal, and constructed a reasonable allocation when Jilin Bright Future's suppliers' normal books and records do not maintain the information requested by the Department. In addition, Jilin Bright Future has provided samples of daily production reports that were used by ZBF and standards that were used by Shanxi Xinhua Activated Carbon Co., Ltd. (“Xinhua”) to report utilization quantities to the Department, demonstrating that actual yields are used in the ordinary course of business by its suppliers.
Petitioners argue that Datong Huibao should receive total AFA, consistent with the law and past practice because it withdrew from the proceeding as a mandatory respondent (a.k.a., mandatory respondent Huibao/Hibridge).
The Department does not find that Petitioners' allegation, that U.S. sales made by cooperating mandatory respondents Jacobi and CCT should be assigned an adverse rate simply because these respondents sourced some of their activated carbon from Datong Huibao (a.k.a., mandatory respondent Huibao/Hibridge), is consistent with the statute and regulations. Further, the Department's practice on combination rates as explained in
Jacobi and CCT are mandatory respondents that have responded to the Department's requests for information, except where noted above. Jacobi reported that it sourced a portion of its U.S. sales of subject merchandise from Datong Huibao, and reported the factors of production for Datong Huibao.
The Department does not find that failure to participate as a mandatory respondent should affect the inclusion in a combination rate for another participating mandatory respondent. Section 776(a)(2) of the Act does not provide for the application of adverse facts available for an exporter, in this case Jacobi and CCT, where the information on the record demonstrates that it has provided the information requested by the Department in a timely manner, irrespective of the separate status of any of its suppliers. Therefore, the Department preliminarily determines that sales made by Jacobi and CCT, sourced from merchandise produced by Datong Huibao, should be considered verifiable and the Department will include, for this preliminary determination, these sales in its calculation of a margin for Jacobi and CCT. Further, the Department will, as discussed below under “Combination Rates,” include Datong Huibao in Jacobi and CCT's combination rates.
However, the record of this investigation demonstrates that the mandatory respondent Huibao/Hibridge failed to provide information specifically requested by the Department during the course of this investigation. Huibao/Hibridge was
Section 776(a)(2) of the Act provides that, if an interested party (A) withholds information that has been requested by the Department, (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. Information on the record of this investigation indicates that the PRC-wide entity was non-responsive. Huibao/Hibridge did not respond to our questionnaire. As a result, pursuant to section 776(a)(2)(A) of the Act, we find that the use of facts available is appropriate to determine the PRC-wide rate.
Further, section 776(b) of the Act authorizes the Department to use as AFA information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate for adverse facts available, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
As there were three margins from the petition, we have used the highest one of the three that is corroborated by the individual margins for the mandatory respondents; this margin is 228.11 percent. Therefore, we have applied the highest corroborated rate of 228.11 percent to the PRC-wide entity.
Section 776(c) of the Act requires that, when the Department relies on secondary information rather than on information obtained in the course of an investigation as facts available, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal.
As discussed in the Memorandum to the File regarding the corroboration of the AFA rate, dated October 4, 2006, we found that the margin of 228.11 percent has probative value.
The Department will consider all margins on the record at the time of the final determination for the purpose of determining the most appropriate AFA rate for the PRC-wide entity.
The Department received timely and complete separate rates applications from the Separate Rates Companies, who are all exporters of certain activated carbon from the PRC, which were not selected as mandatory respondents in this investigation. Through the evidence in their applications, these companies have demonstrated their eligibility for a separate rate, as discussed above in the “Separate Rates” section and in the Separate Rates Memo. Consistent with the Department's practice, as the separate rate, we have established a weight-averaged margin for the Separate Rates Companies based on the rates we calculated for the mandatory respondents, the companies for which the Department calculated an antidumping duty margin for this preliminary determination, excluding any rates that are zero,
Section 351.401(i) of the Department's regulations state that,
In identifying the date of sale of the subject merchandise or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the normal course of business. However, the Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.
After examining the questionnaire responses and the sales documentation that Jacobi and Jilin Bright Future provided, we preliminarily determine that invoice date is the most appropriate date of sale for Jacobi and Jilin Bright Future. Jacobi and Jilin Bright Future do not dispute that invoice date is the appropriate date of sale, and the information on the record supports this contention. CCT, however, reported that the appropriate date of sale for spot sales and sales pursuant to framework agreements is the date of invoice while the appropriate date of sale for municipal contracts is the date of the contract award, which is the date when the price and quantity are fixed. The Department finds that, based on the information on the record, CCT has rebutted the presumption that invoice date is the appropriate date of sale for municipal contract sales and the award contract date is the most appropriate date of sale for these types of sales.
To determine whether sales of certain activated carbon to the United States by CCT, Jacobi, and Jilin were made at less than fair value, we compared either export price (“EP”) or constructed export price (“CEP”) to normal value (“NV”), as described in the “U.S. Price,” and “Normal Value” sections of this notice. We compared NV to weighted-average EPs and CEPs in accordance with section 777A(d)(1) of the Act.
For Jilin Bright Future, we based U.S. price on EP in accordance with section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and CEP was not otherwise warranted by the facts on the record. We calculated EP based on the packed price from the exporter to the first unaffiliated customer in the United States. Where applicable, we deducted foreign movement expenses and foreign brokerage and handling expenses from the starting price (gross unit price), in accordance with section 772(c)(2) of the Act. Where foreign movement services were provided by PRC service providers or paid for in Renminbi (“RMB”), we valued these services using surrogate values (
Jilin Bright Future reported that it made U.S. sales of subject merchandise in November 2005, which it characterized as “sample sales” and reported these sales in its Section C database. Jilin Bright Future argues that these samples should be “excluded from the Section C database as an abnormal sale, based on the fact that the amount of sample was comparably small and the production for that certain sample was specially from the laboratory.”
The Federal Circuit has not required the Department to exclude zero-priced or
As noted above, an analysis of Jilin Bright Future's Section C computer sales listings reveals that it provided these “samples” to the same customers to whom it was selling or had sold products in commercial quantities, and, in this case, on the same invoice.
For CCT and Jacobi, we based U.S. price on CEP in accordance with section 772(b) of the Act, because sales were made on behalf of the PRC-based company by its U.S. affiliate to unaffiliated purchasers. For CCT and Jacobi's sales, we based CEP on packed, delivered or ex-warehouse prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling adjustments, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States. We deducted, where appropriate, commissions, inventory carrying costs, interest revenue, credit expenses, warranty expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by PRC service providers or paid for in Renminbi, we valued these services using surrogate values (
CCT also requested that the Department apply the “special rule” for merchandise with value added after importation and excuse CCT from reporting U.S. resales of subject merchandise further processed by Calgon Carbon Corporation (“CCC”), CCT's U.S. parent company, in the United States and the U.S. further-processing cost information associated with the resales. CCT made this request with respect to all categories of U.S. sales with further manufacturing.
Where the subject merchandise is imported by a person affiliated with the exporter or producer, and the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise, the administering authority shall determine the constructed export price for such merchandise by using one of the following prices if there is a sufficient quantity of sales to provide a reasonable basis for comparison, and the administering authority determines that the use of such sales is appropriate:
(1) The price of identical subject merchandise sold by the exporter or producer to an unaffiliated person.
(2) The price of other subject merchandise sold by the exporter or producer to an unaffiliated person.
If there is not sufficient quantity of sales to provide a reasonable basis for comparison under paragraph (1) and (2), or the administering authority determines that neither of the prices described in such paragraphs is appropriate, then the constructed export price may be determined on any other reasonable basis.
Also, the Department's regulation, 19 CFR 351.402(c)(2), states that the value added in the United States by the affiliated person is likely to exceed substantially the value of the subject merchandise when the value added is estimated to be at least 65 percent of the price charged to the first unaffiliated purchaser for the merchandise as sold in the United States. For a full discussion of the issue,
The Department's original questionnaire defines “other direct selling expenses” to be “the unit cost of other direct selling expenses you incurred on sales of the subject merchandise which are not reported in other fields.”
Section 773(c)(1) of the Act provides that the Department shall determine the NV using a factors-of-production methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOP because the presence of government controls on various aspects of non-market economies renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
During the POI, CCT did not have production of all types of merchandise for which it had POI sales. Consequently, CCT requested that it be allowed to report the factors-of-production data for the most similar products produced during the POI as a surrogate for products sold during the POI, but produced prior to the POI. However, the Department denied this request and requested that CCT expand the FOP reporting for certain suppliers to report the FOP data based on twelve months from January 1, 2005 to December 31, 2005.
On June 29, 2006, CCT requested to be excused from reporting factors of production data for certain of its suppliers due to the large number of suppliers from which CCT purchased certain activated carbon during the POI. Due to the large numbers of producers that supplied CCT during the POI, the Department excused CCT from reporting the factors of production data for certain suppliers and also the quantity relating to the unknown suppliers for which CCT had been unable to identify the actual suppliers.
Jacobi has reported certain U.S. sales of powdered activated carbon, sourced from Datong Huibao, that Jacobi considers a byproduct of the production process. Jacobi states on page 12 of its Second Supplemental that it is unable to determine appropriate FOPs for this CONNUM, because Datong Huibao has no way of determining the products from which it was generated. Jacobi argues that all material inputs have been reported in the other products produced during the POI by this supplier, and Datong Huibao has no basis by which to make an allocation to this product. Based on the information on the record, the Department has preliminarily determined that Jacobi acted to the best of its ability, and that to apply an allocation which would increase the quantity of input and output on Datong Huibao's factors of production worksheets would make any reconciliation of Datong Huibao's factors of production impossible. Therefore, the Department has preliminarily determined to apply neutral facts available and apply the average of the usage rates reported by Datong Huibao to the unreported factors for this CONNUM.
In accordance with section 773(c) of the Act, we calculated NV based on factors of production reported by respondents for the POI, except as noted above. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Indian surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import surrogate values a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory of production or the distance from the nearest seaport to the factory of production where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in
For this preliminary determination, in accordance with the Department's practice, we used data from the Indian Import Statistics in order to calculate surrogate values for the mandatory respondents' material inputs, except where noted below. In selecting the best available information for valuing FOP in accordance with section 773(c)(1) of the Act, the Department's practice is to select, to the extent practicable, surrogate values which are non-export average values, most contemporaneous with the POI, product-specific, and tax-exclusive.
Furthermore, with regard to the Indian import-based surrogate values, we have disregarded import prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized. We have found in other proceedings that these countries maintain broadly available, non-industry-specific export subsidies and, therefore, it is reasonable to infer that all exports to all markets from these countries may be subsidized.
We valued certain factors based on price data obtained from the Indian publication
To value electricity, the Department used rates from
Jacobi has reported that it purchased plastic bags during the POI from a market economy country and paid for these bags in a market economy currency. However, the Department has preliminarily determined that certain of these bags should more appropriately be valued using surrogate values because they were purchased from countries that maintain subsidies or were purchased prior to the POI.
For direct, indirect, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in November 2005,
Because water is essential to the production process of the subject merchandise, the Department is considering water to be a direct material input, and not as overhead, and valued water with a surrogate value according to our practice.
For natural gas, we applied a surrogate value obtained from the Gas Authority of India Ltd. Web site, a supplier of natural gas in India, covering the period January through June 2002. In addition, based on the February 1, 2005, article from
The Department valued steam following the methodology used in the investigation of
The Department used Indian transport information in order to value the freight-in cost of the raw materials. We determined the best available information for valuing truck freight to be from
The Department used two sources to calculate a surrogate value for domestic brokerage expenses. The Department used a simple average of the publicly summarized version of the average value (adjusted for inflation) for brokerage and handling expenses reported in the U.S. sales listings in the submission from Essar Steel Ltd. (Essar Steel), dated February 28, 2005, in the antidumping duty review of Certain Hot-Rolled Carbon Steel Flat Products from India, and the submission from Agro Dutch Industries Limited (Agro Dutch), dated May 24, 2005, in the antidumping duty administrative review of Certain Preserved Mushrooms from India.
With respect to the respondents' request for by-product offsets, the Department has preliminarily determined that the products respondents have claimed as a by-product are in fact merchandise within the scope of this investigation because they are still considered activated carbon, and, therefore, should not be considered a by-product. We are therefore not granting by-product credits in our margin calculations, except for coal tar as reported by Jilin Bright Future because this is not subject merchandise.
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i)(1) of the Act, we intend to verify the information upon which we will rely in making our final determination.
In the
The
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation. See
Also, the Department is not including Ningxia Haoqing Activated Carbon Co., Ltd (“HQG”), or Ningxia Guanghua Activated Carbon Co., Ltd (“GH”), in the combination rate for CCT as both HQG and GH are trading companies who sold other companies' merchandise to CCT during the POI.
The weighted-average (“WA”) dumping margins are as follows:
As discussed above in the “Affiliation” section, the WA Margin of Jacobi Carbons AB of 49.09 percent applies to exports made by Jacobi Tianjin.
We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 733(d) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of subject merchandise, entered, or
In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at less than fair value. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of certain activated carbon, or sales (or the likelihood of sales) for importation, of the subject merchandise within 45 days of our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date of the final verification report is issued in this proceeding.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we intend to hold the hearing three days after the deadline of submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Ave. NW., Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice.
We will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting new shipper antidumping duty reviews of freshwater crawfish tail meat from the People's Republic of China (“PRC”) in response to requests by Nanjing Merry Trading Co., Ltd. (“Nanjing Merry”), Leping Lotai Foods Co., Ltd. (“Leping Lotai”), Weishan Hongrun Aquatic Co., Ltd. (“Weishan Hongrun”), and Shanghai Strong International Trading Co., Ltd. (“Shanghai Strong”). These reviews cover shipments to the United States for the period September 1, 2005, to February 28, 2006, by these four respondents. For the reasons discussed below, we are extending the preliminary results of the new shipper reviews of Nanjing Merry, Leping Lotai, and Weishan Hongrun by an additional 90 days, and the new shipper review of Shanghai Strong by an additional 65 days, to no later than January 23, 2007.
October 11, 2006.
Erin Begnal or Mike Quigley; 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 and (202) 482-4047, respectively.
The Department received timely requests from Nanjing Merry, Leping Lotai, Weishan Hongrun, and Shanghai Strong in accordance with 19 CFR 351.214(c) for new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the PRC. On May 5, 2006, the Department found that the requests for review with respect to Nanjing Merry, Leping Lotai, and Weishan Hongrun met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated these new shipper antidumping duty reviews covering the period September 1, 2005, through February 28, 2006.
On May 31, 2006, the Department found that the request for review with respect to Shanghai Strong met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated a new shipper antidumping duty review covering the period September 1, 2005, through February 28, 2006.
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(i)(1) require the Department to issue the preliminary results of a new shipper review within 180 days after the date on which the new shipper review was initiated and final results of a review within 90 days after the date on which the preliminary results were issued. The Department may, however, extend the deadline for completion of the preliminary results of a new shipper review to 300 days if it determines that the case is extraordinarily complicated (19 CFR 351.214 (i)(2))
.
The Department has determined that the review is extraordinarily complicated as the Department must gather additional publicly available information, issue additional supplemental questionnaires, and conduct verifications of the four respondents. Based on the timing of the case and the additional information that must be gathered and verified, the preliminary results of this new shipper review cannot be completed within the
This notice is published pursuant to sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act
.Import Administration, International Trade Administration, Department of Commerce.
In response to a request by domestic interested parties,
The Department has preliminarily determined that the companies subject to this review made U.S. sales of SSWR at prices less than normal value (“NV”). If these preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results of review. We will issue the final results of review no later than 120 days from the date of publication of this notice.
October 11, 2006.
Karine Gziryan or Malcolm Burke, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4081 and (202) 482-3584, respectively.
On September 15, 1998, the Department published in the
On September 30, 2005, in accordance with 19 CFR § 351.213(b)(1), the Domestic Interested Parties requested that the Department conduct a review of Changwon and Dongbang Special Steel Co., Ltd. (“Dongbang”), and any of their affiliates (collectively, as a collapsed entity, the “Respondents” or “Changwon/Dongbang”) for the period from September 1, 2004, through August 31, 2005.
In October 2005, the Department initiated an administrative review of the Respondents.
In May 2006, the Department extended the deadline for issuing the preliminary results in this administrative review until October 2, 2006.
The Department is conducting this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the “Act”).
In the less-than-fair value (“LTFV”) investigation in this proceeding, the Department determined that Pohang Iron and Steel Co., Ltd. (“POSCO”), and its subsidiary, Changwon, were affiliated with Dongbang through a close supplier relationship and that all three companies should be treated as one entity (collapsed).
Consistent with the record from the LTFV investigation, we find that the instant record indicates that Dongbang has not obtained suitable black coil from alternative sources but continues to exclusively rely upon POSCO/Changwon for this input.
The POR is September 1, 2004, through August 31, 2005.
For purposes of this order, the products covered are those SSWR that are hot-rolled or hot-rolled annealed and/or pickled and/or descaled rounds, squares, octagons, hexagons or other shapes, in coils, that may also be coated with a lubricant containing copper, lime or oxalate. SSWR is made of alloy steels containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. These products are manufactured only by hot-rolling or hot-rolling annealing, and/or pickling and/or descaling, are normally sold in coiled form, and are of solid cross-section. The majority of SSWR sold in the United States is round in cross-sectional shape, annealed and pickled, and later cold-finished into stainless steel wire or small-diameter bar. The most common size for such products is 5.5 millimeters or 0.217 inches in diameter, which represents the smallest size that normally is produced on a rolling mill and is the size that most wire-drawing machines are set up to draw. The range of SSWR sizes normally sold in the United States is between 0.20 inches and 1.312 inches in diameter.
Two stainless steel grades are excluded from the scope of the order. SF20T and K-M35FL are excluded. The chemical makeup for the excluded grades is as follows:
The products subject to the order are currently classifiable under subheadings 7221.00.0005, 7221.00.0015, 7221.00.0030, 7221.00.0045, and 7221.00.0075 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
During this administrative review, the Respondents reported U.S. sales to trading companies which they classified as unaffiliated parties in their questionnaire responses. The Domestic Interested Parties contend that these trading companies are affiliated with the Respondents through a principal-agent relationship, while the Respondents maintain that they have no agency relationship with these customers. In reviewing the record evidence, we find that the Respondents did not have principal-agent relationships with their respective trading company customers and, therefore, we have preliminarily determined that the Respondents are not affiliated with these customers through a principal-agent relationship pursuant to section 771(33)(G) of the Act.
To determine whether the Respondents sold SSWR in the United States at prices less than NV, the Department compared the export price (“EP”) and CEP of individual U.S. sales to the weighted-average NV of sales of the foreign like product made in the ordinary course of trade in a month contemporaneous with the month in which the U.S. sale was made.
The Department compared U.S. sales to sales made in the home market within the contemporaneous window period, which extends from three months prior to the month in which the U.S. sale was made until two months after the month in which the U.S. sale was made. Where there were no sales of identical merchandise made in the home market in the ordinary course of trade, the Department compared U.S. sales to sales of the most similar foreign
Respondents used invoice date as the date of sale for their EP, CEP, and home market sales. In comments filed with the Department, the Domestic Interested Parties contested the use of the invoice date as the date of sale and argued for use of the order input date or revised purchase order date. Normally, the Department considers the respondent's invoice date as recorded in its business records to be the date of sale unless a date other than the invoice date better reflects the date on which the company establishes the material terms of sale.
The Department based the price of the Respondents' U.S. sales of subject merchandise on EP or CEP, as appropriate. Specifically, when Changwon or Dongbang sold subject merchandise to unaffiliated purchasers in the United States prior to importation, and CEP was not otherwise warranted based on the facts of the record, we based the price of the sale on EP, in accordance with section 772(a) of the Act. Alternatively, when Changwon sold subject merchandise to unaffiliated purchasers in the United States through a U.S. affiliate, Pohang Steel America Corporation (“POSAM”), after importation, we based the price of the sale on CEP, in accordance with section 772(b) of the Act.
In accordance with sections 772(a) and (c) of the Act, we calculated EP using the prices the Respondents charged for packed subject merchandise. From this price we deducted, where applicable, the following expenses: foreign inland freight charges (from the Respondents' plants to the port of exportation) - including wharfage charges, terminal handling charges, container taxes, document and miscellaneous fees, international freight, and marine insurance, consistent with section 772(c)(2)(A) of the Act. Additionally, we added to the starting price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
In accordance with sections 772(c)(2)(A) and 772(d)(1) and (3) of the Act, we calculated CEP using the prices charged for packed subject merchandise sold to the first unaffiliated purchaser in the United States, from which we deducted the following expenses: foreign inland freight (from the Respondents' plants to the port of exportation), brokerage and handling, international ocean freight, marine insurance, container handling fee, harbor fee, other U.S. transportation, U.S. duty, direct and indirect selling expenses (to the extent these expenses are associated with economic activity in the United States), and CEP profit (profit allocated to expenses deducted under sections 772(d)(1) and (d)(2) of the Act in accordance with sections 772(d)(3) and 772(f) of the Act). We computed profit by deducting from total revenue realized on sales in both the U.S. and home markets, all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home markets. Lastly, we added to the starting price an amount for duty drawback pursuant to section 772(c)(1)(B) of the Act.
After testing home market viability, whether home market sales to affiliates were at arm's-length prices, and whether home market sales were at below-cost prices, we calculated NV for Respondents as noted in the “Price-to-Price Comparisons” section of this notice.
In accordance with section 773(a)(1)(C) of the Act, in order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
The Department may calculate NV based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the prices at which sales are made to parties not affiliated with the exporter or producer,
In the most recent administrative review in this proceeding, the Department determined that the Respondents sold foreign like product at prices below the cost of producing the product and excluded such sales from the calculation of NV.
In accordance with section 773(b)(3) of the Act, for each foreign like product sold by the Respondents during the POR, we calculated a weighted-average COP based on the sum of the Respondents' materials and fabrication costs and general and administrative (“G&A”) expenses, including interest expenses. We adjusted the cost data reported by Respondents by setting Changwon's negative interest expense to zero. For further information
In order to determine whether sales were made at prices below the COP, on a product-specific basis we compared the Respondents' weighted-average COP to the prices of its home market sales of foreign like product, as required under section 773(b) of the Act. In accordance with sections 773(b)(1)(A) and (B) of the Act, in determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) in substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all costs within a reasonable period of time. We compared the COP to home market sales prices, less any applicable movement charges, direct and indirect selling, or packing expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the Respondents' sales of a given product were made at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of the Respondents' sales of a given product were made at prices less than the COP during the POR, we determined such sales to have been made in “substantial quantities” for an extended period of time (
Where it was appropriate to base NV on prices, we used the prices at which the foreign like product was first sold by the Respondents for consumption in the home market, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the comparison U.S. sale.
We calculated NV using prices for packed foreign like product delivered to unaffiliated purchasers or, were appropriate, affiliated purchasers in the home market. In accordance with sections 773(a)(6)(A), (B), and (C) of the Act, where appropriate, we deducted from the starting price warranty expenses, movement expenses, home market packing costs, credit expenses and other direct selling expenses, and added U.S. packing costs and, for NVs compared to EPs, credit expenses and other direct selling expenses. Additionally, where appropriate, we made price adjustments for physical differences in the merchandise.
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determined NV based on sales in the home market at the same LOT as the EP or CEP sales. The NV LOT is based on the starting price of the sales in the home market or, when NV is based on constructed value, the starting price of the sales from which we derive selling general and administrative expenses and profit. For EP sales, the U.S. LOT is based on the starting price of the sales to the U.S. market. For CEP sales, the U.S. LOT is based on the starting price of the sales to the U.S. market, as adjusted under section 772(d) of the Act.
To determine whether NV sales are at a different LOT than the EP and CEP sales, the Department examines stages in the marketing process and selling functions along the chain of distribution between the producer and the customer. If the comparison-market sales are at a different LOT than the EP and CEP sales, and the difference affects price comparability, as manifested by a pattern of consistent price differences between comparison-market sales at the NV LOT and comparison-market sales at the LOT of the export transaction, the Department makes a LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales, if the NV LOT is at a more advanced stage of distribution than the CEP LOT and there is no basis for determining whether the difference between the NV and CEP LOTs affects price comparability, the Department adjusts NV under section 773(A)(7)(B) of the Act (the CEP offset provision).
In determining whether the Respondents made sales at separate LOTs, we obtained information from the Respondents regarding the marketing stages for the reported U.S. and home market sales, including a description of the selling activities performed by Respondents for each channel of distribution. Generally, if the reported LOTs are the same, the functions and activities of the seller at each level should be similar. Conversely, if a party reports that LOTs are different for different groups of sales, the selling functions and activities of the seller for each group should be dissimilar.
In the home market, Changwon and Dongbang each sold foreign like product
In the U.S. market, Changwon sold subject merchandise during the POR to trading companies and end users through two channels of distribution, namely through unaffiliated Korean trading companies and an affiliated company located in the United States. Dongbang sold subject merchandise during the POR to trading companies and end users through only one channel of distribution, unaffiliated Korean trading companies. We compared the types of selling activities performed in each channel of distribution, as well as the level of intensity at which each activity was performed and found no significant differences between the U.S. channels.
We then compared the home market LOT to the U.S. market LOT. We did not find substantial differences in the selling activities performed in the two LOTs.
Pursuant to section 773A(a) of the Act, we converted amounts expressed in foreign currencies into U.S. dollar amounts based on the exchange rates in effect on the dates of the U.S. sales, as reported by the Federal Reserve Bank.
As a result of this review, we preliminarily determine that the following weighted- average dumping margin exists for the period September 1, 2004, through August 31, 2005.
Within 10 days of publicly announcing the preliminary results of this review, we will disclose to interested parties any calculations performed in connection with the preliminary results.
In accordance with 19 CFR § 351.212(b)(1), in these preliminary results of review we calculated importer/customer-specific assessment rates. Where the importer/customer-specific assessment rate is above
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification applies to POR entries of subject merchandise produced by companies examined in this review (
The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rate for the companies examined in the instant review will be the rate established in the final results of this review (except that if the rate for a particular company is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR § 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting via teleconference.
The President's Export Council will hold a meeting via teleconference to deliberate a draft recommendation to the President regarding Asia-Pacific Economic Cooperation.
November 1, 2006.
2 p.m. (EST).
The President's Export Council Executive Secretariat, Room 4043, Washington, DC 20230 (Phone: 202-482-1124), or visit the PEC Web site,
National Institute of Standards and Technology, Commerce.
Notice of Public Meeting.
The National Institute of Standards and Technology (NIST) invites interested parties to attend a meeting on November 1, 2006, at 9:30 a.m. at the NIST main campus in Gaithersburg, MD to discuss collaboration, between NIST and industry, in the Autonomous Guided Vehicle (AGV) Consortium. The objective of this meeting will be to briefly explain the proposed consortium tasks and to solicit interested AGV companies to join the consortium. The consortium is open to members joining prior to November 17, 2006. Beyond this date, joining the collaboration will not be allowed. The consortium will research advanced 3D imaging techniques for AGVs over a three phase effort.
The meeting will take place on Wednesday, November 1, 2006, at 9:30 a.m. Interested parties who wish to attend and participate in the meeting must inform NIST at the contact information shown below at least 48 hours prior to the meeting.
The meeting will take place at the National Institute of Standards and Technology (NIST), 100 Bureau Drive, Gaithersburg, MD 20899, Shops Building 304 Conference Room.
Roger Bostelman, Intelligent Systems Division, National Institute of Standards and Technology (NIST), 100 Bureau Drive MS 8230, Gaithersburg, MD 20899. Telephone (301) 975-3426; e-mail:
Any program undertaken will be within the scope and confines of The Federal Technology Transfer Act of 1986 (Pub.
L. 99-502, 15 U.S.C. 3710a), which provides federal laboratories including NIST, with the authority to enter into cooperative research agreements with qualified parties. Under this law, NIST may contribute personnel, equipment, and facilities but no funds to the cooperative research program. This is not a grant program.
National Institute of Standards and Technology, Commerce.
Notice.
The National Fire Protection Association (NFPA) proposes to revise some of its safety codes and standards and requests proposals from the public to amend existing or begin the process of developing new NFPA safety codes and standards. The purpose of this request is to increase public participation in the system used by NFPA to develop its codes and standards. The publication of this notice of request for proposals by the National Institute of Standards and Technology (NIST) on behalf of NFPA is being undertaken as a public service; NIST does not necessarily endorse, approve, or recommend any of the standards referenced in the notice.
The NFPA process provides ample opportunity for public participation in the development of its codes and standards. All NFPA codes and standards are revised and updated every three to five years in Revision Cycles that begin twice each year and that takes approximately two years to complete. Each Revision Cycle proceeds according to a published schedule that includes final dates for all major events in the process. The process contains five basic steps that are followed both for developing new documents as well as revising existing documents. These steps are: Calling for Proposals; Publishing the Proposals in the Report on Proposals; Calling for Comments on the Committee's disposition of the proposals and these Comments are published in the Report on Comments; having a Technical Report Session at the NFPA Annual Meeting; and finally, the Standards Council Consideration and Issuance of documents.
Under new rules effective Fall 2005, anyone wishing to make Amending Motions on the Technical Committee Reports (ROP and ROC) must signal their intention by submitting a Notice of Intent to Make a Motion by the Deadline stated in the ROC.
For more information on these new rules and for up-to-date information on schedules and deadlines for processing NFPA Documents, check the NFPA Web site at
Interested persons may submit proposals on or before the dates listed with the standards.
Casey C. Grant, Secretary, Standards Council, NFPA, 1 Batterymarch Park, Quincy, Massachusetts 02269-7471.
Casey C. Grant, Secretary, Standards Council, at above address, (617) 770-3000.
The National Fire Protection Association (NFPA) develops building, fire, and electrical safety codes and standards. Federal agencies frequently use these codes and standards as the basis for developing Federal regulations concerning safety. Often, the Office of the Federal Register approves the incorporation by reference of these standards under 5 U.S.C. 552(a) and 1 CFR Part 51.
When a Technical Committee begins the development of a new or revised NFPA code or standard, it enters one of two Revision Cycles available each year. The Revision Cycle begins with the Call for Proposals, that is, a public notice asking for any interested persons to submit specific written proposals for developing or revising the Document. The Call for Proposals is published in a variety of publications. Interested parties have approximately twenty weeks to respond to the Call for Proposals.
Following the Call for Proposals period, the Technical Committee holds a meeting to consider and accept, reject or revise, in whole or in part, all the submitted Proposals. The committee may also develop its own Proposals. A document known as the Report on Proposals, or ROP, is prepared containing all the Public Proposals, the Technical Committees' action and each Proposal, as well as all Committee-generated Proposals. The ROP is then submitted for the approval of the Technical Committee by a formal written ballot. If the ROP does not receive approval by a two-thirds vote calculated in accordance with NFPA rules, the Report is returned to the committee for further consideration and is not published. If the necessary approval is received, the ROP is published in a compilation of Reports on Proposals issued by NFPA twice yearly for public review and comment, and the process continues to the next step.
The Reports on Proposals are sent automatically free of charge to all who submitted proposals and each respective committee member, as well as anyone else who requests a copy. All ROP's are also available for free downloading at
Once the ROP becomes available, there is a 60-day comment period during which anyone may submit a Public Comment on the proposed changes in the ROP. The committee then reconvenes at the end of the comment period and acts on all Comments.
As before, a two-thirds approval vote by written ballot of the eligible members of the committee is required for approval of actions on the Comments. All of this information is complied into a second Report, called the Report on Comments (ROC), which, like the ROP, is published and made available for public review for a seven-week period.
The process of public input and review does not end with the publication of the ROP and ROC. Following the completion of the Proposal and Comment periods, there is yet a further opportunity for debate and discussion through the Technical Report Sessions that take place at the NFPA Annual Meeting.
The Technical Report Session provides an opportunity for the final Technical Committee Report (i.e., the ROP and ROC) on each proposed new or revised code or standard to be presented to the NFPA membership for the debate and consideration of motions to amend the Report. Before making an allowable motion at a Technical Report Session, the intended maker of the motion must file, in advance of the session, and within the published deadline, a Notice of Intent to Make a Motion. A Motions Committee appointed by the Standards Council then reviews all notices and certifies all amending motions that are proper. Only these Certified Amending Motions, together with certain allowable Follow-Up Motions (that is, motions that have become necessary as a result of previous successful amending motions) will be allowed at the Technical Report Session.
For more information on dates/locations of NFPA Technical Committee meetings and NFPA Annual Technical Report Sessions, check the NFPA Web site at:
The specific rules for the types of motions that can be made are who can make them are set forth in NFPA's Regulation Governing Committee Projects which should always be consulted by those wishing to bring an issue before the membership at a Technical Report Session.
Interested persons may submit proposals, supported by written data, views, or arguments to Casey C. Grant, Secretary, Standards Council, NFPA, 1 Batterymarch Park, Quincy, Massachusetts 02269-7471. Proposals should be submitted on forms available from the NFPA Codes and Standards Administration Office or on NFPA's Web site at
Each person must include his or her name and address, identify the document and give reasons for the proposal. Proposals received before or by 5 p.m. local time on the closing date indicated would be acted on by the Committee. The NFPA will consider any proposal that it receives on or before the date listed with the codes or standard.
National Oceanic and Atmospheric Administration (NOAA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 11, 2006.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Jonathan Cusick, 360-332-2793 or
This data collection requires that a representative (owner, operator, or manager) for selected catcher vessels participating in the Pacific Coast Groundfish Fishery provide National Marine Fisheries Service with notification at least 24 hours before departure for a fishing trip and notification when the vessel ceases to participate in the observed portion of the fleet. The information will be used to plan for fishery observer assignments.
Telephone calls are required from participants.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Closed Session SEDAR Selection Committee Conference Call.
The Gulf of Mexico Fishery Management Council (Council) will convene its Southeast Data, Assessment and Review (SEDAR) Selection Committee via Conference Call to select participants for SEDAR 12 for red grouper for recommendation to the Council.
The Conference Call will be held on Friday, October 27, 2006, from 11 a.m. EDT to 11:30 a.m. EDT.
The meeting will be held via Closed Session conference call.
Mr. Wayne Swingle, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Gulf of Mexico Fishery Management Council (Council) will convene its Southeast Data, Assessment and Review (SEDAR) Selection Committee in a closed session conference call on Friday, October 27, 2006 at 11 a.m. EDT. The purpose of the meeting is to select members for the SEDAR 12 series for Red Grouper for recommendation to the Council. The Committee recommendations will be presented to the Council at the November 13 - 17, 2006 Council Meeting in Galveston, TX.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Tina Trezza at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The New England Fishery Management Council (Council) is scheduling a public meetings of its Monkfish Advisory Panel and Monkfish Oversight Committee in October and November, 2006, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from these groups will be brought to the full Council for formal consideration and action, if appropriate.
These meetings will be held on Tuesday, October 31, 2006, at 9:30 a.m. and Wednesday, November 1, 2006, at 9:30 a.m.
These meetings will be held at the Sheraton Ferncroft, 50 Ferncroft Road, Danvers, MA 01923; telephone: (978) 777-2500; fax: (978) 750-7991.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The schedule and agenda for the following meetings are as follows:
The advisory panel will review the draft Framework Adjustment 4 documents and analyses and make recommendations to the Monkfish Committee and the Councils for final measures to be adopted at the November New England Council meeting and the December Mid-Atlantic Council meeting, and subsequently submitted to the National Marine Fisheries Service. Framework 4 includes alternatives for target total allowable catch (TAC) alternatives and associated trip limits and days-at-sea (DAS) alternatives for the final three years of the monkfish rebuilding program starting May 1, 2007. Framework 4 also contains other alternatives including eliminating the directed fishery; backstop provisions to ensure that management measures achieve the target TAC on an ongoing basis; modification or elimination of the DAS carryover provision; and modification of the boundary of the North Carolina/Virginia area monkfish fishery. Following the completion of the Framework 4 business, the advisors will discuss and make recommendations to the Monkfish Committee on possible adjustment to the monkfish incidental catch limit on scallop vessels fishing in the scallop closed area access programs. The advisors will also discuss and outline the issues related to the development of a monkfish DAS leasing program.
The Committee will review the draft Framework Adjustment 4 documents and analyses and the recommendations of the Monkfish Advisory Panel and finalize recommendations for measures to be adopted at the November New England Council meeting and the December Mid-Atlantic Council meeting and subsequently submitted to the National Marine Fisheries Service. Framework 4 includes alternatives for target total allowable catch (TAC) alternatives and associated trip limits and days-at-sea alternatives for the final three years of the monkfish rebuilding program starting May 1, 2007. Framework 4 also contains other alternatives including eliminating the directed fishery; backstop provisions to ensure that management measures achieve the target TACs on an ongoing basis; modification or elimination of the DAS carryover provision and
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of Membership of the NOAA Performance Review Board.
In accordance with 5 U.S.C. 4314(c)(4), NOAA announces the appointment of twenty-three members to serve on the NOAA Performance Review Board (PRB). The NOAA PRB is responsible for reviewing performance appraisals and ratings of Senior Executive Service (SES) members and making written recommendations to the appointing authority on SES retention and compensation matters, including performance-based pay adjustments, awarding of bonuses and reviewing recommendations for potential Presidential Rank Award nominees. The appointment of members to the NOAA PRB will be for a period of 24 months.
Claudia McMahon, Executive Resources Program Manager, Workforce Management Office, NOAA, 1305 East-West Highway, Silver Spring, Maryland 20910, (301) 713-6306.
The names and position titles of the members of the NOAA PRB are set forth below (all are NOAA officials except Tyra D. Smith, Director, Human Resources, Bureau of the Census, Department of Commerce; William J. Fleming, Deputy Director for Human Resources Management, Office of Human Resources Management, Department of Commerce:
Department of Defense
Notice of advisory committee meetings.
The Defense Science Board Task Force on Software Assurance will meet in closed session on
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At
In accordance with Section 10(d) of the Federal Advisory Committee Act, Pub. L. No. 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board Task Force meetings concern matters listed in 5 U.S.C. 552b(c)(1) and that, accordingly, the meetings will be closed to the public.
LCDR Clifton Phillips, USN, Defense Science Board, 3140 Defense Pentagon, Room 3C553, Washington, DC 20301-3140, via e-mail at
Due to scheduling and work burden difficulties, there is insufficient time to provide timely notice required by Section 10(a) of the Federal Advisory Committee Act and Subsection 102-3.150(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR Part 102-3.150(b), which further requires publication at least 15 calendar days prior to the meeting.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 11, 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 IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) Will this information be processed and used in a timely manner; (3) Is the estimate of burden accurate; (4) How might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) How might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
The Department is not bound by any estimates in this notice.
This priority is:
Innovation and improvement of international education curricula to serve the needs of the business community, including the development of new programs for nontraditional, mid-career, or part-time students.
These priorities are:
Applications from institutions of higher education that propose educational projects that include activities focused on the targeted world areas of the Middle East, East Asia, South Asia, Russia, and Africa. These projects should be integrated into the curricula of the home institution or institutions.
Applications that focus on developing, improving and/or disseminating best practices of international business training programs, teaching, and curriculum development to increase American competitiveness.
20 U.S.C. 1130-1130b.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
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If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions. However, you may single space all text in charts, tables, figures and graphs.
• Use a font that is either 12-point or larger or no smaller than 10 pitch (characters per inch). However, you may use a 10-point font in charts, tables, figures, and graphs.
• Use one of the following fonts: Times New Roman, Courier, Courier New or Arial. Applications submitted in any other font (including Times Roman, Arial Narrow) will not be accepted.
The page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; the one-page abstract; or the appendices. However, you must include your complete response to the selection criteria in the application narrative.
We will reject your application if—
• You apply these standards and exceed the page limit; or
• You apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically or by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 6.
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We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Business and International Education program at:
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are time and date stamped. Your application must be fully uploaded and submitted, and must be date/time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date/time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date/time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at:
• To submit your application via Grants.gov, you must complete all the steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information typically included on the Application for Federal Assistance (SF 424), Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified above or submit a password protected file, we will not review that material.
• Your electronic application must comply with any page limit requirements described in this notice.
• After you electronically submit your application, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number. The Department will retrieve your application from Grants.gov and send you a second confirmation by e-mail that will include a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
Extensions referred to in this section apply only to the unavailability of or technical problems with the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application. If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Ms. Tanyelle Richardson, U.S. Department of Education, 1990 K Street, NW., 6th Floor, Washington, DC 20006-8521. FAX: (202) 502-7691.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark,
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service,
(3) A dated shipping label, invoice, or receipt from a commercial carrier, or
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark, or
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the Application for Federal Assistance (SF 424) the CFDA number—and suffix letter, if any—of the competition under which you are submitting your application.
(2) The Application Control Center will mail a grant application receipt acknowledgment to you. If you do not receive the grant application receipt acknowledgment within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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The Department will use the following measures to evaluate its success in meeting this objective.
BIE Performance Measures: (1) The number of outreach activities that are adopted or further disseminated within a year, divided by the total number of BIE outreach activities conducted in the current year. (2) Percentage of projects judged to be successful by the program officer, based on a review of information provided in annual performance reports.
If funded, information from your final performance report submitted via the electronic Evaluation of Exchange, Language, International, and Area Studies system will be used to record and evaluate the performance of your project.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
United States Election Assistance Commission.
Notice of Public Meeting and Hearing Agenda.
Thursday, October 26, 2006, 10:00 a.m.-4:00 p.m.
U.S. Election Assistance Commission (EAC), 1225 New York Ave., NW., Suite 1100, Washington, DC 20005. (Metro Stop: Metro Center)
The Commission will conduct a public meeting and hearing on EAC's post-election voting system testing and certification program. The Commission will receive presentations by representatives of the National Institute of Standards and Technology (NIST), representatives of testing laboratories, equipment manufacturers, election officials, community interest groups and Commission staff members. The Commission will also meet to consider other administrative matters.
EAC will provide a public comment period to receive comments regarding the voting system testing and certification program. Members of the public who wish to speak must contact and register with EAC by 5:00 p.m. on Tuesday, October 24, 2006. Speakers may contact EAC via e-mail at
This meeting and hearing will be open to the public.
Bryan Whitener, Telephone: (202) 566-3100.
Department of Energy (DOE).
Notice.
DOE is providing notice to all of its employees, former employees, and applicants for employment about the rights and remedies that are available to them under the Federal antidiscrimination laws and whistleblower protection laws. This notice fulfills DOE's notification obligations under the Notification and Federal Employees Antidiscrimination and Retaliation Act (No FEAR Act), as implemented by Office of Personnel Management (OPM) regulations.
Neil Schuldenfrei, Attorney-Advisor, Office of Civil Rights and Diversity, U.S. Department of Energy, Room 5B-168, 1000 Independence Ave., SW., Washington, DC 20585, telephone (202) 586-5687 (this is not a toll-free number). Hearing-impaired or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” which is now known as the No FEAR Act. One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” Public Law 107-174, Summary. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Public Law 107-174, Title I, General Provisions, section 101(1).
The Act also requires this agency to provide this notice to Federal employees, former Federal employees and applicants for Federal employment to inform you of the rights and protections available to you under Federal antidiscrimination and whistleblower protection laws.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16. In addition, Department of Energy policy prohibits discrimination on the basis of sexual orientation. DOE Order 311.1B, Section (4)(d).
If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, sexual orientation, national origin or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the action, before you can file a formal complaint of discrimination with your agency.
A Federal employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. Section 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street NW., Suite 218, Washington, DC 20036-4505 or online through the OSC Web site—
A Federal agency cannot retaliate against an employee or applicant because that individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protection laws listed above. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described in the Antidiscrimination Laws and Whistleblower Protection Laws sections or, if applicable, the administrative or negotiated grievance procedures in order to pursue any legal remedy.
Under the existing laws, each agency retains the right, where appropriate, to discipline a Federal employee for conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection Laws up to and including removal. If OSC has initiated an investigation under 5 U.S.C. 1214, however, according to 5 U.S.C. 1214(f), agencies must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination
For further information regarding the No FEAR Act regulations, refer to 5 CFR Part 724, as well as the appropriate offices within your agency (
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
Take notice that on September 29, 2006, Alliance Pipeline L.P. (Alliance) tendered for filing to become part of its FERC Gas Tariff, Original Volume No. 1, Tenth Revised Sheet No. 11, to become effective October 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, ANR Pipeline Company (ANR), tendered notice of the termination of a negotiated rate/lease dedication arrangement. ANR also tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Eleventh Revised Sheet No. 190A, to be effective November 1, 2006.
ANR states that a copy of this filing has been served upon ANR's customers and interested state regulatory commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 21, 2006, ANR Pipeline Company (ANR) Pipeline), 1001 Louisiana, Houston, Texas 77002, filed in docket CP06-464-000 an application pursuant to section 7 of the Natural Gas Act (NGA), as amended, for authority to develop, construct, and operate the Storage Enhancement Project—2008, consisting of the acquisition and conversion of the depleted Cold Springs 1 natural gas reservoir located in Kalkaska County, Michigan, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may also be viewed on the Commission's Web site at
Any questions regarding this application should be directed to Dawn McGuire, Attorney, ANR Pipeline Company, 1001 Louisiana, Houston, Texas 77002, or call (713) 420-5503 or fax (713) 420-1601.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of
The Commission strongly encourages electronic filings of comments, protests and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Comment Date: October 24, 2006.
Take notice that on September 29, 2006, ANR Pipeline Company (ANR) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, with an effective date of November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 28, 2006, CenterPoint Energy Gas Transmission Company (CEGT) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, tariff sheets listed below to be effective September 1, 2006. CEGT states that the purpose of this filing is to make certain corrections to tariff sheets submitted on July 12, 2006 to the following tariff sheets:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, East Tennessee Natural Gas, LLC (East Tennessee) submitted a compliance filing pursuant to the letter orders issued on May 4, 2006 and August 31, 2006.
East Tennessee states that copies of the filing were served on parties on the official service list.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, El Paso Natural Gas Company (El Paso) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, Thirty-First Revised Sheet No. 1 and Twelfth Revised Sheet No. 2 to become effective November 1, 2006, and three firm transportation service agreements (TSAs) with Public Service Company of New Mexico.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Enbridge Pipelines (KPC) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, to become effective November 1, 2006:
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Gas Transmission Northwest Corporation (GTN) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1-A, Second Revised Eighth Revised Sheet No. 4, to become effective November 1, 2006.
GTN states that it is revising this tariff sheet to modify the rate for service under Rate Schedule FTS-1(E-2)(WWP) in accordance with the negotiated rate formula for that service as specified in GTN's tariff. The proposed changes would increase revenues associated with Rate Schedule FTS-1(E-2)(WWP) by approximately 4.282%.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Great Lakes Gas Transmission Limited Partnership (Great Lakes) tendered for filing as part of its FERC Gas Tariff the following tariff sheets, to become effective November 1, 2006:
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 26, 2006, Ingleside Energy Center LLC (IEC), 5 Greenway Plaza, Suite 1600, Houston, Texas 77046, filed in Docket No. CP05-13-001, an abbreviated application pursuant to section 3 of the Natural Gas Act (NGA) and parts 153 and 380 of the Commission's Regulations, for an amendment to its authorizations granted in Docket No. CP05-13-000 on July 22, 2005. Specifically, IEC is seeking approval for: (i) Full containment LNG storage tank structures rather than double containment tank structures; and (ii) related and conforming changes associated with the change in tank configuration approved in the July 22 Order. IEC also seeks approval for the incorporation of an off-loading dock to be used during construction. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the web at
Any questions regarding this application should be directed to Lawrence G. Acker, LeBoeuf, Lamb, Greene & MacRae, L.L.P., 1875 Connecticut Avenue, NW., Suite 1200 Washington, DC 20009-5728, or call (202) 986-8000 or fax (202) 986-8102.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments protests and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a) (1)(iii) and the instructions on the Commission's Web (
Take notice that on September 29, 2006, Iroquois Gas Transmission System, L.P. (Iroquois) tendered for filing the following revised sheets to its FERC Gas Tariff, First Revised Volume No. 1, to be effective on October 1, 2006:
Iroquois states that copies of its filing were served on all jurisdictional customers and interested state regulatory agencies and all parties to the proceeding.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Maritimes & Northeast Pipeline, L.L.C. (Maritimes) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Tenth Revised Sheet No. 11, to become effective on November 1, 2006.
Maritimes states that it is making this Fuel Retainage Quantity (FRQ) filing pursuant to section 20 of the General Terms and Conditions (GT&C) of its FERC Gas Tariff. For deliveries north of the Richmond, ME Compressor Station Maritimes is proposing a decrease of 0.02% to the Fuel Retainage Percentage (“FRP”) for the Winter Period and a decrease of 0.01% for the Non-Winter Period. The projected FRP for deliveries north of the Richmond, ME Compressor Station for the Winter Period is 1.00% and for the Non-Winter Period the FRP is 0.88%. For deliveries south of the Richmond, ME Compressor Station Maritimes is proposing a decrease of 0.06% to the Fuel Retainage Percentage (FRP) for the Winter Period and a decrease of 0.04% for the Non-Winter Period. The projected FRP for deliveries south of the Richmond, ME Compressor Station for the Winter Period is 1.04% and for the Non-Winter Period the FRP is 0.91%.
Maritimes also states that it is submitting the calculation of the FRQ Deferred Account amount, pursuant to Section 20 of the GT&C, which provides that Maritimes will calculate surcharges or refunds designed to amortize the net monetary value of the balance in the
Maritimes states that for the period August 1, 2005 through July 31, 2006, the FRQ Deferred Account resulted in a net credit balance of $1,641,748.73, inclusive of carrying charges, that will be refunded to Maritimes' customers.
Maritimes states that copies of this filing were mailed to all affected customers of Maritimes and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Natural Gas Pipeline Company of America (Natural) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective November 1, 2006, and a Rate Schedule FTS Service Agreement with a Negotiated Rate Agreement.
Natural states that copies of the filing are being mailed to all parties set out on the Commission's official service list.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On February 2, 2004, the Elsinore Valley Municipal Water District and Nevada Hydro Company, Inc. (co-applicants) filed an application for the Lake Elsinore Advanced Pumped Storage Project (LEAPS Project).
The proposed LEAPS project would consist of: (1) A new upper reservoir (Morrell Canyon) having a 180-foot-high main dam and a gross storage volume of 5,750 feet, at a normal reservoir surface elevation of 2,880 feet above mean sea level; (2) a powerhouse with two reversible pump-turbine units with a total installed capacity of 500 megawatts; (3) the existing Lake Elsinore as a lower reservoir; (4) about 30 miles of 500-kV transmission line connecting the project to an existing transmission line owned by Southern California Edison, located north of the proposed project, and to an existing San Diego Gas & Electric Company transmission line located to the south.
This notice is being sent to landowners of property crossed by or near either the proposed or alternative routes for the transmission line and other interested parties to the proceeding. The maps attached to this notice show two transmission alignments: (1) The applicant's current proposal, modified in response to staff's draft EIS and filed with the Commission on June 12, 2006; and (2) the staff alternative alignment being considered for the final EIS.
The February 17, 2006, draft EIS for the proposed LEAPS Project shows both the co-applicant's proposed transmission line (figure 2 of the draft EIS) and the Commission and U.S.
Please provide any comments in response to this public notice within 30 days of the date of this notice. All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, and should have the docket number P-11858-002 in the reference heading. Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
The licensing schedule for the project will be revised as follows:
For further information, contact Jim Fargo at (202) 502-6095,
Take notice that on September 20, 2006, Northern Natural Gas Company (Northern), 1111 South 103rd Street, Omaha, Nebraska 68124, filed in Docket No. CP06-461-000, an application pursuant to section 7 of the Natural Gas Act (NGA) to increase the certificated storage capacity of the Redfield Storage Field located in Dallas County, Iowa by 2.102 Bcf to 124.102 Bcf, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
Any questions regarding this application may be directed to Michael T. Loeffler, Director of Certificates for Northern, 1111 South 103rd Street, Omaha, Nebraska 68124, (402) 398-7103 or Bret Fritch, Senior Regulatory Analyst, at (402) 398-7140.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, before the comment date of this notice, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link.
Take notice that on September 28, 2006, Northern Natural Gas Company (Northern) tendered for filing its information filing in compliance with the Commission's August 31, 2006 Order in the above referenced docket.
Northern further states that copies of the filing have been provided to each of its customers and interested state commissions.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Northern Natural Gas Company (Northern) tendered for filing in its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets, with an effective date of November 1, 2006:
Northern further states that copies of the filing have been mailed to each of its customers and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006 Northern Natural Gas Company (Northern) tendered for filing to become part of its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheets proposed to be effective on November 1, 2006:
Northern states that copies of the filing have been mailed to each of its customers and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Panhandle Eastern Pipe Line Company, LP (Panhandle) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the revised tariff sheets listed on Appendix A attached to the filing, to become effective November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Rockies Express Pipeline LLC (REX) tendered for filing to become part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, with an effective date of October 1, 2006:
REX stated that a copy of this filing has been served upon all parties to this proceeding, REX's customers, the Colorado Public Utilities Commission and the Wyoming Public Service Commission.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, under General Terms and Conditions (GT&C) sections 12.8, 22, 25 and 26 of its FERC Gas Tariff, Original Volume No. 1 and Part 154 of the Commission's regulations, 18 CFR part 154 (2006), SCG Pipeline, Inc. (SCG) submitted work papers calculating the anticipated balances as of October 31, 2006 in each of the following three accounts and the estimated amounts either owed to shippers by SCG or owed to SCG by shippers in order to clear each account: (1) The Fuel Retainage Quantity (FRQ) Deferred Account; (2) the System Balancing Cost Reconciliation Mechanism (SBCRM) Deferred Account; and (3) the interruptible transportation (IT) revenue account.
SCG requests that the Commission approve its calculations and its treatment of balances to clear SCG's FRQ, SBCRM and IT revenue accounts in connection with SCG's closing of operations and the cancellation of its FERC Gas Tariff. SCG states that the affected SCG customers have agreed to this filing.
SCG states that a copy of this filing has been served upon all of its customers and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Southwest Gas Storage Company (Southwest) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Eighteenth Revised Sheet No. 5, to become effective November 1, 2006.
Southwest states that the purpose of this filing, made in accordance with Section 16 (Fuel Reimbursement Adjustment) of the General Terms and Conditions in Southwest's FERC Gas Tariff, First Revised Volume No. 1, is to update the fuel reimbursement percentages proposed to be effective November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Stingray Pipeline Company (Stingray) filed a Petition for Temporary Waiver of Tariff Provisions and Request for Expedited Action. The purpose of this filing is to seek waiver of the tiered imbalance cash-out procedures set forth in section 11.3 and 11.4 of the General Terms & Conditions of Stingray's FERC Gas Tariff to enable the cash-out of imbalances at the average monthly index price for the month of September 2006. Stingray requests a Commission decision on its petition by October 10, 2006.
Stingray states that copies were mailed to its customers and to interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Comment, Intervention, and Protest Date: October 4, 2006.
Take notice that on September 29, 2006, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Ninth Revised Sheet No. 30, and Second Revised Sheet No. 30A to be effective November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Sixth Revised Sheet No. 282, Fourth Revised Sheet No. 293, and Original Sheet No. 293A to become effective November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 29, 2006, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Twenty-Fifth Revised Sheet No. 29, to become effective November 1, 2006.
Transco states that the purpose of the instant filing is to reflect an increase in the fuel retention percentage for Rate Schedules LG-A, LNG and LG-S from 14.57% to 16.04%. The filing is submitted pursuant to Section 38 of the General Terms and Conditions of Transco's FERC Gas Tariff which provides that Transco will file a redetermination of its fuel retention percentage applicable to Rate Schedules LG-A, LNG and LG-S to be effective each November 1. The derivation of the revised fuel retention percentage included therein is based on Transco's actual gas required for operations (GRO) for the period September 2003 through August 2006 plus the balance accumulated in the Deferred GRO Account at August 31, 2006. Appendix A contains work papers supporting the
Transco states that copies of the filing are being mailed to affected customers and interested State Commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 29, 2006, Transwestern Pipeline Company, LLC, (Transwestern) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed in Appendices A and B, attached to the filing, to become effective November 1, 2006.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Trunkline Gas Company, LLC (Trunkline) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the following tariff sheets to become effective November 1, 2006:
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
White Creek Wind I, LLC (White Creek Wind) filed a notice of self-certification of exempt wholesale generator (EWG) status in this proceeding on August 4, 2006. The Commission has determined that additional information is required to process the notice of self-certification and therefore cannot process the self-certification within 60 days from the date of filing,
Take notice that on September 29, 2006, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, to become effective October 29, 2006:
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 29, 2006, Williston Basin Interstate Pipeline Company (Williston Basin) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Seventh Revised Sheet No. 358I, to become effective September 29, 2006.
Williston Basin states that as of July 31, 2006 it had a zero balance in FERC Account No. 191. As a result, Williston Basin states that it will neither refund nor bill its former sales customers for any amounts under the conditions of Subsection No. 39.3.1 of its Tariff.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 29, 2006, Young Gas Storage Company, Ltd tendered for filing its annual report of operational purchases and sales in accordance with Section 29.3 of the General Terms and Conditions of its FERC Gas Tariff, Original Volume No. 1.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
1. Municipal licensees have expressed concerns regarding the substantial increases they have observed in their Statement of Annual Charges issued on August 4, 2006. Specifically, licensees are concerned with the amounts assessed for the current year's
2. The Federal Power Act requires the Federal Energy Regulatory Commission to assess annual charges against licensees to reimburse the United States for the costs of administration of the Commission's hydropower regulatory program.
3. The total costs for the hydropower regulatory program consist of both direct and indirect costs. Once the Commission calculates estimated and actual program costs, it allocates these costs based on direct time charged by Commission staff to designated time and labor codes for municipal and non-municipal projects.
4. With regard to the August 4, 2006 statements, the Commission allocated the cost bases for the current year's
5. The significant increase in municipal project costs for the FY 2006
6. After calculating the annual charges, the Commission reviewed the total FY 2005 and FY 2006 hydropower costs and the applicable time and labor categories for the hydropower program which clearly differentiates between municipal and non-municipal activities. Overall, total costs for the hydropower program were found to have only small increases between the fiscal years. There were no new programs added in the hydropower area in FY 2005 or FY 2006 that would have contributed to this increase, thus the small increase in total hydropower program costs. However, since there was more direct time charged to municipal time and labor codes in FY 2005 than in FY 2004, municipal licensees received a larger proportion of the total hydropower program costs.
7. The Commission's hydropower program workload depends on how many hydropower applications or inspections are pending before the Commission in any given year. The Commission can not predict with exact certainty which licensees will file each year. In addition, the complexity of the projects under review and the length of time it takes to process a hydropower application could impact the workload proportions. hydropower program workload is cyclical, so in some years there may be more municipal projects pending versus non-municipal projects. While this increase does represent a large swing between municipal and non-municipal direct-labor hours, our review did show a history of cyclical fluctuations in this split.
8. For questions concerning this notice or any other annual charges issues, please direct inquiries via e-mail to
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the operation of facilities for the Temple LNG Plant involving operation of facilities by UGI LNG, Inc (UGI LNG) in Berks County, Pennsylvania.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” was attached to the project notice UGI LNG provided to landowners. This fact sheet addresses a number of typically asked questions, including how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
UGI LNG seeks authorization to acquire and operate in interstate commerce an existing liquefied natural gas (LNG) peak-shaving facility in Berks County, Pennsylvania, and certain appurtenant pipeline facilities interconnecting with the interstate facilities of Texas Eastern Transmission L.P. The Temple LNG Plant is presently owned by UGI Energy Services, Inc. (UGIES). The existing Temple LNG Plant consists of:
• 250,000 Mcf (73,000 Bbl) storage tank,
• A vaporization system designed to deliver up to 50,000 Dth/d and a liquefier designed to deliver 4,000 Dth/d, and
• Approximately 5,000 feet of 8-inch-diameter pipeline.
No additional land is required since UGI LNG does not propose any new facilities or any modifications to existing facilities. The general location of the project facilities is shown in Appendix 1.
The existing Temple LNG Plant consists of about 71.59 acres of land. No new facilities would be constructed as part of UGI LNG's application.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us to discover and address concerns the public may have about proposals. This process is referred to as “scoping”. The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, the Commission staff requests public comments on the scope of the issues to address in the EA. All comments received are considered during the preparation of the EA. State and local government representatives are encouraged to notify their constituents of this proposed action and encourage them to comment on their areas of concern.
Because the Temple LNG Plant is an existing facility and no new additions or modifications are proposed, the EA will focus on the operation of the proposed project, the cryogenic design aspects of the plant, and public safety.
In the EA we
• Geology and soils.
• Land use.
• Air quality and noise.
• Public safety.
We will not discuss impacts to the following resource areas since they are not present in the project area, or would not be affected by the operation of the facilities.
• Water resources.
• Fisheries.
• Wetlands.
• Wildlife.
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, State, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section below.
We have already identified several issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by UGI LNG.
• Air and Noise.
• Safety.
• Geology.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 3.
• Reference Docket No. CP06-442-000
• Mail your comments so that they will be received in Washington, DC on or before November 6, 2006.
Please note that we are continuing to experience delays in mail deliveries from the U.S. Postal Service. As a result, we will include all comments that we receive within a reasonable time frame in our environmental analysis of this project. However, the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
If you do not want to send comments at this time but still want to remain on our mailing list, please return the Information Request (Appendix 3). If you do not return the Information Request, you will be taken off the mailing list.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding, or “intervenor”. To become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214). Intervenors have the right to seek rehearing of the Commission's decision. Motions to Intervene should be electronically submitted using the Commission's eFiling system at
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
An effort is being made to send this notice to all individuals, organizations, and government entities interested in and/or potentially affected by the project. This includes all landowners who are right-of-way grantors or who own homes within distances defined in the Commission's regulations of certain aboveground facilities.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper, see 18 CFR 385.2001 (a) (1) (iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-11685-007) on any comments, protests, or motions filed. The Commission's Rules of Practice and Procedure require all intervenors filing a document with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the documents on that resource agency.
j.
k. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
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h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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o.
p.
q.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
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t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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l. Locations of Applications: A copy of the application is available for inspection and reproduction at the Commission in the Public Reference Room, located at 888 First Street NE., Room 2A, Washington DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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o.
p.
q.
r.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper;
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t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
s.
t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
p.
q.
r.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's web site under “e-filing” link. The Commission strongly encourages electronic filing.
s.
t.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12742-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m.
n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
o.
p.
q.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link. The Commission strongly encourages electronic filings
r.
Environmental Protection Agency (EPA).
Notice.
The EPA's Science Advisory Board (SAB) Staff Office is announcing a public teleconference of the SAB Environmental Economics Advisory Committee (EEAC) to discuss the valuation of mortality risk reduction.
The teleconference will be held from 11 am—1 pm (EST) on October 30, 2006.
Any member of the public wishing further information regarding the public teleconference and call-in number may contact Dr. Holly Stallworth, Designated Federal Officer (DFO), U.S. EPA Science Advisory Board Staff Office by telephone/voice mail at (202) 343-9867, or via e-mail at
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the SAB Environmental Economics Advisory Committee will hold a public teleconference to discuss appropriate methods for valuing mortality risks in the context of cost-benefit analysis. The EEAC will be
Environmental Protection Agency (EPA).
Notice
.This notice announces the initial filing of pesticide petitions proposing the establishment or amendment of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before November 13, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2005-0545 and pesticide petition number (PP 6E7077), by one of the following methods:
• Federal eRulemaking Portal:
•
•
Barbara Madden, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (703)
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is printing a summary of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that this pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner along with a description of the analytical method available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment or amendment of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before November 13, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0821 and pesticide petition number
•
•
•
Barbara Madden, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6463; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is printing a summary of each pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that this pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner along with a description of the analytical method available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
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2.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment or amendment of regulations for residues of the fungicide, oxytetracyline in or on apples.
Comments must be received on or before November 13, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0524 and pesticide petition number (PP) 7E4855, by one of the following methods:
•
•
•
Barbara Madden, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number (703) 305-6463; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is printing a summary of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or amendment of regulations in 40 CFR part 180 for residues of the fungicide, oxytetracyline in or on apples. EPA has determined that this pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, prepared by the petitioner along with a description of the analytical method available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
EPA is seeking public comment on a June 2, 2006, petition from the Natural Resources Defense Council (NRDC), available in docket (ID) number EPA-HQ-OPP-2002-0302, requesting that the Agency revoke all tolerances for the pesticide dichlorvos (DDVP). The petitioner, NRDC, requests this action to obtain what they believe would be proper application of the safety standards of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), section 408, as amended by the Food Quality Protection Act (FQPA) of 1996. The DDVP Interim Reregistration Eligibility Decision (IRED) is available in the electronic docket at
Comments must be received on or before November 13, 2006.
Submit your comments, identified by docket ID number EPA-HQ-OPP-2002-0302, by one of the following methods:
•
•
•
Dayton Eckerson, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8038; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA requests public comment during the next 30 days on a petition (available in docket ID number EPA-HQ-OPP-2002-0302) received from the NRDC requesting that the Agency revoke all tolerances, or maximum legal residue limits for the pesticide DDVP. The petitioner claims that EPA erred in making its safety finding that there is a reasonable certainty of no harm from dietary residues of DDVP and, therefore, EPA must revoke all tolerances established under section 408 of the FFDCA, as amended by the FQPA. In addition, NRDC is petitioning the Agency to cancel all uses of DDVP because NRDC believes DDVP cannot perform its intended function without causing unreasonable adverse affects on the environment. See 136
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
EPA is announcing the availability of a schedule for the registration review of pesticides mandated in section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). EPA is making the schedule available pursuant to the Registration Review procedural regulations, to inform the public and help interested stakeholders prepare for the initiation of the registration reviews scheduled for the first four years of the program. To develop the schedule, EPA used procedures set forth in the August 9, 2006 final rule. The schedule shows how the Agency plans to sequence pesticide reviews to meet the goal of reviewing each pesticide's registration every 15 years. Although there is not a comment period for this schedule, the Agency may consider issues raised by the public or the registrant when reviewing the posted schedule, to schedule a pesticide registration review, or to modify the schedule of a pesticide registration review as appropriate. This schedule will take effect on October 10, 2006, the effective date of the registration review regulation.
Kennan Garvey, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-7106; fax number: (703) 308-8005; e-mail address:
You may be potentially affected by this action if you hold pesticide registrations. Pesticide users or other persons interested in the regulation of the sale, distribution, or use of pesticides may also be interested in this action.
Potentially affected entities may include, but are not limited to:
Producers of pesticide products (NAICS code 32532).
Producers of antifoulant paints (NAICS code 32551).
Producers of antimicrobial pesticides (NAICS code 32561).
Producers of nitrogen stabilizer products (NAICS code 32531).
Producers of wood preservatives (NAICS code 32519).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 155.40 of the regulatory text of the
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EPA has issued a schedule for the registration review program, the periodic review of all registered pesticides mandated by section 3(g) of FIFRA. The schedule will take effect upon the registration review regulation effective date of October 10, 2006.
This schedule is a timetable for opening registration review dockets for the first four years of the program. It shows how EPA plans to sequence the initiation of pesticide reviews to meet the statutory goal of reviewing all registered pesticides every 15 years to determine whether they still meet the statutory standard for registration. As noted in the explanation of the schedule, EPA expects a total of about 676 registration review cases comprised of about 1,075 pesticide active ingredients to undergo registration review. To review all of these pesticides every 15 years, the Agency plans to make decisions on 45 or more registration review cases, or about 70 pesticide active ingredients, each year.
The schedule shows which registration review cases are expected to begin the review process during the first four years of the program, beginning in fiscal year 2007. Each pesticide's place on the schedule is generally determined by its baseline date, that is, the date of its last substantive review. The oldest cases go first. The baseline date for a pesticide subject to reregistration is the date of the Reregistration Eligibility Decision (RED) or Interim RED, while for pesticides not subject to reregistration, it is the date the first product containing the active ingredient was registered. Although the draft schedule generally is constructed chronologically using baseline dates, some registration review cases in years two through four are grouped in the schedule to achieve greater program efficiencies. For example, pesticides that are chemically or use related, such as the organophosphate and carbamate chemical classes, the coppers group and the pyrethroids, pyrethrins and synergists group, would be reviewed during the same time frame.
Background information on the program is provided at:
An explanation of the schedule is at:
The schedule is at:
EPA is announcing this schedule as provided in § § 155.42(d) and 155.44 of the Procedural Regulations for Registration Review: Final Rule
Environmental protection, Agricultural commodities, Pesticides and pests.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board).
Date and Time: The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 12, 2006, from 9 a.m. until such time as the Board concludes its business.
Roland E. Smith, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090.
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are:
• September 14, 2006 (Open and Closed).
• Regulatory Burden—Final Rule.
• OE Quarterly Report on FCS Condition.
• Update on OE Oversight Activities.
• Overview of OE FY 2007 Oversight and Examination Plan.
*Session Closed—Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9).
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before December 11, 2006. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit your all Paperwork Reduction Act (PRA) comments by email or U.S. postal mail. To submit your comments by e-mail send them to
For additional information about the information collection(s) send an e-mail to
The Federal Communications Commission (Commission) has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13. 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.
Paul J. Laurenzano, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, (202) 418-1359 or via the Internet at
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, October 12, 2006, which is scheduled to commence at 9:30 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC.
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need including as much detail as you can. Also include a way we can contact you if we need more information. Make your request as early as possible; please allow at least 5 days advance notice. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to:
Additional information concerning this meeting may be obtained from Audrey Spivack or David Fiske, Office of Media Relations, (202) 418-0500; TTY 1-888-835-5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC's Audio/Video Events Web page at
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services, call (703) 993-3100 or go to
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488-5300; Fax (202) 488-5563; TTY (202) 488-5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by e-mail at
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 October 24, 2006.
Board of Governors of the Federal Reserve System, October 4, 2006.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 3, 2006.
In connection with this application, Applicant also has applied to acquire Jade Abstract Company, Feasterville, Pennsylvania, and engage in providing real estate settlement services, and Jade Insurance Agency, Inc., Feasterville, Pennsylvania, and engage in providing credit insurance, pursuant to sections 225.28(b)(2)(viii) and 225.28(b)(11)(i) of Regulation Y respectively.
In connection with this application, applicant also has applied to acquire Farnsworth Bancorp, Inc., Bordentown, New Jersey, and thereby acquire Peoples Savings Bank, Bordentown, New Jersey, and engage in operating a savings bank, pursuant to section 225.25(b)(4)(ii) of Regulation Y.
Board of Governors of the Federal Reserve System, October 4, 2006.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 3, 2006.
Board of Governors of the Federal Reserve System, October 5, 2006.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 25, 2006.
Board of Governors of the Federal Reserve System, October 4, 2006.
Office of Minority Health, Office of Public Health and Science, Office of the Secretary, DHHS.
Notice.
As stipulated by the Federal Advisory Committee Act, the Department of Health and Human Services (DHHS) is hereby giving notice that the Advisory Committee on Minority Health (ACMH) will hold a meeting. This meeting is open to the public. Preregistration is required for both public attendance and comment. Any individual who wishes to attend the meeting and/or participate in the public comment session should e-mail
The meeting will be held on October 31, 2006, from 8:30 a.m. to 5 p.m.
The meeting will be held at the Crowne Plaza Hotel, 8777 Georgia Avenue, Silver Spring, Maryland 20910. The meeting is accessible from the Silver Spring Metro Station. The Crowne Plaza Hotel will provide shuttle service to and from the Silver Spring Metro Station for individuals attending the ACMH meeting on October 31, 2006. Meeting participants can call the hotel at (301) 589-0800 for shuttle pick-up if they don't see the shuttle. Meeting participants may also walk the three short blocks to the hotel from the Silver Spring station by existing onto Wayne Avenue and walking toward the Discovery Building. Make a left onto Georgia Avenue and walk the 1 block toward the Crowne Plaza. The hotel will be on the right-hand side.
Ms. Monica A. Baltimore, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852. Phone: 240-453-2882 Fax: 240-453-2883.
In accordance with Public Law 105-392, the ACMH was established to provide advice to the Deputy Assistant Secretary for Minority Health in improving the health of each racial and ethnic minority group and on the development of goals and specific program activities of the Office of Minority Health.
Topics to be discussed during this meeting will include strategies to improve the health of racial and ethnic minority populations through the development of health policies and programs that will help eliminate health disparities, as well as other related issues.
Public attendance at the meeting is limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact person at least fourteen business days prior to the meeting. Members of the public will have an opportunity to provide comments at the meeting. Public comments will be limited to three minutes per speaker. Individuals who would like to submit written statements should mail or fax their comments to the Office of Minority Health at least five business days prior to the meeting. Any member of the public who wishes to have printed material distributed to ACMH committee members should submit their materials to Garth Graham, M.D., M.P.H., Executive Secretary, ACMH, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852, prior to close of business on October 18, 2006.
Agency for Healthcare Research and Quality, Department of Health and Human Services.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) allow the proposed information collection project: “Assessment of Unreimbursed Care among Community Primary Care Physicians.” In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by November 13, 2006.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, 540 Gaither Road, Room #5036, Rockville, MD 20850. Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from AHRQ's Reports Clearance Officer.
Doris Lefkowitz, AHRQ, Reports Clearance Officer, (301) 427-1477.
This project is being conducted as part of AHRQ's Primary Care Practice-Based Research Networks (PBRN). One of AHRQ's PBRN contractors, the American Academy of Family Physician's National Research Network (AAFP-NRN), will survey primary care practices participating in its PBRN in order to assess the current state of un-reimbursed medical care provided in community based primary care practices.
There has been substantial research conducted to quantify the amount of un-reimbursed care provided in private physicians' offices. This survey will collect information from a sample of community-based primary care practices that are widely representative of private physicians across the United States in order to understand the current state of private primary care office un-reimbursed care and help assess factors that encourage and discourage practices from engaging in this activity.
The AAFP-NRN will collaborate with AHRQ on the design of a self-administered, web-based questionnaire. The survey will collect information pertaining to the level of un-reimbursed care in the practice as well as characteristics of the practice, the physician(s) and the patient population.
The survey will be distributed to 1200 primary care physicians with an expected response rate of 65% (780 responses). A stratified sampling approach will be used to ensure appropriate representation from the four Census regions, urban and rural areas, and small and large practices. Selected physicians will receive a letter informing them of the purpose of the study, inviting them to participate and offering them the opportunity to complete the survey on paper or via the Internet. A follow-up mailing with a duplicate paper-based version of the questionnaire will be mailed to non-responders after two weeks. Reminder phone calls will be placed in weeks four and six to all non-responders. If necessary to achieve target response rates, a re-mailing of the paper-based questionnaire will occur in week eight. The questionnaire is estimated to take no more than fifteen minutes to complete.
The total cost to the government for this activity is estimated to be $129,956.
In accordance with the above-cited legislation, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of health care research and information dissemination functions of AHRQ, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information upon the respondents, including the use of automated collection techniques or other forms of information technology.
To date, one comment has been received. The commenter noted that s/he believed no physicians provide free care. The purpose of this survey is to assess the current state of private primary care office un-reimbursed care and help assess factors that encourage and discourage practices from engaging in this activity.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Quantitative Assessment of Internet Use and HIV-Related Risk Behavior Among Black and Latino Men Who Have Sex with Men—New—National Center for HIV, STD, and TB Prevention (NCHSTP), Centers for Disease Control and Prevention (CDC).
CDC is requesting a two year approval from the Office of Management and Budget (OMB) to administer an epidemiological survey on the Internet. CDC is funding an Internet study that examines behaviors of gay-identified and nongay-identified Black and Latino men who have sex with men. The objectives of the study are threefold: (1) To determine if Black and Latino men who have sex with men (MSM) who use the Internet to meet sexual partners report greater HIV-related sexual and drug risks than those who do not; (2) to identify respondents' non-Internet sex-seeking behaviors, and (3) to explore to what degree Black and Latino MSM with Internet access view this medium as a potential tool for HIV prevention.
African American and Latino men, especially those men who have sex with men, continue to be an extremely vulnerable population affected by high rates of HIV/AIDS. The impact of HIV/AIDS on African American and Latino communities has been devastatingly disproportionate as compared to European American populations. Through December 2001, CDC reported that while African Americans represented only 12% of the total U.S. population, they accounted for almost 38% of all the AIDS cases. For all men, the exposure category of “men who have sex with men” represented the largest transmission route for HIV infection.
While existing studies show that Black and Latino MSM may be at greater risk for contracting and transmitting HIV/AIDS to partners, CDC knows little about Black and Latino MSM using the Internet and/or potential avenues for HIV prevention with this population since most of the studies conducted this far have been with White MSM samples. Data gathered from this study will guide CDC development of risk reduction programs for this high-risk population.
A convenience sample of 500 Black (African American, African-Latin, African-Caribbean, African, Mixed race) and 500 Latino (Caribbean, Central or South American ancestry) MSM will be asked to respond to a one-time survey of attitudes, knowledge and behavior related to Internet sex seeking behavior and HIV/STD (sexually transmitted disease) transmission. This survey will take approximately 20 minutes to complete and will include questions on the following topics: demographics (
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) and the Health Resources and Services Administration (HRSA) announce the following committee meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention announces the following committee meeting:
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2007.
The agenda is subject to change as priorities dictate. In the event an individual cannot attend, written comments may be submitted. Any written comments received will be provided at the meeting and should be submitted to the contact person below well in advance of the meeting.
Due to programmatic matters, this
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is requesting nominations for voting members to serve on the Device Good Manufacturing Practice Advisory Committee, certain device panels of the Medical Devices Advisory Committee, the National Mammography Quality Assurance Advisory Committee, and the Technical Electronic Products Radiation Safety Standards Committee in the Center for Devices and Radiological Health. Nominations will be accepted
FDA has a special interest in ensuring that women, minority groups, and individuals with disabilities are adequately represented on advisory committees and, therefore, encourages nominations of qualified candidates from these groups.
Because scheduled vacancies occur on various dates throughout each year, no cutoff date is established for the receipt of nominations. However, when possible, nominations should be received at least 6 months before the date of scheduled vacancies for each year, as indicated in this notice.
Send all nominations and curricula vitae to the following contact persons in table 1 of this document:
Kathleen L. Walker, Center for Devices and Radiological Health (HFZ-17), Food and Drug Administration, 7520 Standish Pl., Rockville, MD 20855, 301-827-7293, e-mail:
FDA is requesting nominations of voting members for vacancies listed as follows:
The committee reviews and evaluates data on the safety and effectiveness of marketed and investigational devices and makes recommendations for their regulation. The panels engage in a number of activities to fulfill the functions the Federal Food, Drug, and Cosmetic Act (the act) envisions for device advisory panels. With the exception of the Medical Devices Dispute Resolution Panel, each panel, according to its specialty area, performs the following duties: (1) Advises the Commissioner of Food and Drugs (the Commissioner) regarding recommended classification or reclassification of devices into one of three regulatory categories, (2) advises on any possible risks to health associated with the use of devices, (3) advises on formulation of product development protocols, (4)
The Dental Products Panel also functions at times as a dental drug panel. The functions of the dental drug panel are to evaluate and recommend whether various prescription drug products should be changed to over-the-counter status and to evaluate data and make recommendations concerning the approval of new dental drug products for human use.
The Medical Devices Dispute Resolution Panel provides advice to the Commissioner on complex or contested scientific issues between FDA and medical device sponsors, applicants, or manufacturers relating to specific products, marketing applications, regulatory decisions and actions by FDA, and agency guidance and policies. The panel makes recommendations on issues that are lacking resolution, are highly complex in nature, or result from challenges to regular advisory panel proceedings or agency decisions or actions.
The functions of the committee are to advise FDA on the following topics: (1) Developing appropriate quality standards and regulations for mammography facilities, (2) developing appropriate standards and regulations for bodies accrediting mammography facilities under this program, (3) developing regulations with respect to sanctions, (4) developing procedures for monitoring compliance with standards, (5) establishing a mechanism to investigate consumer complaints, (6) reporting new developments concerning breast imaging which should be considered in the oversight of mammography facilities, (7) determining whether there exists a shortage of mammography facilities in rural and health professional shortage areas and determining the effects of personnel on access to the services of such facilities in such areas, (8) determining whether there will exist a sufficient number of medical physicists after October 1, 1999, and (9) determining the costs and benefits of compliance with these requirements.
The functions of the committee are to review proposed regulations issuance regarding good manufacturing practices governing the methods used in, and the facilities and controls used for manufacture, packaging, storage, installation, and servicing of devices, and make recommendations regarding the feasibility and reasonableness of those proposed regulations. The committee also reviews and makes recommendations on proposed guidelines developed to assist the medical device industry in meeting the good manufacturing practice requirements, and provides advice with regard to any petition submitted by a manufacturer for an exemption or variance from good manufacturing practice regulations.
Section 520 of the act (21 U.S.C. 360(j)), as amended, provides that the Device Good Manufacturing Practice Advisory Committee shall be composed of nine members as follows: (1) Three of the members shall be appointed from persons who are officers or employees of any Federal, State, or local government; (2) two shall be representatives of interests of the device manufacturing industry; (3) two shall be representatives of the interests of physicians and other health professionals; and (4) two shall be representatives of the interests of the general public.
The function of the committee is to provide advice and consultation on the technical feasibility, reasonableness, and practicability of performance standards for electronic products to control the emission of radiation from such products. The committee may recommend electronic product radiation safety standards for consideration.
Section 534(f) of the act (21 U.S.C. 360kk(f)), as amended by the Safe Medical Devices Act of 1990, provides that the Technical Electronic Product Radiation Safety Standards Committee include five members from governmental agencies, including State or Federal Governments, five members from the affected industries, and five members from the general public, of which at least one shall be a representative of organized labor.
Persons nominated for membership on the panels should have adequately diversified experience appropriate to the work of the panel in such fields as clinical and administrative medicine, engineering, biological and physical sciences, statistics, and other related professions. The nature of specialized training and experience necessary to qualify the nominee as an expert suitable for appointment may include experience in medical practice, teaching, and/or research relevant to the field of activity of the panel. The particular needs at this time for each panel are listed in section I of this document. The term of office is up to 4 years, depending on the appointment date.
Persons nominated for membership should be physicians, practitioners, and other health professionals, whose clinical practice, research specialization, or professional expertise include a significant focus on mammography and individuals identified with consumer interests. Prior experience on Federal public advisory committees in the same or similar subject areas will also be considered relevant professional expertise. The particular needs at this time for this committee are listed in section I of this document. The term of office is up to 4 years, depending on the appointment date.
Persons nominated for membership as a health professional or officer or employee of any Federal, State, or local government should have knowledge of or expertise in any one or more of the following areas: Quality assurance concerning the design, manufacture, and use of medical devices. To be eligible for selection as a representative of the general public or industry, nominees should possess appropriate qualifications to understand and contribute to the committee's work. The particular needs at this time for this committee are listed in section I of this document. The term of office is up to 4 years, depending on the appointment date.
Persons nominated should be technically qualified by training and experience in one or more fields of science or engineering applicable to electronic product radiation safety. The particular needs at this time for this committee are listed in section I of this document. The term of office is up to 4 years, depending on the appointment date.
Any interested person may nominate one or more qualified persons for membership on one or more of the advisory panels or advisory committees. Self-nominations are also accepted. Nominations will include complete curriculum vitae of each nominee, current business address and telephone number. Nominations will specify the advisory panel(s) or advisory committee(s) for which the nominee is recommended. Nominations will include confirmation that the nominee is aware of the nomination, is willing to serve as a member of the advisory committee if selected, and appears to have no conflict of interest that would preclude membership. Potential candidates will be required to provide detailed information concerning such matters as financial holdings, employment, and research grants and/or contracts to permit evaluation of possible sources of conflict of interest.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. app. 2) and 21 CFR part 14 relating to advisory committees.
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product BONIVA (ibandronate sodium). BONIVA is indicated for treatment and prevention of osteoporosis in postmenopausal women. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for BONIVA (U.S. Patent No. 4,927,814) from Hoffmann-La Roche, Inc., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated October 19, 2004, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of BONIVA represented the first permitted commercial marketing or use of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable adjusted regulatory review period for BONIVA is 3,122 days. Of this time, 2,817 days occurred during the testing phase of the regulatory review period, while 305 days occurred during the approval phase. These periods of time were derived from the following dates:
1. The date an exemption under section 505(i) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 355(i)) became effective: October 30, 1994. FDA has verified the applicant's claim that the date the IND became effective was on October 30, 1994.
2. The date the application was initially submitted with respect to the human drug product under section 505(b) of the act: July 16, 2002. FDA has verified the applicant's claim that the new drug application (NDA) for BONIVA (NDA 21-455) was initially submitted on July 16, 2002.
3. The date the application was approved: May 16, 2003. FDA has verified the applicant's claim that NDA 21-455 was approved on May 16, 2003.
This redetermination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions should be submitted to the Division of Dockets Management. Three copies of any mailed information are to be submitted, except that individuals may submit one copy. Comments are to be identified with the docket number found in brackets in the heading of this document.
Comments and petitions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors of the NIH Clinical Center.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the Clinical Center, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the urgent need to meet timing limitations imposed by the intramural research review cycle.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
The National Institutes of Health (NIH) hereby announces a meeting of the Interagency Autism Coordinating Committee (IACC) to be held on November 17, 2006, on the NIH campus in Bethesda, Maryland.
The Children's Health Act of 2000 (Pub.L. 106-310), Title I, Section 104, mandated the establishment of an Interagency Autism Coordinating Committee (IACC) to coordinate autism research and other efforts within the Department of Health and Human Services (DHHS). In April 2001, the HHS Secretary delegated the authority to establish the IACC to the National Institutes of Health (NIH). The National Institute of Mental Health (NIMH) at the NIH has been designated the lead for this activity.
The IACC meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the contact person listed below in advance of the meeting.
Any member of the public interested in presenting oral comments to the Committee may notify the contact person listed on this notice at least 5 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Presentations may be limited to 5 minutes; both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the Committee by forwarding his/her statement to the contact person listed on this notice. The statement should include the name, address, telephone number, and, when applicable, the business or professional affiliation of the interested person.
Information about the meeting and online registration forms are also available on-line on the NIMH homepage at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 522b(c)(6), Title 5 U.S.C.,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, NIAMS.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Arthritis and Musculoskeletal and Skin Diseases, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of the cancellation of the National Institute of Neurological Disorders and Stroke Special Emphasis Panel, October 17, 2006, 7 p.m. to October 18, 2006, 9 p.m., Atlanta-Centennial Olympic Park, Embassy Suites Hotel, 267 Marietta Street, Atlanta, GA, 30313 which was published in the
Cancelled due to withdrawn application.
National Institutes of Health, Public Health Service, HHS.
Notice.
The technology is an innovative treatment for inflammatory arthritis that involves modulating Tumor Necrosis Factor Receptor (TNFR) 1 signaling. NIH scientists have discovered that the Pre-ligand Assembly Domains (PLADs) of TNFR1 can be selectively blocked by soluble P60-PLAD protein compositions (P60 PLAD-Sol) which interfere with TNFR1 assembly thereby preventing the inflammatory effects of TNFα both
Current anti-TNFα arthritis treatments rely on the use of antibodies or fusion proteins directed against TNFα to reduce inflammation. The cytokine TNFα plays a key role in the pathogenesis of numerous autoimmune and inflammatory diseases including psoriatic, rheumatoid, and septic arthritis. It has been shown that blocking TNFα has a dramatic therapeutic effect; however, blocking TNFα also blocks TNFα's beneficial effects during immune responses that are mediated through TNFR2.
This invention involves a functional domain, which is essential for signaling involving receptors of the TNFR superfamily including TNFR-1 (p60), TNFR-2 (p80), FAS, TRAIL-R, LTR, CD40, CD30, CD27, HVEM, OX40 and DR4. PLADs can be isolated as functional polypeptides which can be useful in inhibiting the first step in TNFR mediated signaling, ligand-independent assembly of members of the TNFR superfamily. The ability to inhibit TNFR signaling suggests that these PLAD polypeptides may be useful in developing new therapeutic molecules or as therapeutic molecules themselves.
P60 PLAD-Sol has the benefit of selectively blocking only the signaling of TNFR1, not signaling mediated through TNFR2. Treatment of mice with the P60 PLAD-Sol ameliorated inflammatory joint disease with no side effects in 5 different animal models of arthritis including: collagen-induced arthritis, adjuvant and lipopolysaccharide induced arthritis, and joint disease due to TNF. Therefore, P60 PLAD-Sol may lead to novel inflammatory arthritis treatments that avoid the serious side effects associated with currently marketed therapeutics that directly block TNFα rather than TNFR1.
More than 20% of the population in the USA currently seek arthritis treatment; of these over 2 million suffer rheumatic symptoms. Worldwide this figure is close to five million people. Existing commercially available anti-TNFα treatments are expensive: in the U.S. Enbrel®, Remicade®, and Humira® all cost more than $10,000 per year. In addition to this market there is the potential to treat other inflammatory based diseases such as Crohn's Disease and Multiple Sclerosis. Owing to the high price of these agents and their increased use in treatment, the market for TNFα inhibitors is expected to grow from $7.1 billion in 2005 to nearly $12 billion in 2014 in the United States, Western Europe, and Japan.
The existing TNF blockers,
For arthritis sufferers who are unresponsive to, or adversely affected by, current inflammatory arthritis treatments our technology is a new method of blocking inflammation that provides a more targeted action. Unlike the currently marketed anti-TNF medications, P60 PLAD-Sol has the potential to more effectively treat a broader range of inflammatory diseases with no known side-effects. The current anti-TNF drugs directly block the binding of TNFα to both TNFR1 and TNFR2. There is evidence that this inhibits the beneficial effects mediated by TNFR2, while arresting the disease-causing effects of TNFR1. This is because the P60 PLAD-Sol involves the use of small soluble proteins that preferentially target only the PLAD of TNFR1. In our models, a dose of a P60 PLAD-Sol (5 mg/kg) had similar effects to doses of Infliximab (10 mg/kg) and Etanercept (0.4 mg/kg) that have been used clinically in the amelioration of arthritis. As a selective TNFR1 blocking agent, this technology may avoid the serious side effects of these currently available compounds yet have enhanced efficacy.
A PCT application, filed 9 February 2001 (WO 01/58953), has entered the national phase in the US, EP, AU and CA.
There will be a teleconference where the principal investigator will discuss non-confidential information concerning this technology. Licensing and collaborative research opportunities will also be discussed. If you are interested in participating in this teleconference please call or email Mojdeh Bahar; (301) 435-2950;
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
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:
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Office of the Secretary, Department of Homeland Security.
Notice.
The Secretary of Homeland Security announces the designation of the Under Secretary for Preparedness, Directorate for Preparedness, as the Manager, National Communications System (NCS).
The designation of the Manager, National Communications System, is effective August 15, 2006.
Ms. Marilyn Witcher, Chief, Industry, Government, and External Affairs, National Communications System, telephone (703) 235-5515, e-mail:
This designation is issued in accordance with section 1(e)(1) of Executive Order 12472 of April 3, 1984, as amended by section 46 of Executive Order 13286 of February 28, 2003. It supersedes the designation to the Assistant Secretary of Homeland Security for Infrastructure Protection.
The NCS consists of the telecommunications assets of the entities represented on the NCS Committee of Principals and an administrative structure consisting of the Executive Agent, the NCS Committee of Principals, and the Manager. The mission of the NCS is to assist the President, the National Security Council, the Homeland Security Council, the Director of the Office of Science and Technology Policy, and the Director of the Office of Management and Budget in:
(1) The exercise of designated telecommunications functions and responsibilities; and
(2) The coordination of the planning for and provision of national security and emergency preparedness communications for the Federal Government under all circumstances, including crisis or emergency, attack, recovery, and reconstitution.
As stated in Section 1(g) of Executive Order 12472 of April 3, 1984, as amended, the Manager, NCS, shall develop for consideration by the NCS Committee of Principals and the Executive Agent:
(1) A recommended evolutionary telecommunications architecture designed to meet current and future Federal Government national security and emergency preparedness telecommunications requirements;
(2) Plans and procedures for the management, allocation, and use,
(3) Plans, procedures, and standards for minimizing or removing technical impediments to the interoperability of government-owned and/or commercially-provided telecommunications systems;
(4) Test and exercise programs and procedures for the evaluation of the capability of the Nation's telecommunications resources to meet national security or emergency preparedness telecommunications requirements; and
(5) Alternative mechanisms for funding, through the budget review process, national security or emergency preparedness telecommunications initiatives that benefit multiple Federal departments, agencies, or entities. Those mechanisms recommended by the NCS Committee of Principals and the Executive Agent shall be submitted to the Director of the Office of Management and Budget.
The Manager shall also:
(1) Implement and administer any approved plans or programs as assigned, including any system of priorities and preferences for the provision of communications service, in consultation with the NCS Committee of Principals and the Federal Communications Commission, to the extent practicable or otherwise required by law or regulation;
(2) Chair the NCS Committee of Principals and provide staff support and technical assistance thereto;
(3) Serve as a focal point for joint industry-government planning, including the dissemination of technical information, concerning the national security or emergency preparedness telecommunications requirements of the Federal Government;
(4) Conduct technical studies or analyses, and examine research and development programs, for the purpose of identifying, for consideration by the NCS Committee of Principals and the Executive Agent, improved approaches that may assist Federal entities in fulfilling national security or emergency preparedness telecommunications objectives;
(5) Pursuant to the Federal Standardization Program of the General Services Administration, and in consultation with other appropriate entities of the Federal Government including the NCS Committee of Principals, manage the Federal Telecommunications Standards Program, ensuring wherever feasible that existing or evolving industry, national, and international standards are used as the basis for Federal telecommunications standards; and
(6) Provide such reports and perform such other duties as are from time to time assigned by the President or his authorized designee, the Executive Agent, or the NCS Committee of Principals. Any such assignments of responsibility to, or reports made by, the Manager shall be transmitted through the Executive Agent.
30-Day Notice of Information Collection under Review: Interagency Record of Individual Requesting Change/Adjustment to or From A or G Status or Requesting A, G, or NATO dependent Employment Authorization; Form I-566; Control No. 1615-0027.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to notify the public that the USCIS is seeking OMB approval on this information collection and to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 13, 2006. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Director, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, 3rd floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615-0027. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) 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;
(2) 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;
(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 through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS Web site at:
If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, 3rd Floor Suite 3008, Washington, DC 20529, (202) 272-8377.
30-day notice of information collection under review; Application for Waiver of Grounds of Excludability, Form I-690, OMB Control Number 1615-0032.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 13, 2006. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Director, Regulatory Management Division, Clearance Officer, 111 Massachusetts Avenue, 3rd Floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail please make sure to add OMB Control Number 1615-0032. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate 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;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS Web site at:
If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, 3rd Floor, Suite 3008, Washington, DC 20529, 272-8377.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below
The Application for the Transfer of Physical Assets is completed and submitted to HUD by prospective purchasers of properties with mortgage either HUD-insured or HUD-held prior to conveying the title. The form cites all the supportive documentation that must be submitted to HUD for approval. HUD uses the information submitted to determine the suitability of new owners and managers of multifamily projects and to ensure the legal and administrative sufficiency of the proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0275) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Lillian Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) 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; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
This notice also lists the following information:
The Application for the Transfer of Physical Assets is completed and submitted to HUD by prospective purchasers of properties with mortgages either HUD-insure or HUD-held prior to conveying the title. The form cites all the supportive documentation that must be submitted to HUD for approval. HUD uses the information submitted to determine the suitability of new owners and managers of multifamily projects and to ensure the legal and administrative sufficiency of the proposal.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Announcement of funding awards.
In accordance with section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this document notifies the public of funding awards for Fiscal Year 2005 Hispanic-Serving Institutions Assisting Communities (HSIAC) Program. The purpose of this document is to announce the names, addresses and the amount awarded to the winners to be used to help Hispanic-Serving Institutions of higher education to expand their role and effectiveness in addressing community development needs in their localities, consistent with the purposes of Title I of the Housing and Community Development Act of 1974 as amended.
Susan Brunson, Office of University Partnerships, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW., Room 8106, Washington, DC 20410, telephone (202) 708-3061, extension 3852. To provide service for persons who are hearing-or-speech-impaired, this number may be reached via TTY by Dialing the Federal Information Relay Service on (800) 877-8339 or (202) 708-1455. (Telephone numbers, other than “800” TTY numbers, are not toll free).
The Hispanic-Serving Institutions Assisting Communities Program was approved by Congress under section 107 of the Community Development Block Grant (CDBG) appropriations for the Fiscal Year 2006, and is administered by the Office of University Partnerships under the Assistant Secretary for Policy Development and Research. In addition to this program, the Office of University Partnerships administers HUD's ongoing grant programs to institutions of higher education as well as creates initiatives through which colleges and universities can bring their traditional missions of teaching, research, service, and outreach to bear on the pressing local problems in their communities.
The HSIAC program provides funds for a wide range of CDBG-eligible
The Catalog of Federal Domestic Assistance number for this program is 14.514.
On March 8, 2006, (71 FR 11756), HUD published a Notice of Funding Availability (NOFA) announcing the availability of $5.94 million in Fiscal Year 2006, plus $78,000 in previously unobligated funds for the HSIAC Program. The Department reviewed, evaluated, and scored the applications received based on the criteria in the NOFA. As a result, HUD has funded the applications below, in accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545).
1. Urban College of Boston, Ms. Shelia Taylor-King, Urban College of Boston, 178 Tremont Street, Boston, MA 02111-1093. Grant: $600,000.
2. Passaic County Community College, Mr. Todd Sorber, Passaic County Community College, One College Boulevard, Paterson, NJ 07505. Grant: $597,035.
3. Universidad Del Este, Mr. Alberto Maldonado-Ruiz, Universidad Del Este, CARR 190 Road km 1.8, Avenue Principle Sabana bo, Sabana Abajo, Carolina, PR 00983. Grant: $600,000.
4. University of Puerto Rico at Humacao, Dr. Hilda M. Colon-Plumay, University of Puerto Rico at Humacao, Office of the Chancellor, 100 Street 908th Road, Humacao, PR 00791-4300. Grant: $583,284.
5. Universidad del Turabo, SUAGM, Ms. Betsy Vidal, Universidad del Turabo, SUAGM, State Road 189, km. 3.3. Gurabo, PR 00778-3030. Grant: $599,635.
6. Mesalands Community College, Mr. David Buchen, Mesalands Community College, 911 South Tenth Street, Tucumcari, NM 88401. Grant: $600,000.
7. San Jacinto College North, Dr. Richard Bailey, San Jacinto College North, 5800 Uvalde Street, Houston, TX 77049. Grant: $599,815.
8. University of Texas at San Antonio, Dr. Harriett Romo, University of Texas at San Antonio, 501 West Durango Boulevard, Frio Street, Building 4.418, San Antonio, TX 78207. Grant: $599,984.
9. Yosemite Community College District-Modesto Junior College, Ms. Judith Monast, Yosemite Community College District-Modesto Junior College, 2201 Blue Gum Avenue, Modesto, CA 95352. Grant: $527,290.
10. Columbia Basin College, Ms. Evangelina Galvan-Holt, Columbia Basin College, 2600 North 20th Avenue, Pasco, WA 99301. Grant: $600,000.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Announcement of funding awards.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this document notifies the public of funding awards for Fiscal Year (FY) 2006 Historically Black Colleges and Universities Program. The purpose of this document is to announce the names, addresses and the amount awarded to the winners to be used to help Historically Black Colleges and Universities (HBCUs) expand their role and effectiveness in addressing community development needs in their localities, consistent with the purposes of HUD's Community Development Block Grant program (CDBG).
Susan Brunson, Office of University Partnerships, U.S. Department of Housing and Urban Development, 451 Seventh Street, SW., Room 8106, Washington, DC 20410, telephone (202) 708-3061, extension 3852. To provide service for persons who are hearing-or-speech-impaired, this number may be reached via TTY by Dialing the Federal Information Relay Service on (800) 877-8339 or (202) 708-1455. (Telephone number, other than “800” TTY numbers are not toll free.)
The Historically Black Colleges and Universities Program was enacted under section 107 of the CDBG appropriation for FY 2006, as part of the “Veterans Administration, HUD and Independent Agencies Appropriations Act of 2002” and is administered by the Office of University Partnerships under the Assistant Secretary for Policy Development and Research. In addition to this program, the Office of University Partnerships administers HUD's ongoing grant programs to institutions of higher education as well as creates initiatives through which colleges and universities can bring their traditional missions of teaching, research, service, and outreach to bear on the pressing local problems in their communities.
The HBCU Program provides funds for a wide range of CDBG-eligible activities including housing rehabilitation and financing, property demolition or acquisition, public facilities, economic development, business entrepreneurship, and fair housing programs.
The Catalog Federal Domestic Assistance number for this program is 14.520.
On March 8, 2006 (71 FR 11747), HUD published a Notice of Funding Availability (NOFA) announcing the availability of $7.9 million in FY 2006, plus $2.5 million in previously unobligated funds for the HBCU Program. This year HUD awarded two types of grants: Category I and Category II. Of the amount available, $6.0 million was available to Category I applicants and $4.4 million is available to fund Category II applicants.
Category I grants were awarded to institutions that sustained in excess of $50 million in damages and destructions from hurricanes Katrina or Rita in FY 2005 (applicants can request up to $2,000,000) to provide critical resources and assistance. Funding awarded under Category II grants will allow institutions to expand their role and effectiveness in addressing community development needs in their localities or a designated disaster area (applicants could request up to $600,000). The Department reviewed, evaluated, and scored the applications received based on the criteria in the NOFA. As a result, HUD has funded the applications below, in accordance with section 102(a)(4)(C) of the Department of
1. Howard University, Dr. Rodney Green, Howard University, Center for Urban Progress, 1840 7th Street, NW., Suite 318, Washington, DC 20001. Grant: $586,027.
2. Morgan State University, Mr. Ellis Brown, Morgan State University, Community and Economic Development, Truth Hall, Room #111-G, 1700 East Cold Spring Lane, Baltimore, MD 21251. Grant: $600,000.
3. Norfolk State University, Mrs. Debra Atkins, Norfolk State University, Community and Outreach Service, 700 Park Avenue, Norfolk, VA 23504. Grant: $600,000.
4. Alabama A&M University, Mr. Larry Dejarnett, Alabama A&M University, Community Planning/Urban Studies, 4900 Meridian Street, James I. Dawson Building, Rm. 316B, Normal, AL 35762. Grant: $600,000.
5. Benedict College, Dr. Jabari Simama, Benedict College, Benedict-Allen Community Development Corporation, 1600 Harden Street, Columbia, SC 29204. Grant: $600,000.
6. C.A. Fredd Technical College Campus, Dr. Cordell Wynn, C.A. Fredd Technical College Campus, 3401 Martin Luther King Jr. Boulevard, Tuscaloosa, AL 35401. Grant: $599,020.
7. Morris College, Ms. Dorothy Cheagle, Morris College, Planning and Governmental Relations, 100 West College Street, Sumter, SC 29150. Grant: $600,000.
8. North Carolina A&T State University, Dr. N. Radhakrishman, North Carolina A&T State University, Research and Economic Development, 1601 East Market Street, Greensboro, NC 27411. Grant: $597,538.
9. Southern University and A&M College, Dr. Alma Thornton, Southern University and A&M College, Center for Social Research, 208 Higgins Hall, Roosevelt Steptoe Drive, Baton Rouge, LA 70813. Grant: $600,000.
10. Dillard University, Mr. Theodore Callier, Dillard University, Office of Sponsored Programs,1555 Poydras Street, 12th Floor, New Orleans, LA 70112. Grant: $2,000,000.
11. Langston University, Ms. Linda Tillman, Langston University, Rural Business Development, 4205 North Lincoln Boulevard, Room 109, Oklahoma City, OK 73105. Grant: $587,806.
12. Xavier University of Louisiana, Dr. Kyshun Webster, Xavier University of Louisiana, One Drexel Drive, New Orleans, LA 70125. Grant: $2,000,000.
13. University of Arkansas at Pine Bluff, Mr. Henry Golatt, Sr., University of Arkansas at Pine Bluff, Economic Research and Development Center, 1200 North University Drive, Pine Bluff, AR 71601. Grant: $429,609.
Bureau of Indian Affairs, Interior.
Notice.
This notice advises the public that the Bureau of Indian Affairs (BIA) intends to prepare an Environmental Assessment (EA) instead of an Environmental Impact Statement (EIS) for the proposed operations and maintenance of the Flathead Indian Irrigation Project upon transfer. This notice also announces a public comment period. The purpose of this notice and public comment period is to obtain additional suggestions and information from other agencies and the public regarding BIA's intention to prepare an EA instead of an EIS. Because the BIA has already held public meetings to satisfy scoping requirements for preparation of an EIS, and the subject matter of the EA is identical, at this time, the BIA does not intend to hold additional public meetings. However, if the need for additional public meetings becomes evident through public comment or otherwise, the BIA will hold additional public meetings.
Comments on the implementation of this proposal must be received before November 13, 2006.
Mail or hand deliver written comments to Mr. Travis Teegarden, Project Manager, Branch of Irrigation, Power, and Safety of Dams, Natural Resources Division, Office of Trust Services, Bureau of Indian Affairs, 490 N. 31st Street, Suite 203, Billings, MT 59101. You may also fax comments to Mr. Travis Teegarden at (406) 657-5988.
Mr. Travis Teegarden, (406) 657-5987.
The Flathead Indian Irrigation Project (Project) is located on the Flathead Indian Reservation in northwestern Montana. The Secretary of the Interior (Secretary) is required to transfer the operations and management of the Project as provided by the Act of May 29, 1908, Public Law 60-156, 35 Stat. 441 (the 1908 Act) and the Act of May 25, 1948, Public Law 80-554, 62 Stat. 269 (the 1948 Act).
In 1904, the Flathead Indian Allotment Act authorized allotments of land within the Flathead Indian Reservation to members of the Confederated Salish and Kootenai Tribes (Tribes) and construction of the Flathead Indian Irrigation Project for “the benefit of Indians” on the Flathead Indian Reservation (33 Stat. 302). When this Act was amended in 1908, it also authorized the construction of irrigation systems to serve homesteaded lands within the Flathead Indian Reservation and provided for turnover of the operation and management of irrigation works serving non-Indian lands when certain Project construction repayment conditions had been met (35 Stat. 450). Further, upon turnover of the project, the 1948 Act called for the operation and management of the Project under rules and regulations approved by the Secretary.
As of August 2002, there were 134,788 total acres in the project; 127,535 of which were assessed acres, with 7,252 designated as temporarily non-assessed acres. Approximately 10 percent of the Project's irrigated lands are held in trust by the United States for the benefit of individual Indian landowners and for the Confederated Salish and Kootenai Tribes. Trust land totals 11,771 acres, while land in fee status totals 115,764 acres. The primary source of the water for the Project originates from the Mission Mountains which border the east side of the reservation. The Project facilities include 17 major storage reservoirs, 1,300 miles of canals and laterals and more than 10,000 structures. The Project is divided into the Mission, Post, Pablo, Camas, and Jocko divisions. Primary irrigated crops are hay and alfalfa,
Currently, the BIA's Flathead Agency Superintendent is the Officer-in-Charge of the Project and administers activities through the Irrigation Systems Manager. The Irrigation Systems Manager supervises the operation and maintenance of the Project works.
Non-Indian irrigation interests are represented by three irrigation districts, the Flathead Irrigation District, the Mission Irrigation District, and the Jocko Valley Irrigation District. These Districts signed repayment contracts with the United States in 1928, 1931, and 1934 respectively, and are collectively represented by the Flathead Joint Board of Control (FJBC), which is chartered under state law and represents only owners of fee lands. Individual Indians and the Tribes that irrigate lands held in trust by the United States are statutorily excluded from representation by the FJBC.
Repayment of Project construction conditions were fulfilled in early January 2004. The BIA, the Tribes and the FJBC are developing proposed standard operating procedures for the Project and are proposing to contract the management of the Project under a Cooperating Management Entity, made up of representatives from the FJBC and the Tribes, with the BIA providing oversight functions and maintaining its role as trustee.
The BIA has been delegated the responsibility to serve as the Lead Agency for National Environmental Policy Act compliance in connection with the proposed operations and maintenance of the Flathead Indian Irrigation Project upon transfer. Issues to be addressed in the environmental analysis include, but are not limited to, irrigation and farming, rights-of-ways, treaty-protected fisheries, aquatic habitat, biological resources, wildlife habitat, and Indian traditional and cultural properties and resources.
On June 7, 2004, the BIA issued a Notice of Intent to prepare an EIS for the proposed operations and maintenance of the Flathead Indian Irrigation Project upon transfer (69 FR 31835). The BIA held public scoping meetings on June 28, 2004, in Arlee, Montana, and June 30, 2004, in Ronan, Montana. Public comments were solicited and received by the BIA and work began on the EIS. As work on the EIS progressed, it became evident that an EA would be a more appropriate NEPA document for the proposed transfer of the operation and maintenance of the Project. Preliminary analysis of current operation and maintenance of the Project and proposed future operations and maintenance after turnover showed the two plans to be very similar and any environmental affects of the limited changes and new actions to be taken would result primarily in environmental benefits. Thus, after consultation with the Tribes, the FJBC, and the U.S. Fish and Wildlife Service, the BIA now intends to prepare an EA instead of an EIS. A biological assessment prepared in accordance with the Endangered Species Act will accompany the EA.
The proposed operations and management of the Project after transfer will be examined in the EA, including Project management control structures, certain operating and maintenance methods or procedures, system rehabilitation, and alternative water delivery regimes. The environmental issues will be substantially the same as those that were to be addressed in the EIS that was originally contemplated. A draft EA will be made available for public comment. Following consideration of public comments on the draft EA, BIA will publish a final EA. Based on the information in the final EA, BIA will either issue a finding of no significant impact (FONSI), or, if the final EA reveals significant environmental impacts, BIA will prepare an EIS.
This notice is published in accordance with Council on Environmental Quality regulations (40 CFR parts 1500 through 1508) implementing the procedural requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
Bureau of Land Management, Interior.
Notice of Emergency Closure.
Notice is hereby given that certain public lands in Graham County, Arizona are temporarily closed to public use.
This Closure Order restricts all public use on a year-round basis on public lands administered by the BLM Safford Field Office in the Watson Wash area. This Order is issued under the authority of 43 CFR 8364.1 and affects the following public lands: Gila and Salt River Meridian, Arizona, T. 6 S., R.25 E., Sec. 14, S
The affected lands contain conditions that compromised public health and safety due to illegal activities at the site that included murder, assaults, fights, disorderly conduct, drugs, under-age drinking, weapon offenses, motor vehicle accidents, vandalism, and littering. Public health and safety hazards have increased substantially and are expected to continue to do so unless immediate management action is taken. The restriction prohibiting public entry and use will help to mitigate public health and safety threats. The BLM's immediate removal of an unauthorized hot tub, which was an attractive nuisance, will reduce the area's appeal as a party spot.
This temporary closure will be effective the date this notice is published in the
Bill Brandau, Safford Field Manager, BLM, Safford Field Office, 711 14th Avenue, Safford, AZ 85546, (928) 348-4461.
1. Unless otherwise authorized, no person shall enter or remain in the closed area.
2. Persons who are exempt from the restriction include:
a. Any Federal, State or local officer or member of an organized firefighting force in the performance of an official duty.
b. BLM employees engaged in official duties, and
c. Persons specifically authorized by the BLM to enter the restricted area.
Bureau of Land Management, U.S. Department of the Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management Eastern Washington Resource Advisory Council will meet as indicated below.
The Eastern Washington Resource Advisory Council will meet Friday, November 3, 2006 at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane Valley, Washington, 99212-1275.
The meeting will start at 8 a.m., adjourn at 4 p.m., and will be open to the public. Topics of discussion will include Federal Energy Regulatory Commission (FERC) re-licensing of dams, energy development, and rights-of-way corridors. There will be an opportunity for public comment at 3 p.m.
Scott Pavey, Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane Valley, Washington, 99212, or call (509) 536-1200.
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC68518 from Gunsmoke Production Company for lands in Rio Blanco County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303-239-3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188 (d) and (e), and 43 CFR 3108.2-3 (a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC68525 from Gunsmoke Production Company for lands in Rio Blanco County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Lands Leasing Act of 1920 (30 U.S.C. 188), and the Bureau of Land Management is proposing to reinstate lease COC68525 effective July 1, 2006, under the original terms and conditions of the lease and the increased rental and royalty rates cited above.
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188 (d) and (e), and 43 CFR 3108.2-3 (a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC68524 from Gunsmoke Production Company for lands in Rio Blanco County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of Proposed Reinstatement of Terminated Oil and Gas Lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC68523 from Gunsmoke Production Company for lands in Rio Blanco County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC68522 from Gunsmoke Production Company for lands in Rio Blanco County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303-239-3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
In accordance with Title IV of the Federal Oil and Gas Royalty Management Act (Pub. L. 97-451), Petro-Hunt LLC timely filed a petition for reinstatement of oil and gas lease UTU81046 for lands in Sanpete County, Utah, and it was accompanied by all required rentals and royalties accruing from May 1, 2006, the date of termination.
Douglas F. Cook, Chief, Branch of Fluid Minerals at (801) 539-4040.
The Lessee has agreed to new lease terms for rentals and royalties at rates of $5 per acre and 16
Having met all the requirements for reinstatement of the lease as set out in Section 31(d) and (e) of the Mineral Leasing Act of 1920 (30 U.S.C. 188), the Bureau of Land Management is proposing to reinstate lease UTU81046, effective May 1, 2004, subject to the original terms and conditions of the lease and the increased rental and royalty rates cited above.
Bureau of Land Management, Interior.
Proposed amended supplementary rules for public land within the State of Colorado.
The Bureau of Land Management (BLM) is proposing to amend the supplementary rules established in 2003 (68 FR 1858, January 14, 2003) for the public lands within the State of Colorado. The rules relate to the illegal use of alcohol and drugs on the public lands. The amended supplementary rules are necessary to protect natural resources and the health and safety of public land users. These amended supplementary rules will allow BLM personnel to continue enforcement of existing public land regulations pertaining to alcohol and drug use in a manner consistent with current state laws as contained in the Colorado Revised Statutes.
Comments on the proposed supplementary rules must be received or postmarked by December 11, 2006 to be assured consideration. In developing final supplementary rules, BLM may not consider comments postmarked or delivered in person or by electronic mail after this date.
You may submit comments by the following methods:
Dorothy Bensusan, Bureau of Land Management, 2850 Youngfield Street, Lakewood, Colorado 80215, telephone (303) 239-3893. Persons who use a telecommunications device for the deaf (TDD) may contact this individual by calling the Federal Information Relay Service (FIRS) at (800) 877-8339, 24 hours a day, 7 days a week.
You may also comment via the Internet to
You also may comment via the Internet by accessing the Federal eRulemaking Portal at
Written comments on the proposed amended supplementary rules should be specific, confined to issues pertinent to the proposed amendments, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal which the comment is addressing. BLM may not necessarily consider or include in the Administrative Record for the final rule comments that BLM receives after the close of the comment period (see
Comments, including names, street addresses, and other contact information of respondents, will be available for public review at 2850 Youngfield Street, Lakewood, CO 80215, during regular business hours (7:45 a.m. to 3:45 p.m.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish to request that BLM consider withholding your name, street address, and other contact information (such as: Internet address FAX or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. BLM will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. BLM will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.
The BLM, Colorado, published final supplementary rules in 2003 that prohibited certain activities related to drug and alcohol use on public lands in the state. Since that publication, state legislation has been passed that is more restrictive in several of these areas, and as a result the existing supplemental regulations are no longer in concurrence with state law. These amended supplementary rules will correct this, and further promote consistency between the BLM and other agencies including Colorado Division of Wildlife, Colorado State Parks, Colorado State Patrol, and various County Sheriff Offices where working relationships and partnerships in public land management exist.
In keeping with the BLM's performance goal of reducing threats to public health, safety, and property, these amended supplementary rules are necessary to protect natural resources and allow for safe public recreation and public health; to reduce the potential for damage to the environment; and to enhance the safety of visitors and neighboring residents. Alcohol-related offenses are a growing problem on the public lands. Unlawful consumption of alcohol and drugs poses a significant health and safety hazard to all users. Operation of motor vehicles while under the influence of alcohol or drugs can result in the destruction of natural resources and property, and/or serious physical injury or death. Of special concern is the use of firearms by persons under the influence of alcohol or drugs, or in violation of state law. Vandalism to public land resources as a result of firearm use, and the clear risks to public safety, demonstrate the need for greater regulation of these activities. Possession of drug paraphernalia has frequently been linked to other illegal use of controlled substances, including cultivation, manufacture, or possession for distribution. The BLM, in keeping with the National Drug Control policy, intends to continue efforts towards the reduction of illegal use of controlled substances on public lands. These amended supplementary rules will provide an avenue for consistent application and enforcement of alcohol and drug regulations on public lands, further enhancing public safety by all public land users.
These proposed amended supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. These amended rules will not have an effect of $100 million or more on the economy. They will not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities. These proposed supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The amended supplementary rules do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these proposed supplementary rules easier to understand, including answers to questions such as the following: (1) Are the requirements in the proposed supplementary rules clearly stated? (2) Do the proposed supplementary rules contain technical language or jargon that interferes with their clarity? (3) Does the format of the proposed supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? (4) Would the supplementary rules be easier to understand if they were divided into more (but shorter) sections? (5) Is the description of the proposed supplementary rules in the
Please send any comments you have on the clarity of the supplementary rules to the address specified in the
BLM has prepared an environmental assessment (EA) and has found that the proposed supplementary rules would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The supplementary rules will enable BLM law enforcement personnel to cite persons for unlawful possession/use of alcohol or drugs on public lands, in order to protect public health, safety, and the environment. BLM has placed the EA and the Finding of No Significant Impact (FONSI) on file in the BLM Administrative Record at the address specified in the
Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, (RFA) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rules do not pertain specifically to commercial or governmental entities of any size, but contain rules to protect the health and safety of individuals, property, and resources on the public lands. Therefore, BLM has determined under the RFA that these proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.
These supplementary rules do not constitute a major rule under 5 U.S.C. 804(2). Again, the supplementary rules pertain only to individuals who may wish to use alcohol or drugs on the public lands. In this respect, the regulation of such use is necessary to protect the public lands and facilities and those, including small business concessionaires and outfitters, who use them. The supplementary rules have no effect on business, commercial, or industrial use of the public lands.
These proposed supplementary rules do not impose an unfunded mandate on state, local, or Tribal governments or the private sector of more than $100 million per year; nor do these supplementary rules have a significant or unique effect on state, local, or Tribal governments or the private sector. The supplementary rules do not require anything of state, local, or Tribal governments. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The proposed supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. The supplementary rules do not address property rights in any form, and do not cause the impairment of anyone's property rights. Therefore, the Department of the Interior has determined that the proposed supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
The proposed supplementary rules 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. The supplementary rules apply in only one state, Colorado, and do not address jurisdictional issues involving the Colorado State government. Therefore, in accordance with Executive Order 13132, BLM has determined that these proposed supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, Colorado State Office of BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order. They merely update the existing supplementary rules to conform with changed state laws.
In accordance with E.O. 13175, we have found that these proposed supplementary rules do not include policies that have Tribal implications. Since the rules do not change BLM policy and do not involve Indian reservation lands or resources, we have determined that the government-to-government relationships should remain unaffected. The supplementary rules only prohibit the illegal use of alcoholic beverages and controlled substances, and regulate the use of firearms, on public lands, in conformance with state law.
These proposed supplementary rules do not comprise a significant energy action. The rules will not have an adverse effect on energy supplies, production, or consumption. They only address use of alcoholic beverages,
These proposed supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The principal author of these proposed supplementary rules is State Staff Ranger Dorothy Bensusan, Colorado State Office, Bureau of Land Management.
For the reasons stated in the Preamble, and under the authority of 43 CFR 8365.1-6, the Colorado State Director, Bureau of Land Management, proposes supplementary rules for public lands in Colorado, to read as follows:
A. You must not violate any state laws relating to the purchase, possession, use, or consumption of alcohol.
B. You must not operate a motor vehicle while under the influence of alcohol, in violation of any state law.
C. You must not possess any drug paraphernalia, in violation of any state law.
D. You must not possess or discharge a firearm or explosive device in violation of any state law.
E. Penalties. Under section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a) and 43 CFR 8360.0-7), any person who violates any of these supplementary rules on public lands may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. Such violations may also be subject to enhanced fines provided for by 18 U.S.C. 3571.
Department of the Interior, National Park Service, Chesapeake and Ohio Canal National Historical Park.
Notice of meeting.
Notice is hereby given that a meeting of the Chesapeake and Ohio Canal National Historical Park Advisory Commission will be held at 9:30 a.m., on Friday, October 20, 2006, at the Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Hagerstown, Maryland 21740.
Friday, October 20, 2006.
Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Hagerstown, Maryland 21740.
Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park, 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740,
The Commission was established by Public Law 91-664 to meet and consult with the Secretary of the Interior on general policies and specific matters related to the administration and development of the Chesapeake and Ohio Canal National Historical Park.
The members of the Commission are as follows:
Mrs. Sheila Rabb Weidenfeld, Chairperson, Mr. Charles J. Weir, Mr. Barry A. Passett, Mr. Terry W. Hepburn, Ms. JoAnn M. Spevacek, Mrs. Mary E. Woodward, Mrs. Donna Printz, Mrs. Ferial S. Bishop, Ms. Nancy C. Long, Mrs. Jo Reynolds, Dr. James H. Gilford, Brother James Kirkpatrick, Mr. George E. Lewis, Jr., Mr. Charles D. McElrath, Ms. Patricia Schooley, Mr. Jack Reeder.
Topics that will be presented during the meeting include:
1. Update on park operations.
2. Update on major construction/development projects.
3. Update on partnership projects.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning the matters to be discussed. Persons wishing further information concerning this meeting, or who wish to submit written statements, may contact Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park. Minutes of the meeting will be available for public inspection six weeks after the meeting at Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740.
National Park Service, Interior.
Notice.
In accordance with the Federal Advisory Committee Act (Public Law 92-463, 86 Stat. 770, 5 U.S.C. App 1, Section 10), notice is hereby given that the Concessions Management Advisory Board (the Board) will hold its 16th meeting October 24-25, 2006, at Glen Canyon National Recreation Area in Page, Arizona. The meeting will be held at the Lake Powell Lodge located in Glen Canyon National Recreation Area. The meeting will convene at 8:30 a.m. each day and will conclude at 4:30 p.m.
The Board was established by Title IV, Section 409 of the National Park Omnibus Management Act of 1998, November 13, 1998 (Public Law 105-391). The purpose of the Board is to advise the Secretary and the National Park Service on matters relating to management of concessions in the National Park System. The Board will meet at 8:30 a.m. for the regular business meeting for continued discussions on the following subjects:
• Leasehold Surrender Interest Regulations Status.
• Service Contract Act issues.
• Standards, Evaluations and Rate Approval Project Update.
• Concession Contracting Status Update.
• Superintendent's Training Project Update.
• Electronic Annual Financial Report Project Update.
• Concession Data Management System Project Update.
The meeting will be open to the public, however, facilities and space for accommodating members of the public are limited, and persons will be accommodated on a first-come-first-served basis.
The meeting site is accessible to individuals with disabilities. If you plan to attend and will require an auxiliary aid or service to participate in the meeting (e.g., interpreting service, assistive listening device, or materials in an alternate format), notify the contact person listed in this notice at least 2 weeks before the scheduled meeting date, however, we may not be able to
Further information concerning the meeting may be obtained from National Park Service, Concession Program, 1201 Eye Street, NW., Washington, DC 20240, Telephone: 202/513-7151. Draft minutes of the meeting will be available for public inspection approximately 6 weeks after the meeting, at the Concession Program office located at 102 Eye Street, NW., 11th Floor, Washington, DC.
National Park Service, U.S. Department of the Interior.
Notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. Appendix (1988)), that the Preservation Technology and Training Board (Board) of the National Center for Preservation Technology and Training, National Park Service will meet on Monday and Tuesday, October 16-17, 2006, at Yellowstone National Park, Wyoming.
The Board was established by Congress to provide leadership, policy advice, and professional oversight to the National Park Service's National Center for Preservation Technology and Training (National Center) in compliance with Section 404 of the National Historic Preservation Act of 1966, as amended, (16 U.S.C. 470x-2(e)).
The Board will meet at the Old Faithful Snow Lodge, One Grand Loop Road, Yellowstone, WY 82190—telephone (307) 344-7901. The meeting will begin at 9 a.m. and end no later than 5 p.m. each day.
The Board's meeting agenda will include: review and comment on National Center FY2006 accomplishments and operational priorities for FY2007; status of FY2007 National Center budget and initiatives; development and launch of the Lee. H. Nelson Prize in Historic Preservation Technology; proposed Wingspread Conference on Sustainability in Preservation; revitalization of the Center's Friends group, and Board workgroup reports.
The Board meeting is open to the public. Facilities and space for accommodating members of the public are limited, however, and persons will be accommodated on a first come first served basis. Any member of the public may file a written statement concerning any of the matters to be discussed by the Board.
Persons wishing more information concerning this meeting, or who wish to submit written statements, may contact: Mr. Kirk A. Cordell, Executive Director, National Center for Preservation Technology and Training, National Park Service, U.S. Department of the Interior, 645 University Parkway, Natchitoches, LA 71457—telephone (318) 356-7444. In addition to U.S. Mail or commercial delivery, written comments may be sent by fax to Mr. Cordell at (318) 356-9119.
Minutes of the meeting will be available for public inspection no later than 90 days after the meeting at the office of the Executive Director, National Center for Preservation Technology and Training, National Park Service, U.S. Department of the Interior, 645 University Parkway, Natchitoches, LA 71457—telephone (318) 356-7444.
Department of the Interior, National Park Service.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act that a meeting of the Committee for the Preservation of the White House will be held at the White House at 10 a.m. on Thursday, October 26, 2006.
October 26, 2006.
Executive Secretary, Committee for the Preservation of the White House, 1100 Ohio Drive, SW., Washington, DC 20242. (202) 619-6344.
It is expected that the meeting agenda will include policies, goals, and long range plans. The meeting will be open, but subject to appointment and security clearance requirements. Clearance information, which includes full name, date of birth and social security number, must be received by October 19, 2006. Due to the present mail delays being experienced, clearance information should be faxed to (202) 619-6353 in order to assure receipt by deadline. Inquiries may be made by calling the Committee for the Preservation of the White House between 9 a.m. and 4 p.m. weekdays at (202) 619-6344. Written comments may be sent to the Executive Secretary, Committee for the Preservation of the White House, 1100 Ohio Drive, SW., Washington, DC 20242.
Bureau of Reclamation, Interior.
Notice of availability.
The following Water Management Plans are available for review:
• Santa Clara Valley Water District
• City of Fairfield
• Solano County Water Agency
• City of Roseville
• Suisun-Solano Irrigation District
To meet the requirements of the Central Valley Project Improvement Act of 1992 (CVPIA) and the Reclamation Reform Act of 1982, the Bureau of Reclamation has developed and published the Criteria for Evaluating Water Management Plans (Criteria).
For the purpose of this announcement, Water Management Plans (Plans) are considered the same as Water
All public comments must be received by November 13, 2006.
Please mail comments to Laurie Sharp, Bureau of Reclamation, 2800 Cottage Way , MP-410, Sacramento, California 95825, or contact at 916-978-5232 (TDD 978-5608), or e-mail
To be placed on a mailing list for any subsequent information, please contact Ms. Sharp at the e-mail address or telephone number above.
We are inviting the public to comment on our preliminary (i.e., draft) determination of Plan adequacy. Section 3405(e) of the CVPIA (Title 34 Public Law 102-575) requires the Secretary of the Interior to establish and administer an office on Central Valley Project water conservation best management practices (BMPs) that shall “* * * develop criteria for evaluating the adequacy of all water conservation plans developed by project contractors, including those plans required by Section 210 of the Reclamation Reform Act of 1982.” Also, according to Section 3405(e)(1), these Criteria must be developed. “* * * with the purpose of promoting the highest level of water use efficiency reasonably achievable by project contractors using best available cost-effective technology and best management practices.” These Criteria state that all parties (Contractors) that contract with Reclamation for water supplies (municipal and industrial contracts over 2,000 acre-feet and agricultural contracts over 2,000 irrigable acres) must prepare Plans that contain the following information:
1. Description of the District.
2. Inventory of Water Resources.
3. BMPs for Agricultural Contractors.
4. BMPs for Urban Contractors.
5. BMP Plan Implementation.
6. BMP Exemption Justification.
Reclamation will evaluate Plans based on these Criteria. A copy of these Plans will be available for review at Reclamation's Mid-Pacific (MP) Regional Office located in Sacramento, California, and the local area office.
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that Reclamation withhold their home address from public disclosure, and we will honor such requests to the extent allowable by law. There also may be circumstances in which Reclamation would elect to 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 comments. We will make all submissions from organizations, businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses available for public disclosure in their entirety. If you wish to review a copy of these Plans, please contact Ms. Sharp to find the office nearest you.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 3) terminating the above-captioned investigation on the basis of a binding term sheet.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3152. Copies of the ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
On July 6, 2006, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based on a complaint, as supplemented and amended, filed by Apple Computer, Inc. of Cupertino, California (“Apple”), alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain portable digital media players and components thereof by reason of infringement of claim 25 of U.S. Patent No. 7,046,230; claims 25 and 33 of U.S. Patent No. 5,341,293; claims 36-39, 48, 65, 72-73, and 77-78 of U.S. Patent No. 5,898,434; and claims 1, 24, and 32 of U.S. Patent No. 6,282,646. 71 FR 38421 (July 6, 2006). The complainant named Creative Labs, Inc. of Milpitas, California, and Creative Technology Ltd. of Singapore (collectively, “Creative”) as respondents.
On September 13, 2006, the ALJ issued an ID (Order No. 3) granting a joint motion filed by Apple and Creative seeking termination of this investigation on the basis of a binding term sheet. No party petitioned for review of Order No. 3.
The Commission has determined not to review Order No. 3.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in § 210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 210.42(h)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 4) terminating the above-captioned investigation on the basis of a binding term sheet.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3152. Copies of the ID and all other nonconfidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-2000. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server (
On June 14, 2006, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, based on a complaint, as supplemented, filed by Creative Labs, Inc. of Milpitas, California, and Creative Technology Ltd. of Singapore (collectively, “Creative”), alleging a violation of section 337 in the importation, sale for importation, and sale within the United States after importation of certain portable digital media players by reason of infringement of claims 2-5, 7, 11-13, 15, and 16 of U.S. Patent No. 6,928,433. 71 FR 34390 (June 14, 2006). The complainant named Apple Computer, Inc. of Cupertino, California (“Apple”) as the respondent.
On September 13, 2006, the ALJ issued an ID (Order No. 4) granting a joint motion filed by Creative and Apple seeking termination of this investigation on the basis of a binding term sheet. No party petitioned for review of Order No. 4.
The Commission has determined not to review Order No. 4.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in section 210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 210.42(h)).
By order of the Commission.
60-Day Notice of Information Collection Under Review: Tribal Resources Grant Program Equipment/Training Progress Report.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The revision of a currently approved information collection is published to obtain comments from the public and affected agencies.
The purpose of this notice is to allow for 60 days for public comment until December 11, 2006. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Rebekah Dorr, Department of Justice Office of Community Oriented Policing Services, 1100 Vermont Avenue, NW., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
It is estimated that 275 respondents will complete the form annually within 30 minutes.
(6)
If additional information is required contact: Lynn Bryant, Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
Notice is hereby given that on August 24, 2006, a proposed Consent Decree in
In this action the United States sought injunctive relieve and civil penalties for violations for the Clean Air Act that occurred at the portland cement manufacturing facility located in 16000 Bell Bays Road, in Charlevoix, Michigan, which was owned and operated by CEMEX, Inc. prior to March 31, 2005, and owned by St. Barbara Cement Inc. and operated by St.Marys Cement Inc. (U.S.) on and after March 31, 2005. The complaint alleges that CEMEX Inc. failed to control and limit particulate matter (dust) emissions, failed to perform required compliance monitoring, and failed to comply with various other requirements government operation of portland cement manufacturing plants.
The proposed consent decree resolves all violations alleged in the complaint. Among other things, the consent decree requires CEMEX Inc. to pay a civil penalty of $1,359,422 to the United States and the State of Michigan and requires St. Marys and St. Barbara to install a baghouse filtering system, which is estimated to cost in excess of $11 million, to remedy the ongoing emissions violations. In addition, the consent decree requires the defendants to spend at least $6.2 million on the installation of a new indirect firing system for the facility's kiln, which is expected to substantially reduce emissions of particulate matter, sulfur dioxide, and nitrogen oxides.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney, Fifth Floor, 330 Ionia NW., Grand Rapids, MI. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
United States Trustee Program, Department of Justice.
Notice of modifications to current systems of records and establishment of a new system of records.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a) and Office of Management and Budget Circular No. A-130, the United States Trustee Program (USTP), Department of Justice, proposes to modify the following existing Privacy Act systems of records:
JUSTICE/UST-001, “Bankruptcy Case Files and Associated Records” (last substantively revised on March 4, 2004, at 69 FR 10255; as amended June 15, 2004, 69 FR 33403); JUSTICE/UST-002, “Bankruptcy Trustee Oversight Records” (last substantively revised on March 4, 2004, at 69 FR 10255; as amended June 15, 2004, 69 FR 33403); JUSTICE/UST-003, “U.S. Trustee Program Timekeeping Records” (last substantively revised on March 4, 2004, at 69 FR 10255; as amended June 15, 2004, 69 FR 33403); and JUSTICE/UST-004, “U.S. Trustee Program Case Referral System” (last substantively revised on March 4, 2004, at 69 FR 10255; as amended June 15, 2004, 69 FR33403). In addition, the USTP proposes to establish a new system of records entitled, JUSTICE/UST-005, “Credit Counseling and Debtor Education Files and Associated Records.” The modified system notices and the new system notice are published in their entirety below.
These actions will be effective November 20, 2006.
For information regarding these changes and for general information regarding the USTP's Privacy Act systems, contact Sue Ann Slates, FOIA/Privacy Counsel, Executive Office for United States Trustees (EOUST), at (202) 307-1399.
On April 20, 2005, amendments to the Bankruptcy Code, 11 U.S.C. 101,
In addition to the above amendments, other changes to the Bankruptcy Code further necessitate modifications to the categories of individuals in JUSTICE/UST-001 and JUSTICE/UST-003 and to the categories of records in JUSTICE/UST-001 and JUSTICE/UST-004. For example, individual debtors must undergo means testing and possible debtor audits and, in certain business cases, bankruptcy examiners and ombudsmen may be appointed. The USTP is also implementing a new employee timekeeping system. Besides modifications to comport with amendments to the Bankruptcy Code, the USTP has made minor changes and clarifications in its existing systems of records to correct typographical errors, update certain statutory references, reflect uniform nomenclature changes, and add data elements. A summary of the changes to the current systems of records and a summary of the new system of records is set forth below:
In system of records JUSTICE/UST-001, Bankruptcy Case Files and Associated Records, the paragraph entitled “Categories of Individuals Covered by the System” has been modified to cover credit counseling and debtor education providers, auditors, examiners, and ombudsmen, as well as individuals who may be considered for appointment as trustees, examiners, and ombudsmen. Also included in the system are individuals who have filed complaints or inquiries related to a bankruptcy case with the USTP. The “Categories of Records in the System” paragraph has been revised to include new categories of records resulting from amendments to the Bankruptcy Code and to reflect the types of records covered by this system. The routine use that allows the release of information to bankruptcy trustees has been modified to clarify that such information may be shared when necessary to enable trustees to respond to complaints and inquiries by interested parties. Four new “Routine Uses” are being added for release of information to law enforcement authorities, USTP approved credit counseling and debtor education providers, bankruptcy examiners, and ombudsmen. The “Retrievability” and “Record Source Categories” paragraphs have been updated to reflect agency practices. The system of records was also modified to correct typographical errors, update certain statutory references, and reflect uniform nomenclature changes.
System of records, JUSTICE/UST-002, Bankruptcy Trustee Oversight Records, was modified to reflect uniform nomenclature changes. Also, the routine use that allows the release of information to bankruptcy trustees has been modified to clarify that such information may be shared when necessary to enable trustees to respond to complaints and inquiries by interested parties. A new routine use allows information to be shared with law enforcement authorities.
System of records, JUSTICE/UST-003, U.S. Trustee Program Timekeeping Records, was modified to reflect uniform nomenclature changes. Also, the “Categories of Individuals Covered by the System” and the “System Managers and Address” paragraphs were modified to reflect agency practices.
In system of records JUSTICE/UST-004, U.S. Trustee Program Case Referral System, the paragraph “Categories of Records in the System” has been modified to include information pertaining to credit counseling and debtor education providers. The routine use that allows the release of information to bankruptcy trustees has been modified to clarify that such information may be shared when necessary to enable trustees to respond to complaints and inquiries by interested parties. Four new “Routine Uses” are being added for release of information to law enforcement authorities, USTP approved credit counseling and debtor education providers, bankruptcy examiners, and ombudsmen. The “Retention and Disposal” paragraph is being amended to include criminal referral records in which a criminal case has been brought against an individual subject (National Archives and Records Administration approval pending). The system of records was also modified to reflect uniform nomenclature changes.
The USTP has added a new system of records entitled JUSTICE/UST-005, Credit Counseling and Debtor Education Files and Associated Records, to cover applicants seeking to be USTP approved and reapproved providers of credit counseling and debtor education services under the Bankruptcy Code, as well as third parties who submit information, including complaints and comments, to the USTP regarding such providers. In addition to the standard routine uses currently used in the existing systems of records, three new routine uses are being added to system of records JUSTICE/UST-005: (1) for the release of information to law enforcement authorities, (2) for the release of information to appropriate third parties, including government agencies, in connection with USTP decisions to grant, deny, or revoke approval or reapproval of credit counseling and debtor education applicants and providers, and (3) for the release of information to approved credit counseling and debtor education providers to the extent necessary to enable providers to accomplish the credit counseling and debtor education requirements of the Bankruptcy Code and to respond to complaints and inquiries submitted to the USTP by interested parties. The entire systems of records notice is published below.
In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is given a 30-day period in which to comment; and the Office of Management and Budget (OMB), which has oversight responsibility of the Act, requires a 40-day period in which to conclude its review of the system. Therefore, please submit any comments by November 20, 2006. The public, OMB, and Congress are invited to submit comments to: Mary Cahill, Management and Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530 (Room 1400, National Place Building).
In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and Congress.
Bankruptcy Case Files and Associated Records.
Sensitive But Unclassified.
The Executive Office for United States Trustees (EOUST) and other offices of the United States Trustee Program (USTP) depending upon the judicial district where a bankruptcy case or proceeding is pending or was administered. (Office addresses can be located on the Internet at
Individuals and entities involved in cases or proceedings under the Bankruptcy Code (11 U.S.C. 101,
Individuals who have filed complaints, inquiries, or comments related to a bankruptcy case with the USTP.
Records in this system may include: (a) Petitions/orders for relief; (b) schedules of assets and liabilities of debtors; (c) lists of creditors; (d) statements of financial affairs; (e) operating or status reports; (f) alphabetical cross-reference index cards; (g) general correspondence regarding bankruptcy cases and proceedings; (h) miscellaneous investigative records; (i) copies of certain pleadings, official forms, or other papers filed in court, including those filed by the USTP; (j) appraisal reports; (k) names of bank depositories and amounts of funds deposited therein; (l) names of sureties and amounts of trustees' bonds; (m) tape or other recordings of creditors meetings conducted under 11 U.S.C. 341 for the purpose of examination of debtors by creditors, trustees, and others; (n) plans filed under chapter 11, 12, or 13; (o) names of persons serving as counsel, trustee, professionals, or other functionaries in bankruptcy cases and proceedings, including compensation earned or sought by each; (p) names and qualifications of individuals who may be considered for appointment as trustees, examiners, and ombudsmen; (q) names and contact information of credit counselors and debtor education providers; (r) credit counseling certificates, debtor education certificates, certificate numbers, completion dates of credit counseling briefings and debtor education courses; (s) debt management plans; (t) means test review forms; (u) targeted and random debtor audit forms, audit reports, and related working papers; (v) federal and state tax returns; and (w) other case-related information, such as case number, case status, case type, parties' names and other personal identifiers, Social Security numbers and financial account numbers, estate assets/liabilities, case filings/reports, trustee bonds, calendars of meetings and hearings, due dates of plan, schedules and other filings, creditors' committee status, attorneys/professionals' data, and trustees/examiners' data, and ombudsmen data, including health care and medical records of patients of entities involved in cases or proceedings under 11 U.S.C. 101,
This system is established and maintained pursuant to the bankruptcy oversight and related responsibilities of the USTP under,
The records in this system are used by USTP personnel to determine the existence of a case, to ascertain the status of actions with respect to a case, to ensure that timely action is taken as appropriate, to determine the involvement by agents or other representatives of parties in such cases, to implement and monitor compliance with credit counseling and debtor education requirements, and to facilitate the performance of USTP duties under,
As provided in 11 U.S.C. 107, a document filed in a case and the dockets of the bankruptcy court are public records and open to examination except when the court enters a protective order or otherwise acts to seal a docket entry.
(A) Release of Information to Former Employees:
The Department of Justice may disclose relevant and necessary information to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(B) Release of Information to Contractors:
Information from these records may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(C) Release of Information in Proceedings:
Information from these records may be disclosed in an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(D) Release of Information for Litigation-related Discussions:
Information from these records may be disclosed to an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(E) Release of Information to Bankruptcy Trustees:
Information from these records may be disclosed to a trustee under chapter 7, 11, 12, or 13 of title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the trustee to properly administer a case or to perform the duties and responsibilities of a case trustee under 28 U.S.C. 586, 18 U.S.C. 3057, or 11 U.S.C. 101,
(F) Release of Information to Complainants and Victims:
Information from these records may be disclosed to complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(G) Release of Information to the News Media:
Information from these records may be disclosed to the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(H) Release of Information to Members of Congress:
Information from these records may be disclosed to a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(I) Release of Information to National Archives and Records Administration:
A record from this system of records may be disclosed to the National Archives and Records Administration for purposes of records management
(J) Release of Information to Law Enforcement or Regulatory Agencies:
With respect to non-law enforcement records, where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
(K) Release of Information to Licensing Agencies:
Information from these records may be disclosed to federal, state, local, tribal, foreign or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
(L) Release of Information for Employment, Clearance, Contract, or Grant Purposes:
Information from these records may be disclosed to appropriate officials and employees of a Federal agency or entity which requires information relevant to a decision concerning the hiring, appointment, or retention of an employee; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract, or the issuance of a grant or benefit.
(M) Release of Information to Credit/Consumer Reporting Agencies:
Information from these records may be disclosed to a credit or consumer reporting agency, as such terms are used in the Fair Credit Reporting Act (15 U.S.C. 1681,
(N) Release of Information related to Investigations and Proceedings:
Information from these records may be disclosed in the course of investigating the potential or actual violation of any law—whether civil, criminal, or regulatory in nature—or for the preparation of a trial or hearing for such violation. Such information may be disclosed to a Federal, state, local, tribal, or foreign agency, or to an individual or organization, if there is reason to believe that such agency, individual, or organization possesses information relating to the investigation, trial, or hearing, and if the dissemination is reasonably necessary to elicit such information or to obtain the cooperation of a witness or an informant.
(O) Release of Information in connection with Section 341 Meetings:
Information from these records may be disclosed in connection with meetings held under 11 U.S.C. 341 and related proceedings, when the Department of Justice determines that the records are arguably relevant to such meetings or bankruptcy proceedings. Transcripts or other records of such meetings may also be disclosed upon request pursuant to relevant bankruptcy laws or rules.
(P) Release of Information to Law Enforcement Authority:
With respect to law enforcement records, to any criminal, civil, or regulatory law enforcement authority (whether federal, state, local, tribal, or foreign) where the information is relevant to the recipient entity's law enforcement responsibilities.
(Q) Release of Information to USTP Approved Credit Counseling and Debtor Education Providers:
Information from these records may be disclosed to a USTP approved credit counseling and/or debtor education provider when the EOUST or United States Trustee determines that the release of such information is necessary to enable the approved provider to properly perform the duties and responsibilities of a credit counseling and/or debtor education provider under 11 U.S.C. 101,
(R) Release of Information to Bankruptcy Examiners:
Information from these records may be disclosed to a bankruptcy examiner appointed in a case under title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the bankruptcy examiner to properly perform the duties and responsibilities of an examiner under 11 U.S.C. 101,
(S) Release of Information to Ombudsmen:
Information from these records may be disclosed to an ombudsman appointed in a case under title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the ombudsman to properly perform the duties and responsibilities of an ombudsman under 11 U.S.C. 101,
Records in this system, except as specified below, are recorded on paper/cardboard material and maintained in file cabinets, storage containers, electric file/card retrievers, or safes. Certain records in this system are entered into automated information systems and stored on servers and/or magnetic disks for use or reproduction in report form at various times.
In USTP field offices, bankruptcy case records are retrieved by bankruptcy court case numbers, cross-referenced alphabetically by names of debtors. Bankruptcy case records pertaining to case trustees, sureties, depository banks, and to agents representing parties are maintained and retrieved alphabetically. Bankruptcy case records and records of potential candidates for appointment as trustees, examiners, and ombudsmen in the EOUST are maintained and retrieved alphabetically by name of the debtor or the particular person involved. Automated information is retrieved by a variety of key words, including names of individuals.
Records contained in this system are unclassified. They are safeguarded and protected in accordance with Departmental rules and procedures governing the handling of office records and computerized information. During duty hours, access to this system is monitored and controlled by USTP personnel. During nonduty hours, offices are locked.
Chapter 7 no-asset case records may be destroyed six months after the case is closed. Section 341 meeting tapes may be destroyed two years after the date of the 341 meeting. Chapter 7 asset case records may be destroyed three years after the case is closed. Chapter 11 case records may be destroyed three years after the case is dismissed or closed. Chapter 12 and chapter 13 case records may be destroyed six months after the case is dismissed or closed. To prevent unauthorized disclosure, records are destroyed by shredding, burning, or similar methods.
The system managers for this system of records are: (a) the United States Trustees or Assistant United States Trustees, to the extent these records are maintained in their offices; and (b) the General Counsel, to the extent these records are maintained in the EOUST. (Office addresses can be located on the Internet at
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reasons for contesting it, and the proposed amendment to the information. Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Sources of information contained in this system generally consist of debtors, creditors, trustees, examiners, auditors, ombudsmen, USTP approved credit counseling and/or debtor education providers, attorneys, and other agents participating in the administration of a case, judges of the bankruptcy courts and other judicial officers, parties in interest, and employees of the USTP.
None.
Bankruptcy Trustee Oversight Records
Sensitive But Unclassified
The Executive Office for United States Trustees (EOUST) and other offices of the United States Trustee Program (USTP) depending upon the judicial district where the bankruptcy case trustee serves or has made application to serve. (Office addresses can be located on the Internet at
Persons serving or applying to serve as estate trustees in bankruptcy cases filed under chapter 7, 11, 12, or 13 of the Bankruptcy Code (11 U.S.C. 101,
Records in this system may include: resumes, applications, references, recommendations, and related materials; notes, correspondence, memoranda, messages, and agreements; audits, reviews, evaluations, financial records, transcripts, and security clearance information; Social Security numbers, financial account numbers, and other personal identifiers; and other information provided to USTP by trustees, applicants, and third parties or developed by USTP personnel.
This system is established and maintained pursuant to the bankruptcy oversight and related responsibilities of the USTP under,
These records are used by USTP personnel for determining and reassessing the qualifications and eligibility of persons serving or applying to serve as trustees in bankruptcy cases.
(A) Release of Information to Former Employees:
The Department of Justice may disclose relevant and necessary information to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(B) Release of Information to Contractors:
Information from these records may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(C) Release of Information in Proceedings:
Information from these records may be disclosed in an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(D) Release of Information for Litigation-related Discussions:
Information from these records may be disclosed to an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(E) Release of Information to Bankruptcy Trustees:
Information from these records may be disclosed to a trustee under chapter 7, 11, 12, or 13 of title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the trustee to properly administer a case or to perform the duties and responsibilities of a case trustee under 28 U.S.C. 586, 18 U.S.C. 3057, or 11 U.S.C. 101,
(F) Release of Information to Complainants and Victims:
Information from these records may be disclosed to complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(G) Release of Information to the News Media:
Information from these records may be disclosed to the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined
(H) Release of Information to Members of Congress:
Information from these records may be disclosed to a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(I) Release of Information to National Archives and Records Administration:
A record from this system of records may be disclosed to the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(J) Release of Information to Law Enforcement or Regulatory Agencies:
With respect to non-law enforcement records, where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
(K) Release of Information to Licensing Agencies:
Information from these records may be disclosed to federal, state, local, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
(L) Release of Information to Credit/Consumer Reporting Agencies:
Information from these records may be disclosed to a credit or consumer reporting agency, as such terms are used in the Fair Credit Reporting Act (15 U.S.C. 1681,
(M) Release of Information Related to Investigations and Proceedings:
Information from these records may be disclosed in the course of investigating the potential or actual violation of any law—whether civil, criminal, or regulatory in nature—or for the preparation of a trial or hearing for such violation. Such information may be disclosed to a federal, state, local, tribal, or foreign agency, or to an individual or organization, if there is reason to believe that such agency, individual, or organization possesses information relating to the investigation, trial, or hearing, and if the dissemination is reasonably necessary to elicit such information or to obtain the cooperation of a witness or an informant.
(N) Release of Information in Connection with Section 341 Meetings:
Information from these records may be disclosed in connection with meetings held under 11 U.S.C. 341 and related proceedings when the Department of Justice determines that the records are arguably relevant to such meetings or proceedings. Transcripts or other records of such meetings may also be disclosed upon request pursuant to relevant bankruptcy laws or rules.
(O) Release of Information to Law Enforcement Authority
With respect to law enforcement records, to any criminal, civil, or regulatory law enforcement authority (whether federal, state, local, tribal, or foreign) where the information is relevant to the recipient entity's law enforcement responsibilities.
Records in this system, except as specified below, are recorded on paper/cardboard material and maintained in file cabinets, storage containers, electric file/card retrievers, or safes. Certain records in this system are entered into automated information systems and stored on servers and/or magnetic disks for use or reproduction in report form at various times.
In USTP field offices, bankruptcy trustee oversight records are filed alphabetically by the trustee's or applicant's name. In EOUST, similar records are maintained alphabetically, organized by region. Automated information is retrieved by a variety of key words, including names of individuals.
Records contained in this system are unclassified. They are safeguarded and protected in accordance with Departmental rules and procedures governing the handling of official records and computerized information. During duty hours, access to this system is monitored and controlled by USTP office personnel. During nonduty hours, offices are locked.
Bankruptcy trustee oversight records may be destroyed after three years except in the following circumstances. If the trustee dies, his/her trustee oversight records may be destroyed after one year. Case Trustee Interim Reports may be destroyed after five years. To prevent unauthorized disclosure, records are destroyed by shredding, burning, or similar methods.
The system managers for this system of records are: (a) the United States Trustees or Assistant United States Trustees, to the extent these records are maintained in their offices; and (b) the Assistant Director, Office of Review and Oversight, to the extent these records are maintained in the EOUST. (Office addresses can be located on the Internet at
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reasons for contesting it, and the proposed amendment to the information. Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Sources of information contained in this system generally consist of the applicant, the applicant's references, interested third parties, and/or USTP personnel.
None.
U.S. Trustee Program Timekeeping Records.
Sensitive But Unclassified.
The Executive Office for United States Trustees (EOUST) and other offices of the United States Trustee Program (USTP) depending upon where an employee has been assigned for duty. (Office addresses can be located on the Internet at
Employees of the USTP field offices, generally to include Assistant United States Trustees, trial attorneys, bankruptcy analysts, paralegal specialists, and clerical support staff.
Records in this system may include USTP employees' names, personal identifiers, and a record of their work time.
This system is established and maintained pursuant to the responsibilities of the USTP under,
This system consists of records of the work time of employees of the USTP, and is used,
(A) Release of Information to Former Employees:
The Department of Justice may disclose relevant and necessary information to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(B) Release of Information to Contractors:
Information from these records may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(C) Release of Information to Members of Congress:
Information from these records may be disclosed to a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(D) Release of Information to National Archives and Records Administration:
A record from this system of records may be disclosed to the National Archives and Records Administration for the purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(E) Release of Information in Proceedings:
Information from these records may be disclosed in an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(F) Release of Information related to Investigations and Proceedings:
Information from these records may be disclosed in the course of investigating the potential or actual violation of any law—whether civil, criminal, or regulatory in nature—or for the preparation of a trial or hearing for such violation. Such information may be disclosed to a federal, state, local, tribal, or foreign agency, or to an individual or organization, if there is reason to believe that such agency, individual, or organization possesses information relating to the investigation, trial, or hearing, and if the dissemination is reasonably necessary to elicit such information or to obtain the cooperation of a witness or an informant.
Records in this system, except as specified below, are recorded on paper/cardboard material and maintained in file cabinets, storage containers, electric file/card retrievers, or safes. Certain records in this system are entered into automated information systems and stored on servers and/or magnetic disks for use or reproduction in report form at various times.
In USTP field offices, USTP timekeeping records are maintained by the name of the employee. In EOUST, such records are maintained and organized by USTP office, job title, and the name of the employee. Automated information is retrieved by a variety of key words.
Records contained in this system are unclassified. They are safeguarded and protected in accordance with Departmental rules and procedures governing the handling of official records and computerized information. During duty hours, access to this system is monitored and controlled by USTP office personnel. During nonduty hours, offices are locked.
These records may be destroyed by shredding, burning, or similar methods after being audited or when three years old.
The system managers for this system of records are: (a) the United States Trustees or Assistant United States Trustees, to the extent these records are maintained in their offices; and (b) the Assistant Director, Office of Research and Planning, to the extent these records are maintained in the EOUST. (Office addresses can be located on the Internet at
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reasons for contesting it,
Sources of information contained in this system generally consist of USTP personnel.
None.
U.S. Trustee Program Case Referral System.
Sensitive But Unclassified.
The Executive Office for United States Trustees (EOUST) and other offices of the United States Trustee Program (USTP), depending on where the acts under investigation occurred. (Office addresses can be located on the Internet at
Entities and individuals involved in the bankruptcy process who are suspected of having engaged in criminal conduct or of having violated other federal laws, and whose activities have been or may be investigated or reported by the USTP to a United States Attorney or other law enforcement authority for investigation, prosecution, or other action pursuant to 28 U.S.C. 586, 18 U.S.C. 3057, or other legal authority.
Records in this system may include information associated with a referral to law enforcement authorities in connection with bankruptcy proceedings or related matters arising under 11 U.S.C. 101,
This system is established and maintained pursuant to the responsibilities of the USTP under,
The purposes of this system are to assist the United States Trustees: (1) in supervising the administration of cases and trustees in cases and proceedings filed under the Bankruptcy Code (11 U.S.C. 101,
(A) Release of Information to Former Employees:
The Department of Justice may disclose relevant and necessary information to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(B) Release of Information to Contractors:
Information from these records may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(C) Release of Information in Proceedings:
Information from these records may be disclosed in an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator holds the records to be relevant to the proceeding.
(D) Release of Information for Litigation-related Discussions:
Information from these records may be disclosed to an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(E) Release of Information to Bankruptcy Trustees:
Information from these records may be disclosed to a trustee under chapter 7, 11, 12, or 13 of title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the trustee to properly administer a case or to perform the duties and responsibilities of a case trustee under 28 U.S.C. 586, 18 U.S.C. 3057, or 11 U.S.C. 101,
(F) Release of Information to Complainants and Victims:
Information from these records may be disclosed to complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(G) Release of Information to the News Media:
Information from these records may be disclosed to the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of privacy.
(H) Release of Information to Members of Congress:
Information from these records may be disclosed to a Member of Congress or staff acting on the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual to whom the records pertain.
(I) Release of Information to National Archives and Records Administration:
These records may be disclosed to the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(J) Release of Information to Law Enforcement or Regulatory Agencies:
With respect to non-law enforcement records, where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
(K) Release of Information to Licensing Agencies:
Information from these records may be disclosed to federal, state, local, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
(L) Release of Information to Judicial Branch:
These records may be disclosed to members of the judicial branch of the federal government where disclosure appears relevant to the authorized function of the recipient judicial office or court system under 18 U.S.C. 3057.
(M) Release of Information to Credit/Consumer Reporting Agencies:
Information from these records may be disclosed to a credit or consumer reporting agency, as such terms are used in the Fair Credit Reporting Act (15 U.S.C. 1681,
(N) Release of Information Related to Investigations and Proceedings:
Information from these records may be disclosed in the course of investigating the potential or actual violation of any law—whether civil, criminal, or regulatory in nature—or for the preparation of a trial or hearing for such violation. Such information may be disclosed to a federal, state, local, tribal, or foreign agency, or to an individual or organization, if there is reason to believe that such agency, individual, or organization possesses information relating to the investigation, trial, or hearing, and if the dissemination is reasonably necessary to elicit such information or to obtain the cooperation of a witness or an informant.
(O) Release of Information in Connection with Section 341 Meetings:
Information from these records may be disclosed in connection with meetings held under 11 U.S.C. 341 and related proceedings, when the Department of Justice determines that the records are arguably relevant to such meetings or proceedings. Transcripts or other records of such meetings may also be disclosed upon request pursuant to relevant bankruptcy laws or rules.
(P) Release of Information to Law Enforcement Authority:
With respect to law enforcement records, to any criminal, civil, or regulatory law enforcement authority (whether federal, state, local, tribal, or foreign) where the information is relevant to the recipient entity's law enforcement responsibilities.
(Q) Release of Information to USTP Approved Credit Counseling and Debtor Education Providers:
Information from these records may be disclosed to a USTP approved credit counseling and/or debtor education provider when the EOUST or United States Trustee determines that the release of such information is necessary to enable the approved provider to properly perform the duties and responsibilities of a credit counseling and/or debtor education provider under 11 U.S.C. 101,
(R) Release of Information to Bankruptcy Examiners:
Information from these records may be disclosed to a bankruptcy examiner appointed in a case under title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the bankruptcy examiner to properly perform the duties and responsibilities of an examiner under 11 U.S.C. 101,
(S) Release of Information to Ombudsmen:
Information from these records may be disclosed to an ombudsman appointed in a case under title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the ombudsman to properly perform the duties and responsibilities of an ombudsman under 11 U.S.C. 101,
Records in this system, except as specified below, are recorded on paper/cardboard material and maintained in file cabinets, storage containers, electric file/card retrievers, or safes. Certain records in this system are entered into automated information systems and stored on servers and/or magnetic disks for use or reproduction in report form at various times.
In EOUST and in USTP field offices, case referral records are filed alphanumerically or chronologically. Automated information is retrieved by a variety of key words, including names of individuals or other personal identifiers.
Records contained in this system are unclassified but highly sensitive. They are safeguarded and protected in accordance with Departmental rules and procedures governing the handling of official records and computerized information. During duty hours, access to this system is monitored and controlled by USTP office personnel. During nonduty hours, offices are locked. Only those persons with a need to know have access to the records.
Criminal referral records may be destroyed by shredding, burning, or similar methods five years from the date of the finding of insufficient evidence, declination of prosecution, or the voting of a No True Bill by a Grand Jury. For
The system managers for this system of records are: (a) the United States Trustees or Assistant United States Trustees, to the extent these records are maintained in their offices; and (b) Office of the General Counsel and/or Chief of Criminal Enforcement, to the extent these records are maintained in the EOUST. (Office addresses can be located on the Internet at
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reasons for contesting it, and the proposed amendment to the information. Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
The records generally contain information obtained by or furnished to the USTP from: (1) Federal or state court records; (2) debtors or debtors' principals, agents or representatives; (3) informants and interested third parties; and (4) other law enforcement sources.
The Attorney General has exempted this system of records from subsections (c)(3) and (4); (d); (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8); (f) and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553(b), (c), and (e) and have been published in the
Credit Counseling and Debtor Education Files and Associated Records.
Sensitive But Unclassified
The Executive Office for U.S. Trustees (EOUST) and other offices of the United States Trustee Program (USTP) depending upon the judicial district(s) where the credit counselor or debtor education provider delivers services or has made application to deliver services under title 11, U.S. Code (11 U.S.C. 101,
Individuals and entities applying for approval and reapproval by the United States Trustee(s) to provide credit counseling and/or debtor education services under title 11, U.S. Code, including, but not limited to: (a) primary contact persons, agency representatives, principals, owners, counselors, educators, teachers, sole proprietors, managers, supervisors, employees, current and former directors, officers, and trustees; (b) individuals and entities whose approval and reapproval are pending or withdrawn or have been granted, denied, or revoked by the United States Trustee(s); (c) other parties in interest, agents, affiliates, related entities, independent contractors, contract service providers, credit counseling and debtor education clients, students, professionals, debtors, creditors, bankruptcy trustees, attorneys, accountants, auditors, or those otherwise involved in credit counseling and debtor education.
Individuals who have filed complaints or comments with the United States Trustee(s) or EOUST against credit counseling and debtor education providers whose approval and reapproval are pending or withdrawn or have been granted, denied, or revoked by the United States Trustee(s) under title 11, U.S. Code.
Records in this system may include: (a) Applications, appendices, and related documents submitted to EOUST or the United States Trustee(s) by credit counseling agencies and debtor education providers; (b) supplemental submissions to applications and related correspondence; (c) data relating to the agencies' and providers' approval status and performance such as memoranda, notes, messages, check lists, reviews, and evaluations; (d) information from federal, state, and local government agencies, including Internal Revenue Service (IRS) release/waiver forms and IRS audit information; (e) Social Security numbers and tax identification numbers; (f) federal and state tax returns; (g) names, addresses, business locations and corresponding judicial districts, email addresses, telephone and fax numbers, resumes, Curriculum Vitae, education, qualifications, and/or experience of primary contact persons, agency representatives, principals, owners, counselors, educators, teachers, sole proprietors, managers, supervisors, employees, current and former directors, officers, and trustees, parties in interest, agents, affiliates, subsidiaries, related entities, independent contractors, contract service providers, professionals, attorneys, accountants, and auditors, including compensation earned or sought by each; (h) names of sureties and amounts of bonds, securities, insurance policies, and letters of credit; (i) general correspondence, forms, contracts, client agreements, schedules, budget analysis forms, training materials, counseling and teaching methods, manuals, procedures, scripts, counseling materials, debtor education curriculum, and Internet information; (j) fee schedules, suggested contributions, and “fair share” contributions made by creditors; (k) bank and financial institution information, including names of depositories and amounts of funds deposited in operating accounts and trust accounts; (l) audits, audited and unaudited financial statements, and cash flow projections (balance sheets, profit and loss statements, and statements of cash flow, and a year-to-date budget versus actual comparison, including all underlying assumptions); (m) annual disbursements; (n) business plans; (o) debt management plan servicing agreements; (p) statistics and activity reports; (q) background checks and miscellaneous investigative records; (r) copies of certain pleadings or other papers filed in court, including those filed by the USTP; (s) bond or other claims, arbitrations, and mediations, (t)
This system is established and maintained pursuant to the bankruptcy oversight and related responsibilities of the USTP under, e.g., 28 U.S.C. 581,
The records in this system will be used to assist the EOUST and United States Trustee(s) to: (a) Determine and reassess the suitability, eligibility, and qualifications of persons providing or applying to provide credit counseling and/or debtor education services under title 11, U.S. Code; (b) maintain the requisite data conveniently; (c) ensure compliance with statutory requirements; (d) monitor credit counseling agencies' and debtor education providers' approval status, compliance with approval standards, and performance of approved providers; (e) monitor the issuance of certificates and detect and deter certificate forgery; and (f) collect and maintain complaints and comments from bankruptcy debtors and the public in order to take appropriate actions, including referrals to other government agencies.
(A) Release of Information to Former Employees:
The Department of Justice may disclose relevant and necessary information to a former employee of the Department for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(B) Release of Information to Contractors:
Information from these records may be disclosed to contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish an agency function related to this system of records.
(C) Release of Information in Proceedings:
Information from these records may be disclosed in an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(D) Release of Information for Litigation-Related Discussions:
Information from these records may be disclosed to an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(E) Release of Information to Bankruptcy Trustees:
Information from these records may be disclosed to a trustee under chapter 7, 11, 12, or 13 of title 11, U.S. Code, when the United States Trustee determines that the release of such information is necessary to enable the trustee to properly administer a case or to perform the duties and responsibilities of a case trustee under 28 U.S.C. 586, 18 U.S.C. 3057, or 11 U.S.C. 101,
(F) Release of Information to Complainants and Victims:
Information from these records may be disclosed to complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(G) Release of Information to the News Media:
Information from these records may be disclosed to the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(H) Release of Information to Members of Congress:
Information from these records may be disclosed to a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(I) Release of Information to National Archives and Records Administration:
A record from this system of records may be disclosed to the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(J) Release of Information to Law Enforcement or Regulatory Agencies:
With respect to non-law enforcement records, where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
(K) Release of Information to Licensing Agencies:
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Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Address such inquiries to the Office of the General Counsel (FOIA/Privacy Counsel) at the address listed on the USTP FOIA/Privacy Act Web site (
Individuals desiring to contest or amend information maintained in the system should clearly and concisely state what information is being contested, the reason for contesting it, and the proposed amendment to the information. Address such inquiries to
Sources of information contained in this system generally consist of the credit counseling and/or debtor education provider applicants, and those whose applications for approval or reapproval have been withdrawn by the applicant or granted, denied, or revoked by the United States Trustee(s); the applicants' references; interested third parties; federal and state agencies; and/or USTP personnel.
None.
On April 26, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (DEA), issued an Order To Show Cause to Gregg Brothers Wholesale Co., Inc., (Respondent) of Powell, Tennessee. The Show Cause Order proposed to deny Respondent's application for registration as a distributor of the List I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine on the ground that its registration would be inconsistent with the public interest as that term is defined in 21 U.S.C. 823(h).
The Show Cause Order specially alleged that methamphetamine production “continues unabated within the Tennessee region,” that the State “has a large number of independent methamphetamine producers,” and that the State leads DEA's southeast region in the number of clandestine laboratory seizures.
The Show Cause Order alleged that Respondent's owner, Mr. Thomas Gregg, told DEA Diversion Investigators (DIs) that he intended to distribute both traditional pseudoephedrine products and non-traditional or “gray market” products, including products that have been found during seizures of clandestine laboratories.
The Show Cause Order next alleged that Respondent expected to sell List I chemical products “to about 190 various convenience stores and similar retail establishments.”
The Show Cause Order was served by certified mail, return receipt requested, and on May 4, 2005, Respondent acknowledged receipt. Thereafter, Respondent, in a letter dated June 1, 2005, but which was not received until June 9, 2005, requested a hearing; the matter was initially assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner.
On June 16, 2005, the Government moved to deny Respondent a hearing on the ground that Respondent had not timely filed its request.
Thereafter, the investigative file was forwarded to me for final agency action. I adopt the ALJ's finding that Respondent has waived its hearing right and hereby enter this final order based on relevant material in the investigative file.
Respondent is a Tennessee Corporation which is located in Powell, Tennessee. Mr. Thomas Gregg is Respondent's President and owns all of its shares. Respondent distributes bait, groceries, candy, snack food, health and beauty items and novelty items to convenience stores and gas stations in East Tennessee, Virginia, Kentucky, and North Carolina. On August 15, 2002, Respondent applied for a registration to distribute the List I chemicals pseudoephedrine, ephedrine, and phenylpropanolamine (PPA).
While ephedrine and pseudoephedrine have therapeutic uses, they are easily extracted from lawful over-the-counter products and used in the illicit manufacture of methamphetamine, a schedule II controlled substance.
Methamphetamine is a powerful and addictive central nervous system stimulant,
The problem of methamphetamine abuse is especially serious in Tennessee. In 2004, law enforcement agencies seized 939 clandestine methamphetamine labs in the State. These seizures were the second largest per-state total in the nation.
On September 1, 2004, two DEA Diversion Investigators (DIs) visited Respondent at its proposed registered location to conduct a pre-registration investigation. The DIs met with Mr. Gregg, who told them that he intended to sell both traditional and non-traditional List I chemical products and that his suppliers included Sessions Specialty Company of Lewisville, North
During the course of the investigation, the DIs found that Respondent had obtained several pseudoephedrine products (3 boxes of Tylenol Sinus Tablets and 1 box of Advil Cold and Sinus Tablets) from the Sessions Specialty Company. Mr. Gregg further told the DIs that he had sold some pseudoephedrine products to his customers. Respondent did not, however, have a DEA registration to distribute the products.
When told by the DIs that Respondent could not lawfully sell these products, Mr. Gregg told the DIs that he did not know that the products contained List I chemicals. According to the DIs, Mr. Gregg returned the List I products to the distributor. There is, however, an invoice dated October 11, 2004, documenting the sale of Tylenol Sinus Geltabs to a food market; this was a product which Respondent was required to return to its distributor because it contained pseudoephedrine.
A review of Respondent's purchase records shows that Respondent purchased pseudoephedrine products sixteen times between January 2002 and June 2004. Respondent's sales records further show that Respondent sold List I chemical products containing pseudoephedrine on approximately 160 occasions during the 2002 through 2004 time period.
The DIs evaluated Respondent's security measures; the physical security of its premises appeared to be adequate. Mr. Gregg further told the DIs that he did not allow merchandise to be stored on trucks overnight. When the DIs discussed with Mr. Gregg the problem of List I chemical diversion into the illicit manufacture of methamphetamine, Mr. Gregg told the DIs that he was not responsible because he did not make methamphetamine himself and could not control what other people did.
Mr. Gregg provided the DIs with a customer list. The DIs determined that Respondent's customer list included seventeen establishments that were also customers of another firm (Rite, Inc.), which was then under investigation and ultimately surrendered its registration.
The DIs determined that Respondent did not have a current business license. Finally, the DIs conducted background checks on Mr. Gregg and his employees. The backgrounds checks found no adverse information on any of these individuals.
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
“These factors are considered in the disjunctive.”
The investigative file does not establish that Respondent would fail to provide effective physical security to protect List I chemicals from theft. Moreover, Respondent appears capable of maintaining the required records. I have serious reservations, however, as to whether Respondent would report suspicious transactions.
During his discussions with the DIs regarding the diversion of List I chemicals, Mr. Gregg made statements to the effect that he was not responsible because he did not make methamphetamine himself and could not control what other people did. In light of the well documented problem of methamphetamine abuse in Tennessee, I find this statement extremely disturbing.
Recently, I ordered the revocation of a List I chemical distributor's registration in part because the registrant's attitude was that he was not responsible for diversion of his products into the illicit manufacture of methamphetamine after he delivered them to his customers.
As DEA has learned in cases such as
The investigative file establishes that between 2002 and 2004, Respondent repeatedly violated the Controlled Substances Act when it engaged in approximately 160 distributions of List I chemical products without being registered to do so.
There is no evidence that Respondent's owner, or any of its employees, has been convicted of a crime relating to controlled substances or chemicals under either Federal or State law. This factor ordinarily supports a finding that Respondent's registration would not be inconsistent with the public interest. But in this case, I decline to give the factor any weight because of the evidence establishing Respondent's non-compliance with the CSA.
According to a letter from Mr. Gregg, Respondent previously distributed ephedrine and pseudoephedrine during some unspecified period prior to these products becoming regulated. I do not, however, consider this to be relevant experience as it occurred before the adoption of the current regulatory scheme and thus does not address whether Respondent would comply with federal regulations. Furthermore, for the reasons discussed under Factor Two, Respondent's past experience in distributing List I chemicals involved approximately 160 distributions over a nearly three year period without being registered and Respondent sold pseudoephedrine even after the DIs expressly told Mr. Gregg that Respondent could not distribute pseudoephedrine products without a registration.
As I noted in
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) and 0.104, I hereby order that the previously submitted application of Gregg Brothers Wholesale, Co., Inc., for a DEA Certificate of Registration as a distributor of List I chemicals be, and it hereby is, denied. This order is effective November 13, 2006.
On July 12, 2005, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Integrity Wholesale, Inc., (Respondent) of Fairview, Tennessee. The Show Cause Order proposed to deny Respondent's application for a DEA Certificate of Registration as a distributor of the List I chemical pseudoephedrine, on the ground that issuance of a registration would be inconsistent with the public interest.
The Show Cause Order specifically alleged that Respondent is a wholesale distributor of various products including batteries, disposable cameras, film, household goods and health and beauty aids, and that in September 2003, Respondent had applied for a registration to distribute pseudoephedrine products from its Tennessee location. Show Cause Order at 1-2. The Show Cause Order alleged that Respondent's owner, Mr. Andrew Splendorio, had informed DEA investigators that Respondent distributes products to all fifty states and that approximately eighty percent of the orders it receives are made by telephone or the Internet.
The Show Cause Order alleged that Respondent provided DEA investigators with a list that included several hundred proposed customers.
The Show Cause Order alleged that the proposed customers “have zero expectation of sales of over the counter drug products.”
Finally, the Show Cause Order alleged that the illicit manufacture of methamphetamine continues unabated in Tennessee.
The Show Cause Order was served on Respondent by certified mail, return receipt requested. On July 22, 2005, Respondent received the Show Cause Order as evidenced by the signed return receipt card. Notwithstanding that the Show Cause Order clearly stated that Respondent's failure to request a hearing within 30 days after the date of receipt of the Order would be deemed a waiver of its right to a hearing, Respondent did not request a hearing until September 27, 2005. In response, on October 5, 2005, the Government moved for summary disposition
On October 7, 2005, the Administrative Law Judge (ALJ) issued a memorandum directing that Respondent file a response to the Government's motion. Thereafter, on October 13, 2005, Respondent filed a response stating that it had failed to timely file a request for a hearing because it was “extremely busy and a little under staffed.” Mr. Splendorio further admitted that he had failed to give the matter “my immediate attention.”
On October 25, 2005, the ALJ issued an Order terminating the proceeding and directing that the investigative file be forwarded to me for final agency action. The ALJ specifically noted that Respondent had neither filed a timely request for a hearing nor a timely request for an extension of time to file a request for a hearing. The ALJ further found that Respondent had not presented sufficient grounds for failing to file a timely request and that Respondent had waived its right to a hearing.
Having reviewed the record as a whole, I concur with the ALJ's findings that Respondent has not presented a sufficient reason to excuse its failure to timely request a hearing and that Respondent has waived its right to a hearing. I therefore enter this final order without a hearing based on relevant material contained in the investigative file and make the following findings.
Pseudoephedrine is a List I chemical that, while having therapeutic uses, can be extracted from lawful non-prescription products and used to manufacture methamphetamine, a schedule II controlled substance.
Respondent, which is registered as a Colorado Corporation, is located at 7905 Pinecrest Lane, Fairview, Tennessee. On September 24, 2003, Respondent's president, Mr. Andrew Splendorio, submitted an application on behalf of Respondent for a registration as a distributor of the List I chemical pseudoephedrine.
On March 10, 2004, a DEA Diversion Investigator (DI) conducted an on-site inspection at Respondent's proposed registered location and met with Mr. Splendorio. The firm is located in the basement and garage area of a two-story brick home. Access to the area is gained through a wooden door which has a dead-bolt lock. The building also has an electronic alarm system.
Mr. Splendorio informed the DI that Respondent is a wholesale distributor of assorted products including cameras, film, batteries, household items, health and beauty aids, and other items. The DI determined that Respondent's sales territory includes all fifty states, as well as Puerto Rico, the U.S. Virgin Islands, and American Samoa. Mr. Splendorio further told the DI that eighty percent of the orders Respondent receives are are placed by telephone, five percent are placed over the internet, and the remaining fifteen percent are placed with the firm's three salespersons who are located in Florida, Nevada, and Alaska.
According to the investigative file, Respondent proposed to distribute such products as Tylenol Sinus, Tylenol Allergy Sinus, Tylenol Cold, Advil Cold and Sinus, Sudafed, Claritin and Benadryl. According to a letter provided by Mr. Splendorio, Respondent would initially carry products that are packaged in single dose pouches of 1-2 tablets with 12 pouches in a sleeve. The letter further stated, however, that Respondent intended to eventually also sell “the 2 smallest multiple dose [packages] offered by each brand.” Respondent's intended supplier was Lil' Drug Stores Products, Inc.
The DI inspected Respondent's recordkeeping system and found it to be adequate. The DI also obtained a list of proposed List I chemical customers from Mr. Splendorio. The list included dive shops, paintball facilities, camera shops, photo labs, canoe and kayak businesses, pools and waterparks, several museums and zoos, several markets, and numerous individuals who were not listed as owning any particular business. Moreover, the customers were located throughout the United States.
The DI contacted several of the potential customers; the DI verified that Respondent was a supplier of each firm and uncovered no other adverse information. The DI also conducted background checks on Respondent's officers and employees; the checks found no derogatory information on any individual.
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals is entitled to be registered unless the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
“These factors are considered in the disjunctive.”
I acknowledge that Respondent would provide adequate physical security to protect List I chemical products in its possession from theft. I further acknowledge that Respondent's recordkeeping system appears adequate.
Respondent's proposed method of distributing pseudoephedrine does not, however, provide adequate controls to protect against diversion. As found above, most of Respondent's business is derived from telephone and internet orders and Respondent sells its goods to all fifty states, as well as Puerto Rico, the U.S. Virgin Islands, and American Samoa. Moreover, the orders are then shipped by UPS, a commercial carrier.
Under Federal law and DEA regulations, a distributor who uses a
It seems highly likely that Respondent's sales would frequently exceed the threshold. Most significantly, Respondent does not appear to have in place any procedures to verify the identity of its customers, most of which are located outside of Tennessee and at a great distance from Respondent's three salespersons. I thus find that Respondent lacks effective controls to prevent diversion. While this factor is reason alone to conclude that granting Respondent's application would be inconsistent with the public interest, a discussion of factor five is also warranted.
The record establishes that Respondent's proposed customers are not participants in the traditional retail market for pseudoephedrine products.
DEA final orders have repeatedly recognized that “there is a substantial risk of diversion of List I chemicals into the illicit manufacture of methamphetamine when these products are sold by non-traditional retailers.”
I acknowledge that Respondent proposed to sell only name brand pseudoephedrine products in lower dosage counts. While these products have not been preferred by illicit methamphetamine manufacturers, they have nonetheless been subject to diversion.
As I recently explained, “[b]ecause of the methamphetamine epidemic's devastating effects, DEA has repeatedly denied an application when an applicant proposed to sell into the non-traditional market and analysis of one of the other statutory factors supports the conclusion that granting the application would create an unacceptable risk of diversion.”
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(h), and 28 CFR 0.100(b) and 0.104, I hereby order that the application of Integrity Wholesale, Inc., for a DEA Certificate of Registration as a distributor of List I chemicals be, and it hereby is, denied. This order is effective November 13, 2006.
On October 20, 2005, the Acting Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Premier Holdings, Inc. (Respondent), d/b/a/ Filmart, of Brooklyn, New York. The Show Cause Order proposed to deny Respondent's application for a DEA Certificate of Registration as a distributor of List I chemicals, on the ground that issuance of a registration would be inconsistent with the public interest.
The Show Cause Order specifically alleged that Respondent was proposing to distribute List I chemical products containing pseudoephedrine to various firms including convenience stores.
The Show Cause Order further alleged that Respondent's owner, Mr. Eugene Lefkowitz, told DEA investigators that
The Show Cause Order also alleged that Mr. Lefkowitz provided investigators with a list of potential suppliers and a list of products which Respondent intended to distribute.
The Show Cause Order alleged that Respondent provided the investigators with a list of 25 prospective customers for List I chemicals of which only 2 were located in New York State.
The Show Cause Order further alleged that many of these customers were large distributors who were “capable of purchasing products directly from the manufacturers.”
The Show Cause Order was sent by certified mail to Respondent's business address as listed on its application. According to United States Postal Service records, Respondent received the Show Cause Order on October 31, 2005.
Since the effectuation of service, neither Respondent, nor anyone purporting to represent it, has responded. Because (1) more than 30 days have passed since Respondent received the Show Cause Order, and (2) no request for a hearing has been received, I conclude that Respondent has waived its right to a hearing.
Pseudoephedrine is a List I chemical that, while having therapeutic uses, can be extracted from lawful non-prescription products and used to manufacture methamphetamine, a schedule II controlled substance.
Respondent is a corporation which is located at 4111 Glenwood Road, Brooklyn, New York. On June 8, 2004, Respondent submitted an application for a Certificate of Registration to distribute pseudoephedrine.
On October 19, 2004, two DEA Diversion Investigators (DIs) visited Respondent at its proposed registered location to conduct a pre-registration investigation. The DIs met with Mr. Eugene Lefkowitz, Respondent's President, and Mr. Aron Kohn, its General Manager. The DIs presented their credentials, discussed the nature of their visit, inspected the facility and interviewed Mssrs. Lefkowitz and Kohn regarding the firm's business.
Respondent is located in an industrial area of Brooklyn and occupies a warehouse built of brick and cinderblock. According to the investigative file, the warehouse has motion detectors, cameras, and an alarm system. All visitors are screened and warehouse access is limited to certain employees. The List I chemicals would be stored on shelves located near the warehouse manager's desk. The investigative file indicates that only four employees would have access to List I chemicals. Moreover, the investigation did not uncover any adverse information as to any of these employees or the firm's officers. Finally, Respondent's recordkeeping practices apparently would comply with DEA regulations.
During the interview, the DIs were informed that Respondent had total annual sales of approximately $25 million and that the firm had been in business for approximately 10 years. Respondent sells film, batteries, and health and beauty products to drug stores, supermarkets, wholesalers, and convenience stores throughout the United States.
Most significantly, Respondent had no experience in distributing List I chemicals. Mssrs. Kohn and Lefkowitz told the DIs that the firm intended to distribute name brand, over-the-counter, cold and flu medications containing pseudoephedrine. Mssrs. Kohn and Lefkowitz also stated to the DIs that their customers frequently requested name brand cold and flu remedies.
Mr. Kohn provided the DIs with a list of the products Respondent intended to distribute. The List contained only traditional name brand products. Mr. Kohn also provided the DIs with a list of suppliers. Several of the firms were, however, under investigation for supplying products that have been diverted into the illicit manufacture of methamphetamine.
Mr. Kohn also provided the DIs with a list of twenty-five potential customers. All but two of these customers were located outside of New York State. The customer list included large grocery and drug store chains, as well as large wholesalers who supply grocery and drug store chains and convenience stores.
Thereafter, a DI contacted five of the firms. Three of the firms told the DI that they were no longer buying products from Respondent.
On March 23, 2005, Mr. Lefkowitz called Ms. Margaret Brophy, the Diversion Program Manager for the New York Field Division to inquire about the status of his application. During the conversation, Mr. Lefkowitz related that
Ms. Brophy asked Mr. Lefkowitz why most of Respondent's customers were located outside of New York. Mr. Lefkowitz stated that he had lost New York customers because his firm could not supply them with all the products they required. Mr. Lefkowitz further related that his non-New York based customers were less demanding with respect to purchasing all of their products from one source.
Thereafter, in May 2005, a DI conducted additional inquiries of the firms listed on Respondent's customer list and contacted seventeen of the firms. While all of the firms verified that they had purchased film from Respondent, fifteen of the firms informed the DI that they had never discussed with Respondent the purchase of List I chemical products from it.
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals is entitled to be registered unless I determine that the registration would be “inconsistent with the public interest.” In making this determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State, and local law;
(3) Any prior conviction record of the applicant under Federal or State laws relating to controlled substances or to chemicals controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with the public health and safety.
The investigative file does not establish that Respondent would fail to maintain effective controls against the theft and diversion of listed chemicals. Respondent's facility appears to meet DEA's regulations pertaining to physical security.
The investigative file does not establish that Respondent has failed to comply with applicable Federal, State, and local laws. Moreover, there is no evidence establishing that Respondent, any of its officers, or any employee with access to List I chemicals has been convicted of a criminal offense related to controlled substances or chemicals. Both factors thus support a finding that Respondent's registration would be consistent with the public interest.
The investigative file establishes that Respondent has no experience distributing List I chemicals. Moreover, Respondent did not provide evidence to the DIs that any of its employees have experience in distributing List I chemicals. Because of the high risk of diversion, DEA has repeatedly held that an applicant's (and its employees') lack of experience in distributing List I chemicals is a factor that weighs heavily against granting an application for a registration. Sujak Distributors, 71 FR at 50104; Jay Enterprises, 70 FR 24620, 24621 (2005); ANM Wholesale, 69 FR 11652, 11653 (2004). This factor thus supports a finding that Respondent's registration would be inconsistent with the public interest.
Numerous DEA cases recognize that the sale of List I chemical products by non-traditional retailers such as convenience stores is an area of particular concern in preventing diversion of these products into the illicit manufacture of methamphetamine.
Respondent's list of potential customers included wholesale distributors to convenience stores. Moreover, during the on-site inspection, the DIs determined that Respondent sells various products to convenience stores. DEA final orders recognize that there is a substantial risk of diversion of List I chemicals into the illicit manufacture of methamphetamine when these products are sold by these non-traditional retailers.
I acknowledge that Respondent's list of potential customers included grocery chains, drug store chains, and wholesale distributors to these firms. DEA has found that these firms constitute the traditional market for pseudoephedrine products.
There is, however, substantial reason to question the validity of the customer information Respondent provided to DEA. In DEA's experience, many of the firms listed as potential customers are of large enough size that they are able to purchase List I chemical products either directly from manufacturers or from large wholesalers.
Most significantly, the investigative file establishes that Mr. Lefkowitz represented to DEA investigators that Respondent's customers had requested List I chemical products from his firm and that he had lost business and was forced to offer deep discounts to keep other customers. Yet all but two of the firms contacted by the DI told her that they had never discussed the purchase of List I products with Respondent. Moreover, several of the firms told the DI that they were no longer purchasing products from Respondent.
That the overwhelming majority of the customers told the DI that they had never discussed purchasing List I products from Respondent (and that some of the firms no longer bought any products from it) raises a serious question as to the validity of Mr. Lefkowitz's statements to DEA personnel. Indeed, the information uncovered by the customer verifications suggests that Respondent may have provided the customer list (which contains legitimate businesses) to induce DEA to grant it a registration, which it would then use to distribute List I products into the non-traditional market, the principle supply source of mom-and-pop methamphetamine labs. Whether this was the intent of Respondent's officers I need not decide because DEA will not grant any application when there is reason to question the validity of the information an applicant has provided.
As it is, it is indisputable that Respondent's customers include convenience stores. Under DEA precedents, an applicant's proposal to sell List I products into the non-traditional market weighs heavily against the granting of a registration under factor five. So too here.
DEA has repeatedly denied an application when an applicant proposed to sell into the non-traditional market and the analysis of one of the other statutory factors supports the conclusion that granting the application would create an unacceptable risk of diversion. Thus, in Xtreme Enterprises, 67 FR 76195, 76197 (2002), my predecessor denied an application, observing that the respondent's “lack of criminal record, compliance with the law and willingness to upgrade her security system are far outweighed by her lack of experience with selling List I chemicals and the fact that she intends to sell ephedrine almost exclusively in the gray market.”
More recently, I denied an application, observing that the respondent's “lack of a criminal record and any intent to comply with the law and regulations are far outweighed by his lack of experience and the company's intent to sell ephedrine and pseudoephedrine exclusively to the gray market.” Jay Enterprises, 70 FR at 24621. Accord Prachi Enterprises, 69 FR 69407, 69409 (2004). Consistent with these precedents, and considering the serious concern raised by the investigation as to Respondent's intended customers, I conclude that granting Respondent's application for a registration would be inconsistent with the public interest.
Accordingly, pursuant to the authority vested in me by 21 U.S.C. 823(h), as well as 28 CFR 0.100(b) and 0.104, I hereby order that the application of Premier Holdings, Inc.,d/b/a/ Filmart, for a DEA Certificate of Registration as a distributor of List I chemicals be, and it hereby is, denied. This order is effective November 13, 2006.
Pursuant to Section 1102 of the Intelligence Reform and Terrorism Prevention Act of 2004 which extended and modified the Public Interest Declassification Board (PIDB) as established by the Public Interest Declassification Act of 2000 (Pub. L. 106-567, title VII, December 27, 2000, 114 Stat. 2856), announcement is made for the following committee meeting:
This meeting will be open to the public. However, due to space limitations and access procedures, the name and telephone number of individuals planning to attend must be submitted to the Information Security Oversight Office (ISOO) no later than Wednesday, October 11, 2006. ISOO will provide additional instructions for gaining access to the location of the meeting.
NCD.
Gerrie Drake Hawkins, Ph.D., Senior Program Analyst, NCD, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax),
National Council on Disability (NCD).
Gerrie Drake Hawkins, Ph.D., Senior Program Analyst, National Council on Disability, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax),
National Institute for Literacy.
Notice of an open meeting.
This notice sets forth the schedule and a summary of the agenda for an upcoming meeting of the National Institute for Literacy Advisory Board (Board). The notice also describes the functions of the Board. Notice of this meeting is required by section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public of their opportunity to attend the meeting. Individuals who will need accommodations for a disability in order to attend the meeting (
The National Institute for Literacy, 1775 I Street, NW., Suite 730, Washington, DC 20006.
Liz Hollis, Special Assistant to the Director; National Institute for Literacy, 1775 I Street, NW., Suite 730, Washington, DC 20006; telephone number: (202) 233-2072; e-mail:
The Board is established under section 242 of the Workforce Investment Act of 1998, Pub. L. 105-220 (20 U.S.C. 9252). The Board consists of ten individuals appointed by the President with the advice and consent of the Senate. The Board advises and makes recommendations to the Interagency Group that administers the Institute. The Interagency Group is composed of the Secretaries of Education, Labor, and Health and Human Services. The Interagency Group considers the Board's recommendations in planning the goals of the Institute and in implementing any programs to achieve those goals. Specifically, the Board performs the following functions: (a) Makes recommendations concerning the appointment of the Director and the staff of the Institute; (b) provides independent advice on operation of the Institute; and (c) receives reports from the Interagency Group and the Institute's Director.
The National Institute for Literacy Advisory Board will meet on October 25-26, 2006. On October 25, 2006 from 8:30 a.m. to 6 p.m.; and October 26, 2006 from 8:30 a.m. to 2 p.m., the Board will meet in open session to discuss the Institute's future and current program priorities; status of on-going Institute work; other relevant literacy activities and issues; and other Board business as necessary.
Records are kept of all Advisory Board proceedings and are available for public inspection at the National Institute for Literacy, 1775 I Street, NW., Suite 730, Washington, DC 20006, from 8:30 a.m. to 5 p.m.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
9:30 a.m., Tuesday, October 17, 2006.
NTSB Conference Center, 429 L'Enfant Plaza, SW., Washington, DC 20594.
The two items are open to the public.
7835—
7836—
The Office of Public Affairs, Telephone: (202) 314-6100.
Individuals requesting specific accommodations should contact Chris Bisett at (202) 314-6305 by Friday, October 13, 2006.
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Vicky D'Onofrio, (202) 314-6410.
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for License Amendment.
James Kottan, Senior Health Physicist, Decommissioning Branch, Division of Nuclear Materials Safety, Region I, 475 Allendale Road, King of Prussia, PA 19406; telephone (610) 337-5214; fax number (610) 337-5269; or by e-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a license amendment to Byproduct Materials License No. 37-17860-02. This license is held by the Pennsylvania Department of Environmental Protection, Bureau of Radiation Protection (PADEP, BRP) (the Licensee), for its Quehanna Facility (the Facility), located in Karthaus, Pennsylvania. Issuance of the amendment would incorporate revision four of the Decommissioning Plan (DP) into the license to allow completion of decommissioning activities at the site and eventual unrestricted release of the Facility.
The Quehanna Facility is located near Karthaus, Clearfield County, Pennsylvania, in the Quehanna Wild Area of the Moshannon State Forest. The site is approximately seven acres in size, and the area is heavily wooded and sparsely populated. The land in the vicinity of the Facility is used for recreational activities, including hiking, camping, and hunting. The site contains one large building, several smaller buildings, asphalt parking lots and driveways, a septic system leach field used for sanitary sewer waste, and an approximately one acre pond. The main building was constructed to house a pool reactor and associated laboratories,
The Facility was constructed in 1957 after the Commonwealth of Pennsylvania enacted legislation for the location of a research facility at the Quehanna site. The Commonwealth of Pennsylvania anticipated that the project would be a contributor to the economy in the area. The facility was to be operated by Curtiss-Wright Corporation. Plans for the facility included development of nuclear jet engines, and research in nucleonics, metallurgy, and other areas. In 1958, the AEC issued a license to the Curtiss-Wright Corporation to operate a pool reactor at the facility. The license also included use of the hot cells and laboratories.
In September 1960, Curtiss-Wright Corporation donated the Facility to the Pennsylvania State University (PSU). PSU planned to use the reactor for training and research and leased the hot cells to Martin-Marietta Corporation. Beginning in 1962 Martin-Marietta Corporation used the hot cells to manufacture thermoelectric generators, known as SNAP generators. The SNAP generators contained Sr-90, with as much as 80,000 Curies per generator. In 1967, Martin-Marietta Corporation terminated its lease for use of the hot cells after performing a partial decontamination. However, licensable quantities of Sr-90 contamination remained in the hot cells and associated facilities. Martin-Marietta Corporation was the last user of Sr-90 at the facility.
Also in 1967, PSU returned the site back to the Commonwealth of Pennsylvania. The Commonwealth then leased the site to NUMEC, a subsidiary of the Atlantic-Richfield Corporation. NUMEC used the reactor pool, after removal and shipment of the reactor components and nuclear fuel, as a storage pool for a large (approximately one million Curies) Co-60 irradiator. The irradiator was used for various projects, including food irradiation, sterilization, and irradiation of polymer-impregnated hardwood.
In 1978, a group of Atlantic-Richfield Corporation employees purchased the wood irradiation process, including the Co-60 pool irradiator. The new company was named Permagrain Products Corporation (Permagrain), and this company was issued NRC Byproduct Materials License No. 37-17860-01. Permagrain also assumed responsibility for the radioactive material left on site by the previous tenants. In 1998 NRC Byproduct Materials License No. 37-17860-02 was issued to Permagrain for the radioactive material remaining on site from past operations. In December 2002, Permagrain initiated bankruptcy proceedings, and NRC Byproduct Materials License No. 37-17860-02 was transferred to PADEP, BRP. In 2003, the Co-60 in the irradiator was removed from the pool and shipped to a licensed disposal site, and in 2004 Permagrain's NRC Byproduct Materials License No. 37-17860-01 was terminated.
No information is available regarding decontamination of the site by previous tenants, Martin-Marietta Corporation, and Atlantic-Richfield Corporation. In the early 1990s, the Commonwealth of Pennsylvania contracted with Canberra, Inc. to perform a site characterization. The characterization determined that the radioactive contaminants of concern were Co-60 and Sr-90. In 1998, a DP for the site was submitted to the NRC, and decommissioning of the site began. A revision to the DP was submitted to the NRC in 2003, and decommissioning of the site continued under this revision to the DP. In February 2005 a Final Status Survey Report (FSSR) was submitted to the NRC for review. The FSSR indicated that the site met the release criteria specified in the NRC approved DP.
A subsequent confirmatory survey by the NRC in May 2005 indicated that the site did not meet the release criteria specified in the NRC approved DP. An investigation by the licensee determined that the site failed to meet the release criteria, because Sr-90 had leached to the surface of the concrete resulting in contamination levels in excess of the release limits. This finding indicated that concrete thought to contain only surface contamination was volumetrically contaminated. Therefore, the previous criteria for release of the site for unrestricted use, which were based on surface contamination only, were no longer applicable.
In a letter dated March 9, 2006, the Licensee submitted revision four of the DP which included dose based criteria for unrestricted release of the site in accordance with 10 CFR 20, Subpart E, taking into account the volumetrically contaminated concrete. The Licensee's March 9, 2006 license amendment request was noticed in the
The proposed action would approve the Licensee's March 9, 2006 license amendment request to incorporate revision four of the DP into the license resulting in final decommissioning of the Facility and subsequent release of the Facility and surrounding site for unrestricted use. In addition to granting the licensee's license amendment request, the proposed action would also grant, pursuant to 10 CFR 30.11(a), an exemption to the Onyx Greentree Landfill, LLC (located in Kersey, Pennsylvania) from 10 CFR Part 30 licensing requirements. This disposal facility will receive the low-contaminated above-grade demolition material generated during the Facility and site remediation activities. 10 CFR 30.11(a) provides that the Commission may, upon application by an interested person, “or upon its own initiative, grant such exemptions” from the 10 CFR Part 30 requirements “as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.” Under the exemption granted to the Onyx Greentree Landfill, any low-contaminated demolition material from the Facility and site would, upon its receipt at the Onyx Greentree Landfill, no longer be subject to NRC regulation and would no longer be NRC licensed material.
The proposed action is to approve revision four of the DP so that the Licensee may complete Facility decommissioning activities. Completion of decommissioning activities will reduce residual radioactivity at the Quehanna site and Facility. NRC regulations require licensees to begin timely decommissioning of their sites, or any separate buildings that contain residual radioactivity, upon cessation of licensed operational activities, in accordance with 10 CFR 30.36(d). Additionally, due to the fact that the site is located in the Quehanna Wild Area of the Moshannon State Forest, the Licensee plans to eventually restore and return the land to beneficial unrestricted use. The proposed licensing action will support such an ultimate goal. NRC is fulfilling its responsibilities under the
The affected environment was described in the Introduction section of this EA. The NRC staff has reviewed the license amendment request for the PADEP, BRP Quehanna site in Karthaus, Pennsylvania and examined the impacts of this license amendment request. Potential impacts include water resource impact (
Based on its review, the staff has determined that no surface water or ground water impacts are expected from the dismantlement, deconstruction, and decontamination activities. Additionally, the staff has determined that significant air quality, noise, land use, and off-site radiation exposure impacts are also not expected. No significant air quality impacts are anticipated because of the contamination controls that will be implemented by PADEP, BRP during dismantlement and deconstruction. In addition, the environmental impacts associated with dismantlement and deconstruction and the decontamination activities are bounded by impacts evaluated by NUREG-0586, “Final Generic Environmental Impact Statement on the Decommissioning of Nuclear Facilities,” (GEIS). Generic impacts for this type of dismantlement and deconstruction and decontamination process were previously evaluated and described in the GEIS, which concludes that the environmental consequences are small. The risk to human health from the transportation of all radioactive material in the U.S. was evaluated in NUREG-0170, “Final Environmental Statement on the Transportation of Radioactive Materials by Air and Other Modes.” The principal radiological environmental impact during normal transportation is direct radiation exposure to nearby persons from radioactive material in the package. The average annual individual dose from all radioactive material transportation in the U.S. was calculated to be approximately 0.5 mrem, well below the 10 CFR 20.1301 limit of 100 mrem for a member of the public. Additionally, PADEP, BRP estimates that approximately 2,800 cubic yards of low-contaminated demolition material waste will leave the site over the course of the decommissioning project for disposal at Onyx Greentree Landfill (a non-NRC licensed landfill). The trucks will travel on local roads then on Commonwealth highways to their intended destinations. This proposed action will not significantly increase the probability or consequences of accidents, no changes are being made in the types of any effluents that may be released off site, and there is no significant increase in occupational or public radiation exposure. Thus, waste management and transportation impacts from the building dismantlement and deconstruction will not be significant.
Occupational health was also considered in the “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.” The Department of Transportation (DOT) regulations in 49 CFR 177.842(g) require that the radiation dose may not exceed 0.02 mSv (2 mrem) per hour in any position normally occupied by an individual in a motor vehicle. Shipment of these materials would not affect the assessment of environmental impacts or the conclusions in the “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes.”
The Staff also finds that the proposed license amendment will meet the radiological criteria for unrestricted release as specified in 10 CFR 20.1402. The Licensee demonstrated this through the development of derived concentration guideline limits (DCGLs) for its Facility. The Licensee conducted site specific dose modeling using parameters specific to the Facility that adequately bounded the potential dose. This included dose modeling for three scenarios: building surfaces, remaining concrete, and soil. The building surface scenario was based on the disposal of the above-grade structure demolition debris in an industrial landfill, and the concrete and soil dose modeling were based on a hunting camp scenario.
PADEP, BRP will maintain an appropriate level of radiation protection staff, procedures, and capabilities, and, through its Radiation Safety Officer, will implement an acceptable program to keep exposure to radioactive materials as low as reasonably achievable (ALARA). Work activities are not anticipated to result in radiation exposures to the public in excess of 10 percent of the 10 CFR 20.1301 limits.
The NRC also evaluated whether cumulative environmental impacts could result from an incremental impact of the proposed action when added to other past, present, or reasonably foreseeable future actions in the area. The proposed NRC approval of the license amendment request, when combined with known effects on resource areas at the site, including further site remediation, are not anticipated to result in any cumulative impacts at the site.
The only alternative to the proposed action of decommissioning the Facility is no action. The no action alternative is not acceptable because it conflicts with 10 CFR 30.36(d) which requires that decommissioning of byproduct material facilities be completed and approved by the NRC after licensed activities cease. The no action alternative would keep radioactive material on site without disposal. Maintaining the buildings on site would provide negligible, if any, environmental benefit, but would greatly reduce options for future use of the site, including restoring the site to its wild state.
The NRC staff has concluded that the proposed action is consistent with NRC guidance and regulations. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the proposed action is the preferred alternative.
The NRC staff prepared this EA with input from the U.S. Fish and Wildlife Service in its letter dated August 22, 2006. The Fish and Wildlife Service indicated, in its letter, that on the basis of current information, no current Federally identified or proposed threatened or endangered species under U.S. Fish and Wildlife Service jurisdiction are known to occur in the site project area. Additionally, NRC had contacted the Pennsylvania Historical and Museum Commission, Bureau for Historical Preservation, in June 2003 regarding preparation of an EA for a previous licensing action for this Facility. At that time the Pennsylvania Historical and Museum Commission, Bureau for Historical Preservation stated
NRC provided a draft of this EA to PADEP, BRP for review. On July 27, 2006, PADEP, BRP responded by e-mail. PADEP, BRP agreed with the conclusions of the EA, and otherwise had no substantive comments.
The NRC staff has prepared this EA in support of the proposed action. On the basis of this EA, the NRC finds that there are no significant environmental impacts from the proposed action, and that preparation of an environmental impact statement is not warranted. Accordingly, the NRC has determined that a FONSI is appropriate.
Documents related to this action, including the application for license amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. Amendment request with revision four of the DP (ML060790152);
2. The Licensee's March 9, 2006, license amendment request was noticed in the
3. NUREG-0170, “Final Environmental Impact Statement on the Transportation of Radioactive Material by Air and Other Modes;”
4. NUREG-0586, “Final Generic Environmental Impact Statement on the Decommissioning of Nuclear Facilities;”
5. NUREG-1748, “Environmental Review Guidance for Licensing Actions Associated with NMSS Programs;”
6. NUREG-1757, “Consolidated NMSS Decommissioning Guidance;”
7. Title 10 Code of Federal Regulations, Part 20, Subpart E, “Radiological Criteria for License Termination;”
8. Title 10, Code of Federal Regulations, Part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions;”
9. NUREG-1496, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities”
If you do not have access to ADAMS, or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of October 9, 16, 23, 30, November 6, 13, 2006.
Commissioner' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
These meetings will be Webcast live at the Web address—
This meeting will be Webcast live at the Web address—
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 October 30, 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 November 13, 2006.
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
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 (
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
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” commonly known as the No FEAR Act. One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” Public Law 107-174, Summary. In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination.” Public Law 107-174, Title I, General Provisions, Section 101(1).
The Act also requires the Overseas Private Investment Corporation (OPIC) to provide this notice to OPIC employees, former OPIC employees and applicants for OPIC employment to inform you of the rights and protections available to you under Federal antidiscrimination, whistleblower protection and retaliation laws.
OPIC cannot discriminate against an employee or applicant with respect to the terms, conditions or privileges of employment on the basis of race, color, religion, sex, national origin, age, disability, marital status or political affiliation. Discrimination on these bases is prohibited by one or more of the following statutes: 5 U.S.C. 2302(b)(1), 29 U.S.C. 206(d), 29 U.S.C. 631, 29 U.S.C. 663a, 29 U.S.C. 791 and 42 U.S.C. 2000e-16.
If you believe that you have been the victim of unlawful discrimination on the basis of race, color, religion, sex, national origin or disability, you must contact an OPIC Equal Employment Opportunity (EEO) Counselor within 45 calendar days of the alleged discriminatory action, or, in the case of a personnel action, within 45 calendar days of the effective date of the personnel action, before you can file a formal complaint of discrimination with OPIC., 29 CFR 1614.105(a).
If you believe that you have been the victim of unlawful discrimination on the basis of age, you must either contact an EEO Counselor as noted above or give notice of intent to file a civil action in a United States District Court within 180 days of the alleged discriminatory action. 29 CFR 1614.201. The notice of intent to sue must be provided to the U.S. Equal Employment Opportunity Commission (EEOC) at least 30 days before actually filing the civil action. The notice must be sent to: Director, Office of Federal Operations, EEOC, P.O. Box 19848, Washington, DC 20036.
Federal agencies also are prohibited from discriminating against employees because of their marital status or political affiliation, and employees who raise such allegations may file a written complaint with the U.S. Office of Special Counsel (OSC). This right does not extend to OPIC employees or applicants for OPIC employment because OPIC is a Federal corporation and is thus excluded by statute. 5 U.S.C. 2302(a)(2)(C)(i). However, as an alternative, if you are alleging discrimination based on marital status or political affiliation, you may file a grievance through OPIC's administrative or negotiated grievance procedures, to the extent such procedures apply and are available.
An OPIC employee with authority to take, direct others to take, recommend or approve any personnel action must not use that authority to take or fail to take, or threaten to take or fail to take, a personnel action against an employee or applicant because of disclosure of information by that individual that is reasonably believed to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Additionally, the statute protects any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences—(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Retaliation against an employee or applicant for making a protected disclosure is prohibited by 5 U.S.C. 2302(b)(8). If you believe that you have been the victim of whistleblower retaliation, you may file a written complaint (Form OSC-11) with the U.S. Office of Special Counsel at 1730 M Street, NW., Suite 218, Washington, DC 20036-4505 or online through the OSC Web site—
OPIC cannot retaliate against an employee or applicant because the individual exercises his or her rights under any of the Federal antidiscrimination or whistleblower protections laws listed above, except as otherwise noted with respect to marital status and political affiliation discrimination. If you believe that you are the victim of retaliation for engaging in protected activity, you must follow, as appropriate, the procedures described
Under the existing laws, OPIC retains the right, where appropriate, to discipline a Federal employee who has engaged in discriminatory or retaliatory conduct, up to and including removal. If the Office of Special Counsel has initiated an investigation under 5 U.S.C. 1214 (“Investigation of prohibited personnel practices; corrective action”), however, according to 5 U.S.C. 1214(f), OPIC must seek approval from the Special Counsel to discipline employees for, among other activities, engaging in prohibited retaliation. Nothing in the No FEAR Act alters existing laws or permits an agency to take unfounded disciplinary action against a Federal employee or to violate the procedural rights of a Federal employee who has been accused of discrimination.
For further information regarding the No FEAR regulations, refer to OPIC's EEO Office, Human Resources Management or the Department of Legal Affairs. Additional information regarding Federal antidiscrimination, whistleblower protection and retaliation laws can be found at the EEOC Web site—
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands or reduces any rights otherwise available to any employee, former employee or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The ISE proposes to amend its Schedule of Fees to adopt fees related to the ISE Stock Exchange, LLC (“ISE Stock”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the ISE 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 ISE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The ISE states that the purpose of the proposed rule change is to adopt fees related to the trading of equity securities on ISE Stock, a facility of the Exchange. The proposed fee schedule includes execution fees, access fees, and regulatory fees for trading of equity securities, as well as changes to existing language to clarify the application of certain fees that are specific to options trading only. With regard to the execution fees, the Exchange proposes to charge fees based on a member's average daily shares executed, with the average daily volume (“ADV”) calculated on a monthly basis. This fee would be charged on a tiered basis (
A.D.V. Up to 200,000 shares—$0.0025 per share.
A.D.V. From 200,001 to 500,000 shares—$0.0020 per share.
A.D.V. From 500,001 to 2,000,000 shares—$0.0015 per share.
A.D.V. From 2,000,001 to 3,000,000 shares—$0.0010 per share.
A.D.V. Over 3,000,000 shares—$0.0010 per share (applied to all volume).
Telephone conversation between Michou H.M. Nguyen, Special Counsel, Division of Market Regulation, Commission, and Samir Patel, Assistant General Counsel, Exchange, on September 27, 2006.
With regard to access fees, the Exchange states that it currently charges an Electronic Access Member (“EAM”) that trades options an access fee of $500 per month. Access fees for these EAMs will remain unchanged if they also trade equities on ISE Stock. For an EAM that trades equities only, the Exchange proposes a monthly access fee of $200. Finally, the Exchange states that it currently charges an EAM that trades options a regulatory fee of $5,000 per year. For EAMs that trade equities only, the Exchange proposes an annual regulatory fee of $5,000. For EAMs that trade both equities and options, the
The Exchange also proposes to amend (1) the Notes for the cancellation fee to clarify that the fee is applicable to options orders only; and (2) language to the EAM / Trade Review Terminal fee and the Order Routing Service Connection Fee to clarify that these fees are options fees and are applicable to EAMs that trade options.
Finally, the Exchange also proposes to charge EAMs that trade equity securities certain administrative fees. These would include fees related to the registration of Form U4 as well as a CRD fee. The Exchange states that these administrative fees currently appear under the Legal & Regulatory section of the current fee schedule.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited nor received any written comments on the proposed rule change.
The foregoing proposed rule change has been designated as a fee change 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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
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 NASD Rule 9559(s), to amend the citation to section 19 of the Act. Below is the text
9559. Hearing Procedures for Expedited Proceedings Under the Rule 9550 Series
(a) through (r) No Change.
(s) Application to Commission for Review
The right to have any action pursuant to this Rule reviewed by the Securities and Exchange Commission is governed by Section 19[(f)] of the Securities Exchange Act. The filing of an application for review by the Securities and Exchange Commission shall not stay the effectiveness of final NASD action, unless the Securities and Exchange Commission otherwise orders.
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 Rule 9550 Series of NASD's procedural rules establishes the procedures for expedited proceedings brought against NASD members or associated persons for certain types of actions. These actions include proceedings initiated for failure to pay NASD dues, fees, and other charges;
NASD has filed the proposed rule change for immediate effectiveness. The effective date and the implementation date will be the date of filing, September 25, 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 result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, it has become effective pursuant to section 19(b)(3)(A) of the Act-
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative for 30 days after the date of its filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASD-2006-111. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASD-2006-111 and should be submitted on or before November 1, 2006.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The Secretary of State, pursuant to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (P.L. 109-13) and the President's delegation of his authority to make the necessary determination on the use of these funds, determined on September 9th that the use of the $30 million in FY 2005 supplemental peacekeeping operations funds in Lebanon and Kyrgyz Republic will support the global war on terrorism.
Department of State.
Notice of Intent to Prepare an Environmental Impact Statement (EIS) and to Conduct Public Scoping Meetings. Notice of Floodplain and Wetlands Involvement.
TransCanada Keystone Pipeline, L.P. has applied to the United States Department of State for a Presidential Permit for the proposed construction, connection, operation, or maintenance, at the border of the United States of facilities for the importation of petroleum from a foreign country. The Department of State receives and considers applications for Presidential Permits for such energy-related pipelines pursuant to authority delegated to it by the President under Executive Order 13337 of April 30, 2004 (69 FR 25299). To issue a Permit, the Department of State must find that issuance would serve the national interest. It consults extensively with concerned Federal and State agencies, and invites public comment in arriving at its determination. With respect to the application submitted by TransCanada Keystone Pipeline, L.P., the Department of State has concluded that the issuance of the Presidential Permit would constitute a major Federal action that may have a significant impact upon the environment within the meaning of the National Environmental Policy Act of 1969 (NEPA). For this reason, Department of State intends to prepare an environmental impact statement (EIS) to address reasonably foreseeable impacts from the proposed action and alternatives, to include the proposed Cushing extension.
The purpose of this Notice of Intent is to inform the public about the proposed action, announce plans for scoping meetings, invite public participation in the scoping process, and solicit public comments for consideration in establishing the scope and content of the EIS. As the proposed project may involve an action in a floodplain or wetland, the EIS will include a floodplain and wetlands assessment and floodplain statement of findings.
Department of State invites interested agencies, organization, and members of the public to submit comments or suggestions to assist in identifying significant environmental issues and in determining the appropriate scope of the EIS. The public scoping period starts with the publication of this Notice in the
During this public scoping period, the Department of State plans to use the scoping process to help identify consulting parties and historic preservation issues for consideration under Section 106 of the National Historic Preservation Act and its implementing regulations (36 CFR Part 800).
Dates and locations for the public scoping meetings are:
1. October 24, 2006, 7 to 10 p.m., Michigan, North Dakota, Michigan Civic Center, 113 Broadway N., Michigan.
2. October 24, 2006, 7 to 10 p.m., Yankton, South Dakota, Minerva Convention Centre at the Best Western, Kelley Inn, 1607 East Highway 50, Yankton.
3. October 25, 2006, 7 to 10 p.m., Lisbon, North Dakota, Commons Room, Lisbon High School, 502 Ash Street, Lisbon.
4. October 25, 2006, 7 to 10 p.m., Stanton, Nebraska, VFW Meeting Hall, 1106 Veteran's Avenue, Stanton.
5. October 28, 2006, 7 to 10 p.m., Clark, South Dakota, Clark Community Center, 120 N. Commercial Street, Clark.
6. October 28, 2006, 7 to 10 p.m., Seward, Nebraska, Seward Civic Center, Auditorium, 616 Bradford St., Seward.
7. November 1, 2006, 7 to 10 p.m., St. Charles, Missouri, Commons Area, Orchard Farm High School, 2165 Highway V, St. Charles.
8. November 2, 2006, 7 to 10 p.m., Collinsville, Illinois, Gateway Center Marquette Room, One Gateway, Drive (Highway 157 & Eastport Plaza Drive), Collinsville.
9. November 8, 2006, 7 to 10 p.m., Carrollton, Missouri, Rupe Community Building (Behind Fire Station, park on north side of building, do not block fire station) 710 Harvest Hills Road, Carrollton.
10. November 9, 2006, 7 to 10 p.m., Seneca, Kansas, Nemaha Community Center, 1500 Community Drive, Seneca.
11. November 14, 2006, 7 to 10 p.m., Abilene, Kansas, Abilene Convention & Visitor's Bureau, Historical Train Depot, 210 NW 2nd Street, Abilene.
12. November 15, 2006, 7 to 10 p.m., El Dorado, Kansas, El Dorado Civic Center, Main Meeting Room, 210 E. Central, El Dorado.
13. November 16, 2006, 7 to 10 p.m., Morrison, Oklahoma, Morrison Park Pavillion, Hwy 64 & Casey Trail, (One block from 7th Street), Morrison.
The scoping meetings will be conducted in a workshop style. A court reporter will be present and will accept comments for the record.
Written comments or suggestions on the scope of the EIS should be addressed to: Elizabeth Orlando, OES/ENV Room 2657, U.S. Department of State, Washington, DC 20520. Comments may be submitted electronically to
For information on the proposed project or to receive a copy of the Draft EIS when it is issued, contact Elizabeth Orlando at the address listed in the
More information on the TransCanada Keystone Pipeline application for a Presidential Permit, including associated maps and drawings will be downloadable in its entirety from a Web site that is being established for this purpose:
Department of State Presidential Permit information and process can also be found at the above internet address.
A TransCanada hosted project Web site is also available at:
TransCanada Keystone Pipeline, LP (Keystone) proposes to construct and operate an interstate crude oil pipeline and related facilities from an oil supply hub near Hardisty, Alberta, in Canada, to destinations in the United States. The proposed project, known as the
As initially proposed, the Keystone Pipeline Project would consist of approximately 1,845 miles of pipeline, including about 767 miles in Canada and 1,078 miles within the United. States traversing the States of North Dakota, South Dakota, Nebraska, Missouri, Kansas and Illinois. The project is proposed to be located primarily in rural areas, with more populated areas occurring around Troy and St. Louis, Missouri and Wood River and Edwardsville, Illinois. These distances would increase if the proposed pipeline were extended to Fort Saskatchewan, Alberta, and/or Cushing, Oklahoma. U.S. counties that could possibly be affected by construction of the proposed pipeline, including the proposed Cushing extension are:
In Canada, the project as proposed would involve the transfer to Keystone of an existing 530 mile, 34-inch-diameter pipeline currently owned by TransCanada and conversion of that line to crude oil service; construction of a new 237-mile pipeline extension from Hardisty to the existing pipeline; and construction of a pipeline extension from the existing pipeline to the U.S.-Canada border. Appropriate regulatory authorities in Canada will conduct an independent environmental review process for the Canadian facilities.
In the United States, the proposed Keystone pipeline consists of 1,023 miles of 30-inch pipe between the U.S.-Canada border in Cavalier County, North Dakota, and Wood River, Illinois, and a 55-mile segment of 24-inch pipeline between Wood River and Patoka, Illinois. In addition, Keystone may construct a 292-mile 36-inch pipeline, referred to as the “Cushing Extension”, commencing in Platte County near the Nebraska-Kansas border and terminating at existing crude oil terminals in Cushing (Payne County), Oklahoma.
Keystone proposes to construct the 30- and 36-inch pipelines within a 110-foot-wide corridor, consisting of both a temporary 60-foot-wide construction right-of-way (ROW) and a 50-foot permanent ROW. In Illinois, where a portion of the Keystone Pipeline is proposed to be 24-inch pipeline, the proposed project would be constructed within a 95-foot-wide corridor, consisting of both a temporary 45-foot-wide construction ROW and a 50-foot permanent ROW. Extra temporary workspace would be required in some locations, including stream, wetland and road crossings.
Above ground facilities for the proposed Keystone pipeline include an initial 23 pump stations and 45 mainline valves located within the ROW. The pump stations would enable Keystone to maintain the pressure required to make crude oil deliveries. Valves are proposed to be installed and located as dictated by the hydraulic characteristics of the pipeline and as required by Federal regulations. Construction of delivery metering and other facilities at Wood River, Patoka, and Cushing would measure the amount of product transported and delivered to terminals.
Above ground facilities for the proposed Cushing Extension include facilities at Ponca City and 12 mainline valves within the ROW. The delivery facility is proposed to be located adjacent to existing operational tanks in Ponca City and Cushing, Oklahoma.
It is estimated that approximately 163 perennial waterbody crossings could occur during the proposed construction of the Keystone mainline and 81 perennial waterbody crossings could occur on the proposed Cushing extension. Proposed major river crossings include but are not limited to the Missouri, Platte, Chariton, Cuivre and Mississippi Rivers. Wetlands may be crossed by the proposed route of the main pipeline and the Cushing extension.
New pump stations and remotely activated valves proposed to be located along the pipeline route require electrical transmission power lines and facility upgrades in multiple locations along its route. These proposed electrical components would be constructed and operated by local power providers, not Keystone. The construction and operation of these facilities are considered connected actions under the National Environmental Policy Act (NEPA) and, therefore, will be evaluated within the EIS.
Keystone proposes to begin construction of the pipeline in early 2008. Proposed construction would occur over an approximately 18-month period. Construction of the proposed Cushing Extension, if undertaken, is anticipated to commence in 2009 and require a 12-month period.
It is estimated that construction of the project as proposed would cause approximately 16,272 acres of land to be disturbed as temporary construction workspace; which would be restored after construction is complete. In addition, approximately 6,565 acres of land would be required as permanent ROW. Of that total, approximately 6,512 acres are proposed to be restored and returned to their previous use after construction. As proposed, approximately 53 acres of permanent ROW would not be restored but would serve to provide adequate space for above-ground facilities, including pump stations, valves, etc. for the life of the pipeline. As currently proposed, no federally owned lands appear to be implicated; however, some federally managed lands would be affected.
If the proposed Cushing Extension were constructed as proposed, it is estimated that approximately 4,580 acres of additional land would be disturbed as temporary construction workspace, which would be restored after construction is complete. Approximately 1,789 acres of land would be required as permanent ROW. Of that total, approximately 1,778 acres are proposed to be restored and returned to their previous use after construction.
NEPA requires the Department of State to take into account the environmental impacts that could result from the approval of a Presidential Permit authorizing construction, operation, and maintenance of pipeline facilities for the importation of crude oil to be located at the international border of the United States and Canada. The
NEPA also requires Department of State to identify concerns the public may have about proposals under consideration by the Department of State. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EIS on the important environmental issues. With this Notice of Intent, the Department of State is requesting public comments on the scope of the issues to be addressed in the EIS. All comments received during the scoping period will be considered during preparation of the EIS. Comments received after the close of the comment period will be considered to the extent practicable.
In the EIS, Department of State will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• Water resources;
• Fish, wildlife, and vegetation;
• Threatened and endangered species;
• Cultural resources;
• Land use, recreation and special interest areas; visual resources;
• Air quality and noise;
• Socioeconomics; and
• Reliability and safety.
In the EIS, Department of State will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on affected resources. In addition, a “no action alternative” will be considered.
The Department of State's independent analysis of the issues will be included in a draft EIS. The draft EIS will be published and mailed to relevant Federal, State and local government agencies, elected officials, environmental and public interest groups, Native American tribes, affected landowners, commentors, local libraries, newspapers and other interested parties. A 45-day comment period will be allotted for review of the draft EIS. We will consider all timely comments on the draft EIS and revise the document, as necessary, before issuing a final EIS. We will consider all comments on the final EIS before reaching a conclusion on whether to grant Keystone a Presidential Permit authorizing construction, operation, and maintenance of pipeline facilities for the importation of crude oil to be located at the international border of the United States and Canada.
The EIS will discuss impacts that could occur as a result of the construction, operation and maintenance of the proposed project. We have already identified several issues that we think deserve attention. This preliminary list of issues may be changed based on public comments and analysis.
• The minimization of construction rights-of-way and associated construction impacts.
• Potential effects on prime farmland and soils with a high potential for compaction.
• Potential impacts to existing land uses, including residences, agricultural and managed forested lands.
• Potential impacts to perennial and intermittent waterbodies, including waterbodies with Federal and/or State designations.
• Evaluation of the potential for temporary and permanent impacts on wetlands.
• Potential impacts to fish and wildlife habitat, including potential impacts to federally and State-listed threatened and endangered species.
• Potential impacts to wildlife management areas.
• Potential impacts and benefits of construction workforce on local housing, infrastructure, public services and economy.
• Public safety and potential hazards associated with the transport of crude oil.
• Alternative alignments for the pipeline route.
• Assessment of the effect of the proposed project when combined with other past, present, or reasonably foreseeable future actions in the project area.
• Public Participation.
You are encouraged to become involved in this process and provide your specific comments or concerns about the proposed project. By becoming a commentor, your concerns will be addressed in the EIS and considered by the Department of State. Your comments should focus on the potential environmental impacts, reasonable alternatives (including alternative facility sites and alternative pipeline routes), and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be.
The public scoping meetings identified above are designed to provide another opportunity to offer comments on the proposed project. Interested individuals and groups are encouraged to attend these meetings and to present comments on the environmental issues they believe should be addressed in the EIS. Again, written comments are considered with equal weight in the process relative to those received in public scoping meetings.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our request for the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by November 13, 2006.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2006-25976.
James March, 202-366-9237, or William Linde, 202-366-9637, Office of Transportation Policy Studies, Federal
The Secretary has assigned the execution and management of the agreement with the University of Iowa to the Office of Policy of the Federal Highway Administration. This study will include 200 participants in the first year and 250 participants in the second year in each of six geographic regions of the country who have been recruited through radio, television, and print media. Persons selected to participate in the field-testing will have agreed to have the necessary on-board computer technology installed in their personal vehicles for testing the mileage data collection technology. Field-testing will be conducted over 2 years with a new set of participants in each year, 1,200 in the first year and 1,500 in the second. The participants will be asked to provide information every 2 months over the course of their participation in the field test in order to collect data that provides for an analysis of participant opinion on different aspects of the field test, such as privacy of data, level of detail of data transmitted to collection center, billing transmittal, among others. The participants will have a choice of providing their information by means of telephone, internet, or printed survey.
The FHWA published notice of this new information collection and requested comments on the bi-monthly survey component of the study in the
In order to meet the requirements of the Study, the Public Policy Center must recruit and select field test participants. The recruitment effort will include advertising in radio, television, and print media seeking individuals to participate in the study. It is expected that in order to achieve the University of Iowa's goal of selecting a total of 2,700 individuals, 1,200 in the first year and 1,500 in the second, to participate in two field tests of 1 year each, the number of individuals responding to the recruitment effort will be 15,000. Of these, an estimated 12,000 will pass through the first qualification screen and therefore be eligible to become candidates for participating in the field study. Those eligible candidates selected to participate in the study will receive training on the study and their participation in it. It will be necessary to install on-board computer systems in the vehicles of those individuals selected to participate, and to remove the systems at the end of the individuals' participation in the study.
The transfer of data from the on-board computer system to the data collection center will be done remotely and require no action on the part of the field test participant.
The individuals selected to participate in the field testing will be asked to provide information every 2 months over the course of their participation in the field test in order to collect data that provides for an analysis of participant opinion on different aspects of the field test, such as privacy of data, level of detail of data transmitted to the collection center, billing transmittal, among others. The participants will have a choice of providing their information by means of telephone, internet, or printed survey.
Of the respondents to the recruitment campaigns, approximately 5,300 are expected to pass through the initial qualification screening in the first year, and therefore eligible to participate in the field testing, and approximately 6,700 in the second year, a total of approximately 12,000 over the 2-year field-testing period.
Approximately 1,200 field test participants in the first year of field testing and 1,500 in the second year for a total of approximately 2,700 over the 2-year field testing period will receive training on study participation prior to their entrance into the field-testing phase. They will have on-board computer systems installed in their vehicles at the beginning of their participation and removed at the conclusion of their participation. Over the course of the field-testing, participants will be surveyed once every 2 months, for a total of six collections from each over the course of their participation in the study.
Each participant will have on-board computer systems installed in their vehicle once at the beginning of their participation and removed once from their vehicle at the conclusion of their participation.
Each participant will be surveyed once every 2 months, for a total of six collections over the course of their participation in the study.
Respondents selected for inclusion in the study will spend 5 minutes on average scheduling the training session and the training session itself will last 60 minutes. The total amount of time for each individual spent in the training
The average amount of time required for participants to make their vehicle available for installation of the on-board computer system is expected to be 90 minutes. The average amount of time for removal is expected to be 60 minutes. The total amount of time for each individual spent making their vehicle available for on-board system installation and removal is 150 minutes.
The average amount of time to respond to the first five bi-monthly survey collections over the course of the field study is 15 minutes. The average amount of time to respond to the exit survey collection at the end of the field study is 30 minutes. The average total time spent responding to surveys for participants over their involvement in the study is 105 minutes.
The total amount of time for a respondent not selected to participate in the study is expected to be 5 minutes.
The total amount of time spent by a field-test participant who completes the study is expected to be 340 minutes.
Approximately 1,325 hours in the first year and 1,675 in the second year for a total of 3,000 over the course of the study for the additional screening to be selected for inclusion in the study.
Approximately 1,300 hours in the first year and 1,625 in the second year for a total of 2,925 hours over the course of the study for participant training.
Approximately 3,000 hours in the first year and 3,750 in the second year for a total of 6,750 hours over the course of the study for the installation and removal of the on-board computer systems to and from the participants' vehicles.
Approximately 2,100 hours in the first year and 2,625 hours in the second year for a total of 4,725 hours over the course of the study for the survey collections.
Total annual burden hours in the first year are expected to be 8,277. Total annual burden hours in the second year are expected to be 10,373 for a total of 18,650 hours over the course of the study.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Transit Administration (FTA), DOT.
Notice of proposed circular and request for comment.
The Federal Transit Administration (FTA) proposes to issue a Circular on Safety and Security Management Guidance for FTA-funded major capital projects. The proposed circular is for those FTA-funded projects that involve: (1) The construction of a new fixed guideway or extension of an existing fixed guideway; (2) the rehabilitation or modernization of an existing fixed guideway with a total project cost in excess of $100 million; or (3) projects designated as major capital projects by the Administrator. The Circular, which is located on the DMS Web site, identifies the safety and security management activities to be performed by grantees and the criteria for documenting these activities in the Safety and Security Management Plan (SSMP). FTA is also developing a manual of effective practices to accompany the circular.
Comments must be received by December 11, 2006. Late filed comments will be considered to the extent practicable.
You may submit comments identified by the Document Management System (DMS) Docket Number FTA-2006-25471 by any of the following methods:
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For issues regarding safety and security in FTA's project development phases, contact Carlos M. Garay, Office of Engineering, 400 Seventh Street, SW., Washington, DC, 20590, (202) 366-6471; or
FTA's Full Funding Grant Agreement (FFGA) Circular 5200.1A, Chapter II, Section 6, Safety and Security Management Plan, issued on December 5, 2002, contains recommended guidance for grantees with FFGA projects. The guidance identifies specific safety and security management activities that must be performed and documented by the grantee in a Safety and Security Management Plan (SSMP) and submitted to FTA for review and conditional approval with application for FFGA.
Section 3026 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), [Pub. L. 109-59, August 10, 2005] now requires “safety and security management” as an element of the Project Management Plan (PMP) to be submitted by grantees for major capital projects. FTA is in the process of developing a proposed rulemaking to fully implement this provision of SAFETEA-LU. In the interim, this
For certain major capital projects, commonly referred to as “New Starts,” that involve the construction or extension of rail transit, commuter rail, or certain bus service in dedicated lanes, FTA is proposing that the initial version of the SSMP will be submitted with the grantee's request to enter Preliminary Engineering. As part of the PMP, the SSMP will be updated regularly, and evaluated for conditional approval by FTA prior to entry into subsequent project development phases. For other major capital projects, including modernization of existing fixed guideway systems and the purchase of bus and bus-related equipment and facilities, FTA proposes that the SSMP be submitted and updated whenever the PMP is required.
The proposed circular also includes a description of each section to be included in the SSMP and a listing of the evaluation criteria FTA proposes to use in assessing the grantee's development and implementation of the SSMP.
The SSMP will document the grantee's approach to developing management structures and work programs to effectively plan and implement safety and security related elements of major capital projects. The SSMP should also explain how the grantee expects to manage required coordination with external agencies, including the State Safety Oversight Agency (SSOA)—for rail transit projects affected by 49 CFR Part 659, Rail Fixed Guideway Systems; State Safety Oversight; the Federal Railroad Administration (FRA)—for commuter rail projects and rail transit projects with shared use track, limited connections to the general railroad system, and common corridors; and the Transportation Security Administration (TSA)—for projects affected by Security Directives and other TSA requirements and programs.
The proposed circular references other FTA regulations, including 49 CFR Part 633, Project Management Oversight; 49 CFR Part 611, Major Capital Investment Projects; and 49 CFR Part 659, Rail Fixed Guideway Systems; State Safety Oversight. In all cases, when using the proposed circular, the most current regulation will supersede any references to rules that have been cancelled or revised. FTA reserves the right to make page changes to proposed and final circulars regarding updates to other provisions, without subjecting the entire circular to public comment. The Circular can be found on the DMS Web site:
This proposed circular is the initial step in providing guidance in meeting the criteria of section 3026 of SAFETEA-LU which amends 49 U.S.C. 5327(a) to require “safety and security management” as an element of the PMP. Historically, grantees for FTA-funded major capital projects have described project safety and security management strategies and controls as sub-elements of other required PMP sections. However, the level to which safety and security were addressed and the specific approaches to ensure safety and security during each phase of project development varied greatly among grantees. As such, it became increasingly difficult for FTA to ensure a consistent approach to safety and security in each major capital project. Likewise, since the publication of Circular 5200.1A in December 2002, grantees have indicated that they do not have sufficient guidance for the consistent implementation of safety and security management activities, nor do they have a clear understanding of the criteria FTA used to evaluate implementation of safety and security activities.
The proposed circular describes specific safety and security activities to be identified and performed for each major capital project, and how these activities should be documented in the SSMP. FTA will then assess the development and implementation of the SSMP as part of the PMP. By describing these activities, the proposed circular will provide guidance for strengthening safety and security management in major capital projects.
FTA reviewed SSMP submissions made for FFGA projects since December 2002. FTA also evaluated the results of in-depth assessments performed by project management oversight consultants (PMOCs) regarding SSMP development and implementation by grantees with FFGA projects.
FTA found that previously developed SSMPs did not clearly explain the project's organization responsible for managing safety and security. In many instances, staff and contractors assigned to the organization were not identified by name, title, and department. Committees established to support the organization were not clearly identified by name and acronym, and membership was not always listed by title and affiliation. For specific authorities delegated to contractors, grantee staff members or committees were not always clearly identified as responsible for oversight. Organization charts were not always provided, and budgets and schedules were not always developed for safety and security activities.
FTA also determined that by not specifically encouraging the referencing of other safety and security plans and procedures, grantees copied large amounts of text from these other plans into their SSMPs. The resulting documents were much more voluminous than necessary and, in some instances, were difficult to follow and implement. In some cases, it was hard to distinguish the specific activities being performed as part of the SSMP from the grantee's other safety and security programs.
Finally, FTA found that grantees did not always clearly address how the project's existing design and construction verification programs should be used to support safety and security management. For example, grantees did not always explain how their safety and security functions were working with their quality control/quality assurance functions to obtain verification that safety and security requirements established for their projects were, in fact, addressed in technical specifications and contract documents and in the as-built facilities, installed systems, and procured equipment delivered for their projects.
In another example, grantees did not always explain how the project's activation team was coordinating with the safety and security function to make sure that staffing plans, established qualifications and certifications, training programs, and demonstration activities were sufficient to ensure the readiness of operations and maintenance personnel to support revenue service. In several instances, FTA had difficulty determining how the grantee's safety and security functions were using the project's document control system to ensure the tracking and resolution of “open items” and “work-arounds” that could potentially impact safety and security.
FTA also considered new guidance developed for industry since the publication of Circular 5200.1A in December 2002. Specifically, FTA has published a number of documents with recommendations to grantees for addressing safety and security in major capital projects, including:
In partnership with the Transit Cooperative Research Program (TCRP) of the Transportation Research Board (TRB), FTA has also funded research that identifies and recommends activities to be performed by grantees to address safety and security in the engineering, design, construction, and operation of transit projects. For example, FTA is currently funding:
Also, since the publication of the 5200.1A Circular, the American Public Transportation Association (APTA) has completed its Rail Transit Standards Program, issuing over 90 standards to support the design, operation and maintenance of rail transit projects. The Federal Highway Administration (FHWA) updated Part 10 of the
Finally, as a result of the events of September 11, 2001, many grantees are now performing extensive vulnerability analyses as part of their major capital projects, following guidance issued by FTA, TSA, or the Department of Homeland Security (DHS) Office of Grants and Training (G&T). Grantees are also designing and specifying the use of security equipment, such as closed circuit television surveillance systems, passenger call boxes, enhanced lighting, access control systems, and intrusion detection systems, following guidance established by consensus-based standards organizations.
Additionally, in 2004, DOT and TSA issued a joint rule-making “Protection of Sensitive Security Information,” published at 49 CFR Part 15 and 49 CFR Part 1520, respectively. DOT published “Interim Policies and Procedures for 49 CFR Part 15, Protection of Sensitive Security Information” on June 7, 2005 (a copy is available with this docket). The DOT policy and procedures apply to all DOT employees and to all DOT contractors, grantees, consultants, licensees, and regulated entities that have access to or receive Sensitive Security Information (SSI). Procedures have been established by grantees for managing SSI materials and to guide the sharing of SSI with FTA and other external agencies. FTA also has established procedures for working with grantees regarding the handling of these materials by Regional Offices, Headquarters staff, and PMOCs. Specifically, FTA personnel and PMOCs must comply with the grantee's SSI procedures as established in accordance with 49 CFR Part 15. Depending on the materials being reviewed and the procedures established by grantees, activities may include performing on-site reviews of SSI materials at the grantee's location, not removing SSI materials from specific locations, and ensuring that a grantee escort is available to observe FTA/PMOC review of SSI materials.
To address concerns identified from previous experience with developing and implementing SSMPs, and to reflect changes in available guidance and industry practices, the proposed circular identifies specific safety and security management activities to be performed by grantees for major capital projects. These activities include preparation of a policy statement, signed by the grantee's executive leadership, endorsing the safety and security activities, as documented in the SSMP. The proposed activities also include the development of a well-defined organization, supported by a budget and schedule, for identifying, resolving, and managing safety and security activities during all development phases of the major capital project.
Further, these proposed activities include specific requirements regarding the conduct of safety and security analysis, the development of safety and security design criteria, the establishment of programs to ensure the training and qualification of operations and maintenance personnel prior to the initiation of revenue service, and the establishment of verification programs to ensure that safety and security design criteria are included in the technical specifications and contract documents for the project and delivered in the final project placed into revenue service.
Finally, the proposed activities ensure the issuance of final safety and security certification for the project, including its operational readiness, and the performance of appropriate coordination throughout the project to address requirements specified by local, State and Federal agencies, including applicable requirements from SSOAs, FRA, and TSA.
To support consistent development of SSMPs by grantees for major capital projects, Chapter IV of the proposed circular identifies 11 sections required for the SSMP. Each section provides a detailed description of what should be included in the SSMP. The proposed circular, when published in final form will reference a manual being developed by FTA to promote effective practices for safety and security management. This manual will provide examples that may be used by grantees in preparing SSMPs.
FTA is establishing a docket to receive public comment on the proposed circular. FTA will publish the final circular, which may be revised based on public comment, in a later
In reviewing the proposed circular, FTA is requesting comments on the following:
The proposed circular identifies specific safety and security management activities to be performed by grantees
Specifically, FTA would like to know if all of the required activities are necessary; if there are activities which should be added; and if grantees currently have programs underway addressing these requirements. Also, for “New Starts” projects requesting entry into Preliminary Engineering (PE), FTA is interested to learn what specific safety and security management activities grantees will perform during PE.
The proposed circular identifies the criteria to be used by FTA in assessing and evaluating the grantee's performance of required safety and security management activities. These activities are noted in Chapter II, Section 3, of the proposed SSMP Circular. FTA would like to learn if commenters believe that these criteria are appropriate; if there are other criteria that should be considered by FTA, and if grantees believe that they have the project management organization and information management systems in place to meet these criteria.
The proposed circular references the DOT regulation on Sensitive Security Information (see 49 CFR Part 15). FTA has developed procedures to coordinate with grantees regarding their implementation of programs and procedures to identify and protect sensitive security information. FTA is interested in receiving comments regarding how well these procedures have worked in practice, and if there are any suggestions for improvements that should be addressed in the proposed circular.
FTA is seeking comments on the proposed approach to developing and updating SSMPs as part of the PMP. These criteria are found in Chapter III of the proposed circular. Specifically, do grantees require additional guidance regarding the appropriate contents of the SSMP for different project development phases? Do grantees prefer to include the SSMP as a separate chapter of the PMP or referenced as a separate plan within the PMP? Do grantees with “New Starts” projects believe the proposed circular provides enough information regarding FTA's requirements for the SSMP at entry to Preliminary Engineering, entry to Final Design, application for FFGA, and at other times when circumstances require?
Chapter IV of the proposed circular lists eleven sections to be included in the SSMP developed by the grantee. FTA requests comments regarding these eleven sections. Are the requirements reasonable? Should additional sections or sub-sections be added? Should specific sections or sub-sections be removed? Are the descriptions for any section or sub-section unclear or confusing? Do grantees need additional guidance?
FTA also requests comments concerning the costs and benefits associated with meeting guidance in the proposed circular. Grantees are encouraged to comment on the number of hours and/or financial cost associated with implementing the proposed circular's guidance as well as the extent to which following the guidance will assist the grantee in achieving its organizational objectives for safety and security management in major capital projects.
Surface Transportation Board, DoT.
Notice of exemption.
Under 49 U.S.C. 10502, the Board is granting a petition for exemption from the prior approval requirements of 49 U.S.C. 11323-25 for petitioners to provide for the joint use and joint rail freight operations over 7.69 miles of abandoned rail line of the former Staten Island Railway Corporation
The exemption will be effective on October 8, 2006. Petitions to reopen must be filed by October 25, 2006.
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34909, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, one copy of all pleadings must be served on petitioners' representatives: Louis E. Gitomer, 600 Baltimore Avenue, Suite 301, Towson, MD 21204, Peter J. Shudtz, 1331 Pennsylvania Avenue NW., Suite 560,
Joseph H. Dettmar, (202) 565-1609. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
Additional information is contained in the Board's decision served on October 5, 2006. To purchase a copy of the full decision, write, e-mail, or call: ASAP Document Solutions, 9332 Annapolis Rd., Suite 103, Lanham, MD 20706; e-mail:
Board decisions and notices are available on our Web site at
By the Board, Chairman Nottingham, Vice Chairman Mulvey, Commissioner Buttrey.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8816, Special Loss Discount Account and Special Estimated Tax Payments for Insurance Companies.
Written comments should be received on or before December 11, 2006 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, Room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Allan Hopkins, at Internal Revenue Service, Room 6516, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-6665, or through the Internet at
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, CO-93-90 (TD 8364), Corporations; Consolidated Returns-Special Rules Relating to Dispositions and Deconsolidations of Subsidiary Stock (§§ 1.337(d)-2 and 1.1502-20).
Written comments should be received on or before December 11, 2006 to be assured of consideration.
Direct all written comments to Glenn Kirkland, Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Larnice Mack at Internal Revenue Service, room 6512, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202)622-3179, or through the Internet at
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Public Debt within the Department of the Treasury is soliciting comments concerning collections of information required to comply with the terms and conditions of FHA debentures.
Written comments should be received on or before December 11, 2006, to be assured of consideration.
Direct all written comments to Bureau of the Public Debt, Vicki S. Thorpe, 200 Third Street,A-4A, Parkersburg, WV 26106-1328, or
Requests for additional information or copies of the form and instructions should be directed to Vicki S. Thorpe, Bureau of the Public Debt, 200 Third Street, Parkersburg, WV 26106-1328, (304) 480-8150.
Notice of open meeting to prepare Annual Report—October 16-17, 2006, Washington, DC.
Notice is hereby given of a meeting of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, evaluate and report to Congress annually on the U.S.-China economic and security relationship. The mandate specifically charges the Commission to prepare an annual report to the Congress “regarding the national security implications and impact of the bilateral trade and economic relationship between the United States and the People's Republic of China . . . [that] shall include a full analysis, along with conclusions and recommendations for legislative and administrative actions . . .”
• China's Regional Activities.
• China's Energy Activities.
• China's Enforcement of Intellectual Property Rights and Its Production of Counterfeit Goods.
• China's Financial System and Its Effect on the United States.
• China's Proliferation To and Relationships With North Korea and Iran.
• China's Media Control Activities.
In addition, Commissioners may discuss draft Report sections previously considered at the Commission's August 23 meeting:
• China's Internal Challenges and Their Impact on China's Actions Affecting Other Nations Including the United States.
• China's Military Modernization.
• The Effect of U.S. and Multilateral Export Controls on China's Military Modernization.
• The Impact of China's Industrial Expansion and Industrial Subsidies on U.S. and Other Markets.
• China's WTO Compliance.
• China's Impact on the U.S. Auto and Auto Parts Industries.
• The entirety of this Commission meeting will be open to the public.
• Any member of the public is permitted to file a written statement with the Commission. Such statements may be left with the Commission's Executive Director during the meeting, or mailed or delivered to him at the Commission's office address: 444 North Capitol Street, Suite 602, Washington, DC 20001.
• The Commission's procedures for conducting its Annual Report preparation meetings do
• The drafts prepared for Commissioners' use and consideration during the meeting are available for public inspection in the Commission's offices (see address above) during its normal office hours of 9 a.m. to 5:30 p.m., Monday through Friday. Any member of the public may request copies of any of these materials, which shall be provided at the Commission's actual cost for photocopying—10 cents per page—with payment to be made in cash in advance.
• During the meeting, at various points the Commission may take breaks from work on its Annual Report to deal with various administrative matters, such as budgetary, scheduling, and personnel matters. Those matters are not subject to the open meeting requirements of the Federal Advisory Committee Act and at those times, all members of the public will be asked to depart the room.
• The circumstances under which the Commission is permitted to use appropriated funds to pay for food or beverages are limited, and this meeting does not qualify. Therefore, Commissioners have paid out of their own pockets for coffee and other refreshments for their consumption during the meeting, and for lunch; these will
Congress created the U.S.-China Economic and Security Review Commission in 2000 in the National Defense Authorization Act (Public Law 106-398), as amended by Division P of the Consolidated Appropriations Resolution, 2003 (Public Law 108-7), as amended by Public Law 109-108 (November 22, 2005).
Office of Energy Policy and New Uses, USDA.
Notice of Proposed Rulemaking.
The U.S. Department of Agriculture (USDA) is proposing to amend the guidelines for designating biobased products for Federal procurement, to add 10 sections to designate the following 10 items within which biobased products would be afforded Federal procurement preference, as provided for under section 9002 of the Farm Security and Rural Investment Act of 2002: Bath and tile cleaners; clothing products; concrete and asphalt release fluids; cutting, drilling, and tapping oils; de-icers; durable films; firearm lubricants; floor strippers; laundry products; and wood and concrete sealers. USDA also is proposing minimum biobased content for each of these items. Once USDA designates an item, procuring agencies are required generally to purchase biobased products within these designated items where the purchase price of the procurement item exceeds $10,000 or where the quantity of such items or the functionally equivalent items purchased over the preceding fiscal year equaled $10,000 or more.
USDA will accept public comments on this proposed rule until December 11, 2006.
You may submit comments by any of the following methods. All submissions received must include the agency name and Regulatory Information Number (RIN). The RIN for this rulemaking is 0503-AA32. Also, please identify submittals as pertaining to the “Proposed Designation of Items.”
• Federal eRulemaking Portal:
• E-mail:
• Mail/commercial/hand delivery: Mail or deliver your comments to: Marvin Duncan, USDA, Office of the Chief Economist, Office of Energy Policy and New Uses, Room 4059, South Building, 1400 Independence Avenue, SW., MS-3815, Washington, DC 20250-3815.
• Persons with disabilities who require alternative means for communication for regulatory information (braille, large print, audiotape, etc.) should contact the USDA TARGET Center at (202)720-2600 (voice) and (202)401-4133 (TDD).
Marvin Duncan, USDA, Office of the Chief Economist, Office of Energy Policy and New Uses, Room 4059, South Building, 1400 Independence Avenue SW., MS-3815, Washington, DC 20250-3815; e-mail:
The information presented in this preamble is organized as follows:
The designation of these items is proposed under the authority of section 9002 of the Farm Security and Rural Investment Act of 2002 (FSRIA), 7 U.S.C. 8102 (referred to in this document as “section 9002”).
Section 9002 of FSRIA, as amended by section 943 of the Energy Policy Act of 2005, Pub. L. 109-58 (Energy Policy Act), provides for the preferred procurement of biobased products by procuring agencies. Section 943 of the Energy Policy Act amended the definitions section of FSRIA, 7 U.S.C. 8101, by adding a definition of “procuring agency” that includes both Federal agencies and “any person contracting with any Federal agency with respect to work performed under that contract.” The amendment also made Federal contractors, as well as Federal agencies, expressly subject to the procurement preference provisions of section 9002 of FSRIA. However, because this program requires agencies to incorporate the preference for biobased products into procurement specifications, the statutory amendment makes no substantive change to the program. USDA amended the Guidelines to incorporate the new definition of “procuring agency” through an interim final rule.
Procuring agencies must procure biobased products within each designated item unless they determine that products within a designated item are not reasonably available within a reasonable period of time, fail to meet the reasonable performance standards of the procuring agencies, or are available only at an unreasonable price. As stated in the Guidelines, biobased products that are merely incidental to Federal funding are excluded from the preferred procurement program. In implementing the preferred procurement program for biobased products, procuring agencies should follow their procurement rules and Office of Federal Procurement Policy guidance on buying non-biobased products when biobased products exist and should document exceptions taken for price, performance, and availability.
USDA recognizes that the performance needs for a given application are important criteria in making procurement decisions. USDA is not requiring procuring agencies to limit their choices to biobased products that fall under the items for designation in this proposed rule. Rather, the effect of the designation of the items is to require procuring agencies to determine their performance needs, determine whether there are qualified biobased products that fall under the designated items that meet the reasonable performance standards for those needs, and purchase such qualified biobased products to the maximum extent practicable as required by section 9002.
Section 9002 also requires USDA to provide information to procuring agencies on the availability, relative price, performance, and environmental and public health benefits of such items and, under section 9002(e)(1)(c), to recommend where appropriate the
Where a biobased item is used for the same purposes and to meet the same requirements as an EPA-designated recovered content product, the Federal agency must purchase the recovered content product. For example, if a biobased hydraulic fluid is to be used as a fluid in hydraulic systems and because “lubricating oils containing re-refined oil” has already been designated by EPA for that purpose, then the Federal agency must purchase the EPA-designated recovered content product, “lubricating oils containing re-refined oil.” If, on the other hand, that biobased hydraulic fluid is to be used to address certain environmental or health requirements that the EPA-designated recovered content product would not meet, then the biobased product should be given preference, subject to cost, availability, and performance.
Procuring agencies should note that not all biobased products are “environmentally preferable.” For example, unless cleaning products contain no or reduced levels of metals and toxic and hazardous constituents, they can be harmful to aquatic life, the environment, or workers. When purchasing environmentally preferable cleaning products, many Federal agencies specify that products must meet Green Seal standards for institutional cleaning products or that products have been reformulated in accordance with recommendations from the U.S. EPA's Design for the Environment (DfE) program. Both the Green Seal standards and the DfE program identify chemicals of concern in cleaning products. These include zinc and other metals, formaldehyde, ammonia, alkyl phenol ethoxylates, ethylene glycol, and volatile organic compounds. In addition, both require that cleaning products have neutral or less caustic pH.
On the other hand, some biobased products may be better for the environment than some products that meet Green Seal standards for institutional cleaning products or that have been reformulated in accordance with EPA's DfE program. To fully compare products, one must look at the “cradle-to-grave” impacts of the manufacture, use, and disposal of products. Biobased products that will be available for preferred procurement under this program have been assessed as to their “cradle-to-grave” impacts.
One consideration of a product's impact on the environment is whether it introduces (and to what degree) new, fossil carbon into the atmosphere. Qualifying biobased products offer the user the opportunity to manage the carbon cycle and limit the introduction of new, fossil carbon into the atmosphere, whereas non-biobased products derived from fossil fuels add new, fossil carbon to the atmosphere.
Manufacturers of qualifying biobased products under the Federal Biobased Products Preferred Procurement Program (FB4P) will be able to provide, at the request of Federal agencies, factual information on environmental and human health effects of their products, including the results of the BEES analysis, which examines 11 different environmental parameters, including human health, or the comparable ASTM D7505. Therefore, USDA encourages Federal procurement agencies to examine all available information on the environmental and human health effects of products when making their purchasing decisions.
Today, USDA is proposing to designate the following 10 items for preferred procurement: Bath and tile cleaners; clothing products; concrete and asphalt release fluids; cutting, drilling, and tapping oils; de-icers; durable films; firearm lubricants; floor strippers; laundry products; and wood and concrete sealers. USDA is also proposing minimum biobased content for each of these items (see Section IV.C). Lastly, USDA is proposing a date by which Federal agencies must incorporate designated items into their procurement specifications (see Section IV.D).
In today's proposed rulemaking, USDA is providing information on its findings as to the availability, economic and technical feasibility, environmental and public health benefits, and life cycle costs for each of the 10 designated items. Information on the availability, relative price, performance, and environmental and public health benefits of individual products within each of these 10 items is not presented in this notice. Further, USDA has reached an agreement with manufacturers not to publish their names in the
1. One of the items being proposed for designation (durable plastic films) may overlap with one of the products designated under EPA's Comprehensive Procurement Guidelines for products containing recovered material. To help procuring agencies in making their purchasing decisions between biobased products within the proposed designated items that overlap with products containing recovered material, USDA is requesting product specific information on unique performance attributes, environmental and human health effects, disposal costs, and other attributes that would distinguish biobased products from products containing recovered material as well as non-biobased products.
2. De-icers are used in a variety of applications and settings. In today's proposed rulemaking, this item would not apply to de-icers used at airports to de-ice airplanes and runways. USDA is seeking comment on whether this is appropriate; that is, whether there are differences in the de-icers used at airports and the de-icers used elsewhere that would preclude this item from including airport de-icers. Please provide detailed rationale and information to support your comments.
3. We are proposing a single item designation for bath and tile cleaners. We are seeking comment as to whether there are different performance standards for this item and, if so, whether USDA should consider either creating subcategories within this item, each with its own minimum biobased content, or limiting the scope of the current item and proposing one or more new items for bath and tile cleaners. In your comments, please be sure to identify specific performance standards and rationale for either subdividing the current proposed item or for limiting the scope of the current proposed item and proposing one or more new items for bath and tile cleaners.
4. We have attempted to identify relevant and appropriate performance standards and other relevant measures of performance for each of the proposed items. If you know of other such standards or relevant measures of performance for the proposed items, USDA requests that you submit information identifying such standards and measures, including their name (and other identifying information as necessary), identifying who is using the
5. We are proposing a minimum biobased content for biobased clothing based on a projected blend of biobased material with non-qualifying biobased material or with non-biobased material. USDA requests information from manufacturers of biobased clothing on what blends are being used today or that might be reasonably forecast to be used in the future. Please provide specific information, including discussion on why you use or will use particular blends and what those blends levels are or are projected to be.
6. Many biobased products within the items being proposed for designation will have positive environmental and human health attributes. USDA is seeking comments on such attributes in order to provide additional information on the FB4P Web site. This information will then be available to Federal procuring agencies and will assist them in making “best value” purchase decisions. When possible, please provide appropriate documentation to support the environmental and human health attributes you describe.
To assist you in developing your comments, the background information used in proposing these items for designation can be found on the FB4P Web site. All comments should be submitted as directed in the
In order to designate items (generic groupings of specific products such as crankcase oils or products that contain qualifying biobased fibers) for preferred procurement, section 9002 requires USDA to consider: (1) The availability of items; and (2) the economic and technological feasibility of using the items, including the life cycle costs of the items.
In considering an item's availability, USDA uses several sources of information. USDA performs Internet searches, contacts trade associations (such as the Biobased Manufacturers Association) and commodity groups, searches the Thomas Register (a database, used as a resource for finding companies and products manufactured in North America, containing over 173,000 entries), and contacts individual manufacturers and vendors to identify those manufacturers and vendors with biobased products within items being considered for designation. USDA uses the results of these same searches to determine if an item is generally available.
In considering an item's economic and technological feasibility, USDA examines evidence pointing to the general commercial use of an item and its cost and performance characteristics. This information is obtained from the sources used to assess an item's availability. Commercial use, in turn, is evidenced by any manufacturer and vendor information on the availability, relative prices, and performance of their products as well as by evidence of an item being purchased by a procuring agency or other entity, where available. In sum, USDA considers an item economically and technologically feasible for purposes of designation if products within that item are being offered and used in the marketplace.
In considering the life cycle costs of items proposed for designation, USDA uses the BEES analytical tool to test individual products within each proposed item. (Detailed information on this analytical tool can be found on the Web site
Environmental performance is measured in the BEES analytical tool using the internationally-standardized and science-based life cycle assessment approach specified in the International Organization for Standardization (ISO) 14000 standards. The BEES environmental performance analysis includes human health as one of its components. All stages in the life of a product are analyzed: Raw material production; manufacture; transportation; installation; use; and recycling and waste management. The time period over which environmental performance is measured begins with raw material production and ends with disposal (waste management). The BEES environmental performance analysis also addresses products made from biobased feedstocks.
Economic performance in the BEES analysis is measured using the ASTM standard life cycle cost method (ASTM E917), which covers the costs of initial investment, replacement, operation, maintenance and repair, and disposal. The time frame for economic performance extends from the purchase of the product to final disposal.
USDA then utilizes the BEES results of individual products within a designated item in its consideration of the life cycle costs at the item level. There is a single unit of comparison associated with each designated item. The basis for the unit of comparison is the “functional unit,” defined so that the products compared are true substitutes for one another. If significant differences have been identified in the useful lives of alternative products within a designated item (e.g., if one product lasts twice as long as another), the functional unit will include reference to a time dimension to account for the frequency of product replacement. The functional unit also will account for products used in different amounts for equivalent service. For example, one surface coating product may be environmentally and economically preferable to another on a pound-for-pound basis, but may require twice the mass to cover one square foot of surface, and last half as long, as the other product. To account for these performance differences, the functional unit for the surface coating item could be “one square foot of application for 20 years” instead of “one pound of surface coating product.” The functional unit provides the critical reference point to which all BEES results for products within an item are scaled. Because functional units vary from item to item, performance comparisons are valid only among products within a designated item.
The complete results of the BEES analysis, extrapolated to the item level, for each item proposed for designation in today's proposed rulemaking can be found at
As discussed above, the BEES analysis includes information on the environmental performance, human health impacts, and economic performance. In addition, ASTM D7505, which manufacturers may use in lieu of the BEES analytical tool, provides similar information. USDA is working with manufacturers and vendors to post this information on the FB4P Web site before a procuring agency asks for it, in order to make the preferred procurement program more efficient. As discussed earlier, USDA has also implemented, or will implement, several other steps intended to educate the manufacturers and other stakeholders on the benefits of this program and the need to post this information, including manufacturer contact information, on the FB4P Web site to make it available to procurement officials. Additional information on specific products within the items proposed for designation may also be obtained directly from the manufacturers of the products.
USDA recognizes that information related to the functional performance of biobased products is a primary factor in making the decision to purchase these
In gathering information relevant to the analyses discussed above, USDA has made extensive efforts to contact and request information and product samples from representatives of all known manufacturers of products within the items proposed for designation. However, because the submission of information is on a strictly voluntary basis, USDA was able to obtain information and samples only from those manufacturers who were willing voluntarily to invest the resources required to gather and submit the information and samples. USDA used the samples to test for biobased content and the information to conduct the BEES analyses. The data presented are all the data that were submitted in response to USDA requests for information from all known manufacturers of the products within the 10 items proposed for designation. While USDA would prefer to have complete data on the full range of products within each item, the data that were submitted are sufficient to support designation of the items in today's proposed rulemaking.
To propose an item for designation, USDA must have sufficient information on a sufficient number of products within an item to be able to assess its availability and its economic and technological feasibility, including its life cycle costs. For some items, there may be numerous products available. For other items, there may be very few products currently available. Given the infancy of the market for some items, it is not unexpected that even single-product items will be identified. Further, given that the intent of section 9002 is largely to stimulate the production of new biobased products and to energize emerging markets for those products, USDA has determined that the identification of two or more biobased products within an item, or even a single product with two or more suppliers, is sufficient to consider the designation of that item. Similarly, the documented availability, benefits, and life cycle costs of even a very small percentage of all products that may exist within an item are also considered sufficient to support designation.
USDA uses a model (as summarized below) to identify and prioritize items for designation. Through this model, USDA has identified over 100 items for potential designation under the preferred procurement program. A list of these items and information on the model can be accessed on the USDA biobased program Web site at
In general, items are developed and prioritized for designation by evaluating them against program criteria established by USDA and by gathering information from other government agencies, private industry groups, and independent manufacturers. These evaluations begin by asking the following questions about the products within an item:
• Are they cost competitive with non-biobased products?
• Do they meet industry performance standards?
• Are they readily available on the commercial market?
In addition to these primary concerns, USDA then considers the following points:
• Are there manufacturers interested in providing the necessary test information on products within a particular item?
• Are there a number of manufacturers producing biobased products in this item?
• Are there products available in this item?
• What level of difficulty is expected when designating this item?
• Is there Federal demand for the product?
• Are Federal procurement personnel looking for biobased products?
• Will an item create a high demand for biobased feed stock?
• Does manufacturing of products within this item increase potential for rural development?
After completing this evaluation, USDA prioritizes the list of items for designation. USDA then gathers information on products within the highest priority items and, as sufficient information becomes available for groups of approximately 10 items, a new rulemaking package will be developed to designate the items within that group. The list of items may change, with items being added or dropped, and the order in which items are proposed for designation is likely to change because the information necessary to designate an item may take more time to obtain than an item lower on the list.
In today's proposed rulemaking, USDA is proposing to designate 10 items for the preferred procurement program: Bath and tile cleaners; clothing products; concrete and asphalt release fluids; cutting, drilling, and tapping oils; de-icers; durable films; firearm lubricants; floor strippers; laundry products; and wood and concrete sealers. USDA has determined that each of these 10 items meets the necessary statutory requirements—namely, that they are being produced with biobased products and that their procurement by procuring agencies will carry out the following objectives of section 9002:
• To increase demand for biobased products, which would in turn increase demand for agricultural commodities that can serve as feedstocks for the production of biobased products;
• To spur development of the industrial base through value-added agricultural processing and manufacturing in rural communities; and
• To enhance the Nation's energy security by substituting biobased products for products derived from imported oil and natural gas.
USDA is proposing an exemption for all designated items when used in spacecraft systems and launch support equipment, because failure of such items could lead to catastrophic consequences. Many, if not all, items that USDA is or is planning to designate for preferred procurement are or will be used in space applications. Frequently, such applications used these items in ways that are different from their more “conventional” use on Earth. It is difficult, if not impossible, to forecast what situations may occur when these items are used in space and how they will perform. Therefore, USDA believes it is reasonable to limit the preferred procurement program to items used in more conventional applications and is proposing to exempt all designated items used in space applications from the FB4P.
For each item being proposed for exemption, the exemption does not extend to contractors performing work for DoD or NASA. For example, if a contractor is producing a part for use on the space shuttle, the metalworking fluid the contractor uses to produce the part should be biobased (provided it meets the specifications for metalworking). The exemption does apply, however, if the product being purchased by the contractor is for use in combat or combat-related missions or for use in space applications. For example, if the part being produced by the contractor would actually be part of the space shuttle, then the exemption applies.
Each of the 10 proposed designated items are discussed in the following sections.
Bath and tile cleaners are products designed to clean deposits on bath tubs, shower doors, shower curtains, bathroom tiles, floors, doors, counter tops, etc. They are available both in concentrated and ready-to-use forms.
As noted earlier in this preamble, USDA is requesting comment on whether there should be one or more subcategories within this item based on required performance properties of the item. For example, bath and tile cleaners used in medical situations might be required to meet different performance standards from those used in households. If this is the case, then there may be differences in the level of biobased content depending on the performance standard to be met. As proposed, USDA is not differentiating between settings in which bath and tile cleaners are used.
Procuring agencies should note that, as discussed in section II of this preamble, not all biobased cleaning products are “environmentally preferable” to non-biobased products. Unless cleaning products have been formulated to contain no (or reduced levels of) metals and toxic and hazardous constituents, they can be harmful to aquatic life, the environment, or workers. When purchasing environmentally preferable cleaning products, Federal agencies must compare the “cradle-to-grave” impacts of the manufacture, use, and disposal of both biobased and non-biobased products.
For bath and tile cleaners, USDA identified 16 different manufacturers producing 29 individual biobased products. These 16 manufacturers do not necessarily include all manufacturers of biobased bath and tile cleaners, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against an industry performance standard and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• Boeing Specification #D6-7127, Cleaning Interiors of Commercial Transport Aircraft.
• Green Seal #GS-37, Green Seal Environmental Standard for General-Purpose, Bathroom, Glass, and Carpet Cleaners Used for Industrial and Institutional Purposes.
USDA contacted procurement officials with various procuring agencies including GSA, several offices within the Defense Logistics Agency, the OFEE, USDA Departmental Administration, the National Park Service, EPA, Oak Ridge National Laboratory, and OMB in an effort to gather information on the purchases of bath and tile cleaners and products within the other nine items proposed for designation today. Communications with these officials lead to the conclusion that obtaining credible current usage statistics and specific potential markets within the Federal government for biobased products within the 10 proposed designated items is not possible at this time. Most of the contacted officials reported that procurement data are reported in higher level groupings of materials and supplies than the proposed designated items. Also, the purchasing of such materials as part of contracted services and with individual purchase cards used to purchase products locally further obscures credible data on purchases of specific products.
USDA also investigated the Web site
An analysis of the environmental and human health benefits and the life cycle costs of biobased bath and tile cleaners was performed for two of the products using the BEES analytical tool. Table 1 summarizes the BEES results for the two bath and tile cleaners. As seen in Table 1, the environmental performance score, which includes human health, ranges from 0.0129 to 0.0130 points per gallon of bath and tile cleaner. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to one gallon of the product, expressed in 100ths of 1 percent. For example, the total amount of criteria air pollutants emitted in the U.S. in one year was divided by the total U.S. population to derive a “criteria air pollutants per person value.” The production and use of one gallon of bath and tile cleaner sample A was estimated to contribute 0.000002 percent of this value.
When evaluating the information presented in Table 1, as well as in the subsequent tables presented in this preamble, it should be noted that comparisons of the environmental performance scores are valid only among products within a designated item. Thus, comparisons of the scores presented in Table 1 and the scores presented in tables for other proposed designated items are not meaningful.
The numbers in parentheses following each of the 12 environmental impacts listed in the tables in this preamble indicate weighting factors. The weighting factors represent the relative importance of the 12 environmental impacts, including human health impacts, that contribute to the BEES Environmental Score. They are derived from lists of the relative importance of these impacts developed by the EPA Science Advisory Board for the purpose of advising EPA as to how best to allocate its limited resources among environmental impact areas. Note that a lower Environmental Performance score is better than a higher score.
Life cycle costs presented in the tables in this preamble are per the appropriate functional unit for the proposed designated item. Future costs are discounted to present value using the OMB discount rate of 3.9 percent.
The life cycle costs of the submitted bath and tile cleaners range from $1.69 to $7.43 (present value dollars) per gallon. Present value dollars presented in this preamble represent the sum of all costs associated with a product over a fixed period of time, including any applicable costs for purchase, installation, replacement, operation, maintenance and repair, and disposal. Present value dollars presented in this preamble reflect 2006 dollars. Dollars are expressed in present value terms to adjust for the effects of inflation. The complete results of the BEES analysis, extrapolated to the item level, for each item proposed for designation in today's proposed rulemaking can be found at
Clothing products are coverings designed to be worn on a person's body. These products include coverings for the torso and limbs, as well as coverings for the hands, feet, and head. While this item applies to all types of clothing, some products within this item may not be applicable to specialized types of clothing, such as those categorized as person protective devices. Procuring agencies, therefore, need to assess an individual product's performance specifications for applicability for such specialized types of clothing.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in products and systems designed or procured for combat or combat-related missions and in spacecraft systems and launch support equipment.
For biobased clothing products, USDA identified 3 different manufacturers producing 5 individual biobased products. These 3
• NATICK Military Wicking Rate of Fabric;
• NATICK Military Air Permeability;
• NATICK Military Fabric Count;
• NATICK Military Weight;
• NATICK Military Seam Strength;
• NATICK Military Burst Strength;
• NATICK Military MVT Rate;
• NATICK Military pH; and
• NATICK Military Dimensional Stability.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, various Federal agencies procure clothing products for use by their employees. Thus, they have a need for clothing products. Designation of clothing products will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased clothing products was performed for one of the products using the BEES analytical tool. Table 2 summarizes the BEES results for the clothing product. As seen in Table 2, the environmental performance score, which includes human health, is 0.0143 points per one XL T-shirt. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to one case of the product, expressed in 100ths of 1 percent.
The life cycle costs of the submitted clothing product is $12.50 (present value dollars) per XL T-shirt.
Concrete and asphalt release fluids are products designed to provide a lubricating barrier between the composite surface materials (
For reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under FB4P when used in spacecraft systems and launch support equipment.
For biobased concrete and asphalt release fluids, USDA identified 23 different manufacturers producing 37 individual products. These 23 manufacturers do not necessarily include all manufacturers of biobased concrete and asphalt release fluids, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against multiple industry performance standards and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• ASTM D445-04e2, Standard Test Method for Kinematic Viscosity of Transparent and Opaque Liquids (and the Calculation of Dynamic Viscosity);
• ASTM 5864-00, Standard Test Method for Determining Aerobic Aquatic Biodegradation of Lubricants or Their Components;
• ASTM D92, Standard Test Method for Flash and Fire Points by Cleveland Open Cup Tester; and
• ASTM D97, Standard Test Method for Pour Point of Petroleum Products.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely procure such products for paving and construction, or contract for paving and construction services involving the use of such products. Thus, they have a need for
An analysis of the environmental and human health benefits and the life cycle costs of biobased concrete and asphalt release fluids was performed for two of the products using the BEES analytical tool. Table 3 summarizes the BEES results for the two biobased concrete and asphalt release fluids. As seen in Table 3, the environmental performance score, which includes human health, ranges from 0.5194 to 0.7453 points per 1000 gallons of release product (diluted and ready for use). The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to 1000 gallons of the product (diluted and ready for use), expressed in 100ths of 1 percent.
The life cycle cost of the submitted concrete and asphalt release fluids was $154.97 to $604.82 (present value dollars) per 1000 gallons of product, diluted and ready for use.
Cutting, drilling, and tapping oils are products designed to provide lubrication and reduce wear and friction on the contact parts for cutting, drilling, and tapping machinery, helping these parts last longer. This item only applies to neat oils, and does not apply to water emulsions.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in products and systems designed or procured for spacecraft systems and launch support equipment.
For biobased cutting, drilling, and tapping oils, USDA identified 13 different manufacturers producing 33 individual biobased products. These 13 manufacturers do not necessarily include all manufacturers of biobased cutting, drilling, and tapping oils, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that many of these products have been tested against multiple industry performance standards and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• ASTM D130, Standard Test Method for Corrosiveness to Copper from Petroleum Products by Copper Strip Test;
• ASTM D1401-02, Standard Test Method for Water Separability of Petroleum Oils and Synthetic Fluids;
• ASTM D1748-02, Standard Test Method for Rust Protection by Metal Preservatives in the Humidity Cabinet;
• ASTM D2266-01, Standard Test Method for Wear Preventive Characteristics of Lubricating Grease (Four-Ball Method);
• ASTM D2270-04, Standard Practice for Calculating Viscosity Index From Kinematic Viscosity at 40 and 100 °C;
• ASTM D2783-03, Standard Test Method for Measurement of Extreme-Pressure Properties of Lubricating Fluids (Four-Ball Method);
• ASTM D287-92(2000)e1, Standard Test Method for API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method);
• ASTM D2982-98(2004), Standard Test Method for Detecting Glycol-Base Antifreeze in Used Lubricating Oils;
• ASTM D2983-04a, Standard Test Method for Low-Temperature Viscosity of Lubricants Measured by Brookfield Viscometer;
• ASTM D3233-93(2003), Standard Test Methods for Measurement of Extreme Pressure Properties of Fluid Lubricants (Falex Pin and Vee Block Methods);
• ASTM D455, Standard Test Method for Kinematic Viscosity of Transparent and Opaque Liquids (and the Calculation of Dynamic Viscosity);
• ASTM D56-05, Standard Test Method for Flash Point by Tag Closed Cup Tester;
• ASTM D5864-00, Standard Test Method for Determining Aerobic
• ASTM D5985, Standard Test Method for Pour Point of Petroleum Products (Rotational Method);
• ASTM D665, Standard Test Method for Rust-Preventing Characteristics of Inhibited Mineral Oil in the Presence of Water;
• ASTM D92, Standard Test Method for Flash and Fire Points by Cleveland Open Cup Tester;
• ASTM D97, Standard Test Method for Pour Point of Petroleum Products;
• Environmental Protection Agency #600/4-90-027, Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms; and
• Environmental Protection Agency #560/6-82-003, Biodegradability.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely own and operate cutting, drilling, and tapping machinery. In addition, many Federal agencies contract for services involving the use of such equipment. Thus, they have a need for cutting, drilling, and tapping oils and for services that require the use of machinery which requires cutting, drilling, and tapping oils. Designation of cutting, drilling, and tapping oils will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of cutting, drilling, and tapping oils was performed for two of the products using the BEES analytical tool. Table 4 summarizes the BEES results for the two tapping oils. As seen in Table 4, the environmental performance score, which includes human health, ranges from 0.0296 to 0.0607 points per gallon of tapping oil. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to one gallon of tapping oil, expressed in 100ths of 1 percent.
The life cycle cost of the submitted tapping oils range from $20.00 to $152.15 (present value dollars) per gallon of tapping oil.
De-icers are agents that aid in the removal of snow and ice. For the purposes of this rulemaking, this category does not include de-icers used at airports to de-ice airplanes and runways.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in products and systems designed or procured for combat or combat-related missions and in spacecraft systems and launch support equipment.
For biobased de-icers, USDA identified 3 different manufacturers producing 9 individual biobased products. These 3 manufacturers do not necessarily include all manufacturers of biobased de-icers, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against one or more industry performance standards and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• National Association of Corrosion Engineers Standard TM-01-69 (1976 rev.)—Standardizes immersion corrosion testing and provides a consensus on the technology in this field of laboratory corrosion testing;
• Pacific Northwest Snowfighters—Standard Methods for the Examination of Water and Wastewater; and
• American Association of State Highway & Transportation Officials.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, many Federal agencies routinely perform, or procure contract services to perform, snow and ice removal activities. Thus, they have a need for de-icers. Designation of biobased de-icers will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased de-icers was performed for one of the products using the BEES analytical tool. Table 5 summarizes the BEES results for this biobased de-icer. As seen in Table 5, the environmental performance score, which includes human health, is 0.0173 points per 1,500 square yards of surface area. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to 1,500 square yards of surface area, expressed in 100ths of 1 percent.
The life cycle cost of the submitted biodegradable cutlery was $3.75 (present value dollars) per 1,500 square yards of surface area.
Durable plastic films are products such as bags and packaging materials. They are designed to resist water, ammonia, and other compounds, and do not readily biodegrade. This item applies to all types of applications, including construction barriers. However, some products within this item may not be applicable to all applications, such as construction barriers, which may require specific moisture protection properties. Procuring agencies, therefore, need to assess an individual product's performance specifications before using in specific applications, such as construction barriers.
Qualifying products within this item may overlap with the EPA-designated recovered content product: Nonpaper Office Products: Plastic trash bags.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in spacecraft systems and launch support equipment.
For biobased durable plastic films, USDA identified 2 different manufacturers producing 2 individual biobased products. These 2 manufacturers do not necessarily include all manufacturers of biobased durable plastic films, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against one relevant measure of performance and are being used commercially. While applicable performance standards and other measures of performance may exist, applicable industry performance standards and relevant measures of performance against which these products have been typically tested, as identified by manufacturers of products within this item and by others, include:
• Building Performance Institute, Inc.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely utilize durable plastic films in a variety of applications, including building cleaning and maintenance, landscaping and construction activities, and packaging activities, or procure services that use these products. Thus, they have a need for durable plastic films and for services that require the use of durable plastic films. Designation of durable plastic films will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased durable plastic films was performed for one of the products using the BEES analytical tool. Table 6 summarizes the BEES results for this durable plastic film. As seen in Table 6, the environmental performance score, which includes human health, is 0.0125 per kilogram of durable film. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to one kilogram of durable film, expressed in 100ths of 1 percent.
The life cycle cost of the submitted durable plastic film is $2.32 (present value dollars) per kilogram of durable plastic film.
Firearm lubricants are used in firearms to reduce the friction and wear between the moving parts of a firearm. They may also help keep the weapon clean and prevent the formation of deposits that could cause the weapon to jam.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in products and systems designed or procured for combat or combat-related missions and in spacecraft systems and launch support equipment.
For biobased firearm lubricants, USDA identified 2 different manufacturers producing 2 individual biobased products. The 2 manufacturers do not necessarily include all manufacturers of biobased firearm lubricants, merely those identified during USDA information gathering activities.
Information supplied by these manufacturers indicates that these products have been tested against multiple industry performance standards and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• ASTM D130, Standard Test Method for Corrosiveness to Copper from Petroleum Products by Copper Strip Test;
• ASTM D445, Standard Test Method for Kinematic Viscosity of Transparent and Opaque Liquids (and the Calculation of Dynamic Viscosity);
• ASTM D5864-00, Standard Test Method for Determining Aerobic Aquatic Biodegradation of Lubricants or Their Components
• ASTM D5985, Standard Test Method for Pour Point of Petroleum Products (Rotational Method);
• ASTM D665, Standard Test Method for Rust-Preventing Characteristics of Inhibited Mineral Oil in the Presence of Water; and
• ASTM D93, Standard Test Methods for Flash-Point by Pensky-Martens Closed Cup Tester.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely use, or procure contract services to provide, the types of firearms that require the use of firearm lubricants. Thus, they have a need for firearm lubricants. Designation of firearm lubricants will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased firearm lubricants was performed for two of the products using the BEES analytical tool. Table 7 summarizes the BEES results for the two firearm lubricants. As seen in Table 7, the environmental performance score, which includes human health, ranges from 0.0236 to 0.0501 points per gallon of firearm lubricant. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to one gallon of firearm lubricant, expressed in 100ths of 1 percent.
The life cycle cost of the submitted firearm lubricants ranges from $4.00 to $42.13 (present value dollars) per gallon of firearm lubricant.
Floor strippers are products formulated to loosen waxes, resins, or varnishes from floor surfaces. They can be in either liquid or gel form, and may also be used with or without mechanical assistance.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in spacecraft systems and launch support equipment.
Procuring agencies should note that, as discussed in section II of this preamble, not all biobased cleaning products are “environmentally preferable” to non-biobased products. Unless cleaning products have been formulated to contain no (or reduced levels of) metals and toxic and hazardous constituents, they can be harmful to aquatic life, the environment, or workers. When purchasing environmentally preferable cleaning products, Federal agencies must compare the “cradle-to-grave” impacts of the manufacture, use, and disposal of both biobased and non-biobased products.
For biobased floor strippers, USDA identified 10 different manufacturers producing 12 individual biobased products. These 12 manufacturers do not necessarily include all manufacturers of biobased floor strippers, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against one or more industry performance standards and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• ASTM D6400-04, Standard Specification for Compostable Plastics;
• ASTM D877-02e1, Standard Test Method for Dielectric Breakdown Voltage of Insulating Liquids Using Disk Electrodes;
• Boeing Specification #D6-7127—Cleaning Interiors of Commercial Transport Aircraft;
• Federal Test Method Standard No. 536A;
• South Coast Air Quality Management District Method #313-91—Determination of volatile organic compounds (VOCs) by gas chromatography/mass spectrometry;
• ARP 1755B—Effect of Cleaning Agents on Aircraft Engine Material; and
• U.S. Navy #Navsea 6840—U.S. Navy surface ship (non-submarine) authorized chemical cleaning products and dispensing systems.
• Green Seal #GS-34—Standard establishing environmental requirements for cleaning/degreasing agents;
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely use, or procure contract services that use, floor strippers in cleaning and maintenance activities. Thus, they have a need for floor strippers and for services that require the use of floor strippers. Designation of floor strippers will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased floor strippers was performed for one of the products using the BEES analytical tool. Table 8 summarizes the BEES results for this floor stripper. As seen in Table 8, the environmental performance score, which includes human health, is 0.0559 points per treatment of 2,500 square feet of floor. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to 2,500 square feet of application, expressed in 100ths of 1 percent.
The life cycle cost of the submitted floor stripper is $8.50 (present value dollars) per 2,500 square feet of application.
Laundry products include laundry detergents, bleach, stain removers, fabric softeners, etc., that do not leave skin-irritating residues and that clean effectively without the use of toxic chemicals. These products are generally safe for all washable fabrics.
Based on the information acquired, USDA is proposing to subcategorize this item into two primary types as follows: (1) Pretreatment and spot remover products and (2) general purpose products. USDA believes this is reasonable because of the varying concentrations of the products required to perform satisfactorily.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in spacecraft systems and launch support equipment.
For biobased laundry products, USDA identified 17 different manufacturers producing 45 individual biobased products. These 17 manufacturers do not necessarily include all manufacturers of biobased laundry products, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against an industry performance standard and are being used commercially. While other applicable performance standards may exist, applicable industry performance standards against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• Boeing Specification #D6-7127—Cleaning Interiors of Commercial Transport Aircraft.
USDA attempted to gather data on the potential market for biobased products within the Federal government as discussed in the section on bath and tile cleaners. These attempts were largely unsuccessful. However, Federal agencies routinely use, or procure contract services that use, laundry products in cleaning and maintenance activities. Thus, they have a need for laundry products and for services that require the use of laundry products. Designation of laundry products will promote the use of biobased products, furthering the objectives of this program.
An analysis of the environmental and human health benefits and the life cycle costs of biobased laundry products was performed for one of the products using the BEES analytical tool. Table 9 summarizes the BEES results for this laundry product. As seen in Table 9, the environmental performance score, which includes human health, is 0.1362 per a quantity of laundry product sufficient to wash 1,000 loads of laundry. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to washing 1,000 loads of laundry, expressed in 100ths of 1 percent.
The life cycle cost of the submitted laundry product was $84.54 per 1,000 loads of laundry washed.
Wood and concrete sealers are products used to protect wood and/or concrete from damage caused by insects, moisture, and decaying fungi and to make surfaces water resistant.
For the reasons cited earlier in this notice, USDA is proposing to exempt this item from preferred procurement under the FB4P when used in spacecraft systems and launch support equipment.
For biobased wood and concrete sealers, USDA identified 17 different manufacturers producing 30 individual biobased products. These 17 manufacturers do not necessarily include all manufacturers of biobased wood and concrete sealers, merely those identified during USDA information gathering activities. Information supplied by these manufacturers indicates that these products are typically tested against multiple measures of performance and are being used commercially. While other relevant measurements of performance may exist, applicable relevant measurements of performance against which these products have been typically tested, as identified by manufacturers of products within this item, include:
• ASTM D4446-05, Standard Test Method for Anti-Swelling Effectiveness of Water-Repellent Formulations and Differential Swelling of Untreated Wood When Exposed to Liquid Water Environments;
• ASTM D5401-03, Standard Test Method for Evaluating Clear Water Repellent Coatings on Wood;
• ASTM D92-05a, Standard Test Method for Flash and Fire Points by Cleveland Open Cup Tester; and
• ASTM E84-05e1, Standard Test Method for Surface Burning Characteristics of Building Materials.
An analysis of the environmental and human health benefits and the life cycle costs of biobased wood and concrete sealers was performed for two of the products using the BEES analytical tool. Table 10 summarizes the BEES results for the two wood and concrete sealers. As seen in Table 10, the environmental performance score, which includes human health, ranges from 0.0336 to 2.4769 points per 250 square feet of surface area sealed. The environmental performance score indicates the share of annual per capita U.S. environmental impacts that is attributable to 250 square feet of surface area sealed, expressed in 100ths of 1 percent.
The life cycle cost of the submitted wood and concrete sealers range from $18.00 to $200.00 (present value dollars) per 250 square feet of surface area sealed.
Section 9002(e)(1)(c) directs USDA to recommend minimum biobased content levels where appropriate. In today's proposed rulemaking, USDA is proposing minimum biobased content for each of the 10 items proposed for designation based on information currently available to USDA.
As discussed in Section IV.A of this preamble, USDA relied entirely on manufacturers' voluntary submission of samples to support the proposed designation of these 10 items. The data presented in the following paragraphs are the test results from all of the product samples that were submitted for analysis. It is the responsibility of the manufacturers to “self-certify” that each product being offered as a biobased product for preferred procurement contains qualifying feedstock. As contained in the Guidelines, the FB4P program will consider qualifying feedstocks for biobased products as originating from “designated countries” (as that term is defined in the Federal Acquisition Regulation (FAR) § 25.003)) as well as from the United States. USDA will develop a monitoring process for these self-certifications to ensure manufacturers are using qualifying feedstocks. If misrepresentations are found, USDA will remove the subject biobased product from the preferred procurement program and may take further actions as deemed appropriate.
As a result of public comments received on the first designated items rulemaking proposal, USDA decided to account for the slight imprecision in the analytical method used to determine biobased content of products when establishing the minimum biobased content. Thus, rather than establishing the minimum biobased content for an item at the tested biobased content of the product selected as the basis for the minimum value, USDA is establishing the minimum biobased content at a level 3 percentage points less than the tested value. USDA believes that this adjustment is appropriate to account for the expected variations in analytical results.
USDA has determined that setting a minimum biobased content for designated items is appropriate. Establishing a minimum biobased content will encourage competition among manufacturers to develop products with higher biobased contents and will prevent products with de minimus biobased content from being purchased as a means of satisfying the requirements of section 9002. USDA believes that it is in the best interest of the preferred procurement program for minimum biobased contents to be set at levels that will realistically allow products to possess the necessary performance attributes and allow them to compete with non-biobased products in performance and economics. Setting the minimum biobased content for an item at a level met by several of the tested products will provide more products from which procurement officials may choose, will encourage the most widespread usage of biobased products by procuring agencies, and is expected to accomplish the objectives of section 9002. Procuring agencies are encouraged to seek products with the highest biobased content that is practicable in all 10 of the proposed designated items.
The following paragraphs summarize the information that USDA used to propose minimum biobased contents within each proposed designated item.
Eight of the 29 biobased bath and tile cleaners identified have been tested for biobased content using ASTM D6866
USDA evaluated the manufacturer's performance claims for the product whose biobased content was tested at 16 percent. The available information for this product did not indicate any unique performance characteristics or features not found in products with a higher biobased content. In addition, the tested biobased content of this product was substantially lower than the next lowest tested biobased content of 77 percent. Therefore, USDA dropped this product from consideration in setting the minimum biobased content for the item.
The remaining 7 tested products have biobased contents ranging from 77 to 100 percent. USDA is proposing to set the minimum biobased content for this item at 74 percent, based on the product with a tested biobased content of 77 percent. Setting the minimum biobased content level based on the product with a tested biobased content of 77 percent will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies. To account for possible variability in the results of ASTM D6866, as discussed earlier, the tested 77 percent value was then adjusted to 74 percent.
Two of the 5 available biobased clothing products have been tested for biobased content using ASTM D6866. The biobased content of these two clothing products was 99 percent and 100 percent.
Both of the products tested were composed of essentially 100 percent polylactic acid (PLA) fibers, which are a 100 percent biobased material. Another synthetic fiber made with qualifying biobased material is also available for clothing manufacture. When tested for the blankets, bedding, and bed linens item, the biobased
Given the potential for the manufacture of biobased clothing as described above, USDA is proposing to set the minimum biobased content for this item at 6 percent. This is based on a clothing product composed of 25 percent of the synthetic fiber with the lower biobased content and 75 percent non-qualifying biobased content or non-biobased content. The 6 percent is calculated by lowering the 29 percent biobased content by 3 percentage points (to account for the variability in the ASTM D6866), multiply the result (
USDA believes that this is a reasonable methodology for setting the minimum biobased content for biobased clothing and will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies. As noted earlier in this preamble, USDA welcomes comments specifically on the methodology used to set the proposed minimum biobased content for biobased clothing.
Eight of the 37 biobased concrete and asphalt release fluids identified have been tested for biobased content using ASTM D6866. The biobased content of these 8 biobased concrete and asphalt release fluids ranged from 90 percent to 98 percent.
USDA is proposing to set the minimum biobased content for this item at 87 percent, based on the product with a tested biobased content of 90 percent. Given that the range of tested biobased contents is narrow, USDA is proposing to set the minimum biobased content at the lowest tested level, which will allow all of the products sampled to meet the minimum biobased content. Setting the minimum biobased content level based on the lowest level found among the sampled products will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies.
Twelve of the 33 biobased cutting, drilling, and tapping oils identified have been tested for biobased content using ASTM D6866. The biobased content of these 12 biobased cutting, drilling, and tapping oils ranged from 67 percent to 100 percent.
USDA is proposing to set the minimum biobased content for this item at 64 percent, based on the product with a tested biobased content of 67. Cutting, drilling, and tapping oils can be formulated to meet a wide range of demands. For example, one of the products with a tested biobased content of 67 percent is a heavy duty oil. Because of the resulting range in product characteristics, USDA is proposing to set the minimum biobased content at a level that will include all of the products sampled. USDA believes that it is in the best interest of the preferred procurement program for minimum biobased contents to be set at levels that will realistically allow products to possess the necessary performance attributes and allow them to compete with non-biobased products in performance and economics. Furthermore, setting the minimum biobased content level based on the lowest level found among the sampled products will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies.
Two of the 9 biobased de-icers identified have been tested for biobased content using ASTM D6866. The biobased content of both of these biobased de-icers was 100 percent. Therefore, USDA is proposing to set the minimum biobased content for this item at 97 percent.
One of the 2 biobased durable plastic films identified have been tested for biobased content using ASTM D6866. The biobased contents of this durable plastic film was 64 percent. Therefore, USDA is proposing to set the minimum biobased content for this item at 61 percent.
Both biobased firearm lubricants identified have been tested for biobased content using ASTM D6866. The tested biobased contents for these samples ranged were 52 percent and 95 percent.
USDA is proposing to set the minimum biobased content for firearm lubricants at 49 percent, based on the product with a tested biobased content of 52 percent. The firearm lubricant with the lower biobased content was specifically formulated for use in cold weather regions. Because of this range in product characteristics, USDA is proposing to set the minimum biobased content at a level that will include both products sampled. USDA believes that it is in the best interest of the preferred procurement program for minimum biobased contents to be set at levels that will realistically allow products to possess the necessary performance attributes and allow them to compete with non-biobased products in performance and economics. Setting the minimum biobased content level based on the lowest level found among the sampled products will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies.
Three of the 12 biobased floor strippers identified have been tested for biobased content using ASTM D6866. The biobased contents of these 3 biobased floor strippers ranged from 82 percent to 96 percent.
USDA is proposing to set the minimum biobased content for this item at 79 percent, based on the product with a tested biobased content of 82 percent. USDA is proposing to set the minimum biobased content at a level that will include all of the products sampled, including the product with 82 percent biobased content. USDA believes that it is in the best interest of the preferred procurement program for minimum biobased contents to be set at levels that will realistically allow products to possess the necessary performance attributes and allow them to compete with non-biobased products in performance and economics. Furthermore, setting the minimum biobased content level based on the lowest level found among the sampled products will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies.
Five of the 45 biobased laundry products identified have been tested for biobased content using ASTM D6866—one pretreatment or spot remover biobased laundry product and 4 general purpose biobased laundry products. The biobased content of the one pretreatment or spot remover product was 11 percent. The biobased contents of the 4 general purpose biobased
For pretreatment or spot remover biobased laundry products, USDA is proposing to set the minimum biobased content at 8 percent, based on the one product tested.
For general purpose biobased laundry products, USDA is proposing to set the minimum biobased content at 34 percent, based on the product with a tested biobased content of 37 percent. Three of the 4 general purpose biobased laundry products had tested biobased contents between 37 and 40 percent. While USDA knows of no performance differences between the four general purpose biobased products, USDA is proposing to set the minimum biobased content at a level that will include all of the general purpose biobased laundry products sampled. Furthermore, setting the minimum biobased content level based on the lowest level found among these sampled products will provide more products from which procurement officials may choose and will encourage the most widespread usage of biobased products by procuring agencies.
Five of the 17 biobased wood and concrete sealers identified have been tested for biobased content using ASTM D6866. The biobased content of these 5 biobased wood and concrete sealers ranged from 82 percent to 91 percent.
USDA is proposing to set the minimum biobased content for this item at 79 percent, based on the products with a biobased content of 82 percent. USDA is proposing to set the minimum biobased content at a level that will include all of the products sampled. USDA believes that it is in the best interest of the preferred procurement program for minimum biobased contents to be set at levels that will realistically allow products to possess the necessary performance attributes and allow them to compete with non-biobased products in performance and economics. Furthermore, setting the minimum biobased content level based on the lowest level found among the sampled products will offer procuring agencies more choices in selecting products to purchase and will encourage the most widespread usage of biobased products by procuring agencies.
USDA intends for the final rule to take effect thirty (30) days after publication of the final rule. However, under the terms of the proposed rule, procuring agencies would have a one-year transition period, starting from the date of publication of the final rule, before the procurement preference for biobased products within a designated item would take effect.
USDA proposes a one-year period before the procurement preferences would take effect based on an understanding that Federal agencies will need time to incorporate the preferences into procurement documents and to revise existing standardized specifications. Section 9002(d) of FSRIA and section 2902(c) of 7 CFR part 2902 explicitly acknowledge the latter need for Federal agencies to have sufficient time to revise the affected specifications to give preference to biobased products when purchasing the designated items. Procuring agencies will need time to evaluate the economic and technological feasibility of the available biobased products for their agency-specific uses and for compliance with agency-specific requirements, including manufacturers' warranties for machinery in which the biobased products would be used.
By the time these items are promulgated for designation, Federal agencies will have had a minimum of 18 months (from when these designated items were proposed), and much longer considering when the Guidelines were first proposed and these requirements were first laid out, to implement these requirements.
For these reasons, USDA proposes that the mandatory preference for biobased products under the designated items take effect one year after promulgation of the final rule. The one-year period provides these agencies with ample time to evaluate the economic and technological feasibility of biobased products for a specific use and to revise the specifications accordingly. However, some agencies may be able to complete these processes more expeditiously, and not all uses will require extensive analysis or revision of existing specifications. Although it is allowing up to one year, USDA encourages procuring agencies to implement the procurement preferences as early as practicable for procurement actions involving any of the designated items.
Once the item designations in today's proposal become final, manufacturers and vendors voluntarily may post information on specific products, including product and contact information, on the USDA biobased products Web site
By accessing the Web site, agencies will also be able to obtain the voluntarily-posted information on each product concerning: Relative price; life cycle costs; hot links directly to a manufacturer's or vendor's Web site (if available); performance standards (industry, government, military, ASTM/ISO) that the product has been tested against; and environmental and public health information from the BEES analysis or the alternative analysis embedded in the ASTM Standard D7075, “Standard Practice for Evaluating and Reporting Environmental Performance of Biobased Products.”
USDA has linked its Web site to DoD's list of specifications and standards, which can be used as guidance when procuring products. To access this list, go to USDA's FB4P Web site and click on the “Product Submission” tab and look for the DoD Specifications link.
Executive Order 12866 requires agencies to determine whether a regulatory action is “significant.” The Order defines a “significant regulatory action” as one that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866. The annual economic effect associated with today's proposed rule has not been quantified because the information necessary to estimate the effect does not exist. As was discussed earlier in this preamble, USDA made extensive efforts to obtain information on the Federal agencies' usage of the 10 items proposed for designation. These efforts were largely unsuccessful. Therefore, attempts to determine the economic impacts of today's proposed rule would necessitate estimating the anticipated market penetration of biobased products, which would entail many assumptions and, thus, be of questionable value. Also, the program allows procuring agencies the option of not purchasing biobased products if the costs are deemed “unreasonable.” Under this program, the determination of “unreasonable” costs will be made by individual agencies. USDA knows these agencies will consider such factors as price, life-cycle costs, and environmental benefits in determining whether the cost of a biobased product is determined to be “reasonable” or “unreasonable.” However, until the program is actually implemented by the various agencies, it is impossible to quantify the impact this option would have on the economic effect of the rule. Therefore, USDA relied on a qualitative assessment to reach the judgment that the annual economic effect of the designation of these 10 items is less than $100 million, and likely to be substantially less than $100 million. This judgment was based primarily on the offsetting nature of the program (an increase in biobased products purchased with a corresponding decrease in petroleum products purchased) and, secondarily, on the ability of procuring agencies not to purchase these items if costs are judged unreasonable, which would reduce the economic effect.
Today's proposed rulemaking is expected to have both positive and negative impacts to individual businesses, including small businesses. USDA anticipates that the biobased preferred procurement program will provide additional opportunities for businesses to begin supplying biobased materials to manufacturers of bath and tile cleaners, clothing products, concrete and asphalt release fluids, cutting, drilling, and tapping oils, de-icers, durable plastic films, firearm lubricants, floor strippers, laundry products, and wood and concrete sealers and to begin supplying these products made with biobased materials to Federal agencies and their contractors. In addition, other businesses, including small businesses, that do not directly contract with procuring agencies may be affected positively by the increased demand for these biobased materials and products. However, other businesses that manufacture and supply only non-qualifying products and do not offer a biobased alternative product may experience a decrease in demand for their products. Thus, today's proposed rule will likely increase the demand for biobased products, while decreasing the demand for non-qualifying products. It is anticipated that this will create a largely “offsetting” economic impact.
USDA is unable to determine the number of businesses, including small businesses, that may be adversely affected by today's proposed rule. If a business currently supplies any of the items proposed for designation to a procuring agency and those products do not qualify as biobased products, the proposed rule may reduce that company's ability to compete for future contracts. However, the proposed rule will not affect existing purchase orders, nor will it preclude businesses from modifying their product lines to meet new specifications or solicitation requirements for these products containing biobased materials. Thus, many businesses, including small businesses, that market to Federal agencies and their contractors have the option of modifying their product lines to meet the new biobased specifications.
The designation of these 10 items provides the benefits outlined in the objectives of section 9002: To increase domestic demand for biobased products and, thus, for the many agricultural commodities that can serve as feedstocks for production of biobased products; to spur development of the industrial base through value-added agricultural processing and manufacturing in rural communities; and to enhance the Nation's energy security by substituting biobased products for products derived from imported oil and natural gas. The increased demand for biobased products will also lead to the substitution of products with a possibly more benign or beneficial environmental impact, as compared to the use of non-biobased products. By purchasing these biobased products, procuring agencies can increase opportunities for all of these benefits. On a national and regional level, today's proposed rule can result in expanding and strengthening markets for biobased materials used in these 10 items. However, because the extent to which procuring agencies will find the performance and costs of biobased products acceptable is unknown, it is impossible to quantify the actual economic effect of today's proposed rule. USDA, however, anticipates the annual economic effect of the designation of these 10 items to be substantially below the $100 million threshold. In addition, today's proposed rule does not: Create serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.
The RFA, 5 U.S.C. 601-602, generally requires an agency to prepare a regulatory flexibility analysis of any 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.
USDA evaluated the potential impacts of its proposed designation of these 10 items to determine whether its actions would have a significant impact on a substantial number of small entities. Because the Federal Biobased Products Preferred Procurement Program in section 9002 of FSRIA applies only to Federal agencies and their contractors, small governmental (city, county, etc.) agencies are not affected. Thus, the proposal, if promulgated, will not have a significant economic impact on small governmental jurisdictions. USDA anticipates that this program will affect entities, both large and small, that manufacture or sell biobased products. For example, the designation of items for preferred procurement will provide additional opportunities for businesses to manufacture and sell biobased products to Federal agencies and their contractors. Similar opportunities will be provided for entities that supply biobased materials to manufacturers. Conversely, the biobased procurement program may decrease opportunities for businesses that manufacture or sell non-biobased products or provide components for the manufacturing of such products. However, the proposed
The intent of section 9002 is largely to stimulate the production of new biobased products and to energize emerging markets for those products. Because the program is still in its infancy, however, it is unknown how many businesses will ultimately be affected. While USDA has no data on the number of small businesses that may choose to develop and market products within the 10 items proposed for designation by today's proposed rulemaking, the number is expected to be small. Because biobased products represent an emerging market, only a small percentage of all manufacturers, large or small, are expected to develop and market biobased products. Thus, the number of small businesses affected by today's proposed rulemaking is not expected to be substantial.
After considering the economic impacts of today's proposed rule on small entities, USDA certifies that this action will not have a significant economic impact on a substantial number of small entities. This rule, therefore, does not require a regulatory flexibility analysis.
While not a factor relevant to determining whether the proposed rule will have a significant impact for RFA purposes, USDA has concluded that the effect of today's proposed rule would be to provide positive opportunities to businesses engaged in the manufacture of these biobased products. Purchase and use of these biobased products by procuring agencies increase demand for these products and result in private sector development of new technologies, creating business and employment opportunities that enhance local, regional, and national economies. Technological innovation associated with the use of biobased materials can translate into economic growth and increased industry competitiveness worldwide, thereby, creating opportunities for small entities.
This proposed rule has been reviewed in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and does not contain policies that would have implications for these rights.
This proposed rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. This proposed rule does not preempt State or local laws, is not intended to have retroactive effect, and does not involve administrative appeals.
This proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Provisions of this proposed rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.
This proposed rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, and tribal governments, or the private sector. Therefore, a statement under section 202 of UMRA is not required.
For the reasons set forth in the Final Rule Related Notice for 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372, which requires intergovernmental consultation with State and local officials. This program does not directly affect State and local governments.
Today's proposed rule does not significantly or uniquely affect “one or more Indian tribes, * * * the relationship between the Federal Government and Indian tribes, or * * * the distribution of power and responsibilities between the Federal Government and Indian tribes.” Thus, no further action is required under Executive Order 13175.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 through 3520), the information collection under this proposed rule is currently approved under OMB control number 0503-0011.
The Office of Energy Policy and New Uses is committed to compliance with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA is implementing an electronic information system for posting information voluntarily submitted by manufacturers or vendors on the products they intend to offer for preferred procurement under each item designated. For information pertinent to GPEA compliance related to this rule, please contact Marvin Duncan at (202) 401-0461.
Biobased products, Procurement.
For the reasons stated in the preamble, the Department of Agriculture proposes to amend 7 CFR chapter XXIX as follows:
1. The authority citation for part 2902 continues to read as follows:
7 U.S.C. 8102.
2. Add §§ 2902.36 through 2902.45 to subpart B to read as follows:
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(1) Military equipment: Product or system designed or procured for combat or combat-related missions.
(2) Spacecraft systems and launch support equipment.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(1) Military equipment: Product or system designed or procured for combat or combat-related missions.
(2) Spacecraft systems and launch support equipment.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(1) Military equipment: Product or system designed or procured for combat or combat-related missions.
(2) Spacecraft systems and launch support equipment.
(a)
(b)
(c)
(d)
(a)
(2) The two types of laundry products for which minimum biobased contents under paragraph (b) of this section apply are:
(i)
(ii)
(b)
(1) Pretreatment and spot removers—8 percent.
(2) General purpose laundry products—34 percent.
(c)
(d)
(a)
(b)
(c)
(d)
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice contains tables listing the final occupational mix adjusted wage indices, hospital reclassifications, payment rates, impacts, and other related tables as a result of the application of the occupational mix adjustment to 100 percent of the wage index effective for fiscal year (FY) 2007.
Valerie Miller, (410) 786-4535, Wage Index Issues. Brian Slater, (410) 786-5229, Geographic Reclassification Issues. Marc Hartstein, (410) 786-4548, All Other Issues.
In the August 18, 2006
The final wage index values for FY 2007 (except those for hospitals receiving wage index adjustments under section 505 of Pub. L. 108-173) are included in Tables 4A-1, 4A-2, 4B, 4C-1, 4C-2, and 4F of the Addendum to this notice and are posted on our Web site at
As stated in the FY 2007 IPPS final rule (71 FR 48014), we have applied the average occupational mix adjustment for a hospital's labor market area to the wage data of hospitals that did not submit occupational mix survey data or that submitted survey data that could not be used because we determined it to be aberrant. For example, a hospital's individual nurse category average hourly wages were out of range (that is, unusually high or low), and the hospital did not provide sufficient documentation to explain the aberrancy, or the hospital did not submit any registered nurse staff salaries or hours data.
In calculating the average occupational mix adjustment factor for an area, we replicated Steps 1 through 6 of the calculation for the occupational mix adjustment (see 71 FR 48009). However, instead of performing these steps at the hospital level, we aggregated the data at the labor market area level. In following these steps, for example, for Core-Based Statistical Areas (CBSAs) that contain providers that did not submit occupational mix survey data, the occupational mix adjustment factor ranged from a low of 0.8944 (CBSA 39820, Redding, CA), to a high of 1.0924 (CBSA 38220, Pine Bluff, AR). Also, in computing a hospital's occupational mix adjusted salaries and wage-related costs for nursing employees (Step 7 of the calculation (see 71 FR 48010)) in the absence of occupational mix survey data, we multiplied the hospital's total salaries and wage-related costs by the percentage of the
Using the new occupational mix survey data and applying the occupational mix adjustment to 100 percent of the FY 2007 wage index results in a national average hourly wage of $29.6529 and a Puerto-Rico specific average hourly wage of $13.0943. We calculated the FY 2007 wage index using the Worksheet S-3 cost report data of 3,570 hospitals and occupational mix survey data from 3,239 hospitals (90.7 percent response rate). Although more than 3,239 hospitals submitted occupational mix survey data for the January through March 2006 collection period, we excluded the data for 37 hospitals that did not have FY 2003 Worksheet S-3 cost report data for use in calculating the FY 2007 wage index. Also, we excluded the occupational mix survey data of another 30 hospitals because their data was incomplete or aberrant. Using the occupational mix data of 3,239 hospitals, the FY 2007 national average hourly wages for each occupational mix nursing subcategory as calculated in Step 2 of the occupational mix calculation are as follows:
Based on the January through March 2006 occupational mix survey data, we determined (in Step 7 of the occupational mix calculation) that the national percentage of hospital employees in the Nurse category is 42.9 percent, and the national percentage of hospital employees in the All Other Occupations category is 57.1 percent. At the CBSA level, the percentage of hospital employees in the Nurse category ranged from a low of 23.0 percent in one CBSA, to a high of 85.5 percent in another CBSA.
After adjusting the FY 2007 wage indices by 100 percent for occupational mix, the wage index values for a total of 250 hospitals in 73 labor market areas are assigned a statewide rural wage index value (“the rural floor”) according to section 4410 of Pub. L. 105-33, or an imputed floor, for hospitals located in all-urban States, according to § 412.64(h).
As we stated in the FY 2007 IPPS final rule (71 FR 48020), for FY 2007, rather than hospitals withdrawing or terminating their 3-year reclassifications within 45 days of the publication of the IPPS proposed rule, hospitals would be subject to special procedures unique to FY 2007.
These procedures are as follows:
• Hospitals had 15 days from the display date of the FY 2007 IPPS final rule to notify us of whether, in the absence of viewing the final 100 percent occupational mix-adjusted wage index data, they wish to choose a particular wage index for which they are eligible (such as to definitively maintain, terminate, or withdraw from a reclassification that they received ).
• If we did not receive notice from the hospital within the 15-day timeframe, we made our best efforts to give the hospital the highest wage index among its available options. We made reclassification withdrawal and termination decisions based on what we perceived would be most advantageous to the hospital. (See 71 FR 48020 for an explanation of the reclassifications and adjustment we chose among.) Please note that in some cases we terminated a hospital's Lugar reclassification under section 1886(d)(8)(B) of the Act in order to receive the out-migration adjustment. Because this termination would result in the hospital losing urban status, we published a separate table (Table 9D) identifying these hospitals that move from Lugar/urban status to rural status with the out-migration adjustment. Also, in some cases, we may have made half-year terminations/withdrawals on behalf of section 508 hospitals (or groups containing section 508 hospitals) using the procedures identified in the FY 2007 IPPS final rule. (See 71 FR 48021 for an explanation of the half-year reclassifications that could occur for section 508 hospitals and groups containing section 508 hospitals.
• We have posted the final occupational mix-adjusted wage indices, out-migration adjustments, and our decisions on hospital reclassification on the CMS Web site at
• In the FY 2007 IPPS final rule, we acknowledged that hospitals may base termination/withdrawal decisions on factors other than simply what results in the highest wage index for the upcoming fiscal year. For this reason, we allowed a hospital to change a decision that is made by CMS on its behalf. Hospitals now have a 30-day period from the date these final data and our final decisions appear on the CMS Web site to notify CMS in writing, with a copy to the MGCRB, of whether they wish to reverse the reclassification decision made by CMS or to choose another reclassification for which they are eligible. Hospitals are able to
• Requests to reverse a decision made on behalf of a hospital by CMS and to choose another reclassification or adjustment for which the hospital is otherwise eligible must be
As required under § 412.273(c), requests by groups of hospitals must be made by all hospitals that are a party to the application or reclassification. The reclassification or adjustment chosen by the hospital must be one for which the hospital would otherwise be eligible had CMS not made the withdrawal or termination decision on the hospital's behalf.
• If a hospital (or group of hospitals) fails to notify CMS that it is revising a determination made on its behalf within 30 days from the date the information appears on the CMS Web site, the decision made by CMS on the hospital's behalf will be final for FY 2007. Therefore, if CMS made a decision on a hospital's (or group of hospitals) behalf to terminate or withdraw a reclassification and the hospital does not reverse or modify CMS's decision within 30 days of posting the decision on the CMS Web site, we will deem the hospital's reclassification is withdrawn or terminated. If the hospital does not reverse or modify CMS's decision within 30 days of posting of the decision on the CMS Web site, once CMS's decision on the hospital's behalf is in effect, it will be treated in the same manner as if the hospital(s) had made the reclassification decision on its own. Thus, for example, because a hospital cannot have overlapping reclassifications, if we decide a hospital should accept a FY 2007 through 2009 reclassification and the hospital does not modify or reverse CMS's decision within 30 days of posting the decision on the CMS Web site, any reclassification the hospital previously had for FY 2006 through 2008 would be permanently terminated.
Hospitals should note that we will not recalculate the wage indices or budget neutrality factors now that CMS has made their decisions regarding what is most advantageous to each hospital using the 100 percent occupational mix-adjusted wage data. That is, we will not further recalculate the wage indices (including any rural floors or imputed rural floors) or standardized amounts based on hospital decisions that further revise decisions made by CMS on the hospitals' behalf.
In addition, we note that rural areas that include a section 508 hospital (specifically a hospital with wages relatively higher than the wages of other hospitals) may experience a decrease in their wage index for the second half of FY 2007. This is because section 508 hospitals are not considered reclassified under section 1886(d)(10) of the Act, and therefore, are not subject to the rule in section 1886(d)(8)(C)(ii) of the Act requiring rural area wage indices to be calculated exclusive of hospitals reclassified under section 1886(d)(10) of the Act, if doing so would increase the rural wage index. Thus, for the first half of the year, a section 508 hospital may be included in the home wage index of a rural area, while the hospitals reclassified under section 1886(d)(10) of the Act are excluded, since such exclusion increases the wage index of the rural area. However, for the second half of the year, the hospital is no longer a section 508 hospital. If the former section 508 hospital is reclassified under section 1886(d)(10) of the Act, it is grouped with other hospitals so reclassified. The high wages of the section 508 hospital may operate such that, for the second half of the year, it is more advantageous for
Section 1886(d)(10)(C)(ii) of the Act indicates that a hospital requesting a change in geographic classification for a fiscal year must submit its application to the MGCRB no later than the first day of the 13-month period ending on September 30 of the preceding fiscal year. Thus, the statute requires that FY 2008 reclassification applications be submitted to the MGCRB no later than September 1, 2006. For this reason, hospitals must have filed a FY 2008 reclassification application by the September 1, 2006 deadline even though the average hourly wage data used to develop the final FY 2007 wage indices was not available.
The MGCRB, in evaluating a hospital's request for reclassification for FY 2008 for the wage index, must utilize the official data used to develop the FY 2007 wage index. The wage data used to support the hospital's wage comparisons must be from the CMS hospital wage survey. Generally, the source for these data is the IPPS final rule. However, the wage tables identifying the 3-year average hourly wages of hospitals were not available in time to include them in the FY 2007 IPPS final rule and by the September 1, 2006 deadline for submitting FY 2008 geographic reclassification applications.
As outlined in § 412.256(c)(2), hospitals with incomplete applications have the opportunity to request that the MGCRB grant a hospital that has submitted an application by September 1, 2006, an extension beyond September 1, 2006, to complete its application. Thus, while hospitals must file an application for reclassification to the MGCRB by September 1, 2006, they are able to supplement the reclassification application with official data used to develop the FY 2007 wage index after filing their initial application.
Therefore, as we stated in the FY 2007 IPPS final rule (71 FR 48022 through 48023), we are allowing hospitals 30 days after the final wage data is posted on the CMS Web site or by October 30,
We are also allowing a 30-day period from the date the final wage data is posted on the CMS Web site to cancel a previous withdrawal or termination in order for a hospital to reinstate its reclassification for FY 2008 (for a FY 2006-2008 reclassification) or FY 2008 and FY 2009 (for a FY 2007-2009 reclassification). Because we have made termination or withdrawal decisions on behalf of hospitals, hospitals should look carefully at these decisions and determine whether they want to cancel such withdrawals or terminations for FY 2008 or FY 2009 if the reclassification time period includes these years. Hospitals must request to reinstate a reclassification that includes FY 2008 within 30 days of posting the Web site data for the reclassification to continue in that year even if they agree with the decision we made on their behalf for FY 2007.
Hospitals must request to reinstate a reclassification that includes FY 2008 within 30 days of when the data are posted to the CMS Web site or by October 30, 2006.
Requests to cancel a withdrawal or termination in order to reinstate a hospital's reclassification for FY 2008 or FY 2009, or both fiscal years, should be forwarded to the following addresses: Medicare Geographic Classification Review Board, 2520 Lord Baltimore Drive, Suite L, Baltimore, MD 21244-2670; and a copy to Division of Acute Care, C4-08-06, 7500 Security Boulevard, Baltimore, MD 21244, Attn: Marianne Myers.
As discussed in the FY 2007 IPPS final rule, due to the unusual circumstances imposed by the order of the Court of Appeals for the Second Circuit in the decision in
We note that, because hospitals excluded from the IPPS are paid on a cost basis (and not by the IPPS), these hospitals were not affected by the tentative figures for standardized amounts, offsets, and budget neutrality factors. Therefore, the rate-of-increase percentages for updating the target amounts for hospitals and hospital units excluded from the IPPS that are effective October 1, 2006 were finalized in the FY 2007 IPPS final rule (71 FR 48164) and are not included in this notice.
a.
In addition, Tables 1A and 1B include final standardized amounts reflecting the full 3.4 percent update for FY 2007, and final standardized amounts reflecting the 2.0 percentage point reduction to the update (a 1.4 percent update) applicable for hospitals that fail to submit quality data consistent with section 1886(b)(3)(B)(viii) of the Act.
In the FY 2007 IPPS final rule, we did not supply a table that illustrated the changes from the FY 2006 national average standardized amount because we were only setting the standardized amounts tentatively, but we stated that we would provide the table in the subsequent
The final labor-related and nonlabor-related portions of the national average standardized amounts for Puerto Rico hospitals for FY 2007 are set forth in Table 1C in the Addendum to this notice. (The labor-related share applied to the Puerto Rico-specific standardized amount is 58.7 percent, or 62 percent, depending on which is more advantageous to the hospital.
b.
c.
d.
We have calculated the final FY 2007 capital Federal rates, offsets, and budget neutrality factors using the methodology we adopted in the FY 2007 IPPS final rule. For a complete description of this methodology, please see the FY 2007 IPPS final rule (71 FR 48155 through 48156).
a.
b.
The outlier thresholds for FY 2007 are in section II.C.1. of this notice. For FY 2007, a case qualifies as a cost outlier if the cost for the case plus the IME and DSH payments are greater than the prospective payment rate for the DRG plus $24,485.
c.
This factor accounts for DRG reclassifications and recalibration and for changes in the GAF as well as the revised wage index as adjusted by occupational mix data. It also incorporates the effects on the final GAF of FY 2007 geographic reclassification decisions made by the MGCRB compared to FY 2006 decisions. However, it does not account for changes in payments due to changes in the DSH and IME adjustment factors or in the large urban add-on.
d.
e.
We provided a chart in the FY 2007 IPPS final rule (71 FR 48162) that compared the tentative FY 2007 capital Federal rate to the proposed FY 2007 capital Federal rate (71 FR 24158 through 24159). We are now providing a chart that shows how the final FY 2007 capital Federal rate differs from the tentative FY 2007 capital Federal rate as presented in the FY 2007 IPPS final rule.
As a final comparison, we are providing a chart that shows how the final FY 2007 capital Federal rate differs from the proposed FY 2007 capital Federal rate presented in the FY 2007 IPPS proposed rule (71 FR 24158 through 24159).
g.
The impact analysis for policy changes under the IPPS for operating costs was included in the FY 2007 IPPS final rule. As stated in that impact section (71 FR 48332), we were unable to provide final occupational mix adjusted wage indices because of our obligation to collect new occupational mix survey data consistent with the order of the Court of Appeals in the Second Circuit. We were also unable to provide final relative weights, budget neutrality calculations, the outlier threshold and outlier offsets to the standardized amounts because these figures are all dependent on final wage indices. However, we also indicated that when 100 percent occupational mix adjusted wage data were available, we would recalculate the impacts and provide them in a subsequent
a.
Table I categorizes hospitals by various geographic and special payment consideration groups to illustrate the varying impacts on different types of hospitals. The top row of the table shows the overall impact on the 3,595 hospitals included in the analysis. The next four rows of Table I contain hospitals categorized according to their geographic location: all urban, which is further divided into large urban and other urban; and rural. There are 2,590 hospitals located in urban areas included in our analysis. Among these, there are 1,441 hospitals located in large urban areas (populations over 1 million), and 1,149 hospitals in other urban areas (populations of 1 million or fewer). In addition, there are 1,005 hospitals in rural areas. The next two groupings are by bed-size categories, shown separately for urban and rural hospitals. The final groupings by geographic location are by census divisions, also shown separately for urban and rural hospitals.
The second part of Table I shows hospital groups based on hospitals' FY 2007 payment classifications, including any reclassifications under section 1886(d)(10) of the Act. For example, the rows labeled urban, large urban, other urban, and rural show that the number of hospitals paid based on these categorizations after consideration of geographic reclassifications (including reclassifications under sections 1886(d)(8)(B) and 1886(d)(8)(E) of the Act, which have implications for capital payments) are 2,607, 1,448, 1,159, and 988, respectively.
The next three groupings examine the impacts of the changes on hospitals grouped by whether or not they have GME residency programs (teaching hospitals that receive an IME adjustment) or receive DSH payments, or some combination of these two adjustments. There are 2,511 non-teaching hospitals in our analysis, 843 teaching hospitals with fewer than 100 residents, and 241 teaching hospitals with 100 or more residents.
In the DSH categories, hospitals are grouped according to their DSH payment status, and whether they are considered urban or rural for DSH purposes. The next category groups hospitals considered urban after geographic reclassification, in terms of whether they receive the IME adjustment, the DSH adjustment, both, or neither.
The next five rows examine the impacts of the changes on rural hospitals by special payment groups (sole community hospitals (SCHs), rural referral centers (RRCs), and Medicare dependent hospitals (MDHs)), as well as rural hospitals not receiving a special payment designation. There were 187 RRCs, 376 SCHs, 146 MDHs, 98 hospitals that are both SCHs and RRCs, and 8 hospitals that are both MDHs and RRCs.
The next two groupings are based on type of ownership and the hospital's Medicare utilization expressed as a percent of total patient days. These data are taken primarily from the FY 2004 Medicare cost reports, if available, (otherwise FY 2003 data are used).
The next series of groupings concern the geographic reclassification status of hospitals. The first grouping displays all urban hospitals that were reclassified by the MGCRB for FY 2007. The next grouping shows the MGCRB rural reclassifications. The final three rows in Table I contain hospitals located in urban counties, but deemed to be rural under section 1886(d)(8)(E) of the Act, hospitals located in rural counties but deemed to be urban under section 1886(d)(8)(B) of the Act, and hospitals currently reclassified under section 508 of Pub. L. 108-173, which expires on March 31, 2007.
(1)
As discussed in the preamble of the FY 2007 IPPS final rule (71 FR 47882 through 47898), we are changing the relative weight calculation methodology from a charge-based to a cost-based method. Further, we are implementing the new methodology under a 3-year transition such that weights in FY 2007 are
In column 2, we compare aggregate payments using the FY 2007 blended relative weights (GROUPER Version 24) to the FY 2006 DRG relative charge weights (GROUPER Version 23.0) so the percentages shown here illustrate the effect of changes to the DRGs and relative weights. The method of calculating the relative weights and the reclassification changes to the GROUPER are described in more detail in section II. of the preamble to the FY 2007 IPPS final rule. The impacts shown in this column are generally very consistent by hospital category with those shown in column 4 of Table I of the FY 2007 IPPS final rule (71 FR 48335). With the exception of using occupational mix adjusted wage indices to standardize hospital charges, the data and methodology that we modeled in this column are identical to the FY 2007 IPPS final rule. Therefore, any differences in the impacts shown in this column from column 6 of Table I of the FY 2007 IPPS final rule and column 4 of the table above are due to the use of occupational mix adjusted wage data. We note that this column reflects the impact of changes to the DRG classifications and relative weights only and is not budget neutral. Consistent with section 1886(d)(4)(C)(iii) of the Act, we apply a single budget neutrality factor to ensure that the combined overall payment impact of changes to the DRG classification, relative weights, and wage index is budget neutral. The budget neutrality factor for the combined changes to the DRGs, relative weights, and wage index are shown in the table above entitled, “Comparison of FY 2006 Standardized Amounts to Final FY 2007 Single Standardized Amount with Full Update and Reduced Update.”
The estimated impact on hospital payments of the new wage data with the 100 percent occupational mix adjustment applied using the new survey data is isolated in Column 3 by holding the other payment parameters constant. That is, Column 3 shows the percentage changes in payments when going from a model using the FY 2006 wage index, based on FY 2002 wage data and having a 10-percent occupational mix adjustment applied, to a model using the FY 2007 pre-reclassification wage index, based on FY 2003 wage data with a 100 percent occupational mix adjustment based on the latest occupational mix survey data. The wage data collected on the FY 2003 cost report are the same as the FY 2002 wage data that were used to calculate the FY 2006 wage index.
Hospitals located in urban New England are estimated to receive the greatest benefit from the new wage and occupational mix data. Payments to hospitals in urban New England are estimated to increase 1.1 percent while rural hospitals located in the West South Central region experience an increase of 0.9 percent from these data.
The national average hourly wage increased 5.9 percent compared to FY 2006 from the new wage data. Therefore, the only manner in which to maintain or exceed the previous year's wage index was to match the national 5.9 increase in average hourly wage. Of the 3,491 hospitals with wage data for both FYs 2006 and 2007, 1,706, or 48.9 percent, also experienced an average hourly wage increase of 5.9 percent or more.
The following chart compares the shifts in wage index values for hospitals for FY 2007 relative to FY 2006. Among urban hospitals, 40 will experience an increase of between 5 percent and 10 percent and 15 will experience an increase of more than 10 percent. No rural hospitals will experience an increase greater than 5 percent, but 790 will experience increases between 0 and 5 percent. On the negative side, 79 urban hospitals will experience decreases in their wage index values of at least 5 percent, but less than 10 percent. Eight urban hospitals will experience decreases in their wage index values greater than 10 percent.
The following chart shows the projected impact for urban and rural hospitals:
(3)
We computed a wage and DRG recalibration budget neutrality factor of 0.995662. The 0.0 percent impact for all hospitals demonstrates that these changes, in combination with the budget neutrality factor, are budget neutral. In Table I, the combined overall impacts of the effects of both the DRG reclassifications and the updated wage index are shown in Column 4. The changes in this column are the sum of the changes in Columns 2 and 3, combined with the budget neutrality factor for the wage index, including the wage index floor for urban areas required by section 4410 of Pub. L. 105-33. There also may be some variation of plus or minus 0.1 percentage point due to rounding. As indicated above, the changes in the relative weights are generally consistent with those we showed in Table I of the FY 2007 IPPS final rule while the impacts due to the wage data may be somewhat different than those shown there because of the new occupational mix survey and a 100 percent adjustment to the wage index. Any changes between column 6 of Table I of the FY 2007 IPPS final rule and column 4 of Table I of this notice are due to use of a 100 percent adjustment for occupational mix and the new survey data.
(4)
(5)
By February 28 of each year, the MGCRB makes reclassification determinations that will be effective for the next fiscal year, which begins on October 1. The MGCRB may approve a hospital's reclassification request for the purpose of using another area's wage index value. The FY 2007 wage index values incorporate all of the MGCRB's reclassification decisions for FY 2007 as well as any decisions made by the CMS Administrator through the appeals and review process.
For FY 2007, as stated in the FY 2006 IPPS final rule (70 FR 47382, August 12, 2005), we established procedural rules under section 1886(d)(10)(D)(v) of the Act to address specific circumstances where individual and group reclassifications involve a section 508 hospital. The rules were designed to recognize the special circumstances of section 508 hospital reclassifications ending midyear during FY 2007 and were intended to allow previously approved reclassifications to continue through March 31, 2007, and new section 1886(d)(10) reclassifications to begin April 1, 2007, upon the conclusion of the section 508 reclassifications. Under these procedural rules, some section 1886(d)(10) hospital reclassifications are only in effect for the second half of the fiscal year.
The first and second half fiscal year section 1886(d)(10) reclassifications permitted under these procedural rules have implications for the calculation of the reclassified wage indices and the reclassification budget neutrality factor. Section 1886(d)(8)(c) of the Act provides requirements for determining the wage index values for hospitals that were reclassified as a result of the MGCRB decisions under 1886(d)(10) of the Act. As provided in the statute, we are required to calculate a separate wage index for hospitals reclassified to an area if including the wage data for the reclassified hospitals would reduce the area wage index by more than 1 percent.
Because of the half-year reclassifications permitted under the procedural rules, in this final rule, we are issuing two separate wage indices for affected areas (one effective from October 1, 2006, through March 31, 2007 and a second reclassified wage index effective April 1, 2007, through September 30, 2007). The FY 2007 wage index values are calculated based on the wage data for hospitals reclassified to the area in the respective half of the fiscal year. The impact of this policy is modeled in Column 6 of Table I of this notice.
The overall effect of geographic reclassification is required by section 1886(d)(8)(D) of the Act to be budget neutral. In this final rule, we are calculating one budget neutrality adjustment that reflects the average of the adjustments required for first and second half fiscal year reclassifications, respectively. Therefore, we applied an adjustment of 0.992355 to ensure that the effects of the section 1886(d)(10) reclassifications are budget neutral. (See section II.A. of the Addendum to FY 2007 IPPS final rule (71 48146).) As noted in section II.B. of this notice, CMS applied reclassification decisions for FY 2007 on behalf of hospitals to give them the highest wage index. Hospitals have 30 days from the date of the posting of these data on the CMS Web site to revise the decision that CMS made on their behalf.
The impacts shown in Column 6 of Table 1 above reflect the CMS reclassification decisions on behalf of hospitals, which reflect the area that would give the hospital the highest wage index using a 100 percent occupational-mix adjustment and the most recent survey data. As a group, rural hospitals benefit most from reclassification. We estimate that their payments will rise 2.1 percent in FY 2007. Payments to urban hospitals will decline by 0.3 percent. Hospitals in other urban areas will experience an overall decrease in payments of 0.1 percent, while hospitals in large urban areas will lose 0.4 percent. Among urban hospital groups (that is, bed size, census division and IME/DSH status), payments generally would decline.
A positive impact is evident among all of the rural hospital groups. The smallest increase among rural census divisions is 0.8 percent for the Mountain region. The largest increases are in the rural West South Central and rural East South Central regions with 2.8 and 2.5 percent, respectively. Urban hospitals reclassified for FY 2007 are expected to receive an increase of 2.4 percent, while rural reclassified hospitals are expected to benefit from the MGCRB changes with a 3.6 percent increase in payments. Payments to urban and rural hospitals that did not reclassify are expected to decrease slightly due to the MGCRB changes, decreasing by 0.6 percent for urban hospitals and 0.3 percent for rural hospitals.
(6)
Using our established criteria, 583 providers in 282 counties are eligible for this adjustment. Due to the statutory formula to calculate the adjustment and the small number of counties that qualify, the impact on hospitals is minimal, with an overall impact on all hospitals of 0.1 percent.
(7)
There might also be interactive effects among the various factors comprising the payment system that we are not able to isolate. For these reasons, the values in Column 8 may not equal the product of the percentage changes described above. We estimate that payments will increase across all hospitals in each category shown in column 8.
We estimate that the average payment per case will increase in FY 2007 by 3.5 percent across all hospitals, 3.4 percent for hospitals in urban areas, 3.5 percent for hospitals in large urban areas, 3.4 percent for hospitals in other urban areas and 3.9 percent for hospitals in rural areas.
Among urban census divisions, we estimate the largest payment increases would be 3.9 percent in the Mid Atlantic region and 3.7 percent in the Pacific and Mountain regions. We estimate that the smallest urban increase will be 2.0 percent in Puerto Rico.
Among rural areas, the New England and Middle Atlantic regions would benefit the most from changes in the FY 2007 IPPS final rule, with 6.0 and 5.2 percent increases, respectively. The smallest increase would occur in the Mountain region, with a 2.7 percent increase in payments.
Among special categories of rural hospitals in Column 8, MDH/RRC providers receive an increase in payments of 14.0 percent and MDH providers receive an increase of 9.0 percent, primarily due to the changes to MDH payments set forth in section 5003 of Pub. L. 109-171 (see 70 FR 48062).
Urban hospitals reclassified for the first half of FY 2007 are anticipated to receive an increase of 3.7 percent, while urban hospitals that reclassified for the second half of FY 2007 are expected to receive an increase of 3.5 percent. The same set of rural hospitals is reclassified for the first and second half of FY 2007. Rural hospitals reclassifying for the entire year of FY 2007 are anticipated to receive a 3.6 percent payment increase. Those hospitals located in rural counties, but deemed to be urban under section 1886(d)(8)(B) of the Act are expected to receive an increase in
b.
(a)
In addition, hospitals may also receive outlier payments for those cases that qualify under the threshold established for each fiscal year.
The data used in developing the impact analysis presented below are taken from the March 2006 update of the FY 2005 MedPAR file and the March 2006 update of the Provider-Specific File that is used for payment purposes. Although the analyses of the changes to the capital prospective payment system do not incorporate cost data, we used the March 2006 update of the most recently available hospital cost report data (FYs 2003 and 2004) to categorize hospitals. Our analysis has several qualifications. First, we do not make adjustments for behavioral changes that hospitals may adopt in response to policy changes. Second, due to the interdependent nature of the IPPS, it is very difficult to precisely quantify the impact associated with each change. Third, we draw upon various sources for the data used to categorize hospitals in the tables. In some cases (for instance, the number of beds), there is a fair degree of variation in the data from different sources. We have attempted to construct these variables with the best available sources overall. However, for individual hospitals, some miscategorizations are possible.
Using cases from the March 2006 update of the FY 2005 MedPAR file, we simulated payments under the capital PPS for FY 2006 and FY 2007 for a comparison of total payments per case. Any short-term, acute care hospitals not paid under the general IPPS (Indian Health Service hospitals and hospitals in Maryland) are excluded from the simulations.
We modeled payments for each hospital by multiplying the capital Federal rate by the GAF and the hospital's case-mix. We then added estimated payments for indirect medical education, disproportionate share, large urban add-on, and outliers, if applicable. For purposes of this impact analysis, the model includes the following assumptions:
• We estimate that the Medicare case-mix index will increase by 1.0 percent in both FYs 2006 and 2007.
• We estimate that the Medicare discharges will be 13.5 million in FY 2006 and 13.1 million in FY 2007 for a 3.0 percent decrease from FY 2006 to FY 2007.
• The capital Federal rate was updated beginning in FY 1996 by an analytical framework that considers changes in the prices associated with capital-related costs and adjustments to account for forecast error, changes in the case-mix index, allowable changes in intensity, and other factors. The FY 2007 update is 1.1 percent (see section II.E.2. of this notice).
• In addition to the FY 2007 update factor, the FY 2007 capital Federal rate was calculated based on a GAF/DRG budget neutrality factor of 0.9986, an outlier adjustment factor of 0.9568, and an exceptions adjustment factor of 0.9997.
(b)
The simulation results show that, on average, capital payments per case can be expected to increase 2.4 percent in FY 2007. In addition to the 1.1 percent increase due to the capital market basket update, this projected increase in capital payments per case is largely attributable to the change in the DRG recalibration process methodology for FY 2007 as discussed in section II.C. of the preamble of the FY 2007 IPPS final rule (71 FR 48006). To a lesser extent, the final outlier factor also contributes to the increase in capital payments per case, while the final GAF has the opposite effect on capital payments (0.2 percent and −0.1 percent, respectively).
The results of our comparisons by geographic location and by region are consistent with the results we expected after applying the changes to the DRG recalibration methodology. The geographic comparison shows that urban hospitals are expected to experience a 2.3 percent increase in IPPS capital payments per case, while rural hospitals are expected to experience a 2.4 percent increase in capital payments per case. This difference is mostly due to the changes to the methodology used to recalibrate DRGs discussed in the FY 2007 IPPS final rule (71 FR 47882). The capital impact is largely consistent with the impacts in the FY 2007 IPPS final rule (71 FR 48348). However the capital GAF is somewhat affected by the wage index changes resulting from using the revised occupational mix survey data and applying a 100 percent occupational mix adjustment. Any changes from the impact presented in the FY 2007 IPPS final rule would be due to the revised wage indices and the new occupational mix adjustment. Due to circumstances described in the FY 2007 IPPS final rule (71 FR 48005), the wage index used in these calculations is final.
All regions are estimated to receive an increase in total capital payments per case from FY 2006 to FY 2007. Changes vary by region from a minimum increase of 0.14 percent in Puerto Rico for (urban) to a maximum increase of 3.1 percent in the West South Central rural region and the Middle Atlantic rural region. The change in payments per case for all hospitals is 2.4 percent and is the same as indicated in the FY 2007 IPPS final rule.
Section 1886(d)(10) of the Act established the MGCRB. Before FY 2005, hospitals could apply to the MGCRB for reclassification for purposes of the standardized amount, wage index, or both. Section 401(c) of Pub. L. 108-173 equalized the standardized amounts under the operating IPPS. Therefore, beginning in FY 2005, there is no longer reclassification for the purposes of the standardized amounts; however, hospitals still may apply for reclassification for purposes of the wage index for FY 2007. Reclassification for wage index purposes also affects the GAF because that factor is constructed from the hospital wage index.
As discussed in the FY 2007 IPPS final rule (71 FR 48067), procedural rules were established in the FY 2006 IPPS final rule (70 FR 47382) to recognize the special circumstances of section 508 hospital reclassifications ending midyear during FY 2007. Under these procedural rules, some section 1886(d)(10) hospital reclassifications are only in effect for the second half of the fiscal year. These half fiscal year reclassifications have implications for the calculation of reclassified wage indices and therefore, affect capital payments because GAF values are calculated from the hospital wage index.
To present the effects of the hospitals being reclassified for FY 2007, we show the average payments per case for reclassified hospitals for each half of FY 2007 compared to the average payments per case for the same time period in FY 2006. The reclassified groups are compared to all other nonreclassified hospitals for the same time period. These categories are further identified by urban and rural designation. In general, the average payments per case in the first half of FY 2007 is the same or 0.1 percent less as the average payments per case in the second half of FY 2007 for each category of reclassified hospitals shown in Table III . The exception to that generalization is rural nonreclassified hospitals, which are expected to have the largest increases in payments, as well as the largest increase from the first half to the second half of FY 2007, that is, 2.7 percent in the first half of FY 2007, and 3.0 percent in the second half of FY 2007. Urban reclassified hospitals are expected to increase 2.6 percent and 2.5 percent in the first and second halves of FY 2007, respectively. Reclassified rural hospitals and nonreclassified urban hospitals are projected to have the same increase of 2.3 percent in the first half, while in the second half, the increase in payments per discharge to urban nonreclassified hospitals will remain at 2.3 percent but payments per discharge to rural reclassified hospitals are expected to decrease by 0.1 percent to 2.2 percent from the first half of FY 2007 to the second half of FY 2007.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Program; No. 93.773 Medicare—Hospital Insurance Program; and No. 93.774, Medicare—Supplementary Medical Insurance Program)
This addendum includes tables referred to throughout the notice which contain data relating to the FY 2007 wage indices and the hospital reclassifications and payment amounts for operating and capital-related costs that are affected by the new occupational mix survey data discussed in section II. of this notice.
The following list represents all hospitals located in counties that became newly eligible in FY 2005, FY 2006 or FY 2007 to have their wage index increased by the out-migration adjustment listed in this table. This table now reflects any additional hospitals located in counties that may newly qualify for the adjustment in FY 2007 based on the 100 percent occupational mix adjusted wage index data. Hospitals cannot receive the out-migration adjustment if they are reclassified under section 1886(d)(10) of the Act, reclassified under section 508 of Pub. L. 108-173, or redesignated under section 1886(d)(8) of the Act. If a hospital has a half fiscal year reclassification, the hospital will be eligible for the out-migration adjustment for the portion of the fiscal year that it is not reclassified. Hospitals that have been reclassified under section 1886(d)(10) of the Act, reclassified under section 508 of Pub. L. 108-173, or redesignated under section 1886(d)(8) of the Act for any portion of the fiscal year are designated with an asterisk. It is important to note that the asterisked information in Table 4J may reflect withdrawal/termination decisions CMS has made on behalf of hospitals. For example, in some cases, CMS may have withdrawn or terminated a reclassification under section 1886(d)(10) of the Act in order for a hospital to receive its home wage index plus an out-migration adjustment. Hospitals have 30 days from this publication of the final occupation mix-adjusted data and other tables on the CMS Web site to reverse a decision CMS has made on its behalf and choose a wage index, adjustment, or reclassification for which they are otherwise eligible.
It is important to note that in some cases this Table reflects withdrawal or termination decisions CMS has made on a hospital's behalf. For example, if CMS withdrew or terminated a hospital's reclassification(s) or redesignation on the hospital's behalf, such hospital would not be shown on this Table. Requests to reverse a decision made on behalf of a hospital by CMS and to choose another wage index, reclassification, or adjustment for which the hospital is otherwise eligible must be
It is important to note that in some cases this Table reflects termination decisions CMS has made on a hospital's behalf. For example, if CMS terminated a hospital's section 1886(d)(10) reclassification on the hospital's behalf to allow the hospital to receive a section 508 reclassification, it would be shown on this Table. Requests to reverse a decision made on behalf of a hospital by CMS and to choose another wage index, reclassification, or adjustment for which the hospital is otherwise eligible must be received by CMS no later than 5 p.m., e.s.t, with a copy sent to the MGCRB, by October 30, 2006 (30 days from the date the information appears on the CMS Web site at:
This Table represents decisions CMS has made on a hospital's behalf to withdraw a redesignation under 1886(d)(8)(B) in order for the hospital to receive an out-migration adjustment. Because such withdrawal removes the hospital's urban status, we have published this separate Table 9D. Requests to reverse a decision made on behalf of a hospital by CMS and to choose another wage index, reclassification, or adjustment for which the hospital is otherwise eligible must be
Department of Education.
Notice of final priorities.
The Secretary of Education establishes priorities that the Department of Education (Department) may use for any appropriate discretionary grant program in fiscal year (FY) 2007 and in FY 2008. We take this action to focus Federal financial assistance on expanding the number of programs and projects Department-wide that support activities in areas of greatest educational need. Although we expect that these priorities will have the greatest applicability to programs authorized by the Elementary and Secondary Education Act of 1965 (as amended by the No Child Left Behind Act of 2001), we are establishing the priorities on a Department-wide basis, so that Department offices can use one or more of these priorities in any discretionary grant competition, as appropriate.
Margo Anderson, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W311, Washington, DC 20202-5910. Telephone: (202) 205-3010 or via Internet at:
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In the more than four years since the enactment of the No Child Left Behind Act of 2001 (NCLB), there have been significant changes in our educational system that provide a strong framework for reaching the goal that all students will be proficient in reading/language arts and mathematics by the year 2014. States have put in place rigorous new accountability systems and in the last school year (2005-2006) administered reading and mathematics assessments covering all students in grades 3 to 8 and at least once for students in grades 10 to 12. By school year 2007-2008, States will be assessing students in science at least once in each of three grade spans (3-5, 6-9, 10-12). A focus on professional development and teacher qualifications is helping States to ensure that increasing numbers of students are being taught by highly-qualified teachers. School districts are providing new support and assistance to schools in need of improvement, while making available public school choice and supplemental educational services options to eligible students who attend these schools.
National Assessment of Educational Progress (NAEP) results for older students provide a reminder of the need to continue to emphasize high standards and accountability for all students, especially those in the higher grades. The 2005 NAEP math results for 8th graders, for example, are both illustrative and alarming: less than one-third of 8th graders, and just 13 percent of low-income 8th graders, scored at the proficient or above level. High school test scores in mathematics have barely budged since the 1970's and less than half of high school graduates in 2005 were ready for college-level math and science coursework, according to American College Testing, Inc. (ACT).
America's rapidly changing economy requires an educational system that is producing high school graduates with the skills needed to be successful in postsecondary education and the workforce. In addition to improving the academic achievement of students in mathematics and science, we must expand the number of Americans mastering foreign languages critical to national security and to our participation in the global economy. High schools must develop a larger pool of technically adept and numerically literate Americans, a continual supply of highly trained mathematicians, scientists, and engineers, and more students with higher levels of proficiency in critical-need languages. The Department believes that high-quality professional development for secondary school teachers is a critical part of the solution, because it can help ensure that these teachers have the content knowledge and expertise required to improve student achievement.
Rigorous instruction, high standards, and accountability for results are helping to raise achievement in the early grades. Now America must complete the task. We must focus on improving the mathematics and science achievement of secondary school students, expanding foreign language learning to critical need languages, providing teachers with better training and support, helping districts improve all their schools, and ensuring that all students meet rigorous State mathematics and science academic standards and graduate from high school. Student performance is not just an education issue; it is an economic issue, a civic issue, a social issue, and a national security issue.
In addition to content-specific priorities, the Secretary is establishing a priority for collecting data to assess the effect of projects on the academic achievement of student participants relative to appropriate comparison or control groups. The Secretary believes that interventions must be designed to collect the best available data to determine the impact of the proposed intervention on student achievement and to inform future improvement efforts. Finally, to assist schools and districts in using data effectively, we are establishing a priority for projects that will help educators use information from State data systems to improve student achievement or other appropriate outcomes.
We published a notice of proposed priorities in the
In response to our invitation in the notice of proposed priorities, seven parties submitted comments on the proposed priorities. Although we received several substantive comments, we determined that the comments did not warrant changes to the priorities. However, based on intradepartmental review of the notice of proposed priorities, we made a change to priority three. An analysis of the comments and the change to priority three follows.
Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize us to make under the applicable statutory authority.
This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, we invite applications for new awards under the applicable program through a notice in the
The Secretary establishes priorities that the Department may use for discretionary grant competitions in FY 2007 and FY 2008, as appropriate. The Secretary intends that these priorities will allow program participants and the Department to focus limited Federal resources in areas of greatest educational need. The Secretary recognizes that some of the priorities will not be appropriate for particular programs.
This notice of final priorities has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of final priorities are those resulting from statutory requirements and those we have determined as necessary for administering the Department's discretionary grant programs effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of final priorities, we have determined that the benefits of the final priorities justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
Some of the programs affected by these final priorities are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for these programs.
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