Food and Nutrition Service
Forest Service
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Federal Energy Regulatory Commission
Council on Environmental Quality
Council on Environmental Quality
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Customs and Border Protection Bureau
Transportation Security Administration
Fish and Wildlife Service
Land Management Bureau
National Park Service
Employment and Training Administration
Committee for the Implementation of Textile Agreements
Federal Aviation Administration
Federal Transit Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
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.
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Federal Aviation Administration (FAA), DOT.
Final special conditions.
This special condition is issued for the Boeing Model 737-900ER airplane. This airplane will have a novel or unusual design feature(s) associated with the interaction of systems and structures. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. This special condition contains the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Todd Martin, Aerospace Engineer, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1178; facsimile (425) 227-1232; electronic mail
On June 5, 2002, The Boeing Company, PO Box 3707, Seattle, Washington 98124, applied for an amendment to Type Certificate No. A16WE, to include the new Model 737-900ER. The Model 737-900ER, which is a derivative of the Model 737-900 currently approved under A16WE, is a large transport airplane with two flight crew and the capacity to carry 215 passengers. The airplane is powered by two CFMI CFM56-7 series turbofan engines.
Under the provisions of § 21.101, Boeing must show that the Model 737-900ER meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-108, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into the Type Certificate No. A16WE after type certification approval of the 737-900ER.
In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to this proposed special condition. Refer to Type Certificate No. A16WE for a complete description of the certification basis for this model airplane.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model 737-900ER because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
In addition to the applicable airworthiness regulations and special conditions, the Model 737-900ER must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, they are published for comment under § 11.38, and they become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
The Model 737-900ER airplane will incorporate novel or unusual design features. This special condition addresses equipment that may affect the airplane's structural performance, either directly or as a result of failure or malfunction.
This proposed special condition is identical or nearly identical to those previously required for type certification of other Boeing airplane models. The special condition was derived initially from standardized requirements developed by the Aviation Rulemaking Advisory Committee (ARAC), comprised of representatives of the FAA, Europe's Joint Aviation Authorities (now replaced by the European Aviation Safety Agency), and industry.
In addition to the requirements of part 25, subparts C and D, the following special condition applies:
The Boeing Model 737-900ER is equipped with systems that may affect the airplane's structural performance either directly or as a result of failure or malfunction. The effects of these systems on structural performance must be considered in the certification analysis. This analysis must include consideration of normal operation and of failure conditions with required structural strength levels related to the probability of occurrence.
Notice of proposed special conditions No. 25-06-11-SC for Boeing Model 737-900ER airplanes was published in the
As noted previously, special conditions are prescribed under the provisions of § 21.16 when current regulations “do not contain adequate or appropriate safety standards * * * because of a novel or unusual design feature.”
For several decades, transport category airplanes have employed automatic and electronic flight control systems, including load alleviation systems, flutter suppression systems, and stability augmentation systems. Failures in any of these systems may affect how the airplane will respond to maneuver, gust, and high speed conditions. That is, the loads introduced
Since current regulations do not specify design loads criteria, including a safety factor for system failures, a special condition is needed to address such failures. To address the effects of system failures on the structural and flutter capability of the airplane, the FAA developed a special condition, which has been applied in essentially the same form since 1989, and which is proposed for the Boeing Model 737-900ER.
While not analytically precise, we believe that reduced safety factors for low probability events are justified. Safety factors provide an additional margin above limit load capability. For low probability events, less margin is needed because these events will occur less often. For high probability events, more margin is needed, therefore, the full 1.5 safety factor is required. The relationship between the probability and the severity of a failure condition is similar to that used in a system safety assessment: High probability events must only have minor consequences, whereas low probability events may have major or hazardous consequences. In all cases, the objective is that no failure or combination of failures may be catastrophic.
We also note that as part of the certification process, airframe manufacturers are required to document the systems and structures subject to this special condition.
No changes were made to these special conditions as a result of these comments. The special conditions are adopted as proposed.
As discussed above, this special condition is applicable to the Boeing Model 737-900ER. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, this special condition would apply to that model as well.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
In addition to the requirements of part 25, subparts C and D, the following proposed special condition would apply:
a. For airplanes equipped with systems that affect structural performance—either directly or as a result of a failure or malfunction—the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of part 25, subparts C and D. Paragraph b, below, must be used to evaluate the structural performance of airplanes equipped with these systems.
b. Interaction of Systems and Structures.
(1) General: The following criteria must be used for showing compliance with this special condition for interaction of systems and structures and with § 25.629 for airplanes equipped with flight control systems, autopilots, stability augmentation systems, load alleviation systems, flutter control systems, and fuel management systems.
(a) The criteria defined herein address only the direct structural consequences of the system responses and performances. They cannot be considered in isolation but should be included in the overall safety evaluation of the airplane. These criteria may, in some instances, duplicate standards already established for this evaluation. These criteria are applicable only to structures whose failure could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements when operating in the system degraded or inoperative modes are not provided in this special condition.
(b) Depending upon the specific characteristics of the airplane, additional studies may be required that go beyond the criteria provided in this special condition in order to demonstrate the capability of the airplane to meet other realistic conditions, such as alternative gust or maneuver descriptions for an airplane equipped with a load alleviation system.
(c) The following definitions are applicable to this paragraph.
(2) Effects of Systems on Structures.
(a)
(b)
(1) Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in subpart C (or used in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant non-linearity (rate of displacement of
(2) The airplane must meet the strength requirements of part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of non-linearities must be investigated beyond limit conditions to ensure that the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered, when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.
(3) The airplane must meet the aeroelastic stability requirements of § 25.629.
(c)
(1) At the time of occurrence. Starting from 1g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the time of failure and immediately after failure.
(i) For static strength substantiation, these loads multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure are ultimate loads to be considered for design. The factor of safety (FS) is defined in Figure 1.
(ii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in paragraph (c)(1)(i) of this section. For pressurized cabins, these loads must be combined with the normal operating differential pressure.
(iii) Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speed increases beyond V
(iv) Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.
(2) For the continuation of the flight. For the airplane in the system failed state and considering any appropriate reconfiguration and flight limitations, the following apply:
(i) The loads derived from the following conditions (or used in lieu of the following conditions) at speeds up to V
(A) the limit symmetrical maneuvering conditions specified in §§ 25.331 and in 25.345.
(B) the limit gust and turbulence conditions specified in §§ 25.341 and in 25.345.
(C) the limit rolling conditions specified in § 25.349 and the limit unsymmetrical conditions specified in §§ 25.367 and 25.427(b) and (c).
(D) the limit yaw maneuvering conditions specified in § 25.351.
(E) the limit ground loading conditions specified in §§ 25.473 and 25.491.
(ii) For static strength substantiation, each part of the structure must be able to withstand the loads in paragraph (c)(2)(i) of this special condition multiplied by a factor of safety, depending on the probability of being in this failure state. The factor of safety is defined in Figure 2.
If P
(iii) For residual strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in paragraph (c)(2)(ii). For pressurized cabins, these loads must be defined combined with the normal operating differential pressure.
(iv) If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance, then their effects must be taken into account.
(v) Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight, using the margins defined by § 25.629(b).
If P
(vi) Freedom from aeroelastic instability must also be shown up to V′ in Figure 3 above for any probable system failure condition combined with any damage required or selected for investigation by § 25.571(b).
(3) Consideration of certain failure conditions may be required by other sections of this Part, regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10
(d)
(1) The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by part 25 or significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks in lieu of warning systems to achieve the objective of this requirement. These certification maintenance requirements must be limited to components the failures of which are not readily detectable by normal warning systems and where service history shows that inspections will provide an adequate level of safety.
(2) The existence of any failure condition, not extremely improbable, during flight that could significantly affect the structural capability of the airplane and for which the associated reduction in airworthiness can be minimized by suitable flight limitations must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of part 25, subpart C, below 1.25 or flutter margins below V″ must be signaled to the crew during flight.
(e)
Department of Defense.
Amendment of final rule.
The Defense Logistic Agency recently altered an existing Privacy Act system of records notice identified as S500.60, entitled “DLA Hotline Program.” As part of the alteration, the system identifier and the system name were revised; therefore, the existing exemption rule for this particular system of records is being amended to reflect the new system identifier and the new system name. No other changes have been made to the existing rule.
Ms. Jody Sinkler at (703) 767-5045.
It has been determined that 32 CFR part 323 is not a significant regulatory action. The rule does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section 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 certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.
It has been certified that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of Government.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
e. ID: S500.60 (Specific exemption).
1. System name: DLA Hotline Program Records. * * *
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) adopts as a final rule in this document a proposed rule concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits. This final rule is intended to reflect changes in law regarding initial evaluations, to reflect VA's interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, and to improve readability.
Mark Hawkins, Vocational Rehabilitation Counselor, (202) 273-6923, Vocational Rehabilitation and Employment Service (28), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420.
In a document published in the
We provided a 60-day comment period that ended October 27, 2006. No comments were received. Based on the rationale set forth in the proposed rule and this document, we now adopt the provisions of the proposed rule as a final rule without change.
This rule contains no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) has approved collection of information provisions that are related to the provisions of 38 CFR 21.50 under OMB control number 2900-0009 (entitled “Disabled Veterans Application for Vocational Rehabilitation and 38 CFR 21.30”) and has approved collection of information provisions that are related to the
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, and tribal governments, or on the private sector.
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). The Executive Order classifies a “significant regulatory action,” requiring review by OMB unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined to not be a significant regulatory action under Executive Order 12866.
The Secretary of Veterans Affairs hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers and titles for programs affected by this rule are 64.116, Vocational Rehabilitation for Disabled Veterans; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
38 U.S.C. 501(a), ch. 31, and as noted in specific sections.
(a)
(1) Applies for benefits under 38 U.S.C. chapter 31; and
(2) Meets the service-connected disability requirements of § 21.40.
(b)
(1) Whether the individual has an employment handicap as determined in accordance with this section and § 21.51;
(2) Whether an individual with an employment handicap has a serious employment handicap as determined in accordance with this section and § 21.52; and
(3) Whether the achievement of a vocational goal is currently reasonably feasible as described in § 21.53.
(c)
(1) The handicapping effects of the individual's service-connected and nonservice-connected disability(ies) on employability and on independence in daily living;
(2) The individual's physical and mental capabilities that may affect employability and ability to function independently in daily living activities in family and community;
(3) The impact of the individual's identified vocational impairments on the individual's ability to prepare for, obtain, and keep suitable employment;
(4) The individual's abilities, aptitudes, and interests;
(5) The individual's personal history and current circumstances (including educational and training achievements, employment record, developmental and related vocationally significant factors, and family and community adjustment); and
(6) Other factors that may affect the individual's employability.
(d)
For the purposes of § 21.50, an employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(a)
(b)
(c)
(2) When determining the individual's overall vocational impairment, the CP or VRC will consider the factors identified in § 21.50(c).
(3) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall vocational impairment.
(a)
(1)
(2)
(3)
(ii) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall significant vocational impairment.
(b)
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric condition(s);
(4) Adequacy of education or training for suitable employment;
(5) Number, length, and frequency of periods of unemployment or underemployment;
(6) A pattern of reliance on government support programs, such as welfare, service-connected disability compensation, nonservice-connected disability pension, worker's compensation, or Social Security disability;
(7) Extent and complexity of services and assistance the individual needs to achieve rehabilitation;
(8) Negative attitudes toward individuals with disabilities and other evidence of restrictions on suitable employment, such as labor market conditions; discrimination based on age, race, gender, disability or other factors; alcoholism or other substance abuse; and
(9) Other factors that relate to preparing for, obtaining, or keeping employment consistent with the individual's abilities, aptitudes, and interests.
38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and as noted in specific sections.
Environmental Protection Agency (EPA).
Withdrawal of direct final rule.
On January 23, 2007 (72 FR 2776), EPA published a direct final rule approving the redesignation of the El Paso, Texas, carbon monoxide (CO) nonattainment area to attainment for the CO National Ambient Air Quality Standard (NAAQS) and the CO maintenance plan with its associated Motor Vehicle Emission Budgets (MVEBs). EPA also found the MVEBs adequate. The direct final action was published without prior proposal because EPA anticipated no adverse comment. EPA stated in the direct final rule that if EPA received relevant adverse comment by February 22, 2007, EPA would publish a timely withdrawal in the
The direct final rule published on January 23, 2007 (72 FR 2776), is withdrawn as of March 26, 2007.
Jeffrey Riley, Air Planning Section, (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-8542; fax number 214-665-7263; e-mail address
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Environmental Protection Agency (EPA).
Immediate final rule.
The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the Federal program. EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State regulations that will be subject to EPA's inspection and enforcement. This rule does not incorporate by reference the New York hazardous waste statutes. The rule codifies in the regulations the prior approval of New York's hazardous waste management program and incorporates by reference authorized provisions of the State's regulations. In addition, this document corrects errors made in the program revision table in Section G published in the January 11, 2005
This regulation is effective May 25, 2007, unless EPA receives adverse written comment on this regulation by the close of business April 25, 2007. If EPA receives such comments, it will publish a timely withdrawal of this immediate final rule in the
Submit your comments, identified by Docket ID No. EPA-R02-RCRA-2006-0518, by one of the following methods:
•
•
•
•
•
Michael Infurna, Division of Environmental Planning and Protection, EPA Region 2, 290 Broadway, 22nd floor, New York, NY 10007; telephone number (212) 637-4177; fax number: (212) 637-3056; e-mail address:
There were typographical errors and omissions in the table published as part of the January 11, 2005 (70 FR 1827) authorization document for New York. The affected entries for that table are
Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the Federal regulations concerning the same matter with the result that after authorization EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program which is federally enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.
New York initially received final authorization for its hazardous waste management program, effective on May 29, 1986 (51 FR 17737) to implement its base hazardous waste management program. Subsequently, EPA authorized revisions to the State's program effective July 3, 1989 (54 FR 19184), May 7, 1990 (55 FR 7896), October 29, 1991 (56 FR 42944), May 22, 1992 (57 FR 9978), August 28, 1995 (60 FR 33753), October 14, 1997 (62 FR 43111), January 15, 2002 (66 FR 57679) and March 14, 2005 (70 FR 1825, as corrected on April 5, 2005 (70 FR 17286)). EPA first codified New York's authorized hazardous waste program effective September 30, 2002. In this action, EPA is revising Subpart HH of 40 CFR part 272 to include the recent authorization revision actions effective March 14, 2005.
Today's action codifies EPA's authorization of revisions to New York's hazardous waste management program. This codification reflects the State program in effect at the time EPA authorized revisions to the New York hazardous waste program in a final rule dated January 11, 2005 (70 FR 1825; and corrected on April 5, 2005 (70 FR 17286)). The rule incorporates by reference the most recent version of the State's authorized hazardous waste management regulations. This action does not reopen any decision EPA previously made concerning the authorization of the State's hazardous waste management program. EPA is not requesting comments on its decisions published in the
EPA is incorporating by reference the authorized revisions to the New York hazardous waste program by revising Subpart HH to 40 CFR part 272. 40 CFR 272.1651 previously incorporated by reference New York's authorized hazardous waste regulations, as amended through March 15, 1999, plus amendments to selected provisions on November 15, 1999 and January 31, 2000, as well as selected provisions as found in the New York regulations dated January 31, 1992 and January 14, 1995. Section 272.1651 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.1651 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which were evaluated as part of the approval process of the hazardous waste management program under Subtitle C of RCRA.
EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference New York's inspection and enforcement authorities nor are those authorities part of New York's approved State program which operates in lieu of the Federal program. 40 CFR 272.1651(c)(2) lists these authorities for informational purposes, and also because EPA considered them in determining the adequacy of New York's procedural and enforcement authorities. New York's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.
The public is reminded that some provisions of New York's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));
(2) Unauthorized amendments to authorized State provisions;
(3) New unauthorized State requirements; and
(4) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.
State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1651(c)(3) lists the New York statutory and regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. This action updates that list for “broader in scope” provisions. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by EPA; the State may enforce such provisions under State law.
Additionally, New York's hazardous waste regulations include amendments which have not been authorized by EPA. Since EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by EPA include amendments to previously authorized State regulations as well as new State requirements.
In those instances where New York has made unauthorized amendments to previously authorized sections of State code, EPA is identifying in 40 CFR 272.1651(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by EPA. Those unauthorized portions of the State regulations are not federally enforceable. Thus, notwithstanding the language in the New York hazardous waste regulations incorporated by reference at 40 CFR 272.1651(c)(1), EPA will only enforce those portions of the State regulations that are actually authorized by EPA. For the convenience of the regulated community, the actual State regulatory text authorized by EPA for the citations listed at 272.1651(c)(4) (i.e., without the unauthorized amendments) is compiled as a separate document, Addendum to the EPA Approved New York Regulatory Requirements Applicable to the Hazardous Waste Management Program, March 2005. This document is available from EPA Region 2, EPA Region 2 Library, 290 Broadway, 16th Floor, New York, New York 10007, Phone number: (212) 637-3185.
State regulations that are not incorporated by reference in today's rule at 40 CFR 272.1651(c)(1), or that are not listed in 40 CFR 272.1651(c)(3) (“broader in scope”) or 40 CFR 272.1651(c)(4) (“unauthorized amendments to authorized State provisions”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.
With respect to any requirement(s) pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.
The codification does not affect Federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions, unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).
Some existing State requirements may be similar to the HSWA requirement implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.
This rule codifies EPA-authorized hazardous waste requirements pursuant to RCRA 3006 and imposes no requirements other than those imposed by State law. Therefore, this rule complies with applicable executive orders and statutory provisions as follows.
1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget (OMB) has exempted this rule from its review under Executive Order 12866 (58 FR 51735, October 4, 1993).
2. Paperwork Reduction Act—This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. Regulatory Flexibility Act—This rule codifies New York's authorized hazardous waste management regulations in the CFR and does not impose new burdens on small entities. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
4. Unfunded Mandates Reform Act—Because this rule codifies pre-existing State hazardous waste management program requirements which EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
5. Executive Order 13132: Federalism—Executive Order 13132 (64 FR 43255, August 10, 1999) does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government). This action codifies existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA.
6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—Executive Order 13175 (65 FR 67249, November 6, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or
7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks—This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it is not based on environmental health or safety risks.
8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
9. National Technology Transfer Advancement Act—The requirements being codified are the result of New York's voluntary participation in EPA's State program authorization process under RCRA Subtitle C. 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.
10. Executive Order 12988—As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), EPA has taken the necessary steps in this action to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
11. Congressional Review Act—EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801
Environmental Protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indians—lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.
This action is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), New York has final authorization for the following elements as submitted to EPA in New York's base program application for final authorization which was approved by EPA effective on May 29, 1986. Subsequent program revision applications were approved effective on July 3, 1989, May 7, 1990, October 29, 1991, May 22, 1992, August 28, 1995, October 14, 1997, January 15, 2002 and March 14, 2005.
(b) The State of New York has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.
(c)
(i) The Binder entitled “EPA Approved New York Regulatory Requirements Applicable to the Hazardous Waste Management Program”, dated March 2005.
(ii) [Reserved]
(2) EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein for enforcement purposes:
(i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, as revised by the 2004 Cumulative Pocket Part: sections 1-0303(18), 3-0301(1) (introductory paragraph); 3-0301(1)(a) and (b); 3-0301(1)(m); 3-0301(1)(o); 3-0301(1)(w); 3-0301(1)(x); 3-0301(1)(cc); 3-0301(2) introductory paragraph; 3-0301(2)(a), (b), (d) through (j), (l), (m) and (q); 3-0301(2)(z); 3-0301(4); 19-0301(1) (except 19-0301(c), (e) and (f)); 19-0303(1) through (3); 19-0304; 27-0105; 27-0701; 27-0703; 27-0705; 27-0707 (except 27-0707(2-c)); 27-0711; 27-0900 through 27-0908; 27-0909 (except 27-0909(5)); 27-0910 through 27-0922; 27-1105;70-0101; 70-0103; 70-0105 (except 70-0105(3) and 70-0105(6)); 70-0107(1) and (2); 70-0107(3) (except 70-0107(3)(a) through (k), (m) and (n)); 70-0109; 70-0113; 70-0115 (except (2)(c) and (d)); 70-0117; 70-0119; 70-0121; 71-0301; 71-1719; 71-2705; 71-2707; 71-2709 through 71-2715; 71-2717; 71-2720; and 71-2727.
(iii) McKinney's Consolidated Laws of New York, Book 1, Executive Law (EL), Article 6: section 102.
(iv) McKinney's Consolidated Laws of New York, Book 46, Public Officers Law (POL), as amended through 2004: sections 87 and 89 (except the phrase “and one-a” at 89(5)(a)(3), and 89(5)(a)(1-a)).
(v) McKinney's Consolidated Laws of New York, Book 7B, Civil Practice Law and Rules (CPLR), as amended through 2004: sections 1013, 6301; 6311; and 6313.
(vi) Title 6, New York Codes, Rules and Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, as amended through April 10, 2004: sections 372.1(f); 373-1.1(f) and (g); 373-1.4(b); 373-1.4(d) through (f); 373-1.6(c); 621.1 through 621.4; 621.5 (except (d)(5), (d)(6)(i), (d)(7)(i)(a), (d)(7)(i)(c) and (d)(9)); 621.6 (except (b), (d)(4) and (d)(5)); 621.7; 621.8; 621.9 (except (a)(5), (c)(2) and (e)(2)); 621.10; 621.11 (except (d)); 621.12 through
(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, are not incorporated by reference and are not federally enforceable:
(i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, as revised by the 2004 Cumulative Pocket Part: sections 27-0301; 27-0303; 27-0305; 27-0307; 27-0909(5); 27-0923; 27-0925 and 27-0926.
(ii) Title 6, New York Codes, Rules and Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, as amended through April 10, 2004: Section 371.4(e); 372.3(a)(1); 372.3(a)(4); 372.3(b)(6)(iv); 372.3(d)(3); 373-1.1(d)(1)(x); 373-1.4(c); 373-2.15(a)(2); and 374-3.4(a)(2).
(iii) Throughout New York's hazardous waste regulations, the State cross-references Part 364, which sets forth additional transporter requirements including permit and liability requirements (for examples, see 6 NYCRR sections 372.2(b)(8), 373-1.7(h)(3), 374-3.3(i)(1) and (2), 374-3.4(a) and 374-3.6(a)(1)). The transporter permit and liability requirements are broader in scope than the Federal program.
(iv) New York did not adopt an analog to 40 CFR 261.4(g) that excludes certain dredged materials from the State definition of hazardous waste. Instead, the State subjects these materials to full regulation as hazardous wastes.
(v) New York State regulations do not incorporate the Mineral Processing Secondary Materials Exclusion at 40 CFR 261.4(a)(17) and the related changes affecting 40 CFR 261.2(c)(3) and (c)(4)/Table, and 40 CFR 261.2(e)(1)(iii). Since New York did not adopt the exclusion at 40 CFR 261.4(a)(17) the State has a broader in scope program because the effect is to include materials that are not considered solid waste by EPA.
(4)
(ii) The actual State regulatory text authorized by EPA (
(5)
(6)
(7)
The regulatory provisions include:
Title 6, New York Codes, Rules and Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, as amended through April 10, 2004.
Please note the following:
(1) The State's official regulations, as amended through April 10, 2004, contain typographical and printing errors that were not in the State's regulations submitted for authorization. New York subsequently corrected these errors in its official “Supplement”, dated July 15, 2005, filed with the New York Secretary of State. EPA recognizes the corrected provisions as part of the authorized program. The authorized provisions for which typographical and printing errors in the April 10, 2004 regulations have been corrected are noted below by inclusion in parentheses of July 15, 2005 after the regulatory citation.
(2) For a few regulations, the authorized regulation is an earlier version of the New York State regulation. For these regulations, EPA authorized the version of the regulations that appear in the Official Compilation of Code, Rules and Regulations dated January 31, 1992 or January 1, 1999. New York State made later changes to these regulations but these changes have not been authorized by EPA. The regulations where the authorized regulation is an earlier version of the regulation are noted below by inclusion in parentheses of January 31, 1992 or January 1, 1999 after the regulatory citations.
Part 370—Hazardous Waste Management System—General: Sections 370.1(a) (except (a)(3)); 370.1(b) through (d); 370.1(e) (except (e)(1)(xv), (e)(1)(xvi) and (e)(6)(ii) through (iii)); 370.2(a); 370.2(b)(1) through (b)(15) “battery”; 370.2(b)(15) “bedrock” (January 31, 1992); 370.2(b)(17)-(b)(54); 370.2(b)(56) through (b)(71); 370.2(b)(72) (July 15, 2005); 370.2(b)(73) through (b)(91); 370.2(b)(94) through (b)(104); 370.2(b)(106) through (b)(122); 370.2(b)(123) and (124) (July 15, 2005); 370.2(b)(126) through (b)(187); 370.2(b)(188) (July 15, 2005); 370.2(b)(189) through (b)(212); 370(b)(214) and (b)(215);
Part 371—Identification and Listing of Hazardous Waste: Sections 371.1(a) through (c); 371.1(d) (except (d)(1)(ii)(e)); 371.1(e) (except 371.1(e)(2)(vi)('b')(21); 371.1(f)(1) through (7); 371.1(f)(8) (except the phrase “or such mixing occurs at a facility regulated under Subpart 373-4 or permitted under Part 373 of this Title”); 371.1(f)(9) and (f)(10); 371.1(g)(1)(i); 371.1(g)(1)(ii) (except (g)(1)(ii)(c)); 371.1(g)(1)(iii) (except (g)(1)(iii)(a)); 371.1(g)(1)(iii)(a) (except the phrase “as defined in section 372.5 of this Title, and provide a copy of”) (January 1, 1999); 371.1(g)(2) through (4); 371.1(h) through (j); 371.2; 371.3; and 371.4(a) and (b); 371.4(c) (except K171 and K172 entries); 371.4(c), K171 and K172 entries (July 15, 2005); 371.4(d), (f) and (i).
Part 372—Hazardous Waste Manifest System and Related Standards for Generators, Transporters and Facilities: Sections 372.1(a) through (d); 372.1(e)(2)(ii)(c) (January 31, 1992); 372.1(e)(2)(iii)(c) (January 31, 1992); 372.1(e)(3) through (e)(8); 372.1(g) and (h); 372.2 (except (a)(8)(vi)); 372.3 (except (a)(1), (a)(4), (a)(7)(i), (a)(8), (b)(1)(ii), (b)(5)(ii), (b)(6)(iv), (c)(4) and (d)(3)); 372.5 (except (h) and (i); 372.6; 372.7(a) and (b); 372.7(c) (except (c)(1)(ii)); and 372.7(d) (except (d)(4)); 372.7(d)(4) (January 31, 1992).
Part 373, Subpart 373-1—Hazardous Waste Treatment, Storage and Disposal Facility Permitting Requirements: Sections 373-1.1(a) through (c), 373-1.1(d) (except (d)(1)(iii)(b), (d)(1)(iii)(c)(6), (d)(1)(iii)(d), (d)(1)(iv)(a) and (b), (d)(1)(x), (d)(1)(xvi) and (xviii)); 373-1.1(e); 373-1.1(h) and (i); 373-1.2; 373-1.3; 373-1.4(a); 373-1.4(g) and (h); 373-1.5(a)(1); 373-1.5(a)(2) (except (a)(2)(xviii)); 373-1.5(a)(3) and (4); 373-1.5(b) and (c); 373-1.5(d) (except (d)(3)); 373-1.5(e) through (p) (except reserved paragraphs); 373-1.6 (except (c)); 373-1.7 through 373-1.9; 373-1.10 (except (a)(1)); 373-1.10(a)(1) (January 1, 1999); and 373-1.11.
Part 373, Subpart 373-2—Final Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities: Sections 373-2.1 through 373-2.4; 373-2.5(a); 373-2.5(b) (except the last sentence in (b)(1)(i)(b) and the entire provision at (b)(1)(vii)); 373-2.5(c) through (g); 373-2.6 through 373-2.9; 373-2.10 (except last sentence in (g)(4)(i)); 373-2.11; 373-2.12 (except 373-2.12(a)(1), (d) and (g)(2)); 373-2.12(a)(1) (January 31, 1992); 373-2.12(g)(2) (January 31, 1992); 373-2.13; 373-2.14; 373-2.15 (except (a)(2)); 373-2.19; 373-2.23; 373-2.24; 373-2.27; 373-2.28; 373-2.29; 373-2.30; and 373-2.31.
Part 373, Subpart 373-3—Interim Status Standards Regulations for Owners and Operators of Hazardous Waste Facilities: Sections 373-3.1 (except 373-3.1(a)(4) and the phrase “or Subpart 374-2 of this Title” in 373-3.1(a)(6)); 373-3.2 through 373-3.4; 373-3.5 (except last sentence in 373-3.5(b)(1)(i)(b) and (b)(1)(vii)); 373-3.6 through 373-3.9; 373-3.10 (except last sentence in (g)(4)(i)); 373-3.11 through 373-3.14; 373-3.15 (except (a)(2)); 373-3.16 through 373-3.18; 373-3.23; and 373-3.27 through 373-3.31.
Part 374, Subpart 374-1—Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities: Sections 374-1.1; 374-1.3; 374-1.6 (except (a)(2)(iii)); 374-1.7; 374-1.8(a)(1); 374-1.8(a)(2) (except the second sentence “Such used oil * * * of this Title” in (a)(2)(i)); 374-1.8(a)(3) through (a)(6); 374-1.8(b) through (m); and 374-1.13.
Part 374, Subpart 374-3—Standards for Universal Waste: Sections 374-3.1 (except (f) and (g)); 374-3.2; 374-3.3; 374-3.4 (except (a)(2)); 374-3.5; 374-3.6; and 374-3.7.
Part 376—Land Disposal Restrictions: Sections 376.1 (except (a)(5), (a)(9), (b)(1)(xi), (e) and (f)); 376.2; 376.3 (except (b)(4), (c) and (d)(2)); 376.4 (except (c)(2) and (e)(1) through (7)); and 376.5.
Appendices: Appendices 19 through 25; Appendices 27 through 30; Appendix 33; Appendix 38; Appendices 40 through 49 and Appendices 51 through 55.
Copies of the New York regulations that are incorporated by reference are available from West Group, 610 Opperman Drive, Eagan, MN 55123, ATTENTION: D3-10 (Phone #: 1-800-328-9352).
Transportation Security Administration (TSA).
Final rule; correction.
This document contains corrections to the final rule published in the
Effective March 26, 2007.
Christine Beyer, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2657; facsimile (571) 227-1380; e-mail
On January 25, 2007, the Department of Homeland Security, through TSA and the U.S. Coast Guard (Coast Guard) published a final rule in the
This rule correction document redesignates paragraphs codified in parts 1515.5 and 1572.103, substitutes the word “applicant” for “individual” in parts 1540.201, 1540.203, 1540.205, and 1570.3, deletes a word for clarity in part 1570.3, and inserts the word “fee” in part 1572.401 for clarity.
(a) * * *
(4) Each applicant applying for unescorted access to cargo under one of the programs described in (a)(1) through (a)(3) of this section.
(b) * * *
(2) * * *
(ii) Current mailing address, including residential address if it differs from the current mailing address, and all other residential addresses for the previous five years, and e-mail address, if the applicant has an e-mail address.
(d)
(a)
Commodity Futures Trading Commission.
Proposed rule.
The Commission hereby proposes amendments to the Acceptable Practices
Comments should be submitted on or before April 25, 2007.
Comments should be sent to Eileen A. Donovan, Acting Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, DC 20581. Comments may be submitted via e-mail at
Rachel F. Berdansky, Acting Deputy Director for Market Compliance, (202) 418-5429; or Sebastian Pujol Schott, Special Counsel, (202) 418-5641, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
On February 14, 2007, the Commission published final Acceptable Practices for Core Principle 15 of the Act.
The Commission proposes to amend two subsections of the Acceptable Practices, Subsections (b)(2)(ii)(B) and (b)(2)(ii)(C), which together with Subsections (b)(2)(i), (b)(2)(ii)(A) and (b)(2)(ii)(D), establish the definition of a DCM public director.
Subsection (b)(2)(ii)(B) precludes DCM members, employees of members, and persons “affiliated” with members from service as public directors. As adopted, the Acceptable Practices define “affiliated with a member” as being an officer or director of a member, or having “any other relationship with the member such that his or her impartiality could be called into question in matters concerning the member.” This impartiality provision reflects a qualitative test intended to capture specific disqualifying relationships between individuals and DCM members.
The Commission proposes to amend the definition of “affiliated” in Subsection (b)(2)(ii)(B) by removing any reference to the qualitative “impartiality” test outlined above. This eliminates the qualitative test and replaces it with an exact articulation of the relationships that are prohibited under Subsection (b)(2)(ii)(B).
Subsection (b)(2)(ii)(C) creates a bright-line, $100,000 combined annual payments test for potential public directors and the firms with which they are affiliated (“payment recipients”). A particular payment's relevance to the $100,000 bright-line test depends upon the source (“payment provider”) and nature of the payment. The Commission proposes to amend this subsection to define “payment;” clarify the term “affiliate,” as used in the subsection; remove the term “affiliated” in referring to certain relationships and replace it with the specific payment providers and recipients that the Commission intends to reach; and correct a technical drafting error.
The first amendment defines the nature of “payment,” limiting it to compensation for professional services rendered. The amendment reflects the Commission's intent to capture those persons and firms providing professional services to a DCM and/or its members, as well as the employees, officers, directors, and partners of such firms.
The second amendment to Subsection (b)(2)(ii)(C) clarifies the clause “any affiliate of the contract market.” Clarification is provided via explicit cross-reference to Subsection (b)(2)(ii)(A), which defines the affiliates of a contract market to include the parents or subsidiaries of the contract market or entities that share a common parent with the contract market. This proposed amendment is consistent with the Commission's original intent.
Two other amendments to Subsection (b)(2)(ii)(C) address payment providers and recipients, resolving potential ambiguities arising from multiple uses of the term “affiliated.” In addition, one of the amendments corrects a drafting error in this subsection which resulted from the inadvertent inclusion of “entity” in the clause “any person or entity affiliated with a member of the contract market” (“member payment-providers provision”). The inclusion of “entity” in the member payment-providers provision resulted in a standard that encompassed a range of payment providers broader than the Commission intended. The Commission proposes to remedy its error by deleting “entity.”
With respect to “affiliated,” the Commission notes that the term is not defined in the member payment-providers provision. Potential ambiguity could arise in importing and applying a definition from elsewhere in the Acceptable Practices. Accordingly, the Commission proposes to amend and clarify the member payment-providers provision by replacing the term “affiliated” with a precise articulation of the member payment providers it intends to reach. Consistent with the proposed Acceptable Practices, the Commission proposes to amend the adopted member payment-providers provision so that it refers to payments “from a member or an officer or director of a member* * *.”
Similarly, the Commission has determined to specifically define the payment recipients that it intends to reach. In the adopted Acceptable Practices, the relevant recipients include “a firm with which the director is affiliated, as defined above,” implying a cross-reference to Subsection (b)(2)(ii)(B). Furthermore, through this cross-reference, the payment recipients provision incorporates the qualitative impartiality test embedded within the adopted Subsection (b)(2)(ii)(B).
As previously noted, the Commission has determined that the qualitative impartiality test in Subsection (b)(2)(ii)(B) is best replaced with a specific articulation of the relevant relationships. Similarly, the Commission believes that a specific articulation is appropriate with respect to payment recipients in Subsection (b)(2)(ii)(C), both to remove any ambiguities which may exist and to eliminate the cross-reference upon which the payment recipients provision currently relies. Accordingly, the Commission proposes to amend Subsection (b)(2)(ii)(C) to reach payments made to the director and payments made to firms “of which the director is an employee, officer, director, or partner.”
Finally, as adopted, the last sentence in Subsection (b)(2)(ii)(C) states, in part, that “compensation for services as a director does not count toward the $100,000 payment limit.” This provision was intended to avoid the dilemma of DCM public directors forfeiting their public director eligibility because of compensation received for serving in such capacity. The Commission notes, however, that proposed changes elsewhere in this Subsection contain new references to various types of directors and that those changes may create uncertainty as to the meaning of “director” in this context. Accordingly, the Commission proposes to insert “of the contract market” after “director,” making clear that compensation for services as a director of the contract market does not count toward the $100,000 payment cap.
Section 15(a) of the Act requires the Commission to consider the costs and benefits of its action before issuing a new regulation or order under the CEA.
On February 14, 2007, the Commission published final Acceptable Practices for Core Principle 15 that included prophylactic measures designed to minimize conflicts of interest in a DCM's decision making process.
The amendments herein to the adopted Acceptable Practices are proposed to enhance regulatory certainty by addressing potential definitional ambiguities and a drafting error. The removal of such ambiguities will facilitate the inclusion of public directors on DCM governing boards and committees and ensure that DCMs are able to comply with the requirements of the Acceptable Practices. In turn,
These proposed amendments to the Acceptable Practices of Core Principle 15 would not impose any new recordkeeping or information collection requirements, or other collections of information that require approval of the Office of Management and Budget under 44 U.S.C. 3501,
The Regulatory Flexibility Act, 5 U.S.C. 601
Commodity futures, Reporting and recordkeeping requirements.
In light of the foregoing, and pursuant to the authority in the Act, and in particular, Sections 3, 5, 5c(a) and 8a(5) of the Act, the Commission hereby proposes to amend Part 38 of Title 17 of the Code of Federal Regulations as follows:
1. The authority citation for part 38 continues to read as follows:
7 U.S.C. 2, 5, 6, 6c, 7, 7a-2, and 12a, as amended by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
2. In Appendix B to Part 38 amend paragraphs (b)(2)(ii)(B) and (b)(2)(ii)(C) of the Acceptable Practices for Core Principle 15 to read as follows:
(b) * * *
(2) * * *
(ii) * * *
(B) The director is a member of the contract market, or a person employed by or affiliated with a member. “Member” is defined according to Section 1a(24) of the Commodity Exchange Act and Commission Regulation 1.3(q). In this context, a person is “affiliated” with a member if he or she is an officer, director, or partner of the member;
(C) The director, or a firm of which the director is an employee, officer, director or partner, receives more than $100,000 in combined annual payments from the contract market, any affiliate of the contract market, as defined in Subsection (2)(ii)(A), or from a member or an officer or director of a member of the contract market. As used in this Subsection (2)(ii)(C), “payments” means compensation for professional services. Compensation for services as a director of the contract market does not count toward the $100,000 payment limit, nor does deferred compensation for services prior to becoming a director, so long as such compensation is in no way contingent, conditioned, or revocable;
Social Security Administration (SSA).
Notice of proposed rulemaking.
We propose to revise our regulations to codify two provisions of the Balanced Budget Act of 1997 that affect the payment of benefits under title XVI of the Social Security Act (the Act). One of the provisions extended temporary institutionalization benefits to children receiving SSI benefits who enter private medical treatment facilities and who otherwise would be ineligible for temporary institutionalization benefits because of private insurance coverage. The other provision replaced obsolete terminology in the Act that referred to particular kinds of medical facilities and substituted a broader, more descriptive term.
To be sure that we consider your comments, we must receive them by May 25, 2007.
You may give us your comments: by Internet through the Federal eRulemaking Portal at
Curt Dobbs, Social Insurance Specialist, Office of Income Security Programs, Social Security Administration, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-7963 or TTY (410) 966-5609, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
The electronic file of this document is available on the date of publication in the
The basic purpose of the SSI program is to ensure a minimum level of income to individuals who are age 65 or older, or blind or disabled, and who have limited income and resources. The Balanced Budget Act of 1997 (Public Law 105-33), enacted August 5, 1997, contained two provisions that affected the payment of SSI benefits to certain SSI beneficiaries who are institutionalized. One of the provisions extended temporary institutionalization benefits to children who enter private medical treatment facilities and who otherwise would be subject to a reduced benefit because of private insurance coverage. The other provision removed obsolete terminology in the Act that referred to particular categories of inpatient medical facilities and substituted the broader, more descriptive term “medical treatment facility.” This change in terminology permits us to correct an unintended inequity in the amount of SSI benefits that were payable to certain children under the obsolete terminology.
Residents of public institutions generally are ineligible to receive SSI payments. However, there are some exceptions to this general rule. One exception in section 1611(e)(1)(B) of the Act provides that residents of medical treatment facilities (which we are proposing to define as a facility licensed or otherwise approved by a Federal, State, or local government to provide inpatient medical care and services) may be eligible for SSI if Medicaid pays a substantial part (more than 50 percent) of the cost of the beneficiary's care. In such cases, SSI payments to the resident of the medical treatment facility are limited to a maximum of $30 a month.
Another exception in section 1611(e)(1)(G) of the Act allows payment of full SSI benefits for up to 3 full months after entering a public facility if a physician certifies that the recipient's stay in the facility is likely not to exceed 3 months and we determine the recipient needs to continue to maintain and provide for the expenses of the home to which he or she may return. These benefits are referred to as “temporary institutionalization benefits.”
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193), enacted August 22, 1996, amended section 1611(e)(1)(B) of the Act to allow children under age 18 who are in medical treatment facilities and who have private health insurance to receive the reduced SSI payment ($30). However, Public Law 104-193 did not amend the statutory provision on temporary institutionalization to extend such benefits to children with private health insurance. Consequently, children who were temporarily in private medical facilities could not be eligible for 3 months of full benefits if private health insurance, or a combination of Medicaid and private health insurance, paid more than 50 percent of the cost of their care. Payments to these children were limited to the reduced benefit amount of no more than $30 a month beginning with their first full month of institutionalization.
Section 5522(c) of Public Law 105-33 revised section 1611(e)(1)(G) of the Act to correct this omission. Prior to this revision, section (e)(1)(G) specified that the recipient must be an inmate of either a public institution whose primary purpose is to provide medical or psychiatric care, or a hospital, extended care facility, nursing home, or intermediate care facility that receives payments under a State plan approved under title XIX. As a result of Public Law 105-33, and subject to SSI eligibility and benefit computation rules, those children in private medical facilities for whom private health insurance, or a combination of Medicaid and private health insurance was paying more than 50 percent of the cost of care, now can be eligible for continuation of their full SSI benefits for up to 3 months under section 1611(e)(1)(G) of the Act. For example, when a child who is receiving SSI while living at home goes into a medical treatment facility, and private insurance through the parent's employment pays for more than 50 percent of the cost of care, the child can continue to receive SSI benefits during a temporary institutionalization of up to 3 months. Providing SSI benefits during a temporary period of institutionalization is a provision designed to enable SSI beneficiaries (adult or child) to provide for the expenses of the home where they live and to reduce the risk of losing their place of residence due to a sudden loss of SSI benefits during a temporary period of institutionalization.
Section 5522(c) of Public Law 105-33 also replaced outdated terminology in section 1611(e)(1)(B) of the Act. Prior to this statutory change, section 1611(e)(1)(B) specified certain categories of inpatient providers used in the Medicaid program. In the early years of the SSI program, the terminology “hospital, extended care facility, nursing home, or intermediate care facility” provided a comprehensive list of all possible inpatient settings as defined by the Medicaid program. However, as Medicaid dropped or renamed some of those coverage categories and added new categories, the list in section 1611(e)(1)(B) became obsolete and was no longer used. As a result, prior to Public Law 105-33, children in certain kinds of inpatient facilities were subject to the reduced benefit amount of no more than $30, while children in other kinds of Medicaid covered inpatient facilities could receive the full SSI benefit. For example, Medicaid created the new coverage category of Psychiatric Residential Treatment Facility (PRTF) for individuals under age 21. PRTFs can receive substantial Medicaid payments, including the room and board payment. Before Public Law 105-33 made this technical amendment, children residing in a PRTF received full SSI benefits because that kind of facility was not listed in section 1611(e)(1)(B) as a facility whose residents would be subject to the $30 payment limit. For many PRTF residents, Medicaid was paying all of their expenses, and yet Public Law 104-193 required payment of the full SSI benefit rate. This situation created an inequity between those children and children in other kinds of Medicaid covered inpatient facilities. This change in terminology now allows for similarly situated children (i.e., children residing in medical treatment facilities where Medicaid is providing for more than 50 percent of the cost of their care) to be paid the same amount of SSI benefits.
We propose to make the following changes to our rules to codify provisions of Public Law 105-33 that affect the payment of benefits under title XVI of the Act to individuals who are in institutions:
• We propose to revise § 416.212(b)(1) by adding “or private” to the introductory text to reflect the provision that gives full temporary institutionalization benefits to children who enter private medical treatment
• We propose to revise §§ 416.201 and 416.414(c) to remove the definition for “medical care facility” and replace it with a new definition for “medical treatment facility.”
• We propose to amend §§ 416.201, 416.211(b) and (c)(5)(iv), 416.414(a), (b)(2) and (3)(i)-(ii), 416.571, 416.1149(a)(1) and (c)(1)(i)-(ii), 416.1165(g)(6) and (i)(1), 416.1167(a)(2), and 416.1202(b)(2)(i) by eliminating the obsolete terms “medical facility” and “medical care facility” and replacing them with the term “medical treatment facility.”
• We propose to amend § 416.708(k) by eliminating the terms “hospital”, “skilled nursing facility”, and “intermediate care facility” and replacing them with the term “medical treatment facility.”
Executive Order 12866, as amended by Executive Order 13258, requires each agency to write all rules in plain language. In addition to comments you may have on these proposed rules, we also invite your comments on how to make these rules easier to understand. For example:
• Have we organized the material to suit your needs?
• Are the requirements in the rules clearly stated?
• Do the rules contain technical language or jargon that is unclear?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand?
• Would more (but shorter) sections be better?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended by Executive Order 13258. Thus, they were reviewed by OMB.
We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities as they affect individuals only. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
In order to codify two provisions of the Balanced Budget Act of 1997, we are proposing to revise our regulations that affect the payment of benefits under title XVI of the Act. One of the provisions extended temporary institutionalization benefits to children who enter private medical treatment facilities and who otherwise would be subject to a reduced benefit because of private insurance coverage. The other provision replaced obsolete terminology in the Act that referred to particular kinds of medical facilities and substituted a broader, more descriptive term.
As a result, we are amending the terminology in § 416.708 (k) by eliminating the terms “hospital”, “skilled nursing facility”, and “intermediate care facility” and replacing them with the term “medical treatment facility.” As outlined below this section contains specific public reporting requirements that require clearance under the Paperwork Reduction Act of 1995. Respondents to this collection are SSI recipients who are admitted to, or discharged from, a medical treatment facility or other public or private institution.
An Information Collection Request has been submitted to OMB for clearance.
We are soliciting comments on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Comments should be sent to OMB by fax or by email to: Office of Management and Budget,
Comments can be received for up to 60 days after publication of this notice and will be most useful if received within 30 days of publication. This does not affect the deadline for the public to comment to SSA on the proposed regulations. These information collection requirements will not become effective until approved by OMB. When OMB has approved these information collection requirements, SSA will publish a notice in the
To receive a copy of the OMB clearance package, your staff may call the SSA Reports Clearance Officer on 410-965-0454.
Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI).
For the reasons set out in the preamble, we propose to amend subparts B, D, E, G, K, and L of part 416 of chapter III of title 20 of the Code of Federal Regulations as follows:
1. The authority citation for subpart B of part 416 continues to read as follows:
Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C. 902(a)(5), 1310(b), 1381a, 1382, 1382c, 1382h(a), 1383, and 1383c); secs. 211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat.
2. Section 416.201 is amended by removing the definition of “Medical care facility” and adding a definition of “Medical treatment facility” in alphabetical order to read as follows:
3. In 20 CFR part 416, subpart B, remove the words “medical facility” and “medical care facility” each time they appear and add in their place the words “medical treatment facility” in the following places:
a. Section 416.201 in the definitions of “Medical care facility” and “Public emergency shelter for the homeless”; and
b. Section 416.211(b) and (c)(5)(iv).
4. Section 416.212 is amended by revising the introductory text in paragraph (b)(1) to read as follows:
(b) * * *
(1) Subject to eligibility and regular computation rules (see subparts B and D of this part), you are eligible for the benefits payable under section 1611(e)(1)(G) of the Social Security Act for up to 3 full months of medical confinement during which your benefits would otherwise be suspended because of residence in a public institution or reduced because of residence in a public or private institution where Medicaid pays a substantial part (more than 50 percent) of the cost of your care or, if you are a child under age 18, reduced because of residence in a public or private institution which receives payments under a health insurance policy issued by a private provider, or a combination of Medicaid and a health insurance policy issued by a private provider, pay a substantial part (more than 50 percent) of the cost of your care if—
5. The authority citation for subpart D of part 416 continues to read as follows:
Secs. 702(a)(5), 1611(a), (b), (c), and (e), 1612, 1617, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382(a), (b), (c), and (e), 1382a, 1382f, and 1383).
6. Section 416.414 is amended by revising the section heading and paragraph (c) to read as follows:
(c)
7. In addition to the amendment set forth above, in 20 CFR part 416, subpart D, remove the words “medical facility” and “medical care facility” and add in their place the words “medical treatment facility” in § 416.414(a), (b)(2), and (b)(3)(i) through (ii).
8. The authority citation for subpart E of part 416 continues to read as follows:
Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3720A.
9. In 20 CFR part 416, subpart E, remove the words “medical facility” wherever they appear and add in their place the words “medical treatment facility” in § 416.571.
10. The authority citation for subpart G of part 416 continues to read as follows:
Secs. 702(a)(5), 1611, 1612, 1613, 1614, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382, 1382a, 1382b, 1382c, and 1383); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
11. Section 416.708 is amended by revising paragraph (k) to read as follows:
(k)
(1) A medical treatment facility; or
(2) A public institution (defined in § 416.201); or
(3) A private institution.
12. The authority citation for subpart K of part 416 continues to read as follows:
Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383 and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
13. In 20 CFR part 416, subpart K, remove the words “medical facility” and “medical care facility” and add in their place the words “medical treatment facility” in the following places:
a. Section 416.1149(a)(1) and (c)(1)(i) through (ii);
b. Section 416.1165(g)(6) and (i)(1); and
c. Section 416.1167(a)(2).
14. The authority citation for subpart L of part 416 continues to read as follows:
Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631 and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383 and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
15. In 20 CFR part 416, subpart L, remove the words “medical facility” and “medical care facility” and add in their place the words “medical treatment facility” in § 416.1202(b)(2)(i).
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend its regulations regarding the time limit for filing a response to a Supplemental Statement of the Case in appeals to the Board of Veterans' Appeals (Board). We propose to change the response period
Comments must be received by VA on or before May 25, 2007.
Written comments may be submitted through
Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-5978.
The Board is an administrative body within VA that decides appeals from denials by Agencies of Original Jurisdiction (AOJs) of claims for veterans' benefits, as well as occasional cases of original jurisdiction. The Board is under the administrative control and supervision of a Chairman who is directly responsible to the Secretary of Veterans Affairs. 38 U.S.C. 7101(a). The Board's Appeals Regulations and Rules of Practice are found at 38 CFR parts 19 and 20.
An appeal to the Board is initiated by a timely filed Notice of Disagreement and completed (also called “perfected”) by a timely filed Substantive Appeal after a Statement of the Case is furnished. 38 U.S.C. 7105(a); 38 CFR 20.200. Under applicable law, the AOJ provides notice of any decision made by VA affecting the payment of benefits or the granting of relief. 38 U.S.C. 5104; 38 CFR 3.103(b)(1). The claimant has one year from the date of mailing that notice to file a Notice of Disagreement. 38 U.S.C. 7105(b)(1); 38 CFR 20.302(a). Following receipt of a timely Notice of Disagreement, the AOJ will prepare a Statement of the Case, which must include: (1) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed; (2) a citation to pertinent laws and regulations and a discussion of how such laws and regulations affected the AOJ's decision; and (3) the AOJ decision on each issue and a summary of the reasons for such decision. 38 U.S.C. 7105(d)(1); 38 CFR 19.29. Except in cases of simultaneously contested claims, the claimant has 60 days to file a Substantive Appeal in response to the Statement of the Case or the remainder of the one-year period from the date of notice of the decision being appealed, whichever period ends later. 38 U.S.C. 7105(d)(3); 38 CFR 20.302(b)(1). In simultaneously contested claims, a Substantive Appeal and any response to a Supplemental Statement of the Case must be filed within 30 days from the date of mailing of the Statement of the Case and Supplemental Statement of the Case, respectively. 38 U.S.C. 7105, 7105A(b); 38 CFR 20.501(b) and (c).
Often, the AOJ receives additional evidence in support of the appeal after the Statement of the Case was issued but before the appeal is certified for appellate review and transferred to the Board. If the additional evidence is new (i.e., not duplicative of evidence previously of record that was discussed in the Statement of the Case or a prior Supplemental Statement of the Case) and relevant to the appeal, the AOJ will prepare a document known as a Supplemental Statement of the Case and furnish a copy to the appellant and his or her representative, if any. 38 CFR 19.31(b)(1), 19.37(a). The purpose of a Supplemental Statement of the Case is to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. 38 CFR 19.31(a).
A Supplemental Statement of the Case will also be furnished if the AOJ discovers a material defect in the Statement of the Case or a prior Supplemental Statement of the Case, or determines that for any other reason the Statement of the Case or a prior Supplemental Statement of the Case is inadequate. 38 CFR 19.31(b). Additionally, if an appeal is remanded by the Board to the AOJ and a claim cannot be granted on remand, a Supplemental Statement of the Case is generally provided to the appellant regarding that issue. 38 CFR 19.31(c), 19.38. Thereafter, the case is returned to the Board.
Currently, 38 CFR 19.38, 20.302(c), and 20.303 provide information regarding the Supplemental Statement of the Case. These regulations indicate that appellants are allowed a period of 60 days from the date of mailing of the Supplemental Statement of the Case to submit a response. Moreover, under 38 CFR 20.303, an extension of the 60-day period for responding to the Supplemental Statement of the Case, when such a response is required, may be granted for good cause. We propose to change the 60-day period in each of these regulations to 30 days, to help expedite the appeals process while still providing appellants with a reasonable period to respond. We believe that the beneficial effects of the amendment will significantly outweigh any potential adverse effects on appellants and we are soliciting comments on this point.
Unlike the Statement of the Case, which must contain specific information about the evidence and issues in the case, the applicable laws and regulations, and the reasons for each determination, a Supplemental Statement of the Case is not required to contain the same degree of detail. As its name implies, a Supplemental Statement of the Case is a supplement to the Statement of the Case. The document is intended to inform the appellant of any material changes to, or additions to, the information included in the Statement of the Case. 38 CFR 19.31(a). In no case will a Supplemental Statement of the Case be used to announce AOJ decisions on issues that were not previously addressed in a Statement of the Case. 38 CFR 19.31(a). Therefore, due to the limited purpose of a Supplemental Statement of the Case, less time should be needed to respond to a Supplemental Statement of the Case as compared to the Statement of the Case. In addition, under this proposed rule change, an extension of the 30-day period for responding to a Supplemental Statement of the Case may still be granted for good cause. 38 CFR 20.303.
Significantly, provided that a Substantive Appeal has been timely filed in accordance with 38 CFR 20.302(b), a response to a Supplemental Statement of the Case is strictly optional and is not required to perfect an appeal. 38 CFR 20.302(c). If there is no response to the Supplemental Statement of the Case within the allowed period, any remaining processing of the case can be completed and the appeal can be certified and transferred to the Board. In practice, VA adjudicators will hold the case for the full response period to allow the appellant every opportunity to respond to the Supplemental Statement of the Case. By reducing the response
This proposed rule would not affect the statutorily provided 60-day period to respond to a Statement of the Case. Rather, this proposed rule change is confined to the Supplemental Statement of the Case, which is a document created solely by VA regulation to describe VA's AOJ activity when, most commonly, after a Statement of the Case was issued but before the appeal is certified and transferred to the Board, non-duplicative evidence is received that is relevant to the issue or issues on appeal, or when the AOJ plans to return a case to the Board following a Board remand for further development.
For the reasons stated above, we propose to change the 60 day period to respond to a Supplemental Statement of the Case to 30 days in 38 CFR 19.38, 20.302(c), and 20.303.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. By reducing the period allowed for submitting an optional response to a Supplemental Statement of the Case to 30 days, this proposed rule would affect claimants for VA benefits who appeal to the Board. It may also affect a few small organizations appealing to the Board, including attorneys appealing the cancellation of their accreditation by the VA General Counsel and accredited attorneys appealing decisions affecting payment of their fees out of past-due benefits awarded to VA claimants. This proposed rule may also affect a few small governmental jurisdictions appealing to the Board, such as state agencies appealing VA decisions on per diem payments for services provided to veterans in state homes.
However, reducing the period permitted for submitting an optional response to a Supplemental Statement of the Case would not have a significant economic impact on a substantial number of these small entities. Rather, it would expedite the processing of their appeals to the Board. Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirement of 5 U.S.C. 603 and 604.
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). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.103, Life Insurance for Veterans; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.114, Veterans Housing-Guaranteed and Insured Loans; 64.115, Veterans Information and Assistance; 64.116, Vocational Rehabilitation for Disabled Veterans; 64.117, Survivors and Dependents Educational Assistance; 64.118, Veterans Housing-Direct Loans for Certain Disabled Veterans; 64.119, Veterans Housing-Manufactured Home Loans; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.126, Native American Veteran Direct Loan Program; 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.
Administrative practice and procedure, Claims, Veterans.
For the reasons set forth in the preamble, VA proposes to amend 38 CFR parts 19 and 20 as follows:
1. The authority citation for part 19 continues to read as follows:
38 U.S.C. 501(a), unless otherwise noted.
2. Section 19.38 is amended by removing “60-day” and adding, in its place, “30-day”.
3. The authority citation for part 20 continues to read as follows:
38 U.S.C. 501(a) and as noted in specific sections.
4. Section 20.302(c) is amended by removing “60” and adding, in its place, “30”.
5. Section 20.303 is amended by removing “or the 60-day period for responding to a Supplemental Statement of the Case” and adding, in its place, “or the 30-day period for responding to a Supplemental Statement of the Case”.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA proposes to revise the codification of New York's authorized hazardous waste program which is set forth in the regulations entitled “Approved State Hazardous Waste Management Programs”, New York's authorized hazardous waste program. EPA will incorporate by reference into the Code of Federal Regulations (CFR) those provisions of the State regulations that are authorized and that EPA will enforce under the Solid Waste Disposal Act, as amended and commonly referred to as the Resource Conservative and Recovery Act (RCRA). In the “Rules and Regulations” section of this
Comments must be received on or before April 25, 2007.
Submit your comments, identified by Docket ID No. EPA-R02-RCRA-2006-0518, by one of the following methods:
•
•
•
•
•
Michael Infurna, Division of Environmental Planning and Protection, EPA Region 2, 290 Broadway, 22nd floor, New York, NY 10007; telephone number (212) 637-4177; fax number: (212) 637-437; e-mail address:
For additional information please see the immediate final rule published in the
Federal Communications Commission.
Proposed rule.
This document seeks comment on a proposed federal benchmark mechanism addressing issues faced by “early adopter” states, i.e. states that have already taken steps to substantially reduce intrastate access rates. This proposal is intended to be incorporated as an amendment to the Missoula Plan, an intercarrier compensation reform plan filed July 24, 2006 by the National Association of Regulatory Utility Commissioners' Task Force on Intercarrier Compensation (the NARUC Task Force).
Comments due on or before March 28, 2007, reply comments due on or before April 12, 2007.
All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC. Comments may be submitted, identified by CC Docket No. 01-92, by any of the following methods:
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•
•
•
•
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Jennifer McKee, Wireline Competition Bureau, Pricing Policy Division, (202) 418-1530, or Randy Clarke, Wireline Competition Bureau, Pricing Policy Division, (202) 418-1587.
This is a summary of the Commission's document in, CC Docket No. 01-92, DA No. 07-1337, released March 16, 2007. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Portals II, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:
Interested parties may file comments on or before March 28, 2007 and reply comments on or before April 12, 2007. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to
Paper filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). Parties are strongly encouraged to file comments electronically using the Commission's ECFS.
The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Randy Clarke, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC 20554, or by e-mail to
Documents in CC Docket No. 01-92 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St, SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail
To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to
This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
47 U.S.C. 152, 153, 154, 155.
Federal Transit Administration (FTA), DOT.
Notice of proposed rulemaking.
This notice of proposed rulemaking (NPRM) provides interested parties with the opportunity to comment on proposed changes to the Federal Transit Administration's (FTA) National Transit Database (NTD) Uniform System of Accounts and Reporting System. The proposed changes will require recipients of formula grants for other than urbanized areas (Nonurbanized Area Formula Grants) to report annual transit data to the NTD. As mandated by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), this proposed rule will also require the annual reporting of rural transit data as a condition for receiving grant awards under the Nonurbanized Area Formula Program.
Currently, FTA requires recipients of FTA Urbanized Area Formula Grants to provide an annual report to the Secretary of Transportation via the NTD using a uniform system of accounts and reporting system. This proposed rule will not affect existing mandatory reporting requirements for recipients of Urbanized Area Formula grants.
In addition, this proposed rule makes non-substantive changes, technical corrections, and conforming amendments to 49 CFR part 630, “Uniform System of Accounts and Reporting System.” Technical corrections and conforming amendments are needed to update the regulation and make certain provisions clearer. These changes will have no substantive effect on the regulated public.
Comments must be received on or before April 25, 2007. Late filed comments will be considered to the extent practicable.
You may submit comments by any of the following methods:
For program issues, Nancy Ody, Office of Budget and Policy, (202) 366-0177 (telephone); (202) 366-7989 (fax); or
The National Transit Database (NTD) is the Federal Transit Administration's (FTA) primary national database for statistics on the transit industry. Section 3033 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [Pub.
Section 3013(b) of SAFETEA-LU amended 49 U.S.C. 5311(b)(4) to require that each grant recipient receiving Nonurbanized Area Formula Program Grants submit an annual report containing information on capital investment, operations, and service provided with grant funds from this program. The information contained in the report must include the following: total annual revenue; sources of revenue; total annual operating costs; total annual capital costs; fleet size and type, and related facilities; revenue vehicle miles; and ridership. Section 5335(b) now requires that each recipient of assistance of Section 5311 funds, or any person that will receive benefits directly from these funds, be subject to these reporting requirements. The mandatory reporting criteria will assist FTA to understand the effectiveness of Nonurbanized Area Formula Grants in improving rural public transportation. These data are similar to those already collected by FTA for recipients of Urbanized Area Formula Grants (Section 5307) but are streamlined for rural recipients. Section 5335(b) continues to require reporting from recipients and beneficiaries of assistance under Section 5307.
On November 30, 2005, FTA published in the
As previously stated, the information requested from recipients and beneficiaries of Nonurbanized Area Formula Grants is similar to data collected by FTA for Urbanized Area Formula Grants. Section 5335(a) authorizes FTA to request and receive appropriate information from any source to include in its reporting requirements for recipients of Urbanized Area Formula Grants and Nonurbanized Area Formula Grants. As stated in the Conference Report accompanying SAFETEA-LU, Congress expected that the data collection requirements for NTD would be “tailored to the smaller size of the typical public transportation system in rural areas, while still providing enough information to judge the condition and performance of our Nation's network of rural public transportation systems.” (H.R. Rep. No. 109-203, at 943 (2005) (Conf. Rep.). FTA seeks to follow Congressional direction in our rural data collection efforts.
FTA recognizes that many recipients and beneficiaries of Section 5311 program funds believe that the newly-enacted reporting requirements are onerous. To address these concerns, FTA would like to offer an explanation as to why these reporting requirements are requested and how they will be used regarding current and future funding of rural public transportation. First, SAFETEA-LU significantly increases the annual apportionment amounts for the Nonurbanized Area Formula Grant program beyond TEA-21 enacted funding levels. In order to determine the effectiveness of program apportionment increases, FTA will use the information on rural public transportation programs to gauge how the increased apportionments affect recipients and beneficiaries of Section 5311 grants. Second, the collection of reporting data for this program will help FTA measure progress in addressing rural public transportation service needs. Only limited information on rural public transportation needs currently exists, and it cannot be used to analyze trends over time. The information required by Section 5311(b)(4) will allow FTA to better assess the needs of rural transit services. These data will be used to identify the sources of revenue used by rural transit providers, how they are being expended, the services that they are providing and the performance of these services in providing rural transportation.
FTA is accepting comments on substantive amendments that would implement the annual reporting requirements for Nonurbanized Area Formula grant recipients and beneficiaries. The proposed rule also contains technical corrections and conforming amendments, such as changes to the statutory references. Pursuant to 5 U.S.C. 553(b)(3)(A), such changes are “interpretative” in nature and, as such, FTA is not required to accept or consider comments on them. Therefore, the public should refrain from commenting on these interpretative changes to 49 CFR part 630.
Executive Order 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” This proposed rule would amend the NTD reporting and recordkeeping requirements to require recipients of Nonurbanized Area Formula Grants to report annual transit data to the NTD following previously established guidelines for a voluntary State-based rural data module developed in consultation with State departments of transportation.
FTA has preliminarily determined that this action is not a significant regulatory action under section 3(f) of Executive Order 12866, and anticipates that the direct economic impact of this rulemaking would be minimal. Section 5335, as amended by SAFETEA-LU, mandates the additional requirement that recipients and beneficiaries of Nonurbanized Area Formula Grants report annual transit data to the NTD. FTA considers this proposal as a way to clarify existing regulatory requirements, and believes that the proposed changes would not adversely affect, in any material way, any sector of the economy. In addition, the proposed changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. FTA has analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132, and FTA has determined that this proposed action would not have sufficient implications to warrant the preparation of a federalism assessment. FTA has also determined that this proposed action would not preempt any State law or State regulation or affect States' abilities to discharge traditional government functions. FTA invites State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments.
Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that significantly or uniquely affect Indian communities and that impose “substantial and direct compliance costs” on such communities. This proposed rule would require tribes that are recipients to report to the NTD. In addition, this proposed rule would require tribes that are subrecipients to report NTD data to the State. However, FTA has analyzed this proposed rule under Executive Order 13175 and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. Therefore, a tribal impact statement is not required. We invite Indian tribal governments to provide comments on the effect that adoption of specific proposals may have on Indian communities.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
FTA paperwork collection number 2132-0008 covers the information collection requirements of this proposed rule. OMB approved an extension without change of the collection number. The new expiration date of this collection number is August 31, 2008.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, FTA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector.
The National Environmental Policy Act of 1969, (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The proposed action would not have any effect on the quality of the environment under the National Environmental Policy Act of 1969.
Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, or labor union). You may review DOT's complete Privacy Act Statement in the
Accounting, Uniform System of Accounts.
For the reasons discussed in the preamble, the Federal Transit Administration proposes to revise 49 CFR Part 630 as follows:
49 U.S.C. 5301-5340 and 49 CFR 1.51.
The purpose of this part is to prescribe requirements and procedures necessary for compliance with the National Transit Database Uniform System of Accounts and Reporting System mandated by 49 U.S.C. 5335, and to set forth the procedures for addressing a reporting agency's failure to comply with these requirements.
This part applies to all applicants and any person that receives benefits directly from a grant under 49 U.S.C. 5307 or 5311.
(a) Except as otherwise provided, terms defined in 49 U.S.C. 5301
(b) Terms defined in the current edition of the National Transit Database Uniform System of Accounts and the annual Reporting Manual are used in this part as so defined.
(c) For purposes of this part:
(a)
(b)
(c)
Failure to report data in accordance with this part will result in the reporting agency being ineligible to receive any section 5307 or 5311 grants directly or indirectly (
(a)
(b)
FTA will review each section 5335 report to verify the reasonableness of the data submitted. If any of the data do not appear reasonable, FTA will notify the reporting agency of this fact and request written justification to document the accuracy of the questioned data. Failure of a reporting agency to make a good faith written response to this request will be treated under § 630.5 as failure to report data.
FTA may enter a zero or adjust any questionable data item(s) in a reporting agency's section 5335 report used in computing the section 5307 or 5311 apportionment. These adjustments may be made if any data appear inaccurate or have not been collected and reported in accordance with FTA's definitions and/or confidence and precision levels, or if there is lack of adequate documentation or a reliable recordkeeping system.
Before taking final action under §§ 630.5, 630.6, 630.7, or 630.8, FTA will transmit a written request to the reporting agencies to provide the necessary information within a specified reasonable period of time. FTA will advise the reporting agency of its final decision in this regard.
Waivers of one or more sections of the reporting requirements may be granted at the discretion of the Administrator on a written showing that the party seeking the waiver cannot furnish the required data without unreasonable expense and inconvenience. Each waiver will be for a specified period of time.
Errors in the data used in making the apportionment may be discovered after any particular year's apportionment is completed. If so, FTA shall make adjustments to correct these errors in a subsequent year's apportionment to the extent feasible.
All of the information collection requests in this part have been approved by the Office of Management and Budget under control number 2132-0008.
Title 49 U.S.C. 5335 provides for establishment of two information-gathering analytic systems: the National Transit Database Uniform System of Accounts, and a Reporting System for the collection and dissemination of public transportation financial and operating data by uniform
• Various categories of accounts and records for classifying financial and operating data;
• Precise definitions as to what data elements are to be included in these categories; and
• Definitions of practices for systematic collection and recording of such information.
• While a specific accounting system is recommended for this recordkeeping, it is possible to make a translation from most existing accounting systems to comply with the section 5335 Reporting System, which consists of forms and procedures:
• For transmitting data from transit agencies to FTA;
• For editing and storing the data; and
• For FTA to report information to various groups.
Under the terms of section 5335, all applicants for, and beneficiaries of, Federal assistance under sections 5307 or 5311 must comply with the Reporting System and the National Transit Database Uniform System of Accounts to be eligible for Federal grants. It should be noted that separate and complete section 5335 reports must be submitted by or for each purchased transportation service provider that operates 100 or more revenue vehicles for the purchased service during the maximum service period.
This appendix presents a general introduction to the structure and operation of the two Systems. It is not a detailed set of instructions for completion of a section 5335 report or establishment of a System of Accounts and Records. Persons in need of more information should refer to the current editions of the National Transit Database Uniform System of Accounts and the Reporting Manual, available from the NTD Web site,
FTA periodically updates these reference documents or supplements them to revise or clarify section 5335 definitions, reporting forms, and instructions. Section 630.4 makes clear that reporting agencies must use the most recent edition of reference documents and reporting forms to comply with the section 5335 requirements. FTA therefore encourages local officials to check with FTA before completing a section 5335 report to avoid unnecessary efforts and delays.
Certain information collection and recording requirements were tailored to accommodate the unique characteristics of certain transportation modes. Reduced requirements were permitted during limited time periods to ease transition to complete reporting for these modes. Reduced reporting requirements for commuter rail systems and vanpool services ended in the 1987 report year. In addition, the reduced reporting requirements for private subscription and private noncontract conventional bus service is eliminated for the 1992 report year. At the direction of Congress, the NTD began to use new forms for reporting after 2001.
FTA has developed a single required reporting format for use by all transit agencies. The single required level accommodates variations in size, local laws, and modes of transport.
The National Transit Database Uniform System of Accounts also contains additional detailed financial and operational data that can be submitted at the reporting agency's option. Because the optional subcategories of data can be aggregated to the required level, these subcategories define the more aggregated data. The definitions for data reported at the required level are consistent with, and summarized from, those for the more detailed optional data.
The National Transit Database Uniform System of Accounts consists of a financial accounting and operational recordkeeping system designed for public transportation managers and planners. Its uniformity permits more thorough and accurate comparisons and analyses of different transit agencies' operating costs and efficiencies than if each had a unique recordkeeping and accounting system. The National Transit Database Uniform System of Accounts establishes various categories of accounts and records for classifying public transportation operating and financial data, and includes precise definitions of transportation terminology to ensure that all users share a common understanding of how to use and interpret the collected data.
Beneficiaries of, and applicants for, Federal assistance are not required to use the National Transit Database Uniform System of Accounts in keeping their own records. If an applicant or beneficiary chooses not to use the National Transit Database Uniform System of Accounts, however, it must nevertheless be able to translate its accounts and records system to the accounts prescribed in the National Transit Database Uniform System of Accounts. The accounting system that the reporting agency uses must permit preparation of financial and operating data that conform to the National Transit Database Uniform System of Accounts directly from its records at the end of the fiscal year, and must be consistent with the following:
(i) The data must have been developed using the accrual method of accounting. Those transit systems that use cash-basis accounting, in whole or in part, must make work sheet adjustments in their account books to record the data on the accrual basis.
(ii) Reporting agencies must follow or be able to directly translate their system to the accounting treatment specified in the publication “National Transit Database Uniform System of Accounts.”
(iii) The reporting agency's accounting categories (chart of accounts) must be correctly related, using a clear audit trail, to the accounting categories prescribed in the National Transit Database Uniform System of Accounts.
In the National Transit Database Uniform System of Accounts, operating expenses incurred by the transit system are classified by transit mode. FTA developed expense classifications in two dimensions for uniformity and to enhance the usefulness of the data collected under section 5335. The classifications are typical of those of most transit accounting systems. The two dimensions are:
(i) The type of expenditure (expense object class); and
(ii) The function or activity performed.
Operating expenses can be identified either in function or object class categories, or cross-classified, allowing identification using both categories. The National Transit Database Uniform System of Accounts also categorizes expenditures by four basic functions submitted by all reporting agencies. A limited number of additional details are optional. All reporting agencies are required to use a single set of object class categories.
The National Transit Database Uniform System of Accounts has a single set of revenue object classes to be used by all reporting agencies, and provides a limited number of additional details that are optional.
The National Transit Database Uniform System of Accounts provides a classification for sources and uses of capital to be submitted by all reporting agencies. These classifications replace capital information previously required on the balance sheet and capital subsidiary schedule.
The National Transit Database Uniform System of Accounts also includes collecting and recording of certain operating data elements.
Details and definitions of the expense object classes, functions, revenue object classes, sources and uses of capital, and operating data elements are contained in the current edition of the “Reporting Manual,” which FTA updates annually, and the National Transit Database Uniform System of Accounts reference documents.
(1) The section 5335 Reporting System consists of forms and procedures for transmitting data from transit agencies to FTA. These forms are available in the annual Reporting Manual on the NTD Web site,
Separate and complete section 5335 reports must be submitted by or for each purchased transportation service provider that operates 100 or more revenue vehicles for the purchased service during the maximum service period. The reporting requirements include the following major segments, which are based on information assembled through the National Transit Database Uniform System of Accounts:
1. Capital report.
2. Revenue report.
3. Expense report.
4. Nonfinancial service and operating data reports.
5. Miscellaneous auxiliary questionnaires and subsidiary schedules.
6. Vehicle Fleet Data.
7. Data Declarations.
(2) The section 5335 Reporting System includes two data declarations.
(a) The Chief Executive Officer (CEO) Certification.
The CEO of each reporting agency is required to submit a certification with each annual section 5335 report. The certification must attest:
• To the accuracy of all data contained in the section 5335 report;
• That all data submitted in the section 5335 report are in accord with section 5335 definitions;
• If applicable, that the reporting agency's accounting system used to derive all data submitted in the section 5335 report is the system set forth in the National Transit Database Uniform System of Accounts and that a section 5335 report using this system was certified by an independent auditor in a previous report year;
• If applicable, the fact that the reporting agency's internal accounting system is other than the National Transit Database Uniform System of Accounts, and that its: (i) Accounting system uses the accrual basis of accounting, (ii) accounting system is directly translated, using a clear audit trail, to the accounting treatment and categories specified by the National Transit Database Uniform System of Accounts, and (iii) accounting system and direct translation to the National Transit Database Uniform System of Accounts are the same as those certified by an independent auditor in a previous reporting year; and
• That a 100% count of trips and passenger mile data for each mode/type of service meets FTA requirements.
(b) Auditor Statement on Section 5335 Financial Data Reporting Forms and Section 5307 or Section 5311 Data.
Reporting agencies must submit with their section 5335 report a statement signed by an independent public accountant or other responsible independent entity such as a state audit agency. This statement must express an opinion on whether the financial data reporting forms in the section 5335 report present fairly, in all material respects, the information required to be set forth therein in accordance with the National Transit Database Uniform System of Accounts. The statement shall also indicate whether any of the reporting forms or data elements do not conform to the section 5335 requirements, and describe the discrepancies. The statement must consider both required and optional data entries.
Each agency is required to file an Auditor Statement unless it received a written waiver from FTA. The criteria in either Condition I or Condition II for granting a financial data waiver are:
For agencies that have received a waiver, the CEO annual Certification must verify that the financial data meet one of the above two conditions.
Additionally, all reporting agencies that are in or serve urbanized areas with populations of 200,000 or more and whose report covers 100 or more vehicles in annual maximum service across all modes and types of service must have an independent auditor review all section 5335 data used in the section 5307 formula allocation. The statement should discuss, by mode and type of service: Directional route miles, vehicle revenue miles, passenger miles, and operating cost, and include both directly operated and purchased service. The independent, certified public accountant shall perform the verification in accordance with the “Statements on Standards for Attestation Engagements” issued by the American Institute of Certified Public Accountants. The specific procedures to be reviewed are described in the most recent Section 5335 Reporting Manual.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service, propose changes in the regulations governing migratory bird permitting. We propose to amend 50 CFR part 21 to allow removal of migratory birds (other than federally listed threatened or endangered species, bald eagles, and golden eagles) from buildings in which the birds may pose a threat to themselves, to public health and safety, or to commercial interests.
Send comments on this proposal by May 25, 2007.
For detailed instructions on submitting comments, please see “Public Participation” below.
George T. Allen, Wildlife Biologist, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 703-358-1825.
The U.S. Fish and Wildlife Service is the Federal agency delegated the primary responsibility for managing migratory birds. The delegation is authorized by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
To simplify removal of migratory birds from buildings in which their presence may be a threat to the birds, to
We believe that this regulatory addition will facilitate removal of birds from buildings—an action that would otherwise require a migratory bird permit. Our proposed changes are detailed below, in the Proposed Regulation Promulgation section of this document.
You may submit comments, identified by RIN 1018-AV10, by any of the following methods:
•
•
•
•
•
Following review and consideration of comments, we will issue a final rule on the proposed regulation changes.
When submitting written comments, please include your name and return address in your letter and identify it as comments on RIN 1018-AV10. To facilitate compilation of the Administrative Record for this action, you must submit written comments on 8
All comments on the proposed rule, including any personal information received, will be available for public inspection during normal business hours at Room 4091 at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4501 North Fairfax Drive, Arlington, VA 22203-1610. The complete file for this proposed rule is available, by appointment, during normal business hours at the same address. You may call 703-358-1825 to make an appointment to view the file.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. An individual respondent may request that we withhold his or her home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses available for public inspection in their entirety. We will not consider anonymous comments.
Executive Order (E.O.) 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ”and a numbered heading; for example: “§ 21.12-General exceptions to permit requirements.”) (5) Does the description of the rule in the
Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You also may e-mail comments to
In accordance with the criteria in E.O. 12866, this rule is not a significant regulatory action. The Office of Management and Budget makes the final determination of significance under E.O. 12866.
a. This proposed rule would not raise novel legal or policy issues. The proposed provision is in compliance with other laws, policies, and regulations.
b. This rule would not have an annual economic effect of $100 million or more, or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis thus is not required. There are negligible costs associated with this rule.
c. This rule would not create inconsistencies with other agencies' actions. The rule deals solely with governance of migratory bird permitting in the United States. No other Federal agency has any role in regulating activities with migratory birds.
d. This rule would not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. There are no entitlements, grants, user fees, or loan programs associated with the regulation of birds in buildings.
Under the Regulatory Flexibility Act (5 U.S.C. 601
SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action would not have a significant economic impact on a substantial number of small entities, because the
The costs associated with this change to our regulations would be negligible or non-existent. Consequently, we certify that because this proposed rule would not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.
This rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.
a. This rule would not have an annual effect on the economy of $100 million or more.
b. This rule would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. This rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed regulation would not affect small government activities in any significant way.
b. This rule would not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
In accordance with E.O. 12630, the rule would not have significant takings implications. A takings implication assessment is not required. This rule would not contain a provision for taking of private property.
This rule would not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It would not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from allowing individuals, businesses, or government offices to remove migratory birds from buildings.
In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
We examined these regulations under the Paperwork Reduction Act of 1995. There would be no new information collection requirements associated with this change to our regulations. We may not collect or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and Part 516 of the U.S. Department of the Interior Manual (516 DM). A change to our regulations allowing the removal of migratory birds from buildings would not have a significant environmental impact.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian Tribes and have determined that there are no potential effects. This rule would not interfere with the Tribes' ability to manage themselves or their funds or to regulate migratory bird activities on tribal lands.
On May 18, 2001, the President issued E.O. 13211 addressing regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule would affect only removal of birds from structures in limited circumstances, it is not a significant regulatory action under E.O. 12866, and would not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
The change we propose is to allow people to remove birds protected under the Migratory Bird Treaty Act from buildings. We do not believe that there are significant environmental impacts of this action.
Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531
The author of this rulemaking is Dr. George T. Allen, U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4401 North Fairfax Drive, Mail Stop 4107, Arlington, VA 22203-1610.
Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.
For the reasons stated in the preamble, we propose to amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as follows.
1. The authority citation for part 21 continues to read as follows:
Migratory Bird Treaty Act, 40 Stat. 755 (16 U.S.C. 703); Public Law 95-616, 92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 106-108, 113 Stat. 1491, Note following 16 U.S.C. 703.
2. Amend § 21.12 by:
a. Revising the introductory paragraph and paragraph (a);
b. Redesignating paragraphs (b), (c), and (d) as paragraphs (b) (1), (b)(2), and (c) and adding a heading to new paragraph (b);
c. Adding a new heading to new paragraph (c); and
d. Adding a new paragraph (d), to read as set forth below.
The following persons or entities under the following conditions are exempt from the permit requirements:
(a)
(b)
(1) * * *
(2) * * *
(c)
(d)
(1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird:
(i) Poses a health threat (for example, through damage to foodstuffs);
(ii) Is attacking humans, or poses a threat to human safety because of its activities (such as opening and closing automatic doors);
(iii) Poses a threat to commercial interests, such as through damage to products for sale; or
(iv) May injure itself because it is trapped.
(2) You must use a humane method to capture the bird or birds. You may not use adhesive traps to which birds may adhere (such as glue traps) or any other method of capture likely to harm the bird.
(3) After capture, you must promptly release the bird or birds to the wild in habitat suitable for the species.
(4) If a bird is injured or orphaned during the removal, the property owner is responsible for promptly transferring it to a federally permitted migratory bird rehabilitator.
(5) You may not lethally take a migratory bird for these purposes. If your actions to remove the trapped migratory bird are likely to result in its lethal take, you must possess a Federal Migratory Bird Permit. However, if a bird you are trying to remove dies, you must dispose of the carcass unless you have reason to believe that a museum or scientific institution might be able to use it. In that case, you should contact your nearest Fish and Wildlife Service office or your State wildlife agency about donating the carcass.
(6) For birds of species on the Federal List of Threatened or Endangered Wildlife, provided at 50 CFR 17.11(h), you may need a Federal threatened or endangered species permit before removing the birds (
(7) You will need a permit from your regional migratory bird permits office to remove a bald eagle or a golden eagle from a building (
(8) Your action must comply with State and local regulations and ordinances. You may need a State, tribal, or territorial permit before you can legally remove the bird or birds.
(9) If a nest, eggs, or nestlings are present, you must seek the assistance of a federally-permitted migratory bird rehabilitator in removing them. The rehabilitator is then responsible for handling them properly.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
The North Pacific Fishery Management Council (Council) has submitted Amendment 84 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). If approved, Amendment 84 would exempt vessels participating in an inter-cooperative agreement (ICA) to reduce salmon bycatch from Chinook and chum salmon savings area closures, and exempt vessels participating in non-pollock trawl fisheries from the chum salmon savings area. This action is intended to promote the goals and objectives of the FMP and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). This action is necessary to reduce salmon bycatch in the Bering Sea and Aleutian Islands management area (BSAI).
Comments on Amendment 84 must be received on or before May 25, 2007.
Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian, Records Officer. Comments may be submitted by:
• Mail to P.O. Box 21668, Juneau, AK 99802;
• Hand delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, AK;
• FAX to 907-586-7557;
• E-mail to
• Webform at the Federal eRulemaking Portal:
Copies of Amendment 84 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the NMFS Alaska Region at the address above, from the Alaska Region website at
Jason Anderson, 907-586-7228, or
The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the
Pacific salmon are caught incidentally in the BSAI trawl fisheries, especially in the pollock fishery. Of the five species of Pacific salmon, Chinook salmon (
To address Chinook salmon bycatch concerns, the Council adopted several management measures designed to reduce overall Chinook salmon bycatch in the BSAI trawl fisheries. In 1995, the Council adopted, and NMFS approved, Amendment 21b to the FMP. Based on historic information on salmon bycatch, Amendment 21b established a Chinook salmon savings area (60 FR 31215, November 29, 1995). Under Amendment 21b, the Chinook salmon savings area closed when the incidental catch of Chinook salmon in BSAI trawl fisheries reached 48,000 fish. Amendment 58 to the FMP revised the Chinook salmon savings area measures (65 FR 60587, October 12, 2000). Amendment 58 reduced the Chinook salmon bycatch limit from 48,000 fish to 29,000 fish, mandated year-round accounting of Chinook bycatch in the directed pollock fishery, revised the boundaries of the Chinook salmon savings area closure, and implemented new closure dates. The timing of the closure depends on when the limit is reached. If the limit is reached:
• Before April 15, the area closes immediately through April 15. After April 15, the area re-opens, but closes again from September 1 through December 31.
• Between April 15 and September 1, the area would close from September 1 through the end of the year.
• After September 1, the area closes immediately through the end of the year.
The Chinook salmon savings area was further modified by Amendment 82 to the FMP (70 FR 9856, March 1, 2005). Amendment 82 established a separate Aleutian Islands subarea bycatch limit that, when reached, closes the existing Chinook salmon savings area located in the Aleutian Islands subarea (Area 1). The Chinook salmon savings area located in the Bering Sea subarea remained unchanged, but was designated as Area 2.
The Council also adopted a time-area closure designed to reduce overall chum salmon bycatch in the BSAI trawl fisheries. In 1995, Amendment 35 to the FMP established the chum salmon savings area (60 FR 34904, July 5, 1995). This area is closed to all trawling from August 1 through August 31 of each year. Additionally, if 42,000 chum salmon are caught in the Catcher Vessel Operational Area (CVOA) during the period August 15 through October 14, the area remains closed for the remainder of the calendar year.
Community development quota (CDQ) groups receive, along with allocations of groundfish CDQ, individual allocations of Chinook and non-Chinook annual bycatch amounts. Vessels groundfish CDQ fishing are not subject to the chum and Chinook salmon savings area closures that apply to the non-CDQ pollock fisheries. Rather, the Chinook salmon savings area closes to vessels directed fishing for pollock for a CDQ group once that CDQ group has reached its Chinook salmon bycatch limit. The chum salmon savings area closes to vessels using trawl gear to fish for groundfish CDQ once that CDQ group has reached its non-Chinook salmon bycatch limit. Thus, individual CDQ groups are subject to salmon savings area closures based on their respective catch of chum or Chinook salmon while groundfish CDQ fishing.
The Chinook and chum salmon savings areas were adopted based on historic observed salmon bycatch rates and were designed to avoid high spatial and temporal levels of salmon bycatch. From 1990 through 2001, the BSAI salmon bycatch average was 37,819 Chinook and 69,332 chum annually. Recently, however, salmon bycatch numbers have increased substantially. In 2003, 54,911 Chinook salmon and 197,091 chum salmon were taken incidentally in the trawl fisheries. In 2004, salmon bycatch increased substantially to 62,493 Chinook and 465,650 chum salmon. Bycatch amounts remained high in 2005 and totaled 67,541 Chinook and 116,999 chum salmon.
Since its establishment in 1995, the Chinook salmon savings area closure only has been triggered since 2003. The Chinook salmon bycatch limit was not reached prior to 2003. In 2003, the Chinook salmon savings area closed to directed trawl fishing for non-CDQ pollock on September 1, with the closure remaining in effect until the end of the calendar year. In 2004, the Chinook salmon savings area closed to directed trawl fishing for non-CDQ pollock on September 5 through the end of the year. In 2005, the Chinook salmon savings area in the Bering Sea subarea was closed to directed trawl fishing for non-CDQ pollock on September 1 through the end of the year.
Since establishment of the chum salmon savings area in 1995, the bycatch of non-Chinook salmon triggered closures in 2002, 2003, 2004, and 2005. In these years, the chum salmon savings area closed to non-CDQ trawl fisheries in September and October.
Anecdotal information from participants in the BSAI trawl fisheries indicated that salmon bycatch rates may be higher outside the Chinook and chum salmon savings area. In February 2005, the Council initiated an EA/RIR/IRFA to explore alternatives to the current salmon bycatch measures. Spatial and temporal comparisons of non-CDQ vessels fishing outside of the salmon savings areas with CDQ vessels fishing inside of the salmon savings areas indicated that bycatch rates were much higher outside of the savings areas.
In October 2005, the Council adopted Amendment 84 to the FMP. Amendment 84 would exempt non-CDQ and CDQ pollock vessels participating in a salmon bycatch reduction ICA from closures of the Chinook and chum salmon savings areas in the Bering Sea. Additionally, vessels participating in trawl fisheries for species other than pollock would be exempt from chum salmon savings area closures. The Council intends to use NMFS salmon bycatch information to assess the effectiveness of regulations implementing Amendment 84 at reducing salmon bycatch in the directed pollock fisheries. The Council also asked for participants in the salmon bycatch reduction ICA to report annually on how effective the ICA appears to be at reducing salmon bycatch. The Council also will gather additional information to assess the effectiveness of the ICA in coordinating voluntary salmon bycatch reduction efforts by participants in the Bering Sea pollock fisheries. Additionally, this information could be used to further assess whether participants fishing in the current salmon savings areas continue to encounter lower salmon bycatch rates than participants fishing outside of salmon savings areas.
The Council is also developing a separate FMP amendment that could result in additional management measures to reduce salmon bycatch.
Public comments are being solicited on proposed Amendment 84 through the end of the comment period stated (see
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, Pub. L. 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.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service (FNS) is publishing for public comment, a summary of a proposed information collection relating to several State Agency Food Stamp Program administrative matters. The proposed collection is a revision of a collection currently approved under OMB No. 0584-0083.
Comments on this notice must be received by May 25, 2007, to be assured of consideration.
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, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Send comments and requests for copies of this information collection to Barbara Hallman, Chief, State Administration Branch, Food Stamp Program, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302.
All comments will be summarized and included in the request for Office of Management and Budget approval of the information collection. All comments will become a matter of public record.
Barbara Hallman at (703) 305-2383.
Under section 16 of the Act, 7 U.S.C. 2025, the Secretary is authorized to pay each State agency an amount equal to 50 percent of all administrative costs involved in each State agency's operation of the FSP. Under corresponding FSP regulations at 7 CFR 272.2, the State agencies must submit annually to FNS for approval, a Budget Projection Statement (Form FNS-366A), which projects the total costs for major areas of FSP operations, and a Program Activity Statement (Form FNS-366B), which provides a summary of FSP operations during the preceding fiscal year. The reports are required to substantiate the costs the State agency expects to incur during the next fiscal year. Form FNS-366A is submitted annually by August 15, for the upcoming fiscal year and Form FNS-366B must be submitted no later than 45 days after the end of each State agency's fiscal year.
Since October 2002, FNS has used the quality control (QC) data to collect information about timeliness of application processing. On February 7, 2005, the final rule on high performance bonuses was published in the
In fiscal year (FY) 2006, 49 percent of State agencies submitted the FNS-366A electronically and 51 percent submitted a paper report. For FY 2005, a total of 60 percent of State agencies submitted the FNS-366B electronically with the remaining 40 percent submitting paper reports.
Finally, State agencies are required to submit certain other documents to FNS for review relating to certain specific activities that the State agency may choose to do. These other submissions include a written action plan, called an Advance Planning Document (APD), if the State agency wishes to acquire proposed automated data processing (ADP) services, systems or equipment, an outreach plan if the State elects to do program information activities, and updates related to options exercised under the Food Stamp Act, as amended.
Plan of Operation Updates: 53 State agencies once a year.
Form FNS-366A: 53 State agencies once a year.
Form FNS-366B: 53 State agencies once a year.
Other APD, Plan, or Update Submissions: Up to 53 State agencies may submit one or more APD, plan or update submission averaging 4.75 submissions per respondent per year or 252 total responses.
Plan of Operation Updates: The State agencies submit Plan updates at an estimate of 10 hours per respondent, or 530 total hours.
Form FNS-366A: The State agencies submit Form FNS-366A at an estimate of 13 hours per respondent, or 689 total hours.
Form FNS-366B: The total burden for the collection of information for Form FNS-366B is 18 hours per respondent, or 954 hours.
Other APD, Plan, or Update Submissions: We estimate that up to 53 States may submit one or more submissions for an APD, plan, or update submission for a total of 252 annual responses at an average estimate of 2.681 hours per respondent, or 675.6 hours.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA, Forest Service, will prepare an environmental impact statement (EIS) to update range management planning on the Battle Park Cattle and Horse allotment and the Mistymoon Sheep and Goat livestock grazing allotment, which will result in development of new allotment management plans (AMPs). The agency gives notice of the full environmental analysis and decision-making process that will occur on the proposal so that interested and affected people may become aware of how they may participate in the process and contribute to the final decision.
Comments and input regarding the proposal were requested from the public, other groups and agencies via direct mailing on August 16, 2004. Additional comments may be made at the addresses below, and would be most helpful if submitted within thirty days of the publication of this notice. Based on the comments received and preliminary analysis, the Responsible Official has determined that an environmental impact statement will be prepared for this project. The draft environmental impact statement is expected in May 2007 and the final environmental impact statement is expected September 2007.
Send written comments and suggestions concerning this proposal to Mark Booth, District Ranger, Powder River Ranger District, Bighorn National Forest, 1415 Fort Street, Buffalo, Wyoming 82834.
Direct questions to Bernie Bornong, Interdisciplinary Team Leader, Bighorn National Forest, 2013 Eastside 2nd Street, phone (307) 674-2600.
The allotments are located approximately 50 miles, by road, northeast of Worland, Wyoming in the Bighorn River drainage. National Forest System land within the Bighorn National Forest will be considered in the proposal. The purpose of the analysis is to determine if livestock grazing will continue on the analysis area. If the decision is to continue livestock grazing, then updated management strategies
The Bighorn National Forest Land and Resource Management Plan (Forest Plan) identifies livestock grazing as an appropriate use and makes initial determinations for lands capable and suitable for grazing by domestic livestock.
Existing conditions in the analysis area present opportunities for additional activities. An additional purpose of this project is to maintain or move toward desired conditions for sagebrush/grassland communities; specifically, to maintain a mosaic of vegetation composition and structure that emulates, or moves toward, natural processes. The need to provide a mosaic of sagebrush cover densities has been identified in the project area.
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Forest Service, USDA.
Cancellation of Notice of Intent.
This notice cancels the Notice of Intent to prepare an Environmental Impact Statement for the Willow Forest Recovery Project on the Lassen National Forest, published in the
Almanor District Ranger, Lassen National Forest, P.O. Box 767, Chester, CA 96020.
Matt Cerney, Interdisciplinary Team Leader may be contacted by phone at (530) 258-2141.
A Notice of Intent to prepare an Environmental Impact Statement for the Willow Forest Recovery Project is canceled due to changes in the Forest's priorities.
USDA Forest Service.
Notice of Meeting.
The Eastern Region Recreation Resource Advisory Committee will hold its first meeting in Milwaukee, WI. The purpose of the meeting is to receive recommendations concerning recreation fee proposals on the Allegheny, Chequamegon-Nicolet, Chippewa, Hiawatha, Hoosier, Huron-Manistee, Monongahela, Ottawa, Shawnee, Superior, and Wayne National Forests and to discuss other items of interest related to the Federal Lands Recreation Enhancement Act of 2004. A large part of this first meeting will be dedicated to committee orientation and organizational matters such as election of chair, and crafting of by-laws. Individuals who need special assistance such as sign language interpretation or other reasonable accommodations, or who wish a hard copy of the agenda, should contact Marcia Heymen at 626 E. Wisconsin Ave., Milwaukee, WI 53202 no later than 10 days prior to the meeting.
The meeting will be held April 24 and 25, 2007, from 8:30 a.m.-4:30 p.m.
The meeting will be at The Comfort Inn & Suites, 916 E. State St., Milwaukee, WI 53202. Send written comments to Cheryl Chatham, Designated Federal Official for the Eastern Region Recreation RAC, U.S. Forest Service, P.O. Box 1270, Hot Springs, AR 71902.
Cheryl Chatham, Designated Federal Official, U.S. Forest Service, P.O. 1270, Hot Springs, AR 71902.
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring recreation fee matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. A public input session will be provided and individuals who made written requests by April 10, 2007, will have the opportunity to address the Committee at the meeting.
The Recreation RAC is authorized by the Federal Land Recreation Enhancement Act, which was signed into law by President Bush in December 2004.
Economic Development Administration, Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Performance Evaluation, Room 7009, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. Please follow the procedures set forth in Section 315.9 of EDA's final rule (71 FR 56704) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance.
Import Administration, International Trade Administration, Department of Commerce.
March 26, 2007.
The Department of Commerce (the “Department”) is extending the preliminary results of the tenth new shipper review of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (“PRC”) by an additional 120 days to July 19, 2007.
Julia Hancock, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-1394.
On September 22, 2006, the Department initiated a new shipper review of the antidumping duty order on certain preserved mushrooms from the PRC, covering the period of review, February 1, 2006, to July 31, 2006 (“POR”), on Guangxi Jisheng Foods, Inc. (“Jisheng”).
On December 14, 2006, the Department requested comments from interested parties regarding surrogate country selection and publicly available information for valuing factors of production. On February 5, 2007, Jisheng submitted comments on publicly available information for valuing factors of production.
Pursuant to section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“the Act”), and section 351.214(i)(1) of the Department's regulations, the Department shall issue preliminary results in a new shipper review of an antidumping duty order within 180 days after the date on which the new shipper review was initiated. The Act further provides, however, that the Department may extend that 180-day period to 300 days if it determines that this review is extraordinarily complicated.
The Department finds that this review is extraordinarily complicated and that it is not practicable to complete this new shipper review within the foregoing time period. Specifically, the Department requires additional time to analyze all questionnaire responses and has determined to conduct verification of the responses submitted, as well as to examine whether Jisheng's U.S. sale was made on a
Section 751(a)(2)(B) of the Act and section 351.214(i)(2) of the Department's regulations allow the Department to extend the deadline for the preliminary results to a maximum of 300 days from the date of initiation of the new shipper review. As mentioned, this review was initiated on September 28, 2006. For the reasons noted above, we are extending the time for the completion of the preliminary results of this review to 300 days,
This notice is issued and published in accordance with section 351.214(i)(2) of the Department's regulations and section 751(a)(2)(B)(iv) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (Department) and the International Trade Commission (ITC) that revocation of the antidumping duty order on pure magnesium in granular form from the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping and material injury to an industry in the
March 26, 2007.
Hilary E. Sadler or Juanita Chen, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4340 and (202) 482-1904, respectively.
On October 2, 2006, the Department initiated and the ITC instituted a sunset review of the antidumping duty order on pure magnesium in granular form from the PRC pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
As a result of its review, the Department found that revocation of the antidumping duty order would be likely to lead to continuation or recurrence of dumping and notified the ITC of the magnitude of the margins likely to prevail were the order to be revoked.
There is an existing antidumping duty order on pure magnesium from the PRC.
As a result of the determinations by the Department and the ITC that revocation of this antidumping duty order would be likely to lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty order on pure magnesium in granular form from the PRC.
U.S. Customs and Border Protection will continue to collect antidumping duty deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of the continuation of this order is the date of publication in the
This five-year (sunset) review and this continuation notice are in accordance with section 751(c) of the Act and published pursuant to 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
March 26, 2007.
Jill Pollack, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4593.
On August 30, 2006, the Department of Commerce (the Department) published a notice of initiation of administrative review of the antidumping duty order on Stainless Steel Sheet and Strip in Coils from Taiwan.
Pursuant to section 751(a)(3)(A) of Tariff Act of 1930, as amended (the Act), the Department shall make a preliminary determination in an administrative review of an antidumping order within 245 days after the last day of the anniversary month of the date of publication of the order. Section 751(a)(3)(A) of the Act further provides, however, that the Department may extend the 245-day period to 365 days if it determines it is not practicable to complete the review within the foregoing time period. We determine that it is not practicable to complete this administrative review within the time limits mandated by section 751(a)(3)(A) of the Act because we require additional time to analyze the respondent's cost of production response and issue supplemental questionnaires. Therefore, we have fully extended the deadline for completing the preliminary results until July 31, 2007, which is 365 days from the last day of the anniversary month of the date of publication of the order. The deadline for the final results of the review continues to be 120 days after the publication of the preliminary results.
This extension notice is published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting the nineteenth administrative review of the antidumping duty order on tapered roller bearings and parts thereof, finished or unfinished (“TRBs”), from the People's Republic of China (“PRC”), covering the period June 1, 2005, through May 31, 2006. If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the period of review (“POR”) for which the importer-specific assessment rates are above
Interested parties are invited to comment on these preliminary results. We intend to issue the final results no later than 120 days from the date of publication of this notice.
March 26, 2007.
Eugene Degnan or Robert Bolling, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0414 and (202) 482-3434, respectively.
On June 2, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on TRBs from the PRC for the period June 1, 2005, through May 31, 2006.
On August 9, 2006, the Department issued its antidumping duty questionnaire to all of the above respondents.
On August 28, 2006, Chin Jun reported to the Department that it was a dormant company during the POR and had no sales of subject merchandise. On September 6, 2006, Yantai withdrew its request for review, stating that it did not intend to participate further in the review because of the limited value of its exports. Also on September 6, 2006, Hebei Longsheng submitted its Section A response to the Department's original questionnaire. On September 8, 2006, CPZ reported to the Department that it did not intend to submit questionnaire responses because of the limited value of its exports. On September 29, 2006, Hebei Longsheng withdrew its request for review, pursuant to 19 CFR 351.213(d)(1).
Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an administrative review, in whole or in part, with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise. The Department explains this practice in the preamble to the Department's regulations.
The Department's regulations at 19 CFR 351.213(d)(1) further provide that the Department will rescind an administrative review if the party that requested the review withdraws its request for review within 90 days of the date of publication of the notice of
Yantai also withdrew its request for review within the 90-day time frame discussed above; however, another interested party (
The POR is June 1, 2005, through May 31, 2006.
Merchandise covered by this order is TRBs from the PRC; flange, take-up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use. This merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States (“HTSUS”) item numbers 8482.20.00, 8482.91.00.50, 8482.99.30, 8483.20.40, 8483.20.80, 8483.30.80, 8483.90.20, 8483.90.30, 8483.90.80, 8708.99.80.15, and 8708.99.80.80. Although the HTSUS item numbers are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
Section 776(a)(1) and (2) of the Tariff Act of 1930 (“the Act”) provides that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
As discussed above, the Department initiated an administrative review of CPZ's exports of merchandise covered by the antidumping duty order on TRBs from the PRC.
On September 6, 2006, Yantai reported to the Department it was withdrawing its request for review and it did not intend to further participate in the review because of the limited value of its exports. However, because Koyo also requested an administrative review of Yantai, the Department could not rescind as to Yantai. Because Yantai failed to submit questionnaire responses, the Department was unable to conduct a separate-rate analysis of Yantai. Accordingly, the Department finds that Yantai has not demonstrated its entitlement to a separate rate and is, therefore, subject to the PRC-wide rate.
Because CPZ and Yantai did not respond to the Department's questionnaire, and therefore did not demonstrate their eligibility for separate-rate status, the Department is treating these PRC producers/exporters as part of the PRC-wide entity.
Additionally, because we have determined that the companies named above are part of the PRC-wide entity, the PRC-wide entity is now under review. Pursuant to section 776(a) of the Act, we further find that because the PRC-wide entity (including the companies discussed above) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using facts otherwise available on the record. Additionally, because these parties failed to respond to our requests for information, we find that an adverse inference is appropriate.
In deciding which facts to use as adverse facts available (“AFA”), section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. In administrative reviews, the Department normally selects, as AFA, the highest rate determined for any respondent in any segment of the proceeding.
The Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit (“Federal Circuit”) have consistently upheld the Department's practice.
The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.”
Consistent with the Department's practice and the purposes of section 776(b) of the Act, as AFA, we are assigning the rate of 60.95 percent to the PRC-wide entity, which is the highest rate calculated in any segment of the proceeding. This rate was calculated for Premier Bearing and Equipment Ltd. (“Premier”) in the final results of redetermination on remand from the CIT for the seventh administrative review of TRBs covering the POR of June 1, 1993, to May 31, 1994.
Section 776(c) of the Act provides that, where the Department selects from among the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. Secondary information is described in the SAA as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
The reliability of the AFA rate was determined by the calculation of the margin for Premier, pursuant to the final results of redetermination on remand from the CIT, for the seventh administrative review of TRBs (covering the period June 1, 1993, to May 31, 1994). See TRBs Amended Final and TRBs Amended Final 2. The Department has received no information to date that warrants revisiting the issue of the reliability of the rate calculation itself.
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where
As the 1993-1994 margin is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the highest rate from any segment of this administrative proceeding, 60.95 percent, meets the corroboration criteria established in section 776(c) that secondary information have probative value. As a result, the Department determines that the 1993-1994 margin is corroborated for the purposes of this administrative review and may reasonably be applied to the PRC-wide entity as AFA.
Because these are preliminary results of review, the Department will consider all margins on the record at the time of the final results of review for the purpose of determining the most appropriate final margin for the PRC-wide entity.
We preliminarily determine that the following weighted-average dumping margins exist for the period June 1, 2005, through May 31, 2006:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of publication of these preliminary results.
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this administrative review. In this review, if these preliminary results are adopted in our final results of review, we will direct CBP to assess the resulting rate against the entered customs value for the subject merchandise on each importer's/customer's entries during the POR.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(1)( C ) and (a)(2)( C ) of the Act: (1) for CPZ and Yantai, the cash deposit rate will be that established in the final results of this review; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 60.95 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The Department is issuing and publishing these preliminary results of administrative review in accordance with sections 751(a) and 777(i)(1) of the Act, and 19 CFR 351.221(b) and 351.214(h).
Notice of Issuance of an Export Trade Certificate of Review, Application No. 06-00003.
On March 16, 2007, the U.S. Department of Commerce issued an Export Trade Certificate of Review to the American Sugar Alliance (“ASA”). This notice summarizes the conduct for which certification has been granted.
Jeffrey Anspacher, Director, Export
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2005).
Export Trading Company Affairs (“ETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the U.S. Department of Commerce to publish a summary of the certification in the
Sugar and syrups of U.S. origin, as defined in Chapter Four (Rules of Origin) of the North American Free Trade Agreement, (“U.S.-origin sugar”) in any of the following categories:
Mexico.
The ASA will allocate Certificates of Prior Approval (“CPAs”) through which Mexico will permit duty-free entry of U.S.-origin sugar into Mexico under the tariff-rate quota (“TRQ”) for U.S.-origin sugar through December 31, 2007, as set forth below.
The ASA will allocate CPAs to any sugar beet processor or cane sugar refiner in the United States that is listed as a Producer below.
The ASA will allocate all CPAs at one time. In the event that any CPAs are returned to ASA for any reason, ASA will reallocate those CPAs among interested Producers. The allocation, and any reallocations, will be completed before December 16, 2007.
Under the procedures for the TRQ published on October 16, 2006 in the Mexican Diario Oficial, an importer in Mexico must file by December 15, 2007 with the Mexican Government a CPA issued by ASA to obtain a license to allow U.S.-origin sugar to enter into Mexico free of duty under the TRQ. The ASA will allocate CPAs among all Producers who express an interest in obtaining the CPAs based on each Producer's share of total U.S. sugar refining capacity in 2006, as reported to ASA. The ASA shall issue CPAs to such Producers.
CPAs issued by ASA shall be freely transferable by Producers. Transfers of CPAs after they are issued by ASA will be subject to the normal application of the antitrust laws.
ASA may ask Producers individually for their production capacity figures for 2006 for the purposes of allocating the CPAs. Producers may supply that information to ASA, and ASA may allocate CPAs to Producers based on this information.
If production capacity information is collected by ASA, it will be collected and collated, and the allocations of CPAs will be made, by an employee or employees of ASA who are not employed by any member of the ASA Executive Committee or any Producer. As of the effective date of the Certificate, such employee or employees shall be the only persons who will have access to the collected production capacity information.
Any exchange of Producers' production capacity information or CPA allocation with other Producers, by Producers, ASA, any ASA member, or any other person is activity that is not protected under this Certificate.
The ASA will consult with the U.S. Government and the Government of Mexico when necessary and provide to them whatever information may be useful in order to facilitate cooperation between the governments concerning the implementation and operation of the CPA System. Furthermore, directly or through the U.S. Government, the ASA will endeavor to accommodate any information requests from the Government of Mexico (while protecting confidential information entrusted to the ASA), and will consult with the Government of Mexico as appropriate. All such information and consultations shall be subject to the provision on Confidential Information (above) and the Terms and Conditions (below).
Members (in addition to ASA):
This Certificate protects the ASA, its Executive Committee, the Producers and the directors, officers, employees and representatives acting on behalf of the ASA, the ASA Executive Committee and the Producers from private treble damage actions and government criminal and civil suits under U.S. federal and state antitrust laws for the export conduct specified in the Certificate of Review and carried out during its effective period in compliance with its terms and conditions.
1. In engaging in Export Trade Activities and Methods of Operation, neither ASA, the ASA Executive Committee, any Producer nor any neutral third-party shall intentionally disclose, directly or indirectly, to any Member (including parent companies, subsidiaries, or other entities related to any Member) any information regarding any other Member's costs, production, inventories, domestic prices, domestic sales, domestic customers, domestic production capacity, domestic orders, terms of domestic marketing or sale, or U.S. business plans, strategies, or methods, unless such information is already generally available to the trade or public.
2. If ASA determines that the collection or disclosure of any non-public, company-specific information is necessary for the allocation of CPAs to Producers, ASA must seek an amendment of this Certificate to add such export conduct to this Certificate.
3. ASA, the ASA Executive Committee and the Producers will comply with requests made by the Secretary of Commerce on behalf of the Secretary or the Attorney General for information or documents relevant to conduct under the Certificate. The Secretary of Commerce will request such information or documents when either the Attorney General or the Secretary of Commerce believes that the information or documents are required to determine that the Export Trade, Export Trade Activities and Methods of Operation of a person protected by this Certificate continue to comply with the standards of section 303(a) of the Act.
This Certificate continues in effect from the effective date indicated below until it is relinquished, modified, or revoked, as provided in the Act and the Regulations.
Nothing in this Certificate prohibits the ASA, the ASA Executive Committee and the Producers from engaging in conduct not specified in this Certificate, but such conduct is subject to the normal application of the antitrust laws.
The issuance of this Certificate of Review to ASA by the Secretary of Commerce with the concurrence of the Attorney General under the provisions of the Act does not constitute, explicitly or implicitly, an endorsement or opinion by the Secretary of Commerce or by the Attorney General concerning either (a) the viability or quality of the business plans of ASA, the ASA Executive Committee or the Producers or (b) the legality of such business plans of ASA, the ASA Executive Committee or the Producers under the laws of the United States (other than as provided in the Act) or under the laws of any foreign country.
The application of this Certificate to conduct in export trade where the United States Government is the buyer or where the United States Government bears more than half the cost of the transaction is subject to the limitations set forth in Section V.(D.) of the “Guidelines for the Issuance of Export Trade Certificates of Review (Second Edition),” 50 FR 1786 (January 11, 1985).
In accordance with the authority granted under the Act and the Regulations, this Certificate of Review is hereby issued to the American Sugar Alliance.
The effective date of the Certificate is March 16, 2007. A copy of the Certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility, Room 4100, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Import Administration, International Trade Administration, Department of Commerce.
Public Hearing - Import Monitoring of Textile and Apparel Products from Vietnam.
As stated in its January 23, 2007
The hearing will be held on April 24, 2007 starting at 9 AM in the auditorium at the Department of Commerce, 14
The hearing is open to the public. There are no prerequisites or conditions on participating at the hearing. All are welcome to speak at the hearing subject to the guidelines outlined in this notice. If you plan to attend the hearing, please notify the Department by no later than April 9, 2007, and if you wish to speak at the hearing, please indicate that as well. This can be done in writing or electronically at
There are no constraints on subject matter relating to the Department's Vietnam textile and apparel import monitoring program; however, speakers should be aware that these hearings will be open to the public and may be videotaped for later viewing on the Vietnam textile and apparel import monitoring website; there will be no provisions for handling or protecting business proprietary information. In preparing their comments, parties may wish to review the Department's December 4, 2006, and January 23, 2007,
Individual presentations will be limited to five minutes to allow for possible questions from the Chair and the panel. Anyone requiring additional time for their presentation must seek an extension of the time limit at the time of their notification to the Department. Additional time may be granted as time and the number of participants permits. Should an extension of the time limit be granted, speakers must submit a copy of their comments in writing or electronically by April 20, 2007.
Written comments, though strongly encouraged, are not required for those making presentations within the five minute time limit. For those seeking an extension of the five minute time limit, a copy of their comments must be submitted in writing or electronically by April 20, 2007. Written comments are limited to 15 pages. Written comments will be made available on the Vietnam textile and apparel import monitoring website at the following address:
Comments can either be submitted in writing or electronically. Persons wishing to comment in writing should file, by the date specified above, a signed original, and four copies of each set of comments. Written comments should be addressed to David Spooner, Assistant Secretary for Import Administration, Room 1870, Department of Commerce, 14
All comments will be available for public inspection at Import Administration's Central Records Unit, Room B-099, between the hours of 8:30 a.m. and 5 p.m. on business days. The Department will not accept nor consider comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. In addition, all comments will be made available to the public in Portable Document Format (PDF) on the Internet at Import Administration's Vietnam import monitoring webpage:
Kelly Parkhill at (202) 482-3791.
Committee for the Implementation of Textile Agreements (CITA).
Publishing the 12-Month Cap on Duty-Free Benefits.
March 26, 2007.
Richard Stetson, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-2582.
The Caribbean Basin Recovery Act (CBERA), as amended by the Haitian Hemispheric Opportunity Through Partnership for Encouragement Act of 2006 (collectively HOPE), Title V of the Tax Relief and Health Care Act of 2006.
HOPE provides for duty-free treatment for certain apparel articles imported directly from Haiti. Section 213A (b)(2) of HOPE provides duty- free treatment for apparel articles wholly assembled, or knit-to-shape, in Haiti from any combination of fabrics, fabric components, components knit-to-shape, and yarns, if the sum of the cost or value of materials produced in Haiti or one or more countries, as described in HOPE, or any combination thereof, plus the direct costs of processing operations performed in Haiti or one or more countries, as described in HOPE, or any combination thereof, is not less than an applicable percentage of the declared customs value of such apparel articles, subject to quantitative limitation.
Section 213A (a)(1)(B) of HOPE provides that the initial applicable one-year period of quantitative limitation means the one-year period beginning on the date of the enactment of HOPE, beginning on December 20, 2006. Section 213A (b)(3) of HOPE provides that the quantitative limitations for qualifying apparel imported from Haiti under this provision for the twelve-month period beginning on December 20, 2006 will be an amount not to exceed 1 percent of the aggregate square meter equivalent of all apparel articles imported into the United States in the most recent 12-month period for which data are available. For purposes of this notice, the most recent 12-month period for which data are available as of December 20, 2006 was the 12-month period ending on October 31, 2006.
For the initial applicable one-year period, beginning on December 20, 2006 and extending through December 19, 2007, the quantity of imports eligible for preferential treatment under this provision is 238,785,275 square meters equivalent. Section 213A (b)(3) of HOPE provides that these quantities will be recalculated for each subsequent 12-month period. Apparel articles entered in excess of these quantities will be subject to otherwise applicable tariffs.
These quantities are calculated using the aggregate square meters equivalent of all apparel articles imported into the United States, derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (ATC), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC.
Defense Logistics Agency, DoD.
Notice to alter a system of records.
The Defense Logistics Agency proposes to alter a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on April 25, 2007 unless comments are received which result in a contrary determination.
Send comments to the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Ms. Jody Sinkler at (703) 767-5045.
The Defense Logistics Agency systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system reports, as required by 5 U.S.C. 552a(r), of the Privacy Act of 1974, as amended, were submitted on March 6, 2007, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,' dated February 8, 1996 (February 20, 1996, 61 FR 6427).
DLA Complaint Program Records (March 6, 1998, 63 FR 11226).
Delete “CA” from entry.
Delete entry and replace with “Defense Logistics Agency Hotline Program Records.”
Delete entry and replace with “Director, DLA Criminal Investigations Activity, Headquarters, Defense Logistics Agency,
Official mailing addresses may be obtained from the System Manager below.”
Delete entry and replace with “Complainants, subjects, witnesses, and contractor employees.”
Delete entry and replace with “Records resulting from the receipt of a DOD/DLA Hotlines and resulting inquiries including the date of the complaint, the Hotline control number; the name of the complainant, the name of the suspect(s), and the actual allegations; Hotline documents from components transmitting the DOD/DLA Hotline Reports, which normally contain the name of the examining official(s) assigned to conduct the inquiry; and background information regarding the inquiry itself, such as the scope of the inquiry, relevant facts discovered, information received from witnesses, and specific source documents reviewed; the examining official's findings, conclusions, and recommendations; and the disposition of the inquiry; and internal DLA Hotline forms documenting review and analysis of Hotline Reports.”
Delete entry and replace with “To conduct inquiries of reported instances of alleged/suspected fraud, waste, abuse, or mismanagement.
To compile statistical information to disseminate on an as needed basis to HQ DLA, DLA Field Activities, and the Defense Hotline, DOD.
To provide a record of hotline disposition. Hotlines appearing to involve criminal wrongdoing will be referred to the Defense Criminal Investigative Service or other criminal investigative units of DOD Components.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To Federal, State, and local agencies having jurisdiction over or investigative interest in the substance of the allegations for investigative, corrective action, debarment, or reporting purposes.
To Government contractors employing individuals who are subjects of a hotline.
To DLA contractors or vendors when the Hotline pertains to a person they employ or to a product or service they provide to DOD when disclosure is necessary to accomplish or support corrective action.
The DOD “Blanket Routine Uses” set forth at the beginning of DLA's compilation of systems of records notices apply to this system.”
Delete entry and replace with “Records are retrieved by name of complainant, name of subject/offender, hotline topic, inquiry number, witness, National Stock Number, Contract Number, and contractor name and contractor employee name.”
Delete entry and replace with “Physical entry is restricted by the use of guards, locks, and administrative procedures. System is password controlled with system-generated, forced password-change protocols or also equipped with ‘Smart Card’ technology that requires the insertion of an embedded identification card and entry of a PIN. In addition, computer screens lock after a preset period of inactivity with re-entry controlled by passwording. The DLA Hotline Database is also password controlled. Access to the database is limited to those DLA Hotline Program personnel who require the records in the performance of their official duties. Employees are periodically briefed on their responsibilities regarding privacy information. All individuals granted access to this system of records is to have taken Privacy Act training.”
Delete entry and replace with “Disposition pending. Until the National Archives and Records Administration has approved the retention and disposal of these records, treat them as permanent.”
Delete entry and replace with “Director, DLA Criminal Investigations Activity, Headquarters, Defense Logistics Agency,
Delete entry and replace with “Information is provided by the Defense Hotline, subjects/offenders, complainants, witnesses, investigators, examining officials, personnel interviewed, and the Federal/State/DOD/DLA Hotline Program Offices.”
Defense Logistics Agency Hotline Program Records.
Director, DLA Criminal Investigations Activity, Headquarters, Defense Logistics Agency,
Records resulting from the receipt of a DOD/DLA Hotline and resulting inquiries including the date of the complaint, the Hotline control number; the name of the complainant, the name of the suspect(s), and the actual allegations; Hotline documents from components transmitting the DOD/DLA Hotline Reports, which normally contain the name of the examining official(s) assigned to conduct the inquiry; and background information regarding the inquiry itself, such as the scope of the inquiry, relevant facts discovered, information received from witnesses, and specific source documents reviewed; the examining official's findings, conclusions, and recommendations; and the disposition of the inquiry; and internal DLA Hotline forms documenting review and analysis of Hotline Reports.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 133, Under Secretary of Defense for Acquisition, Technology, and Logistics; 5 U.S.C., Appendix 3, Inspector General Act of 1978, as amended; DOD Directive 5106.1, Inspector General of the Department of Defense; DOD Directive 7050.1, Defense Hotline Program; DOD Instruction 7050.7, Defense Hotline Procedures; DOD Instruction 7050.8, Defense Hotline Quality Assurance Review (QAR) Program; DOD Directive 5505.6, Investigations of Allegations Against Senior Officials of the Department of Defense; and The DLA One Book Process Chapter, DLA Hotline Program.
To conduct inquiries of reported instances of alleged/suspected fraud, waste, abuse, or mismanagement; to compile statistical information to disseminate on an as needed basis to HQ DLA, DLA Field Activities, and the Defense Hotline, DOD; and to provide a record of hotline disposition. Hotlines appearing to involve criminal wrongdoing will be referred to the Defense Criminal Investigative Service or other criminal investigative units of DOD Components.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DOD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To Federal, State, and local agencies having jurisdiction over or investigative interest in the substance of the allegations for investigative, corrective action, debarment, or reporting purposes.
To Government contractors employing individuals who are subjects of a hotline.
To DLA contractors or vendors when the Hotline pertains to a person they employ or to a product or service they provide to DOD when disclosure is necessary to accomplish or support corrective action.
The DOD “Blanket Routine Uses” set forth at the beginning of DLA's compilation of systems of records notices apply to this system.
Records may be retained in either hard copy or electronic/image format.
Records are retrieved by name of complainant, name of subject/offender, hotline topic, inquiry number, witness, National Stock Number, Contract Number, and contractor name and contractor employee name.
Physical entry is restricted by the use of guards, locks, and administrative procedures. System is password controlled with system-generated, forced password-change protocols or also equipped with “Smart Card” technology that requires the insertion of an embedded identification card and entry of a PIN. In addition, computer screens lock after a preset period of inactivity with re-entry controlled by passwording. The DLA Hotline Database is also password controlled. Access to the database is limited to those DLA Hotline Program personnel who require the records in the performance of their official duties. Employees are periodically briefed on their responsibilities regarding privacy information. All individuals granted access to this system of records is to have taken Privacy Act training.
Disposition pending. Until the National Archives and Records Administration has approved the retention and disposal of these records, treat them as permanent.
Director, DLA Criminal Investigations Activity, Headquarters, Defense Logistics Agency,
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Individuals are required to provide their full name, address, and either a notarized signature or a signed and dated unsworn declaration, in accordance with 28 U.S.C. 1746, stating under penalty of perjury under U.S. law that the information contained in the request, including their identity, is true and correct.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Individuals are required to provide their full name, address, and either a notarized signature or a signed and dated unsworn declaration, in accordance with 28 U.S.C. 1746, stating under penalty of perjury under U.S. law that the information contained in the request for access, including their identity, is true and correct.
The DLA rules for accessing records, for contesting contents, and appealing initial Agency determinations are contained in 32 CFR part 323 or may be obtained from the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Information is provided by the Defense Hotline, subjects/offenders, complainants, witnesses, investigators, examining officials, personnel interviewed, and the Federal/State/DOD/DLA Hotline Program Offices.
Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and 3, (c) and (e) and published in 32 CFR part 323. For more information, contact the Privacy Act Officer, Headquarters, Defense Logistics Agency,
Notice of meeting of Air University Board of Visitors.
The purpose of the meeting is to give the board an opportunity to review Air University educational programs and to present to the Commander, a report of their findings and recommendations concerning these programs. Discussions will include overall university status, degree-granting authority, reaffirmation preparations, and undergraduate education updates.
The Air University Board of Visitors will hold an open meeting on 16-17 April 2007. The first business session of each meeting will begin in the Air Force Personnel Center Conference Room, Randolph Air Force Base, Texas.
Dr. Dorothy Reed, Chief of Academic Affairs, Air University Headquarters, Maxwell Air Force Base, Alabama 36112-6335, at (334) 953-5159.
Department of the Air Force, HQ USAF Scientific Advisory Board, DOD.
Notice.
The Air Force Scientific Advisory Board (SAB) will meet on 10 April 2007 at Air Intelligence Agency (AIA), Lackland Air Force Base, TX. The purpose of the meeting is to hold the SAB Spring quarterly meeting. The day will be spent in classified briefings and discussion with Air Intelligence Agency to learn about their roles and mission. Visits will also be made to various tenant units also at Lackland Air Force Base. Pursuant to 5 U.S.C. 552b, as amended and 41 CFR 102-3.155, the Department of Defense has determined that the meeting shall be closed to the public. The Administrative Assistant to the Secretary of the Air Force, in consultation with the Office of the Air Force General Counsel, has determined in writing that the public interest requires that all sessions of this meeting be closed to the public because they will be concerned with matters listed in section 552b(c)(1) and (9)(B) of Title 5 United States Code.
Lieutenant Colonel Kyle Gresham, Executive Director, Air Force Scientific Advisory Board, 1180 Air Force Pentagon, Washington, DC 20330-1040, (703) 697-4811.
The Department is not bound by any estimates in this notice.
Increasing student access to quality mental health care by developing innovative approaches to link local
(1) Enhancing, improving, or developing collaborative efforts between school-based service systems and mental health service systems to provide, enhance, or improve prevention, diagnosis, and treatment services to students.
(2) Enhancing the availability of crisis intervention services, appropriate referrals for students potentially in need of mental health services, and ongoing mental health services.
(3) Providing training for the school personnel and mental health professionals who will participate in the program.
(4) Providing technical assistance and consultation to school systems and mental health agencies and families participating in the program.
(5) Providing linguistically appropriate and culturally competent services.
(6) Evaluating the effectiveness of the program in increasing student access to quality mental health services, and making recommendations to the Secretary about sustainability of the program.
Recipients of a grant under the Grants for the Integration of Schools and Mental Health Systems program are required to coordinate project activities with projects funded under the Department of Health and Human Services” Substance Abuse and Mental Health Services Administration's Mental Health Transformation State Infrastructure Grants (MHTSIG) program (CFDA 93.243), if a grantee's State receives a MHTSIG award. If a recipient of a grant under the Grants for the Integration of Schools and Mental Health Systems program has received or receives a grant under the Department of Education's Emergency Response and Crisis Management (ERCM) program (CFDA 84.184E), the recipient must coordinate mental health service activities under this grant with those planned under its ERCM grant. Projects funded by this program must complement, rather than duplicate, existing or ongoing efforts.
Former or current recipients under the Safe Schools/Healthy Students program (CFDA 84.184L) are not eligible to receive a Grant for the Integration of Schools and Mental Health Systems. Recipients of Safe Schools/Healthy Students awards are responsible for completing a scope of work under that program that is very similar to the activities required under the Grants for the Integration of Schools and Mental Health Systems program. By restricting the applicant pool to eliminate former or current grantees under the Safe Schools/Healthy Students program, we will be able to focus Federal funds on entities that have not yet received Federal support to develop and implement strong linkages with other entities in their communities for the provision of mental health services to students.
Applicants may compete for both the Grants for the Integration of Schools and Mental Health Systems and Safe Schools/Healthy Students programs in the same year; if applicants are deemed eligible for funding in both grant competitions, the applicant will receive the larger and more comprehensive of the awards.
Applicants for an award under the Grants for the Integration of Schools and Mental Health Systems program must develop and submit with their applications a preliminary interagency agreement (IAA). The IAA must contain the signatures of an authorized representative of at least (1) one or more State or local educational agencies or Indian tribes; (2) one or more juvenile justice authorities; and (3) one or more State or local public mental health agencies. This preliminary IAA would confirm the commitment of these partners to complete the work under the proposed project, if funded. If the applicant is funded, recipients will complete a final IAA as required by section 5541(e) of the Elementary and Secondary Education Act of 1965, as amended (ESEA). The final IAA must be completed and submitted to us, signed by all parties, no later than 12 months after the award date.
Applications that do not include the proposed preliminary IAA with all of the required signatures will be rejected and not be considered for funding.
The final Interagency Agreement (IAA) must include a description of policies and procedures that would ensure appropriate parental or caregiver consent for any planned services, pursuant to State or local laws or other requirements.
Grant funds under this program must not be used to provide direct services to students.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The Department is not bound by any estimates in this notice.
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You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.215M.
You may also download the application from the Department of Education's Web site at:
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.
The public can also obtain applications directly from the program office: Dana Carr, U.S. Department of Education, 400 Maryland Avenue, SW., room 3E332, Washington, DC 20202-6450. Telephone: (202) 260-0823 or by e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
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3.
Applications for grants under this competition may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. The Grants for the Integration of Schools and Mental Health Systems Program, CFDA 215M, is included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic grant application for the Grants for the Integration of Schools and Mental Health Systems at
Please note the following:
• Your participation in Grants.gov is voluntary.
• 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 date and time stamped. Your application must be fully uploaded and submitted and must be date and 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 and 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 and 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 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 submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all
• If you submit your application electronically, 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 in this paragraph 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 from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application 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.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer 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 application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(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.
(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.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.215M), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
a. The percentage of schools served by the grant that have comprehensive, detailed linkage protocols in place; and
b. The percentage of school personnel served by the grant who are trained to make appropriate referrals to mental health services.
These two measures constitute the Department's measures of success for this program. Consequently, applicants for a grant under this program are advised to give careful consideration to these two measures in conceptualizing the approach and evaluation of their proposed project. If funded, applicants will be asked to collect and report data in their performance and final reports about progress toward these measures. The Secretary will also use this information to respond to the evaluation requirements concerning this program established in Section 5541(f) of the ESEA. For specific requirements on grantee reporting, please go to
Dana Carr, U.S. Department of Education, 400 Maryland Avenue, SW., room 3E332, Washington, DC 20202-6450. Telephone: (202) 260-0823 or by e-mail:
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 (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed in this section.
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
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, April 11, 2007; 6 p.m.
DOE Information Center, 475 Oak Ridge Turnpike, Oak Ridge, Tennessee.
Pat Halsey, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 576-4025; Fax (865) 576-5333 or e-mail:
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada Test Site. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires
Wednesday, April 11, 2007; 5 p.m.
7710 West Cheyenne Avenue, Conference Room #130, Las Vegas, Nevada.
Kelly Snyder, Deputy Designated Federal Officer, P.O. Box 98518, Las Vegas, Nevada 89193. Phone: (702) 295-2836; E-mail:
1. Briefing entitled “Radiation Fundamentals”
2. Updates by the Board's working committees
Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, April 19, 2007; 6 p.m.
111 Memorial Drive, Barkley Centre, Paducah, Kentucky 42001.
Reinhard Knerr, Deputy Designated Federal Officer, Department of Energy, Paducah Site Office, Post Office Box 1410, MS-103, Paducah, Kentucky 42001, (270) 441-6825.
Take notice that on March 15, 2007, Morgan Stanley Capital Group Inc. and Barclays Bank, Plc (collectively “Petitioners”) filed a petition of declaratory order concerning delivery obligations under certain wholesale power contracts in markets operated by Midwest Independent Transmission System Operator, Inc. (“MISO”) and PJM Interconnection, LLC (“PJM”). The Petitioners request the Commission to intervene as it has done in other markets that have transitioned to Locational
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on March 16, 2007, pursuant to section 205 of the Federal Power Act (FPA), CAlifornians for Renewable Energy, Inc. (complainant) filed a formal complaint against California Public Utilities Commission for authorizing on December 15, 2005, City and County of San Francisco to enter in a power purchase agreement with Pacific Gas and Electric Company by assuming contractual obligations of the California Department of Water Resources, in violation of the FPA under the “filed rate doctrine”. The Complainant requests the contract be subject to the Commission's review as required under remand to the Commission on December 16, 2006 by the United State Court of Appeals for the Ninth Circuit in a pair of opinions,
The Complainant states that copies of this Complaint were served upon the Respondents and other interested parties.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
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:
Take notice that the Commission received the following electric securities 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
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
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed an application for a transfer of project lands and acquisition of lands at the Biron Project (FERC No. 2192), and has prepared a final environmental assessment (FEA) for the proposal. The proposed transfer of project lands and acquisition of lands would occur on the Biron reservoir in Wood County, Wisconsin.
In the application, Consolidated Water Power (licensee) requests Commission authorization to exchange approximately 3.14 acres of licensee-owned lands with 3,000 linear feet of shoreline along the Biron flowage, for three different parcels of land totaling approximately 205.213 total acres. The first parcel has 830 linear feet of river shoreline and consists of 47.546 acres. The second parcel has 126 linear feet of river shoreline and consists of 2.960 acres, abutting an existing licensee-owned boat launch. The third parcel consists of islands in the river, peninsulas, and a roadside access totaling 154.84 acres (48.82 acres above water). These island perimeters, peninsulas, and the roadside access total 33,749 linear feet of waterfront. All lands are currently within the project boundary, and the licensee intends to retain flowage rights over any conveyed lands, and to retain all lands within the project boundary. The FEA contains the Commission staff's analysis of the probable environmental impacts of the proposed land conveyances and exchanges.
The FEA is attached to a Commission order titled “Order Amending License to Authorize Land Exchange,” which was issued November 17, 2006, and is available for review and reproduction at the Commission's Public Reference Room, located at 888 First St., NE., Room 2A, Washington, DC 20426. The FEA may also be viewed on the Commission's Web site at
On April 27, 2006, Baker County, Oregon filed a Notice of Intent and Pre-Application Document for the proposed Mason Dam Hydroelectric Project, initiating the pre-filing activities of the Commission's Integrated Licensing Process. On May 23, 2006, Baker County filed an application for a second preliminary permit to allow for continued study of the site. The Commission issued the new preliminary permit to Baker County on January 19, 2007.
As a result of the issuance of the new preliminary permit, the project number assigned to Baker County for the proposed Mason Dam Hydroelectric Project has changed. The new project number is P-12686. All future filings being made in regards to the ongoing pre-filing activities of the Integrated Licensing Process for the proposed project should use P-12686-001 to identify the filing. The original project number and docket (P-12058-002), assigned to this proceeding and the proposed project is now CLOSED.
All filings made to date, under P-12058-002 with regard to the pre-filing activities of the Commission's Integrated Licensing Process for the proposed Mason Dam Hydroelectric Project, will be cross referenced to the new project number and docket P-12686-001 and will continue to be part of the official public record. Therefore, re-filing of these documents is not necessary.
Take notice that the Commission will convene a technical conference in the referenced proceeding on Tuesday, April 10, 2007, at 9 a.m. (EDT), in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426.
The Commission's February 28, 2007 order in this proceeding directed that a technical conference be held to address the technical, engineering and operational issues raised by Gulf South Pipeline Company, LP's (Gulf South) proposed gas quality specifications filed in Docket No. RP07-149-000.
Gulf South and the other parties should be prepared to address the following topics at the technical conference and to include technical, engineering and operational information in support:
1. Whether Gulf South's tariff proposals are consistent with the Interim Guidelines in the Natural Gas Council's White Papers on Natural Gas Interchangeability and Non-Combustion End Use and Liquid Hydrocarbon Drop Out in Natural Gas Infrastructure?
2. To the extent Gulf South's proposals are not consistent with the guidelines, has Gulf South supported any divergence from the Interim Guidelines?
3. Whether Gulf South's current operating parameters are sufficient to ensure the acceptance of gas by interconnecting pipelines?
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All interested persons are permitted to attend. For further information please contact David Maranville at (202) 502-6351 or e-mail
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before April 25, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2006-0895, to (1) EPA online using
Nydia Y. Reyes-Morales, Mail Code 6403J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-343-9264; fax number: 202-343-2804; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On January 10, 2007 (72 FR 1221), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2006-0895, which is available for online viewing at
Use EPA's electronic docket and comment system at www.regulations.gov, to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to
The information is collected by the Heavy-duty and Nonroad Engine Group, Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, Office of Air and Radiation. Confidentiality of proprietary information submitted by manufacturers is granted in accordance with the Freedom of Information Act, EPA regulations at 40 CFR part 2, and class determinations issued by EPA's Office of General Counsel.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before April 25, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OAR-2003-0152, to (1) EPA online using
Peter Westlin, Office of Air Quality Planning and Standards, Environmental Protection Agency, mail code D243-05, Research Triangle Park, NC 27711; telephone number: 919-541-1058; fax number: 919-541-1039; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On December 6, 2006 (71 FR 70757), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2003-0152 which is available either electronically at
Use
In accordance with these provisions, the monitoring information that source owners must submit must also be available to the public, except as
Based on the Agency's knowledge of the number of title V permits issued since 1997 and the implementation of part 64 through permit renewals, the expected impact of the CAM program for the 3 years from October 1, 2006 until September 30, 2009 is about 3.12 million hours annually. The CAM rule will incur an average annual cost of about $114.5 million in 2005 dollars. There are no annualized capital and operation and maintenance costs.
The CAM program potentially affects about 25,000 pollutant-specific emissions units nationwide. The annual burden for source owners or operators is about 3.1 million hours for pollutant-specific emissions units combined. The CAM rule will incur an average annual cost of about $112 million in 2005 dollars. There are no annualized capital and operational and maintenance costs for monitoring programs in the cost burden.
During the period, permitting authorities will review CAM rule submittals from source owners or operators whose permits have already been issued and are renewing those permits as the 5-year permit terms expire. Permitting authorities will also be interacting with the source owners or operators in addressing the CAM in semi-annual monitoring reports and reporting CAM data as necessary. We estimate the annual CAM burden to permitting authorities to be about 37,000 hours and about $1.9 million.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before April 25, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2006-0437, to (1) EPA online using
Learia Williams, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; fax number: (202) 564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On June 21, 2006 (71
EPA has established a public docket for this ICR under Docket ID Number EPA-HQ-OECA-2006-0437, which is available for online viewing at
Use EPA's electronic docket and comment system at
Owners or operators of the affected facilities described must make the following one-time only reports: Notification of the date of construction or reconstruction; notification of the actual dates of startup, notification of any physical or operational change to an existing facility which may increase the regulated pollutant emission rate; notification of the date of the initial performance test; and the results of the initial performance test.
Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility or any period during which the monitoring system is inoperative. These notifications, reports, records and semiannual reports are required of all sources subject to NSPS. This information is used by the Agency to identify sources subject to the standards to insure that the best demonstrated technology is being properly applied.
In the Administrator's judgment, volatile organic compound (VOC) emissions from nitric acid plants cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. Therefore, NSPS were promulgated for this source category.
An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Number for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Since there are no changes in the regulatory requirements and there is no significant industry growth, the labor hours and cost figures in the previous ICR are used in this ICR and there is no change in burden to industry.
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA or Agency) Office of the Science Advisor (OSA) is soliciting nominations of qualified individuals in the area of biostatistics to serve on the Human Studies Review Board (HSRB). The HSRB is a Federal advisory committee, operating in accordance with the Federal Advisory Committee Act (FACA) 5 U.S.C. App. 2 section 9, providing advice, information, and recommendations to EPA on issues related to scientific and ethical aspects of human subjects research.
Nominations should be submitted to EPA no later than April 25, 2007.
Submit your nominations (“comments”), identified by Docket ID No. EPA-HQ-ORD-2007-0143, by one of the following methods:
Paul I. Lewis, Office of the Science Advisor, Mail Code 8105R, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
This action is directed to the public in general. This action may, however, be of interest to persons who conduct or assess human studies, especially studies on substances regulated by EPA or to persons who are or may be required to conduct testing of substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to using regulations.gov, you may access this
You may find the following suggestions helpful for preparing your nomination:
1. Providing as much supporting information as possible about the nominee, including contact information.
2. Make sure to submit your nomination by the deadline in this document.
3. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date and
On August 2, 2005, the President signed into law the Department of Interior, Environment, and Related Agencies Appropriations Act, 2006, Pub. L. 109-54 (Appropriations Act), which provided appropriated funds for the Environmental Protection Agency and other Federal departments and agencies. The Appropriations Act, among other points, addressed intentional dosing human toxicity studies for pesticides and directed the Agency to establish an independent Human Subjects Review Board to review such studies. On February 6, 2006 the Agency published a final rule for protections for subjects in human research (71 FR 6138) that called for creating a new, independent Human Studies Review Board and described its responsibilities in the following language:
The Human Studies Review Board shall comment on the scientific and ethical aspects of research proposals and reports of completed research with human subjects submitted by EPA for its review and on request, advise EPA on ways to strengthen its programs for protection of human subjects of research. 40 CFR 26.1603(b)
A charter for the Human Studies Review Board dated February 21, 2006 was issued in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2 Section 9(c) stating that the HSRB will:
Provide advice, information and recommendations on issues related to scientific and ethical aspects of human subjects research. The major objectives are to provide advice and recommendations on: (a) Research proposals and protocols; (b) reports of completed research with human subjects; and (c) how to strengthen EPA's programs for protection of human subjects.
This notice requests nominations of candidates to serve as a member of the HSRB in the area of biostatistics. General information concerning the HSRB can be found on the EPA Web site at
Any interested person or organization may nominate individuals to be considered as prospective candidates for the HSRB. Additional avenues and resources may be utilized in the solicitation of nominees to encourage a broad pool of expertise. Nominees should be experts who have sufficient professional qualifications, including training and experience, to be capable of providing expert comments on the ethical and/or scientific issues that may be considered by the HSRB. EPA is seeking nominees who are nationally recognized experts in biostatistics, specifically expertise in statistical design and analysis of research involving human subjects.
All nominations should include: (1) A current curriculum vitae (C.V.) which provides the nominee's educational background, qualifications, leadership positions in national associations or professional publications, relevant research experience and publications;
The qualifications of nominees received in reply to this notice will be assessed in terms of the specific expertise sought for the HSRB. Qualified nominees who agree to be considered further will be included in a smaller subset (known as the “Short List”). This Short List consisting of nominee's name and biosketch will be posted for public comment on the OSA Web site
For the HSRB, a balanced panel is characterized by inclusion of members who possess the necessary domains of knowledge, the relevant technical perspectives, and the collective breadth of experience to adequately address the Agency's charge. Interested candidates who are employees of a federal department or agency (other than EPA) or are members of another federal advisory committee are eligible to serve on the HSRB, and their nominations are welcome. Other factors that will be considered include: Availability to participate in the Board's scheduled meetings, absence of any conflicts of interest and absence of an appearance of a lack of impartiality, independence with respect to the matters under review, and public comments in response to the Short List. Though financial conflicts of interest or the appearance of a lack of impartiality, lack of independence, or bias may lead to nonselection, the absence of such concerns does not ensure that a candidate will be selected to serve on the HSRB. Numerous qualified candidates are likely to be identified. Selection decisions will involve careful weighing a number of factors including, but not limited to, the candidates' areas of expertise and professional qualifications, and responses to the Short List in achieving an overall balance of different perspectives on the Board.
People who are hired to serve on the Board are subject to the provisions of 5 CFR part 2634, Executive Branch Financial Disclosure, as supplemented by the EPA in 5 CFR part 6401. In anticipation of this requirement, each nominee will be asked to submit a Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency (EPA Form 3110-48 [5-02]). This form seeks information regarding the candidate's financial interests, the candidate's employment, stocks, and bonds, and where applicable, sources of research support. However, this form is confidential and will not be disclosed to the public. The EPA will evaluate the candidate's financial disclosure form to assess whether there are financial conflicts of interest, appearance of a lack of impartiality, or any prior involvement with the development of the documents under consideration, including previous scientific peer review, before the candidate is considered further for service on the HSRB.
Candidates selected from the Short List will be appointed to the HSRB. HSRB members are to perform several activities including reviewing extensive background materials between meetings of the Board, preparing draft responses to Agency charge questions, attending Board meetings, participating in the discussion and deliberations at these meetings, drafting assigned sections of meeting reports, and reviewing and helping to finalize Board reports.
Nominations should be submitted by one of the methods listed under
The Agency will consider all nominations for HSRB membership that are received on or before April 25, 2007. However, final selection of members is a discretionary function of the Agency and will be announced on the OSA Web site
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency's (EPA or Agency) Office of the Science Advisor (OSA) announces a public meeting of the Human Studies Review Board (HSRB) to advise the Agency on EPA's scientific and ethical reviews of human subjects' research.
The public meeting will be held on April 18, 2007 from 10 a.m. to approximately 5:30 p.m., Eastern Time and April 19-20, 2007 from 8:30 a.m. to approximately 5:30 p.m., Eastern Time.
Any member of the public who wishes further information should contact Paul Lewis, EPA, Office of the Science Advisor, (8105R), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
Submit your written comments, identified by Docket ID No. EPA-HQ-ORD-2007-0216, by one of the following methods:
This action is directed to the public in general. This action may, however, be of interest to persons who conduct or assess human studies, especially studies on substances regulated by EPA or to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to using regulations.gov, you may access this
EPA's position paper(s), charge/questions to the HSRB, and the meeting agenda will be available by late March 2007. In addition, the Agency may provide additional background documents as the materials become available. You may obtain electronic copies of these documents, and certain other related documents that might be available electronically, from the regulations.gov Web site and the HSRB Internet Home Page at
You may find the following suggestions helpful for preparing your comments:
a. Explain your views as clearly as possible.
b. Describe any assumptions that you used.
c. Provide copies of any technical information and/or data you used that support your views.
d. Provide specific examples to illustrate your concerns and suggest alternatives.
e. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
You may participate in this meeting by following the instructions in this section. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-ORD-2007-0216 in the subject line on the first page of your request.
a.
b.
The HSRB is a Federal advisory committee operating in accordance with the Federal Advisory Committee Act (FACA) 5 U.S.C. app.2 section 9. The HSRB provides advice, information, and recommendations to EPA on issues related to scientific and ethical aspects of human subjects research. The major objectives of the HSRB are to provide advice and recommendations on: (a) Research proposals and protocols; (b) reports of completed research with human subjects; and (c) how to strengthen EPA's programs for protection of human subjects of research. The HSRB reports to the EPA Administrator through EPA's Science Advisor.
• The results of two completed insect repellent efficacy studies on an aerosol formulation of the active ingredient IR3535, studies which the Agency intends to rely in making registration decisions. Protocols for this research were reviewed by the Board at its June and October 2006 meetings.
• A proposal for a new field study of the effectiveness of products containing oil of lemon eucalyptus in repelling mosquitoes.
• Completed studies of human skin irritation and skin sensitization on two pending pesticide products whose use would involve extensive dermal exposure. These studies were conducted before the effective date of EPA's human studies rules (April 7, 2006).
• EPA's assessment of the need for new research on the exposure received by occupational handlers who mix, load, or apply agricultural or antimicrobial pesticides.
• An EPA “draft framework” concerning best practices for recruiting and enrolling subjects in studies of occupational exposure.
In addition, at the Board's request, EPA will present its interpretation and application of the standard in 40 CFR 26.1705: “EPA shall not rely on data from any research initiated after April 7, 2006, unless EPA has adequate information to determine that the research was conducted in substantial compliance with [EPA's human studies rules].” Finally, the Board may also discuss planning for future HSRB meetings.
Minutes of the meeting, summarizing the matters discussed and recommendations, if any, made by the advisory committee regarding such matters will be released within 90 calendar days of the meeting. Such minutes will be available at
Council On Environmental Quality.
Notice and request for comments.
The Council on Environmental Quality (CEQ) used an interagency work group to develop a handbook to help NEPA practitioners improve the effectiveness of their NEPA processes through collaboration. The handbook focuses on collaboration in the context of the NEPA process, outlines general principles, presents useful steps, and provides information on methods of collaboration. CEQ invites comments on the proposed handbook, “Collaboration in NEPA—A Handbook for NEPA Practitioners,” that is available from CEQ directly or at
Written comments should be submitted on or before May 4, 2007.
Copies of the proposed handbook can be requested from CEQ. Electronic comments on the proposed handbook and requests for a copy of the proposed handbook can be sent to
Horst Greczmiel, 202-395-5750.
The Council on Environmental Quality (CEQ) established a National Environmental Policy Act (NEPA) Task Force and is now implementing recommendations designed to modernize the implementation of NEPA and make the NEPA process more effective and efficient. Additional information is available on the task force Web site at
The proposed handbook, “Collaboration in NEPA—A Handbook for NEPA Practitioners,” was developed to assist those responsible for conducting National Environmental Policy Act (NEPA) analyses in expanding the effective use of collaboration as part of the NEPA process. Collaboration is defined for purposes of the handbook as seeking agreements at one or more stages of the NEPA process by cultivating shared vision, trust, and communication. The main goal of the handbook is to
The handbook describes the context for when collaboration works well, provides a basic approach to designing a collaborative NEPA process, examines the various opportunities for collaboration throughout the NEPA process, and addresses challenges to collaboration during the NEPA process. In addition to examples of strategies for preventing conflict, the handbook provides examples of Memoranda of Understanding, case studies, and resources for practitioners.
Public comments to the proposed handbook are requested by May 4, 2007.
Federal Maritime Commission (FMC).
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, the Federal Maritime Commission invites comments on the continuing information collection (extension with no changes) listed below in this notice.
Comments must be submitted on or before May 25, 2007.
You may send comments to: Derek O. Scarbrough, Chief Information Officer, Office of Administration, Federal Maritime Commission, 800 North Capitol Street, NW, Washington, DC 20573, (Telephone: (202) 523-5800),
To obtain additional information, copies of the information collection and instructions, or copies of any comments received, contact Jane Gregory, Management Analyst, Office of Administration, Federal Maritime Commission, 800 North Capitol Street, NW., Washington, DC 20573, (Telephone: (202) 523-5800),
The Federal Maritime Commission, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the continuing information collection listed in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments. We invite comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden. An automated form for the license application, FMC-18, is currently in development. A rule will be published as soon as the automated form is available, for use at the option of the applicant.
Board of Governors of the Federal Reserve System
Background.
Notice is hereby given of the final approval of proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer --Michelle Shore--Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829).
OMB Desk Officer--Mark Menchik--Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503, or e-mail to
The FR Y-9C consists of standardized financial statements similar to the Federal Financial Institutions Examination Council's Consolidated Reports of Condition and Income (Call Report) (FFIEC 031 & 041; OMB No. 7100-0036) filed by commercial banks. The FR Y-9C collects consolidated data from the BHC and is generally filed by top-tier BHCs with total consolidated assets of $500 million or more.
On September 15, 2006, the Financial Accounting Standards Board (FASB) issued Statement No. 157, Fair Value Measurements (FAS 157), which is effective for banking institutions and other entities for fiscal years beginning after November 15, 2007. Earlier adoption of FAS 157 is permitted as of the beginning of an earlier fiscal year, provided the BHC has not yet issued a financial statement or filed a FR Y-9C report for any period of that fiscal year. Thus, a BHC with a calendar year fiscal year may voluntarily adopt FAS 157 as of January 1, 2007. The fair value measurements standard provides guidance on how to measure fair value and would require BHCs and other entities to disclose the inputs used to measure fair value based on a three-level hierarchy for all assets and liabilities that are remeasured at fair value on a recurring basis.
The FASB issued a final Statement No. 159, The Fair Value Option for Financial Assets and Financial Liabilities (FAS 159), on February 15, 2007. This standard allows BHCs and other entities to report certain financial assets and liabilities at fair value with the changes in fair value included in earnings. The Federal Reserve anticipates that relatively few BHCs will elect to use the fair value option for a significant portion of their financial assets and liabilities.
According to the FASB's web site (www.fasb.org), the FASB Board has decided to require that the effective date of the final fair value option standard be the same as the effective date of FAS 157. Thus, the final fair value option standard should be effective for financial statements issued for fiscal years beginning after November 15, 2007. The FASB Board has also decided to permit an entity to early adopt the final fair value option standard provided that the entity also adopts all of the requirements (measurement and disclosure) of FAS 157 concurrent with or prior to the early adoption of the final fair value option standard. Furthermore, the FASB Board would permit early adoption of the final fair value option standard within 120 days of the beginning of the entity's fiscal year, thereby making the fair value option election retroactive to the beginning of that fiscal year (or the date of initial recognition, if later) provided that the entity has not yet issued any interim financial statements for that fiscal year. Thus, a BHC with a calendar year fiscal year that voluntarily adopts FAS 157 as of January 1, 2007, would also be able to adopt the final fair value option standard as of that same date.
The Federal Reserve proposed to clarify the FR Y-9C reporting instructions to explain where financial assets and liabilities measured under the fair value option should be reported in the existing line items of the FR Y-9C. The Federal Reserve also proposed to add a new Schedule HC-Q to the FR Y-9C to collect data, by major asset and liability category, on the amount of
• Securities held for purposes other than trading with changes in fair value reported in current earnings;
• Loans and leases;
• All other financial assets and servicing assets;
• Deposit liabilities;
• All other financial liabilities and servicing liabilities; and
• Loan commitments (not accounted for as derivatives).
In addition, the Federal Reserve proposed to collect data on trading assets and trading liabilities in the new schedule from those BHCs that complete Schedule HC-D, Trading Assets and Liabilities, i.e., BHCs that reported average trading assets of $2 million or more for any quarter of the preceding calendar year. In the proposed new schedule, such BHCs would report the carrying amount of trading assets and trading liabilities whose fair values were estimated under level two and under level three of the FASB's fair value hierarchy.
The FASB's fair value measurements standard requires banking organizations and other entities to consider the effect of a change in their own creditworthiness when determining the fair value of a financial liability. The Federal Reserve proposed to add one new data item to Schedule HC-R, Regulatory Capital, for the cumulative change in the fair value of all financial liabilities accounted for under the fair value option that is attributable to changes in the BHC's own creditworthiness. This amount would be excluded from the BHC's retained earnings for purposes of determining Tier 1 capital under the Federal Reserve's regulatory capital standards.
Finally, the Federal Reserve proposed to clarify the instructions to Schedule HI for the treatment of interest income on financial assets and interest expense on financial liabilities measured under a fair value option. The instructions would be modified to instruct BHCs to separate the contractual year-to-date amount of interest earned on financial assets and interest incurred on financial liabilities that are reported under a fair value option from the overall year-to-date fair value adjustment and report these contractual amounts in the appropriate interest income or interest expense data items on Schedule HI.
Only one commenter, a banking trade association, offered comments on fair value option reporting in the Call Report, urging “the agencies to proceed cautiously with any major revisions to the Call Report or TFR prior to the official release of the Fair Value Option statement.” The trade association also requested that the agencies delay the March 31, 2007, effective date of the proposed reporting revisions related to the fair value option if the release of the FASB's final fair value option standard is delayed beyond its expected issuance in the first quarter of 2007. The trade association did not address the proposed reporting revisions for the fair value option and fair value measurements themselves.
The Federal Reserve agrees on the need for caution in implementing the proposed reporting revisions related to the fair value option and fair value measurements. Accordingly, only if BHCs adopt this standard in the first quarter of 2007 for other financial reporting purposes would the fair value option reporting requirements in the FR Y-9C take effect as of March 31, 2007. Otherwise, these reporting requirements would be delayed until BHCs elect the fair value option for other financial reporting purposes. Additionally, the Federal Reserve will proceed with the new Schedule HC-R data item for fair value changes included in retained earnings that are attributable to changes in a BHC's own creditworthiness.
The Federal Reserve proposed to collect certain data items to monitor the extent of holdings of closed-end 1-4 family residential mortgage loan products whose terms allow for negative amortization. As proposed, all BHCs would report the total amount of their holdings of such closed-end mortgage loans in a new memorandum item in Schedule HC-C, Loans and Leases. The Federal Reserve also proposed to collect two additional memorandum items on Schedule HC-C and another new memorandum item on Schedule HI, Income Statement, from BHCs with a significant volume of negatively amortizing 1-4 family residential mortgage loans. The two additional Schedule HC-C memorandum items would be (1) the total maximum remaining amount of negative amortization contractually permitted on closed-end loans secured by 1-4 family residential properties and (2) the total amount of negative amortization on closed-end loans secured by 1-4 family residential properties that is included in the carrying amount of these loans. The Schedule HI memorandum item would be the year-to-date noncash income on closed-end loans with a negative amortization feature secured by 1-4 family residential properties.
The Federal Reserve's proposal stated that the threshold for identifying BHCs with a significant volume of negatively amortizing residential mortgage loans would be based on the aggregate amount of these loans being in excess of either a certain dollar amount, e.g., $100 million or $250 million, or a certain percentage of the total loans and leases (in domestic offices) reported on Schedule HC-C, e.g., 5 percent or 10 percent. For reporting during 2007, a BHC with negatively amortizing loans would determine whether it met the size threshold for reporting the three additional memorandum items using data reflected in its December 31, 2006, FR Y-9C report. For reporting in 2008 and subsequent years, the determination would be based on data from the previous year-end FR Y-9C. Thus, BHCs with negatively amortizing 1-4 family residential mortgage loans in excess of the reporting threshold as of the end of any particular calendar year would report these three data items for the next entire calendar year.
The Federal Reserve requested comment on the specific dollar amount and percentage of loans that should be used in setting the size threshold for additional reporting on negatively amortizing loans. The comments received from a banking organization and a banking trade association addressed the comparable threshold proposed for the Call Report. In this regard, the banking organization recommended that the agencies base their reporting threshold only on a percentage of an institution's total loans and leases and not also include a fixed dollar amount of negatively amortizing loans in the threshold test. The organization stated that using a percentage test “is more in line with the Agencies' goals of ensuring the safety and soundness of institutions while minimizing the burden of information collection” because “safety and soundness concerns become more prominent only as an institution's concentration in these loans increases relative to the rest of its portfolio.”
In its comments, the banking trade association referred to the agencies' Interagency Guidance on Nontraditional Mortgage Product Risks, which they published at the beginning of October 2006,
The Federal Reserve has considered these comments that focus on the reporting threshold. The intent of the proposal to establish a reporting threshold for certain additional data on negatively amortizing residential mortgage loans was not to establish concentration limits for these mortgage products. Rather, as noted in the proposal, the Federal Reserve currently “has no readily available means of identifying the industry's exposure” to these products, which led to the proposal to collect certain data to assist the Federal Reserve in “monitor[ing] the extent of use of negatively amortizing residential mortgage loans in the industry.” Thus, the reporting of data on these mortgages is intended to support agency analysis at both the institution level and the industry level. The threshold for reporting additional data on negatively amortizing residential mortgage loans that are present at an institution in a significant volume was designed to limit the reporting burden on institutions, particularly small BHCs, with a nominal volume of these loans. A threshold based solely on a percentage of total loans and leases would not enable the Federal Reserve to gain an industry perspective on the amount of remaining contractually permitted negative amortization, capitalized negative amortization, and noncash income from negative amortization and how they relate to the amount of negatively amortizing residential mortgages. Therefore, the Federal Reserve is proceeding with a reporting threshold for the three additional data items that incorporates both a dollar amount test and a percentage test. More specifically, BHCs will report the three additional data items pertaining to their negatively amortizing residential mortgages if the amount of these mortgages exceeds the lesser of $100 million or 5 percent of their total loans and leases (in domestic offices), both held for sale and held for investment.
A data processing servicer commented on the proposed March 31, 2007, effective date for reporting this information. The servicer observed that the end of the proposal's comment period is less than 90 days before this effective date, while it typically needs a minimum of 180 days to implement programming changes after requirements are finalized. As a consequence, the servicer stated that it would not be able to commit to completing the programming, testing, and implementation of changes to its mortgage software by March 31, 2007, to enable its client banks to report the proposed information on negatively amortizing residential mortgages.
The Interagency Guidance on Nontraditional Mortgage Product Risks indicates that management information and reporting systems “should allow management to detect changes in the risk profile of its nontraditional mortgage loan portfolio. The structure and content should allow the isolation of key loan products, risk-layering loan features, and borrower characteristics.” The guidance further provides that “[a]t a minimum, information should be available by loan type,” such as for the closed-end residential mortgage loans with negative amortization features that are the subject of this proposal, and “by borrower performance (e.g., payment patterns, delinquencies, interest accruals, and negative amortization).” These risk management expectations for information systems were set forth approximately 180 days before the March 31, 2007, effective date of the proposed FR Y-9C items for negatively amortizing residential mortgages. In addition, for the March 31, 2007, report date, BHCs may provide reasonable estimates for these new FR Y-9C items if the requested information is not readily available.
The banking agencies proposed to revise the reporting treatment of brokered time deposits on Call Report Schedule RC-E, Deposit Liabilities. Memorandum item 2.b, Total time deposits of less than $100,000, would be revised to include brokered time deposits issued in denominations of $100,000 or more that are participated out by the broker in shares of less than $100,000, as well as brokered certificates of deposit issued in $1,000 amounts under a master certificate of deposit. Memorandum item 2.c, Total time deposits of $100,000 or more, would be revised to exclude such brokered deposits.
The Federal Reserve proposed to make similar instructional changes to seven data items on Schedule HC-E, Deposit Liabilities, to retain consistent definitions with the Call Report and to accommodate the consolidation of subsidiary bank information into the FR Y-9C report. The Federal Reserve proposed to revise the instructions for data item 1.d, Time deposits of less than $100,000 held in domestic offices of commercial bank subsidiaries; data item 2.d, Time deposits of less than $100,000 held in domestic offices of other depository institution subsidiaries; Memorandum item 1, Brokered deposits less than $100,000 with a remaining maturity of one year or less; and Memorandum item 2, Brokered deposits less than $100,000 with a remaining maturity of more than one year, to include brokered time deposits issued in denominations of $100,000 or more that are participated out by the broker in shares of less than $100,000 and brokered certificates of deposit issued in $1,000 amounts under a master certificate of deposit. Data item 1.e, Time deposits of $100,000 or more held in domestic offices of commercial bank subsidiaries; data item 2.e, Time deposits of $100,000 or more held in domestic offices of other depository institution subsidiaries; and Memorandum item 3, Time deposits of $100,000 or more with a remaining maturity of one year or less, would be revised to exclude such brokered time deposits.
The banking agencies received no comments on the proposed time deposit reporting changes, and the Federal Reserve is implementing the time deposit instructional changes as proposed.
Bank holding companies report the outstanding principal balance of loans and other assets serviced for others in Memorandum items 2.a, 2.b, and 2.c of Schedule HC-S, Servicing, Securitization, and Asset Sale Activities. The instructions for these Memorandum items do not explicitly state whether a BHC that has sold a participation in a loan or other financial asset, which it continues to service, should include the servicing in Memorandum item 2.a, 2.b, or 2.c, as appropriate. Because the absence of
Recently, the volume of 1-4 family residential mortgage loan products whose terms allow for negative amortization and the number of institutions providing borrowers with such loans has increased significantly. Loans with this feature are structured in a manner that may result in an increase in the loan's principal balance even when the borrower's payments are technically current. When loans with negative amortization are not prudently underwritten and not properly monitored, they raise safety and soundness concerns. Currently, the Federal Reserve has no readily available means of identifying the industry's exposure to such loans. Therefore, the Federal Reserve proposed to collect four data items at the nonbank subsidiary level to monitor the extension of negatively amortizing residential mortgage loans in the industry and to parallel the data items being proposed for inclusion on the FR Y-9C.
The Federal Reserve proposed to collect one memorandum item from all nonbank subsidiaries on Schedule BS-A, Loan and Leases Financing Receivables, for the total amount of closed-end loans with negative amortization features secured by 1-4 family residential properties in order to obtain an overall measure of this potentially higher risk lending activity. In addition, the Federal Reserve proposed to collect two memorandum items on Schedule BS-A and one memorandum item on Schedule IS, Income Statement, from nonbank subsidiaries with a significant volume of negatively amortizing 1-4 family residential mortgage loans. The threshold for significant volume would be based on the aggregate carrying amount of negatively amortizing loans in excess of 5 percent of the total loans and leases reported on Schedule BS-A. A nonbank with negatively amortizing loans would determine whether it met the size threshold for reporting the three additional memorandum items based on data reported from the previous year-end FR Y-11.
The Federal Reserve also proposed two additional Schedule BS-A memorandum items to collect (1) the total maximum remaining amount of negative amortization contractually permitted on closed-end loans secured by 1-4 family residential properties and (2) the total amount of negative amortization on closed-end loans secured by 1-4 family residential properties that is included in the carrying amount of these loans. The first memorandum item would provide a measure of the maximum exposure that could be incurred for negative amortization loans in the current 1-4 family residential property loan portfolio. The second memorandum item would then identify what component of 1-4 family mortgage loans is comprised of negative amortization loans. The Schedule IS memorandum item is year-to-date non-cash income on closed-end loans with a negative amortization feature secured by 1-4 family residential properties. This memorandum item would identify the amount and extent of interest revenue accrued and uncollected to ascertain the degree this potentially higher risk lending activity supports the BHC's overall net income. All nonbank subsidiaries with negatively amortizing 1-4 family residential loans in excess of the reporting threshold would report these data items for the entire calendar year following the end of any calendar year when the threshold was exceeded.
Recently, the volume of 1-4 family residential mortgage loan products whose terms allow for negative amortization and the number of institutions providing borrowers with such loans has increased significantly. Loans with this feature are structured in a manner that may result in an increase in the loan's principal balance even when the borrower's payments are technically current. When loans with negative amortization are not prudently underwritten and not properly monitored, they raise safety and soundness concerns. Currently the Federal Reserve has no readily available means of identifying the industry's exposure to such loans. Therefore, the Federal Reserve proposed to collect four data items at the nonbank subsidiary level to monitor the extension of negatively amortizing residential mortgage loans in the industry and to parallel the data items being proposed for inclusion on the FR Y-9C.
The Federal Reserve proposed to collect one memorandum item from all nonbank subsidiaries on Schedule BS-A, Loan and Leases Financing Receivables, for the total amount of closed-end loans with negative amortization features secured by 1-4 family residential properties in order to obtain an overall measure of this potentially higher risk lending activity. In addition, the Federal Reserve proposed to collect two memorandum items on Schedule BS-A and one memorandum item on Schedule IS, Income Statement, from nonbank subsidiaries with a significant volume of negatively amortizing 1-4 family residential mortgage loans. The threshold for significant volume would be based on the aggregate carrying amount of negatively amortizing loans in excess of 5 percent of the total loans and leases reported on Schedule BS-A. A nonbank with negatively amortizing loans would determine whether it met the size threshold for reporting the three additional memorandum items based on data reported from the previous year-end FR 2314.
The Federal Reserve also proposed two additional Schedule BS-A memorandum items to collect (1) the total maximum remaining amount of negative amortization contractually permitted on closed-end loans secured by 1-4 family residential properties and (2) the total amount of negative amortization on closed-end loans secured by 1-4 family residential properties that is included in the carrying amount of these loans. The first memorandum item would provide a measure of the maximum exposure that could be incurred for negative amortization loans in the current 1-4 family residential property loan portfolio. The second memorandum item would then identify what component of 1-4 family mortgage loans is comprised of negative amortization loans. The Schedule IS memorandum item is year-to-date non-cash income on closed-end loans with a negative amortization feature secured by 1-4 family residential properties. This memorandum item would identify the amount and extent of interest revenue accrued and uncollected to ascertain the degree this potentially higher risk lending activity supports the BHC's overall net income. All nonbank subsidiaries with negatively amortizing 1-4 family residential loans in excess of the reporting threshold would report these data items for the entire calendar year following the end of any calendar year when the threshold was exceeded.
The Federal Reserve proposed to add the section Notes to the Financial Statements to allow respondents the opportunity to provide, at their option, any material information included in specific data items on the financial statements that the parent U.S. banking organization wishes to explain. The addition of this section would enable the Federal Reserve to automate information that respondents may want to report as footnotes to various reported data items and provide for release of this information to the public. This section is currently included on the FR Y-11.
Board of Governors of the Federal Reserve System, March 21, 2007.
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 April 10, 2007.
Board of Governors of the Federal Reserve System, March 21, 2007.
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
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 April 16, 2007.
Board of Governors of the Federal Reserve System, March 19, 2007.
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 April 20, 2007.
Board of Governors of the Federal Reserve System, March 21, 2007.
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 April 16, 2007.
Board of Governors of the Federal Reserve System, March 19, 2007.
Office of Governmentwide Policy, General Services Administration (GSA).
Notice of Per Diem Bulletin 07-03, revised continental United States (CONUS) per diem rates.
The General Services Administration (GSA) has reviewed the lodging rates for certain locations in the States of California, Georgia, Idaho, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Ohio, South Carolina, Utah and Wyoming, using more current lodging industry data, as well as data on where Federal travelers actually stay when visiting these locations. Also, GSA has reviewed the meals and incidental expenses (M&IE) rate for certain locations in the States of Georgia, Idaho, Louisiana, Missouri, Mississippi, Utah and Wyoming. The per diem rates prescribed in Bulletin 07-03 may be found at
This notice is effective March 30, 2007 and applies to travel performed on or after March 30, 2007.
For clarification of content, contact Mr. Cy
After an analysis of the per diem rates established for FY 2007 (see the
• Alameda County
• Monterey County
• Santa Barbara County
• San Mateo County
• Chatham County
• Clayton County
• Coweta County
• Fayette County
Elmore County
• Kenton County
• Lafayette Consolidated Government
• Frederick County
• Desoto County
• Forrest County
• Grenada County
• Lamar County
• Boone County
• Silver Bow
• Clermont County
• Hamilton County
• Charleston County
• Berkeley County
• Dorchester County
• Davis County
• Campbell County
• Natrona County
• Sheridan County
• Sweetwater County
• Uinta County
Per diem rates are published on the Internet at
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 72 FR 4514, dated January 31, 2007) is amended to reflect the reorganization of Office of Workforce and Career Development, Office of the Director, Centers for Disease Control and Prevention.
Section C-B, Organization and Functions, is hereby amended as follows: Delete in their entirety the functional statements for the
The need for the above information is to provide the Administration and Congress with fiscal estimates in time for hearings about LIHEAP appropriations and program performance. The information also is included in the Department's annual LIHEAP Report to Congress. Survey information also will be posted on the Office of Community Services' LIHEAP Web site for access by grantees and other interested parties.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports clearance Officer. E-mail address:
To meet the need for reliable State estimates of anticipated expenses, ORR has developed a single-page form in which States estimate the average number of recipients for each category of assistance, the average unit cost over the next 12 months, and the expense for the overall administration of the program. This form, the ORR-1, must be submitted prior to the beginning of each Federal fiscal year. Without this information, ORR would be out of compliance with the intent of its legislation and otherwise unable to estimate program costs adequately.
In addition, the ORR-1 serves as the State's application for reimbursement of its CMA expenses. Submission of this form is thus required by section
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection.
The Department specifically requests comments 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) 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing
Fax written comments on the collection of information by April 25, 2007.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974.
Jonna Capezzuto, Office of the Chief Information Officer (HFA-250), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4659.
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Statutory requirements for infant formula under the Federal Food, Drug, and Cosmetic Act (the act) are intended to protect the health of infants and include a number of reporting and recordkeeping requirements. Among other things, section 412 of the act (21 U.S.C. 350a) requires manufacturers of infant formula to establish and adhere to quality control procedures, notify FDA when a batch of infant formula that has left the manufacturers' control may be adulterated or misbranded, and keep records of distribution. FDA has issued regulations to implement the act's requirements for infant formula in 21 CFR part 106 and part 107 (21 CFR parts 106 and 107). FDA also regulates the labeling of infant formula under the authority of section 403 of the act (21 U.S.C. 343). Under the labeling regulations for infant formula in part 107, the label of an infant formula must include nutrient information and directions for use. The purpose of these labeling requirements is to ensure that consumers have the information they need to prepare and use infant formula appropriately. In a notice of proposed rulemaking published in the
In the
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined that DURICEF (cefadroxil USP) Tablets, 1 gram (g), and Capsules, 500 milligrams (mg), were not withdrawn from sale for reasons of safety or effectiveness. This determination will allow FDA to continue to approve abbreviated new drug applications (ANDAs) for cefadroxil USP tablets, 1 g, and cefadroxil USP capsules, 500 mg.
Mary Catchings, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
In 1984, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) (the 1984 amendments), which authorized the approval of duplicate versions of drug products approved under an ANDA procedure. ANDA sponsors must, with certain exceptions, show that the drug for which they are seeking approval contains the same active ingredient in the same strength and dosage form as the “listed drug,” which is typically a version of the drug that was previously approved. Sponsors of ANDAs do not have to repeat the extensive clinical testing otherwise necessary to gain approval of a new drug application (NDA). The only clinical data required in an ANDA are data to show that the drug that is the subject of the ANDA is bioequivalent to the listed drug.
The 1984 amendments include what is now section 505(j)(7) of the Federal Food, Drug, and Cosmetics Act (21 U.S.C. 355(j)(7)), which requires FDA to publish a list of all approved drugs. FDA publishes this list as part of the “Approved Drug Products With Therapeutic Equivalence Evaluations,” which is generally known as the “Orange Book.” Under FDA regulations, drugs are withdrawn from the list if the agency withdraws or suspends approval of the drug's NDA or ANDA for reasons of safety or effectiveness, or if FDA determines that the listed drug was withdrawn from sale for reasons of safety or effectiveness (21 CFR 314.162).
Under 21 CFR 314.161(a), the circumstances under which the agency must determine whether a listed drug was withdrawn from sale for reasons of safety or effectiveness include: (1) Before an ANDA that refers to that listed drug may be approved and (2) whenever a listed drug is voluntarily withdrawn from sale, and ANDAs that refer to the listed drug have been approved. Section 314.161(d) provides that if FDA determines that a listed drug was withdrawn from sale for safety or effectiveness reasons, the agency will initiate proceedings that could result in the withdrawal of approval of the ANDAs that refer to the listed drug. FDA may not approve an ANDA that does not refer to a listed drug.
DURICEF (cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg, are the subjects of approved NDA 50-528 and NDA 50-512, respectively, held by Warner Chilcott, Inc. (Warner Chilcott). DURICEF is an antibiotic indicated to treat infections of the urinary tract, skin, throat, and tonsils, caused by specific bacteria, including streptococci, staphylococci, and
In a citizen petition dated June 13, 2006 (Docket No. 2006P-0255/CP1), submitted under 21 CFR 10.30, Orchid Healthcare (a division of Orchid Chemicals & Pharmaceuticals Ltd.) requested that the agency determine whether DURICEF (cefadroxil USP) Tablets, 1 g, were withdrawn from sale for reasons of safety or effectiveness. In addition, there are approved ANDAs that refer to DURICEF (cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg.
The agency has determined that Warner Chilcott's DURICEF (cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg, were not withdrawn from sale for reasons of safety or effectiveness. The petitioner identified no data or other information suggesting that DURICEF Tablets, 1 g, and Capsules, 500 mg, were withdrawn from sale for reasons of safety or effectiveness. FDA has independently evaluated relevant literature and data for possible postmarketing adverse events and has found no information that would indicate that either DURICEF Tablets, 1 g, or Capsules, 500 mg, were withdrawn from sale for reasons of safety or effectiveness.
After considering the citizen petition and reviewing agency records, FDA determines that, for the reasons outlined in this document, DURICEF (cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg, were not withdrawn from sale for reasons of safety or effectiveness. Accordingly, the agency will continue to list DURICEF (cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg, in the “Discontinued Drug Product List” section of the Orange Book. The “Discontinued Drug Product List” delineates, among other items, drug products that have been discontinued from marketing for reasons other than safety or effectiveness. Approved ANDAs that refer to DURICEF cefadroxil USP) Tablets, 1 g, and Capsules, 500 mg, are unaffected by the withdrawal of these products from sale. ANDAs that refer to cefadroxil USP (tablets, 1 g, and cefadroxil USP capsules, 500 mg, may be approved by the agency as long as they meet all relevant legal and regulatory requirements for the approval of ANDAs.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for REVLIMID and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit written comments and petitions to the Division of Dockets Management (HFA-305), Food and Drug
Beverly Friedman, Office of Regulatory Policy (HFD-7), 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 human drug product 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 drug 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 REVLIMID (lenalidomide). REVLIMID is indicated for treatment of patients with transfusion-dependent anemia due to Low- or Intermediate-1-risk myelodysplastic syndromes associated with a deletion 5q cytogenetic abnormality with or without additional cytogenetic abnormalities. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for REVLIMID (U.S. Patent No. 5,635,517) from Celgene Corp., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated June 14, 2006, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of REVLIMID 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 regulatory review period for REVLIMID is 2,069 days. Of this time, 1,804 days occurred during the testing phase of the regulatory review period, while 265 days occurred during the approval phase. These periods of time were derived from the following dates:
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3.
This determination 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 of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,166 days of patent term extension.
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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for PREVICOX and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that animal drug product.
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), Center for Drug Evaluation and Research, 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
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For animal drug products, the testing phase begins on the earlier date when either a major environmental effects test was initiated for the drug or when an exemption under section 512(j) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(j)) became effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the animal drug product and continues until FDA grants permission to market the drug 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 animal drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(4)(B).
FDA approved for marketing the animal drug product PREVICOX (firocoxib). PREVICOX is indicated for control of pain and inflammation associated with osteoarthritis in dogs. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for PREVICOX (U.S. Patent No. 5,981,576) from Merck Frosst Canada & Co., and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated June 14, 2006, FDA advised the Patent and Trademark Office that this animal drug product had undergone a regulatory review period and that the approval of PREVICOX 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 regulatory review period for PREVICOX is 2,216 days. Of this time, 2,118 days occurred during the testing phase of the regulatory review period, while 98 days occurred during the approval phase. These periods of time were derived from the following dates:
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This determination 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 of the actual period for patent extension. In its application for patent extension, this applicant seeks 650 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Comments and petitions are to 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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for ONYX LES and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that medical device.
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 medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The
FDA recently approved for marketing the medical device ONYX LES. ONYX LES is indicated for presurgical embolization of brain arteriovenous malformations. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for ONYX LES (U.S. Patent No. 5,667,767) from Micro Therapeutics, 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 June 14, 2006, FDA advised the Patent and Trademark Office that this medical device had undergone a regulatory review period and that the approval of ONYX LES represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for ONYX LES is 1,682 days. Of this time, 825 days occurred during the testing phase of the regulatory review period, while 857 days occurred during the approval phase. These periods of time were derived from the following dates:
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2.
3.
This determination 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 of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,271 days of patent term extension.
Anyone with knowledge that any of the dates are published is 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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for NOVOLOG and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
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-7), 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 human drug product 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 drug 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 NOVOLOG (insulin aspart (rDNA origin)). NOVOLOG is indicated for the treatment of adult patients with diabetes mellitus, for the control of hyperglycemia. Subsequent to this
FDA has determined that the applicable regulatory review period for NOVOLOG is 1,776 days. Of this time, 1,145 days occurred during the testing phase of the regulatory review period, while 631 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination 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 of the actual period for patent extension. In its application for patent extension, this applicant seeks 59 days of patent term extension.
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.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for EMTRIVA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
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-7), 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 human drug product 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 drug 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 EMTRIVA (emtricitabine). EMTRIVA is indicated, in combination with other antiretroviral agents, for the treatment of HIV-1 infection in adults. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for EMTRIVA (U.S. Patent No. 5,914,331) from Emory University, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated July 8, 2005, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of EMTRIVA represented the first permitted commercial marketing or use of the product. Thereafter, the Patent and Trademark Office requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for EMTRIVA is 2,114 days. Of this time, 1,811 days occurred during the testing phase of the regulatory review period, while 303 days occurred during the
1.
2.
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This determination 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 of the actual period for patent extension. In its application for patent extension, this applicant seeks 642 days of patent term extension.
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.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 1 business day before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact AnnMarie Williams, Conference Management Staff, at 301-827-7292, at least 7 days in advance of the meeting.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The National Health Service Corps (NHSC) Scholarship program was established to assure an adequate supply of trained primary care health professionals to the neediest communities in Health Professional Shortage Areas (HPSAs) of the United States. Under the program, allopathic physicians, osteopathic physicians, dentists, nurse practitioners, nurse midwives, physician assistants, and, if needed by the NHSC program, students of other health professions enter into a contractual agreement with the Secretary under which the Public Health Service agrees to pay the total school tuition, required fees and a stipend for living expenses. In exchange, the scholarship recipient agrees to provide full-time clinical services at a site in a federally designated HPSA.
Once the scholars have met their academic requirements, the law requires that individuals receiving a degree from a school of medicine or osteopathic medicine must (and all others may) request a deferment of their service obligation to complete approved internship, residency or other advanced nursing training consistent with the needs of the NHSC. The Deferment Request Form and Letter of Intent and Request provide the information necessary for considering the period and type of training for which deferment of the service obligation is requested.
The annual estimate of burden is as follows:
Send comments to Susan G. Queen, Ph.D., HRSA Reports Clearance Officer, Room 10-33, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857. Written comments should be received within 60 days of this notice.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
1. Joe Z. Sostaric, Norio Miyoshi, Peter Riesz, William G. DeGraff and James B. Mitchell. n-Alkyl glucopyranosides completely inhibit ultrasound-induced cytolysis. Free Radic Biol Med. 2005 Dec 15;39(12):1539-1548.
2. Joe Z. Sostaric, Norio Miyoshi, Peter Riesz, William G. Degraff and James B. Mitchell. Complete inhibition of ultrasound-induced cytolysis in the presence of inertial cavitation. AIP Conf Proc. 2006 May 8;829:39-43.
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 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 a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
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 a change in the meeting of the Center for Scientific Review Special Emphasis Panel, March 19, 2007, 8 a.m. to March 21, 2007, 10 p.m., National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 which was published in the
The meeting will be held April 16, 2007 to April 18, 2007. The meeting time and location remain the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
(Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS.)
Customs and Border Protection; Department of Homeland Security.
General notice.
The Bureau of Customs and Border Protection, in conjunction with the Department of Transportation, Federal Motor Carrier Safety Administration, is currently conducting a National Customs Automation Program (NCAP) test concerning the transmission of automated truck manifest data. This document announces the next group, or cluster, of ports to be deployed for this test.
Ports identified in this notice, in the states of New Hampshire and Maine,
Mr. James Swanson via e-mail at
The National Customs Automation Program (NCAP) test concerning the transmission of automated truck manifest data for truck carrier accounts was announced in a notice published in the
A series of
Through this notice, CBP announces that the next clusters of ports to be brought up for purposes of deployment of the test, to be fully deployed by March 19, 2007, will be the port of Pittsburg in the state of New Hampshire and the following specified ports in the state of Maine: Ferry Point, Milltown, Eastport, Lubec, Vanceboro, Forest City, Orient, Houlton, Monticello, Van Buren, Hamlin, Madawaska, Fort Kent, Estcourt, Limestone, Jackman, Coburn Gore, St. Zacharie, St. Aurelie, St. Pamphile, St. Juste, Fort Fairfield, Easton, and Bridgewater.
This deployment is for purposes of the test of the transmission of automated truck manifest data only; the Automated Commercial Environment (ACE) Truck Manifest System is not yet the mandated transmission system for these ports. The ACE Truck Manifest System will become the mandatory transmission system in these ports only after publication in the
On Monday, March 21, 2005, a notice was published in the
Customs and Border Protection, Department of Homeland Security.
General notice.
In a document published in the
The Electronic FTZ Admission Application test program will resume for a period of 6 months from March 26, 2007. CBP may extend the test for additional periods of time by way of announcement in the
Written comments regarding this notice should be addressed to Customs and Border Protection, Office of Field Operations, Cargo Control Branch, 1300 Pennsylvania Avenue, NW., Room 5.2C, Washington, DC 20229.
Sonja Grant, Customs and Border Protection, Office of Field Operations, via e-mail at
Title VI of the North American Free Trade Agreement Implementation Act (the Act), Public Law 103-182, 107 Stat. 2057 (December 8, 1993), contains provisions pertaining to Customs Modernization (107 Stat. 2170). Subpart B of Title VI of the Act concerns the National Customs Automation Program (NCAP), an electronic system for the processing of commercial importations. Within subpart B, section 631 of the Act added section 411 to the Tariff Act of 1930 (19 U.S.C. 1411-1414), which defines the NCAP, provides for the establishment of and participation in the NCAP, and includes a list of existing and planned components. Section 411(a)(2)(G) identifies any program initiated by Customs and Border Protection to carry out the automation goals of this subpart as a planned NCAP component. The planned test program described in this document falls within this category of planned NCAP component. Section 101.9(b) of title 19 of the Code of Federal Regulations (19 CFR 101.9(b)) provides for the testing of NCAP planned components. The Electronic Foreign Trade Zone (FTZ) Admissions Application prototype is being tested in accordance with this provision.
A notice describing the Electronic FTZ Admissions Application test program and setting forth the program's terms and conditions was published in the
This notice informs interested members of the public that after CBP's initial evaluation of the test program, it was determined that due to the insufficient data collected the test should be run again for a period of approximately 6 months from March 26, 2007. The new test program is intended to encourage greater participation in the prototype by the trade and thereby provide CBP with more meaningful data by which to assess the feasibility of implementing the test program on a permanent basis. A final evaluation will take place at the end of the test period.
All of the Electronic FTZ Admissions Application test program terms and conditions set forth in the August 19, 2005,
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Multifamily properties owned by HUD or with HUD-insured mortgages must be inspected regularly. Mortgagees/lenders inspect projects with HUD-insured mortgages. All owners/agents must certify that Exigent Health and Safety (EH&S) deficiencies noted during the inspection have been repaired. HUD uses the information to ensure that the properties are maintained in a condition that is decent, safe, sanitary, and in good repair.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval Number (2502-0369) 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,
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of Policy Development and Research, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1995. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control Number and should be sent to: Reports Liaison Officer, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street, SW., Room 8234, Washington, DC 20410.
Ronald J. Sepanik, Director, Housing and Demographic Analysis Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410. The telephone number is (202) 402-5887. This is not toll-free number. Copies of the proposed forms and other available documents submitted to OMB may be obtained from Mr. Sepanik.
The Department of Housing and Urban Development will submit the proposed information collection package to OMB for review as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed information 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 the use of appropriate automated collection techniques or other forms of information technology (
This Notice also lists the following information:
The survey is taken under Title 12, United States Code, Section 1701Z.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice provides information regarding the homeowner notification requirement of section 106(c)(5) of the Housing and Urban Development Act of 1968. The Servicemembers Civil Relief Act (SCRA) provides legal rights and protections that are applicable to the debts of servicemembers and their dependents. Notice is to be provided to all homeowners who are in default in order to inform them of mortgage and foreclosure rights available to them under the SCRA if they are servicemembers or dependents of servicemembers. HUD has developed, in consultation with the Departments of Defense and Treasury, a final disclosure form to be used by mortgagees for fulfilling this notice requirement. HUD made the form available on its website in July 2006, and the form is also attached as an appendix to this notice.
Leslie Bromer, Mortgage Servicing Specialist, Asset Management and Disposition Division, Office of Single Family Housing, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9180, Washington, DC 20410-8000; telephone (202) 708-1672 (this is not a toll-free number). Individuals with speech or hearing challenges may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Questions regarding this notice may also be directed to the National Servicing Center in Oklahoma City, Oklahoma, at (888) 297-8685.
The Servicemembers Civil Relief Act (50 U.S.C. app. 501
Pursuant to the NDAA amendment, HUD has developed, in consultation with the Departments of Defense and Treasury, the final disclosure form for the required notice of servicemember rights. The form is located in the appendix to this notice. The form was also earlier made available on HUD's Web site in July 2006 and can be found at
The SCRA provides, among other things, that a debt incurred by a servicemember, or by a servicemember jointly with a spouse, prior to entering military service, shall not bear interest at a rate above six percent during the period of military service. (See section 207(a)(1) of SCRA.) Servicemembers become eligible for the interest rate limitation by providing to the creditor with written notice, a copy of the military orders calling the servicemember to active duty, and any orders further extending military service, not later than 180 days after the date of the servicemember's termination or release from military service. (See section 207(b)(1) of SCRA.) Upon receipt, the creditor must limit interest on the obligation to no more than six percent per year, effective as of the date on which the servicemember is called to military service. (See section 207(b)(2) of SCRA.) Only a court may grant the creditor an exception to the interest rate limitation, which may only be granted if in the opinion of the court the ability of the servicemember to pay interest on the obligation or liability at a rate in excess of six percent per year is not materially affected by reason of the servicemember's military service. (See section 207(c) of SCRA.)
In a legal action to enforce a debt against real estate that is filed during, or within 90 days after the servicemember's military service, a court may stay the proceedings for a period of not less than 90 days or may adjust the debt. (See section 202(b)(1) of SCRA.) In addition, the sale, foreclosure, or seizure of real estate shall not be valid if it occurs during or within 90 days after the servicemember's military service unless the creditor has obtained a court order approving the sale, foreclosure, or seizure of the real estate. (See section 303(c) of SCRA.)
In addition to the rights described above, the SCRA provides some additional legal protections. HUD, however, is not in a position to interpret or provide information on all of the various provisions of the SCRA as they may affect the rights afforded creditors and servicemembers. Such interpretations should be obtained for the Department of Defense or should be determined by the courts.
Creditors who are otherwise unable to verify a debtor's military status may request and obtain a statement as to military service from the Department of Defense, pursuant to section 602 of the SCRA (50 U.S.C. app. 582). To facilitate SCRA searches, the Department of Defense's Manpower Data Center (DMDC) has developed a secure public internet access system through which any requester can quickly determine whether an individual is currently in the armed forces. The Web site for SCRA queries is
A report is executed by clicking the “LookUp” tab on the query form. If the provided SSN and other identifying information match the name of a person currently on active duty, the DMDC response report will provide the named individual's branch of military service and “begin date” of Active Duty status. If the provided SSN is matched to the name of a person on active duty but the last name and/or birth date entered do not match the information recorded for that individual, the DMDC response report page states, “Based on the social security number you have provided, the individual is currently on Active Duty. However, the name or partial DOB, or both provided do not match the individual against whom the social security number is assigned.” If the DMDC does not have information regarding whether the name of the identified person is on active duty, the response report will only list the supplied name with the text, “Based on the information you have furnished, the DMDC does not possess any information indicating the individual is currently on active duty.”
There is no charge for the online SCRA queries and no authorization, user ID, or password is required. Requesters needing assistance may fax a request for a statement as to military service to DMDC at (703) 696-4156, or call (703) 696-6762.
The information collection requirements contained in this document have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2502-0565. In accordance with the Paperwork Reduction Act, HUD may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
Servicemembers on “active duty” or “active service,” or a dependent of such a servicemember may be entitled to certain legal protections and debt relief pursuant to the Servicemembers Civil Relief Act (50 U.S.C. App. 501,
• Active duty members of the Army, Navy, Air Force, Marine Corps, Coast Guard, and active service National Guard;
• Active service members of the commissioned corps of the National and Atmospheric Administration;
• Active service members of the commissioned corps of the Public Health Service;
• United States citizens serving with the armed forces of a nation with which the United States is allied in the prosecution of a war or military action; and
• Dependents of the above (e.g., spouse or children).
• The SCRA states that a debt incurred by a service member, or spouse jointly, prior to entering military service shall not bear interest at a rate above 6 percent during the period of military service.
• The SCRA states that in a legal action to enforce a debt against real estate that is filed during, or within 90 days after the servicemember's military service, a court may stop the proceedings for a period of time, or adjust the debt. In addition, the sale, foreclosure, or seizure of real estate shall not be valid if it occurs during, or within 90 days after the servicemember's military service unless the creditor has obtained a court order approving the sale, foreclosure, or seizure of the real estate.
• A servicemember or dependent, or both, may request relief under the SCRA by providing the lender a written notice with a copy of the servicemember's military orders. (Note: Lender should place its name, address, and contact information here.)
• The U.S. Department of Defense's information resource is “Military OneSource.” Web site:
The toll-free telephone number for Military OneSource are:
○ From the United States: 1-800-342-9647.
○ From outside the United States (with applicable access code): 800-3429-6477.
○ International Collect (through long distance operator): 1-484-530-5908.
• Servicemembers and dependents with questions about the SCRA should contact their unit's Judge Advocate, or their installation's Legal Assistance Officer. A military legal assistance office locator for each branch of the armed forces is available at
Fish and Wildlife Service, Interior.
Notice of document availability.
The Fish and Wildlife Service (“we,” “our,” or “Service”) announces the availability of the Implementation schedule for the South Florida Multi-Species Recovery Plan (MSRP). The MSRP, as approved in 1999, included a discussion of the need for a coordinated effort to develop an implementation schedule. This implementation schedule was prepared with the assistance of the South Florida Multi-species/Ecosystem Recovery Implementation Team (MERIT). The implementation schedule prioritizes the recovery tasks as described in the MSRP on a community level, and identifies the associated participating parties, time frames, and costs necessary to accomplish those tasks.
Copies of the final implementation schedule can be downloaded from
Cindy Schulz at the South Florida Ecological Services Office, (772) 562-3909, ext. 305.
On April 2, 2004, we published a notice announcing the availability of this technical/agency draft implementation schedule in the
Restoring listed animals and plants to the point where they are again secure, self-sustaining components of their ecosystems is a primary goal of the Service's threatened and endangered species program. To help guide the recovery effort, we prepare recovery plans for listed species native to the United States, pursuant to section 4(f) of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C.
Section 4(f) of the Act also requires that a public notice and an opportunity for public review and comment be provided during recovery plan development. Accordingly, the MSRP was made available for public review and comment before its approval in May 1999. The MSRP identifies the recovery needs of the 68 threatened and endangered species and 23 natural communities in the south Florida ecosystem, which encompasses 67,346 square kilometers (26,002 square miles), covering the 19 southernmost counties in Florida.
The process to develop this final implementation schedule involved the collaborative effort of a team appointed by the Service to focus specifically on recovery implementation efforts in South Florida. The team, known as MERIT, is comprised of 36 members representing Federal, State, and local government agencies; Tribal governments; academia; industry, and the private sector. MERIT members assisted in assigning priorities to recovery tasks, and estimating the duration and possible cost to complete each task. They also identified organizations or agencies that would likely be involved in accomplishing each task.
The implementation schedule for the MSRP contains recovery tasks for those species that occur only in south Florida, and for which the South Florida Ecological Services Office has recovery lead. Other Service offices have recovery responsibility for those species that occur in south Florida but also occur elsewhere. Implementation schedules for those species can be found in the approved individual recovery plans for those species. Recovery tasks are provided in this implementation schedule for the following species:
To request copies of the final implementation schedule, please see the
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Fish and Wildlife Service, Interior.
Notice of availability and 90-day public comment period.
The County of Bastrop (County) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit pursuant to Section 10(a) of the Endangered Species Act (Act). The applicant has been assigned permit number TE-113500-0. The requested permit, which is for a period of 30 years, would authorize the incidental take of the endangered Houston toad (
To ensure consideration, written comments must be received on or before June 25, 2007.
Persons wishing to review the application may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. Persons wishing to review Bastrop County's Lost Pines Habitat Conservation Plan (LPHCP) or the draft Environmental Assessment (EA) may obtain a copy by contacting Clayton Napier, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-0057). Documents will be available for public inspection by written request, by appointment only, during normal business hours (8 a.m. to 4:30 p.m.) at the U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas. Written data or comments concerning the application, LPHCP, or draft EA should be submitted to the Supervisor, U.S. Fish and Wildlife Service, Austin, Texas, at the above address. Please refer to permit number TE-113500-0 when submitting comments.
Clayton Napier at the U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-0057).
Section 9 of the Act prohibits the “taking” of endangered species such as the Houston toad. However, the Service, under limited circumstances, may issue permits to take endangered wildlife species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for endangered species are at 50 CFR 17.22.
A determination of jeopardy or non-jeopardy to the species and a decision pursuant to the National Environmental Policy Act (NEPA) will not be made until at least 90 days from the date of publication of this notice. This notice is provided pursuant to Section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6).
The LPHCP supports the application for the issuance of an incidental take permit for the Houston toad within the Plan Area for specific land use and development activities over the next 30 years. Participation by landowners in the plan would be voluntary. Landowners that choose to participate in the LPHCP could receive incidental take authorization through the LPHCP's streamlined process, rather than seek individual authorization directly from the Service. The LPHCP proposes to implement measures to minimize and mitigate for adverse impacts to the toad and its habitat, and would apply an area-wide, habitat-based conservation approach, including financial incentives for voluntary conservation and public outreach, education, and research programs.
Landowners, developers, and other local interests could participate in the LPHCP and receive authorization for incidental take resulting from certain types of construction activities, conservation subdivision development, low-impact land management practices, and public infrastructure activities. High-density or large-scale land developments would not be eligible for participation in this plan, nor would the plan cover the implementation of high-impact land management activities (e.g., the conversion of pastured woodland to improved pasture and clear-cutting timber). The following specific activities would be eligible for incidental take coverage under the LPHCP: single family residential construction and use on legal, non-platted lots, single family residential construction within existing platted lots, commercial and multi-family construction and use on up to one acre, conservation subdivision development, agricultural management, forest management, wildlife management; Bastrop County infrastructure maintenance and improvement, emergency services; and, ongoing use of previously developed land.
Single family residential, commercial, and multi-family development activities on existing lots and existing unplatted lots would require potential LPHCP participants to obtain a Certificate of Participation from the County to receive incidental take authorization for these types of covered activities. Construction activities could receive incidental take coverage on up to one acre per project. Mitigation would be in the form of a fee paid to the LPHCP to fund the operation of conservation programs, or landowners with sufficient acreage could permanently protect acreage on-site to offset negative impacts from construction activities.
Conservation subdivision developers would be required to obtain a Subdivision Certificate from the County that certifies that their proposed project meets the Conservation Subdivision Development Guidelines of the LPHCP. The subdivision guidelines require an evaluation of existing habitat resources on the property, limit the density of residential lots or dwelling units, and require the designation of at least 70 percent of the subdivision for the permanent protection and management of the Houston toad. The two options available to subdivision applicants who wish to be eligible for incidental take coverage under the LPHCP are the low-density, large-lot design and higher density, clustered design. The guidelines address management and use standards for conservation areas within the subdivision and specify restrictive covenants for other areas that limit further subdivision of lots, encourage environmentally sensitive pesticide use, and encourage the use of native plants for landscaping. Efforts to minimize the impact of subdivision infrastructure would also be required under the guidelines. Mitigation for subdivision development impacts would be the preservation and management of
The LPHCP includes guidelines for agricultural management, forest management, and wildlife management. Participation in the LPHCP and adherence to the guidelines would be voluntary; however, incidental take authorization under the LPHCP would be restricted to those activities that are in compliance with the guidelines. The purpose of the guidelines is to allow for reasonable land use practices while avoiding or minimizing negative or long-term impacts to the Houston toad. The agricultural management guidelines cover practices related to cultivated land, improved pasture or hayland, and rangeland/native grazing lands/grazable woodland/native pasture. The forest management guidelines would provide a framework for forest management activities such as management planning, road construction and maintenance, site preparation and planting, chemical applications, timber harvesting, and prescribed burning. The wildlife management guidelines describe the framework for activities such as management planning, brush management, reforestation, prescribed burning, providing supplemental food sources, restoring native grassland, constructing Houston toad breeding ponds, and controlling fire ants. The agriculture, wildlife and forestry guidelines are intended to be “self-mitigating.” This means that although there could be some short-term impacts to the toad or its habitat as a result of conducting activities included under the various guidelines, the applicant anticipates that there will be an overall net improvement in the quality or quantity of the toad habitat over the long-term.
Public infrastructure activities, emergency services, and ongoing use of previously developed land would be offered automatic coverage under the County's incidental take permit by following the guidelines outlined in the LPHCP. Low-impact land uses would be covered upon Bastrop County issuing a Notice of Receipt. No mitigation fees would be required for landowners seeking authorization for low-impact land uses. However, any incidental take that may occur as a result of land management practices that are not consistent with the applicable guidelines in the LPHCP are not covered.
The LPHCP conservation program and administration would be funded by a combination of fees collected from Plan participants and general revenue from the County. Collected fees would be used primarily to fund the biological monitoring, landowner incentive, and community outreach and education programs of the LPHCP. The County would provide funds sufficient to hire a LPHCP administrator, whose duties would include much of the actual operation of the LPHCP. Part of the job description for the LPHCP administrator would be to regularly apply for outside grants to increase funding for the Plan. Grants could be used to purchase land, easements, or development rights on Houston toad habitat from willing partners.
Rather than provide for the purchase and management of a publicly-owned, interconnected, habitat preserve system for the Houston toad, the LPHCP proposes to focus resources on strategic land protection and encourage voluntary conservation efforts by private landowners. This conservation program would use mitigation fees from participants seeking incidental take permits to help fund conservation and management activities that have broad community support. Using this method, a large portion of the active management for the Plan Area would be through the voluntary efforts of private landowners.
A key to maintaining quality toad habitat between designated conservation areas is the participation of private landowners in conservation efforts. The LPHCP would seek the help of private landowners by encouraging use of new and existing landowner incentive programs and by forming partnerships with community organizations to manage habitat. These initiatives would include: management of open space in existing residential subdivisions, supporting wildlife management associations, supporting the conversion of agricultural use land to a wildlife management use, private landowner partnerships and grant funding; and, expanding access to existing assistance programs.
In addition to encouraging and supporting the voluntary management of private lands for the Houston toad, the LPHCP would also support the acquisition of development rights, conservation easements, or land from willing partners, if sufficient funds become available. Because funds are limited, the LPHCP would prioritize the use of funds for acquiring development rights, easements, and land. A set of minimum and preferred criteria to evaluate tracts in the Plan Area that may be available to benefit the Houston toad have been established. These criteria would ensure that funds would be used on the properties that provide the most desirable characteristics for Houston toad conservation.
The LPHCP would also offer mitigation in the form of community education and public outreach. Activities would include: distribution of LPHCP guidelines; distribution of a fact sheet about the ESA and LPHCP to septic permit applicants in Bastrop County; conducting an annual Houston toad community education workshop; and, developing a county-wide Integrated Pest Management Plan.
Support for Houston toad monitoring and research programs would also be included in the LPHCP. The LPHCP administrator would maintain a database of Houston toad surveys and known locations, distribute spatial data for use in conservation planning, and help researchers team with private landowners willing to provide access to Houston toad habitat on their property.
The County expects that by creating a fair, simple, and certain process for obtaining incidental take authorization, the burden on individual landowners is reduced and it facilitates desired economic development in the Plan Area while preserving Houston toad habitat and supporting conservation research.
Bureau of Land Management, 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, April 13, 2007 at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane Valley, Washington 99212-1275.
The meeting will start at 9 a.m., adjourn at 4 p.m., and will be open to the public. Topics of discussion will include: (1) Spokane District's land use plan and potential revision; (2) an update on management of access to the Juniper Dunes area; (3) Spokane District priorities and budget; and (4) prioritization of topics for future meetings. There will be an opportunity for public comment at 3 p.m.
Scott Pavey or Sandie Gourdin, Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane Valley, Washington 99212-1275, or call (509) 536-1200.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before March 10, 2007. Pursuant to section 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St., NW., 8th floor, Washington, DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by April 10, 2007.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) on
Jonathan Engler, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3112. Copies of non-confidential 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. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 4, 2006, based on a complaint filed by Ford Global Technologies, LLC (“Ford”)of Dearborn, Michigan. An amended complaint was filed on December 12, 2005, and a supplemental letter was filed on December 22, 2005. The amended complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain automotive parts by reason of infringement of U.S. Design Patent Nos. D496,890 (“the '890 patent”), D493,552 (“the '552 patent”), D497,579 (“the '579 patent”), D503,135 (“the '135 patent”), D496,615 (“the '615 patent”), D502,561 (“the '561 patent”), D492,044 (“the '044 patent”), D491,119 (“the '119 patent”), D503,912 (“the '912 patent”) and D495,979 (“the '979 patent”). The complaint named the following as respondents: Keystone Automotive Industries, Inc. of Pomona, California; U.S. Autoparts Network, Inc. of Carson, California; Gordon Auto Body Parts Co., Ltd. of Taiwan; Y.C.C. Parts Manufacturing Co., Ltd. of Taiwan; TYC Brother Industrial Co., Ltd. of Taiwan; and Depo Auto Parts Ind. Co., Ltd. of Taiwan (collectively “the Respondents”). The complaint further alleged that an industry in the United States exists as required by subsection (a)(2) of section 337. On August 3, 2006, the Commission issued a notice not to review an ID granting partial termination of this investigation as to the '801, '685, '299, '658 patents.
On December 4, 2006, the ALJ issued the final ID, finding that the '119, '912, and '979 patents are invalid due to public use; that the '890, '552, '135, '579, '561, '044, and '615 patents are not invalid, are enforceable, and are infringed; and that there is a domestic industry involving the patents in issue. Thus, he found a violation of section 337 of the Tariff Act of 1930, as amended.
On December 15, 2006, Ford and the Respondents filed petitions for review. Ford sought review of the ALJ's finding that the '119, '912 and '979 patents are invalid as anticipated. The Respondents petitioned for review of the ALJ's findings that patents '890, ”552, '579, '135, '615, '561, and '044 were not anticipated, obvious or unenforceable, and of Orders No. 7 and 12, in which the ALJ denied certain affirmative defenses. The Office of Unfair Import Investigations opposed both petitions for review. On December 15, 2006, all parties filed responses to the petitions for review.
On December 26, 2006, the Commission determined to extend the deadline for determining whether to review the ALJ's ID by 60 days to March 20, 2007, and to extend the target date for completion of the investigation by 60 days to May 4, 2007.
Having examined the record of this investigation, including the ALJ's final ID and the submissions of the parties, the Commission has determined not to review the final ID.
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action. See Presidential Memorandum of July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the subject articles would be entitled to enter the United States under bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed if a remedy is ordered.
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Any person desiring to
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 § 210.42-46 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-46).
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 determinations (“IDs”) (Orders No. 18 and 19) granting joint motions to terminate the above-captioned investigation as to certain respondents.
Jonathan J. Engler, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3112. Copies of the ALJ's IDs and all other non-confidential 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. General information concerning the Commission may also be obtained by accessing its Internet server at
On August 29, 2006, the Commission instituted this investigation, based on a complaint filed by Caterpillar Inc. (“Caterpillar”) of Peoria, Illinois. The complaint alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain hydraulic excavators and components thereof by reason of infringement of U.S. Trademark Registration No. 2,140,606, U.S. Trademark Registration No. 2,421,077, U.S. Trademark Registration No. 2,140,605, and U.S. Trademark Registration No. 2,448,848. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The complainants requested that the Commission issue a general exclusion order and cease and desist orders. The complaint named twenty (20) firms as respondents. Two respondents have been found in default.
On January 26, 2007, joint motions between Caterpillar and Respondents Deanco Auction Co. Of Mississippi Inc., Petrowsky Auctioneers, Inc., Ritchie Bros. Auctioneers, Inc., and Ritchie Brothers Auctioneers (America), Inc. (collectively, the “Auctioneer Respondents”) and between Caterpillar and Respondents Musselman Construction Co., d/b/a Musselman Rentals and Sales, Tractorland Equipment Co., Inc., and Pacific Rim Machinery, Inc. (collectively, the “Non-Auctioneer Respondents”) were filed seeking termination of this investigation based upon settlement agreements.
On February 21, 2007, the ALJ issued the subject IDs (Order Nos. 18 & 19) terminating the investigation as to the Auctioneer Respondents and Non-Auctioneer Respondents on the basis of settlement agreements. The ALJ found no indication that termination of the investigation as to these respondents on the basis of the settlement agreements would adversely affect the public interest, and that the procedural requirements for terminating the investigation had been met. No petitions for review were filed.
The Commission has determined not to review the IDs.
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 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on February 16, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Microsoft Corporation of Redmond, Washington. A supplemental letter was filed on March 9, 2007. The complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain unified communications systems, products used with such systems, and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 6,421,439, 6,430,289, 6,263,064, and 6,728,357. The complaint, as supplemented, further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a permanent exclusion order and a permanent cease and desist order.
The complaint and supplemental letter, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m.
David H. Hollander, Jr., Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2746.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2006).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain unified communication systems, products used with such systems, and components thereof by reason of infringement of one or more of claims 1 and 3 of U.S. Patent No. 6,421,439; claims 1-20 of U.S. Patent No. 6,430,289; claims 1, 3-5, 7-9, and 11-13 of U.S. Patent No. 6,263,064; and claims 1, 2, 4, 6, 8, and 17 of U.S. Patent No. 6,728,357; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—Microsoft Corporation, 1 Microsoft Way, Redmond, Washington 98052.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: Alcatel-Lucent, 54 rue La Boetie, Paris 75008, France.
(c) The Commission investigative attorney, party to this investigation, is David H. Hollander, Jr., Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401-R, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of a limited exclusion order or cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
March 29, 2007 at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: none.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-1103 (Final) (Certain Activated Carbon From China)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on April 9, 2007.)
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Employment and Training Administration, Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment and Training Administration is soliciting comments concerning the proposed extension of the regulatory requirements of the Confidentiality and Disclosure of State
A copy of the proposed information collection request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice or by accessing:
Written comments must be submitted to the office listed in the addressee's section below on or before May 25, 2007.
Submit written comments to the Employment and Training Administration, Office of Workforce Security, 200 Constitution Avenue, NW., Room C4518, Washington, DC 20210, Attention: Julie Balster. Telephone number: 202-693-3615 (this is not a toll-free number). Fax: 202-693-2874. E-mail:
The Deficit Reduction Act of 1984 established an income and eligibility verification system (IEVS) for the exchange of information among state agencies administering specific programs. The programs include Temporary Assistance for Needy Families, Medicaid, Food Stamps, Supplemental Security Income, Unemployment Compensation and any state program approved under Title I, X, XIV, or XVI of the Social Security Act. Under the Act, programs participating must exchange information to the extent that it is useful and productive in verifying eligibility and benefit amounts to assist the child support program and the Secretary of Health and Human Services in verifying eligibility and benefit amounts under Titles II and XVI of the Social Security Act.
On September 27, 2006, the Employment and Training Administration of the Department of Labor issued a final rule regarding the Confidentiality and Disclosure of State Unemployment Compensation Information. This rule supports and expands upon the requirements of the 1984 Deficit Reduction Act of 1984 and subsequent regulatory changes.
The Department of Labor is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
As the only continuous source of income and eligibility verification, the data are required by other agencies to administer and monitor multiple programs. The Confidentiality and Disclosure of State Unemployment Compensation Information rule amends the IEVS rule and provides regulatory revisions at 20 CFR part 603 in accordance with SSA Section 303(a)(1) related to the methods of administration requirement and supports the statutory requirements for SSA Sections 303(a)(7), (c)(1), (d), (e), (f), (h) and (i).
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration announces a meeting of the NASA Advisory Council. The agenda for the meeting includes updates from each of the Council committees, including discussion and deliberation of potential recommendations. The Council Committees address NASA interests in the following areas: Aeronautics, Audit and Finance, Space Exploration, Human Capital, Science, and Space Operations.
Thursday, April 19, 2007, 8 a.m.-4 p.m.
Seashore Ballroom, Hilton Cocoa Beach Oceanfront, 1550 N. Atlantic Avenue, Cocoa Beach, FL 32931.
Mr. Christopher Blackerby, Designated Federal Official, National Aeronautics and Space Administration, Washington, DC 20546, 202/358-4688.
The meeting will be open to the public up to the seating capacity of the room. It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of intent to grant exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an
The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-5104; (650) 604-2767.
Robert M. Padilla, Chief Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A-4, Moffett Field, CA 94035-1000. (650) 604-5104; (650) 604-2767. Information about other NASA inventions available for licensing can be found online at
National Aeronautics and Space Administration.
Notice of intent to grant exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an exclusive license in the United States to practice the inventions described and claimed in NASA Case Number LAR-16324-1 entitled “Self-Activating System and Method for Alerting When an Object or a Person is Left Unattended,” U.S. Patent Number 6,714,132; LAR-16324-2 entitled “Self-Activating System and Method for Alerting When an Object or a Person is Left Unattended,” U.S. Patent Number 7,106,203 to MaxTec, Inc. having its principal place of business in Wellington, Florida. The patent rights in these inventions have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Langley Research Center, MS 141, Hampton, VA 23681-2199, (757) 864-3221 (phone), (757) 864-9190 (fax).
Linda B. Blackburn, Patent Counsel, Office of Chief Counsel, NASA Langley Research Center, MS 141, Hampton, VA 23681-2199, (757) 864-3221; Fax: (757) 864-9190. Information about other NASA inventions available for licensing can be found online at
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of National Science Board business and other matters specified, as follows:
National Science Board.
Thursday, March 29, 2007, at 8 a.m. and Friday, March 30, 2007 at 8 a.m.
National Science Foundation, 4201 Wilson Blvd., Room 1235, Arlington, VA 22230. All visitors must report to the NSF visitor desk at the 9th and N. Stuart Streets entrance to receive a visitor's badge.
Some portions open, some portions closed.
Dr. Robert E. Webber,
• Approval of November Minutes
• Subcommittee Chairman's Remarks
• The Oden in Antarctica
• NSB Resolutions and the NAS/NRC Report on Polar Icebreakers
• Legislation Implementing Antarctic Treaty Measures on Liability and Tourism
• Approval of Minutes
• Task Force Chairman's Comments
• Overview of the Task Force Roundtable Discussion on International Science and Engineering Partnerships held March 9, 2007 in Brussels, and the Task Force discussion held March 13, 2007 in Trieste
• Summary of the Conference of Women Leaders in Science, Technology, and Engineering held January 8-10, 2007 in Kuwait
• Presentation on National Academies of Science report, The Fundamental Role of Science and Technology in International Development: An Imperative for the U.S. Agency for International Development
• Discussion of future Task Force activities
• Approval of Minutes for November 2006 Meeting
• Task Force Chairman's Remarks
• Final Draft Report for Board Review and Approval, Enhancing Support of Transformative Research at the National Science Foundation
• Approval of November Minutes
• Subcommittee Chairman's Remarks
• Review of Elementary and Secondary Education chapter: Chapter 1
• Review of State Indicators chapter: Chapter 8
• Condensed Version of Indicators
• Key Findings: K-12 chapter, Chapter 1
• Key Findings: State chapter, Chapter 8
• Parallel discussion of Science and Engineering Indicators 2010: Status
• State Considerations
• Industry Considerations
• Subcommittee Chairman's summary
• Approval of February 8, 2007 CSB Minutes
• Chairman's Remarks
• Status of NSF Budget Request and Congressional Testimony
• Update on the Impacts of the NSB Policy to Eliminate Cost-Sharing on Grants
• Findings from NSF Working Group on the Impact of Proposal and Award Management Mechanisms (IPAMM)
• Approval of Minutes
• Committee Chairman's Remarks
• Status Report: Task Force on International Science
• Subcommittee on Polar Issues
• Task Force on Transformative Research
• Final Report and Recommendations
• Request for Information: Recompetition, Operations and Management Costs for NSF Contracts, Cooperative Agreements and Grants
• Potential Impacts to the MREFC Program from the Realities of the FY 2007 Budget and the FY 2008 Request.
• NSB Information Item: Update on the Division of Astronomical Sciences Senior Review
• NSB Action Item: National Optical Astronomy Observatory and the National Solar Observatory
• NSB Action Item: National Astronomy and Ionosphere Center
• Approval of Minutes of February 2007 Meeting
• Committee Chairman's Opening Remarks
• Report to the Board on the NSF Merit Review Process, FY 2006
• Chief Operating Officer's Update
• Chief Financial Officer's Update
• NSF Audit Resolution Practices and Procedures
• FY2006 Financial Statement Audit Corrective Action Plan Update
• FY2007 Financial Statement Audit update
• OIG comments on FY2006 and FY2007 Financial Statement Audit matters
• Committee Chairman's closing Remarks
• Pending Investigations
• Approval of February 2007 Minutes
• Committee Chairman's Remarks
• Update on Modifications of NSF-EHR Directorate Organization and Interagency Discussions
• Subcommittee on Science and Engineering Indicators
• Summary and Follow-on to the Engineering Education Workshops
• NSB Executive Officer's Report
• Approval of February 2007 Minutes
• Member Proposal
• Honorary Award
• Approval of February 2007 Minutes
• Awards and Agreements
• Closed Committee Reports
• Approval of February 2007 Minutes
• Resolution to Close May 2007 Meeting
• Chairman's Report
• Board Discussion: STEM Education Commission
• Director's Report
• Open Committee Report
Notice is hereby given that the Director, Office of Nuclear Material Safety and Safeguards, has issued a director's decision with regard to a petition dated April 4, 2006, filed by Mr. Terry J. Lodge, on behalf of five organizations and 30 individuals, hereinafter referred to as the Petitioners. Representatives for the Petitioners participated in a telephone conference call with NRC's Petition Review Board (PRB) on April 26, 2006, to discuss the
The Petitioners requested that the NRC take enforcement action against the licensee for the Palisades Nuclear Plant, Nuclear Management Company, LLC (NMC), by condemning and stopping the use of the two independent spent fuel storage installation (ISFSI) concrete pads holding dry spent fuel storage casks on the plant site.
As the basis for the petition, the Petitioners stated that the concrete cask storage pads do not conform with NRC regulations for earthquake stability, specifically 10 CFR 72.212(b)(2)(i)(B) and 72.212(b)(3), and, therefore, pose a hazard in case of an earthquake. The Petitioners asserted that the licensee's evaluations of the older and newer concrete storage pads did not properly consider the behavior of the soil beneath the pads in determining the effects on the storage casks as a result of a seismic event.
On April 26, 2006, the NRC staff's PRB held a teleconference with the Petitioners. The teleconference gave the Petitioners an opportunity to provide additional information and to clarify issues raised in the petition. During the teleconference, the Petitioners requested additional time to submit a supplement to the petition, and the PRB agreed to the request, as documented in a letter to the Petitioners, dated May 4, 2006. However, no supplement was submitted. On June 27, 2006, the NRC staff informed the Petitioners by letter that the issue regarding the seismic response of the older ISFSI pad, and the issue of soil amplification for the newer pad, had been previously resolved and would not be considered under 10 CFR 2.206. In that same letter, the staff informed the Petitioners that the issue regarding the slope stability analysis for the newer pad was accepted for review under 10 CFR 2.206. The transcript of the teleconference and the letters are available in ADAMS, as stated above.
On November 28, 2006, the NRC sent a copy of the proposed director's decision to the Petitioners and to the licensee for comment. At the request of the Petitioners, the NRC extended the end of the comment period from January 5, 2007, to February 2, 2007. The Petitioners submitted comments by electronic mail on February 2, 2007. The comments and the staff's responses to them are available electronically through the NRC's Public Electronic Reading Room at
The Director of the Office of Nuclear Material Safety and Safeguards has determined that the Petitioners' request, to condemn and stop the use of the two ISFSI concrete pads holding dry spent fuel storage casks at the Palisades site, is denied. The NRC staff has concluded that the Petitioners' concerns have been adequately addressed by the licensee's revised slope stability evaluation for the newer concrete storage pad. The reasons for this decision are explained in the director's decision [DD-07-02] pursuant to Title 10 of the
A copy of the director's decision will be filed with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206 of the Commission's regulations. As provided for by this regulation, the director's decision will constitute the final action of the Commission 25 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the director's decision in that time.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
Notice is hereby given that the staff of the Nuclear Regulatory Commission (NRC) has prepared a model Application related to changes to the Standard Technical Specifications (STS), Section 3.7.5 (STS 3.7.4 for BWR/6), “Control Room Air Conditioning (AC) System” for NUREG-1433 (BWR/4) and NUREG-1434 (BWR/6), Rev. 3.0. The changes add an Action Statement to Limiting Condition for Operation (LCO) (LCO 3.7.5 for BWR/4 and LCO 3.7.4 for BWR/6). The new Action Statement allows a finite time to restore one control room AC subsystem to operable status and requires verification that control room temperature remains < 90°F every 4 hours. The proposed changes would also revise the Bases for STS 3.7.5 (STS 3.7.4 for BWR/6).
The NRC staff has also prepared a model safety evaluation (SE) and no significant hazards consideration (NSHC) determination relating to this matter. The purpose of these models is to permit the NRC to efficiently process amendments that propose to adopt the associated changes into plant-specific technical specifications (TS). Licensees of nuclear power reactors to which the models apply may request amendments confirming the applicability of the SE and NSHC determination to their reactors.
The NRC staff issued a
Peter C. Hearn, Mail Stop: O12H2, Division of Inspection and Regional Support, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-1189.
Background Regulatory Issue Summary 2000-06, “Consolidated Line Item Improvement Process for Adopting Standard Technical Specification Changes for Power Reactors,” was issued on March 20, 2000. The CLIIP includes an opportunity for the public to comment on proposed changes to operating licenses, including the technical specifications (TS), after a preliminary assessment by the NRC staff and a finding that the change will likely be offered for adoption by licensees. The CLIIP directs the NRC staff to evaluate any comments received for a proposed generic change to operating licenses and to either reconsider the change or issue the announcement of availability for the change proposed for adoption by licensees. Those licensees opting to apply for the subject change to operating licenses are responsible for reviewing the NRC staff's evaluation, referencing the applicable technical justifications, and providing any necessary plant-specific information. Each amendment application made in response to the notice of availability will be processed and noticed in accordance with applicable rules and NRC procedures. This notice involves adding an action statement for two inoperable control room AC subsystems to the associated STS Limiting Condition for Operation (LCO).
This proposed change to the standard technical specifications (STS) was submitted by the Technical Specifications Task Force (TSTF) in TSTF-477, Revision 3, “Adding an Action Statement for Two Inoperable Control Room Air Conditioning Subsystems.”
This proposal to modify technical specification requirements by the adoption of TSTF-477 is applicable to all licensees of General Electric Boiling Water Reactors who have adopted or will adopt in conjunction with the change, technical specification requirements for a Bases Control Program consistent with the TS Bases Control Program described in Section 5.5 of the STS. Licensees that have not adopted requirements for a Bases Control Program by converting to the improved STS or by other means, are requested to include the requirements for a Bases Control Program consistent with the STS in their application for the change. The need for a Bases Control Program stems from the need for adequate regulatory control of some key elements of the proposal that are contained in the Bases upon adoption of TSTF-477. The staff is requesting that the Bases changes be included with the proposed license amendments consistent with the Bases in TSTF-477. To ensure that the overall change, including the Bases, includes appropriate regulatory controls, the staff plans to condition the issuance of each license amendment on the licensee's incorporation of the changes into the Bases document and on requiring the licensee to control the changes in accordance with the Bases Control Program.
To efficiently process the incoming license amendment applications, the NRC staff requests that each licensee applying for the changes addressed in TSTF-477 use the CLIIP to submit an application that adheres to the following model. Any deviations from the model application should be explained in the licensee's submittal.
The CLIIP does not prevent licensees from requesting an alternate approach or proposing changes other than those proposed in TSTF-477. Variations from the approach recommended in this notice may, however, require additional review by the NRC staff and may increase the time and resources needed for the review. Significant variations from the approach, or inclusion of additional changes to the license, will result in staff rejection of the submittal. Instead, licensees desiring significant variations and/or additional changes should submit a LAR that does not claim to adopt TSTF-477.
In a
The NRC staff's model SE and model application may be examined, and/or copied for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. Publicly available records are accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Library component on the NRC Web site (the Electronic Reading Room).
The NRC staff received no formal comments following the notice published on December 18, 2006 (71 FR 75774), soliciting comments on the model SE and NSHC determination related to the TSTF-477 changes. The staff did receive editorial comments on the model SE and model application. The comments involving a spacing issue between words, deleting the extraneous use of the word Bases, a missing parentheses and replacing the an “iSTS” acronym with “STS” were incorporated. The comment involving placing a bracket around the Control Room Temperature limit of < 90°F was not incorporated since it would allow Control Room Temperatures of greater than 90°F. The comment was retained involving removing the term “Changes to the Bases or license controlled document are performed in accordance with 10 CFR 50.59” in order emphasize the requirement for a License Amendment and Safety Evaluation when Bases changes affect the Technical Specifications.
The NRC staff finds that the previously published models remain appropriate references and has chosen not to republish the model SE and model NSHC determination in this notice. As described in the model application prepared by the NRC staff, licensees may reference in their plant-specific applications to adopt the TSTF-477 changes, the model SE, NSHC determination, and environmental assessment previously published in the
For the Nuclear Regulatory Commission.
For inclusion on the technical specification Web page, the following example of an application was prepared by the NRC staff to facilitate use of the consolidated line item improvement process (cliip). The model provides the expected level of detail and content for an application to adopt TSTF-477, revision 3, add an action statement for two inoperable control room air conditioning subsystems to the technical specifications using cliip. Licensees remain responsible for ensuring that their actual application fulfills their administrative requirements as well as nuclear regulatory commission regulations.
Gentlemen: In accordance with the provisions of 10 CFR 50.90 [LICENSEE] is submitting a request for an amendment to the technical specifications (TS) for [PLANT NAME, UNIT NOS.].
The proposed amendment would modify the TS by adding an action statement for two inoperable control room AC subsystems to the plant specific TS.
Enclosure 1 provides a description of the proposed change, the requested confirmation of applicability, and plant-specific verifications. Enclosure 2 provides the existing TS pages marked up to show the proposed change. Enclosure 3 provides revised (clean) TS pages. Enclosure 4 provides the existing TS Bases pages marked up to show the proposed change in accordance with 10 CFR 50.36(a).
[LICENSEE] requests approval of the proposed license amendment by [DATE], with the amendment being implemented [BY DATE OR WITHIN X DAYS].
In accordance with 10 CFR 50.91, a copy of this application, with enclosures, is being provided to the designated [STATE] Official.
I declare under penalty of perjury under the laws of the United States of America that I am authorized by [LICENSEE] to make this request and that the foregoing is true and correct. (Note that request may be notarized in lieu of using this oath or affirmation statement).
If you should have any questions regarding this submittal, please contact [NAME, TELEPHONE NUMBER]
The proposed amendment would modify technical specifications by adding an Action Statement to the Limiting Condition for Operation (LCO). The new Action Statement allows a finite time to restore one control room AC subsystem to operable status and requires verification that control room temperature remains < 90 °F every 4 hours.
The changes are consistent with Nuclear Regulatory Commission (NRC) approved Industry/Technical Specification Task Force (TSTF) TSTF-477 Revision 3. The availability of this TS improvement was published in the
[LICENSEE] has reviewed TSTF-477 (Reference 1), and the NRC model safety evaluation (SE) (Reference 2) as part of the CLIIP. [LICENSEE] has concluded that the information in TSTF-477, as well as the SE prepared by the NRC staff are applicable to [PLANT, UNIT NOS.] and justify this amendment for the incorporation of the changes to the [PLANT] TS. [NOTE: Only those changes proposed in TSTF-477 are addressed in the model SE. The model SE addresses the entire fleet of General Electric Boiling Water Reactors. The plants adopting TSTF-477 must confirm the applicability of the changes to their plant.]
[LICENSEE] is not proposing any variations or deviations from the TS changes described in TSTF-477 or the NRC staff's model safety evaluation dated [DATE]. [NOTE: The CLIIP does not prevent licensees from requesting an alternate approach or proposing changes without the requested Bases or Bases control program. However, deviations from the approach recommended in this notice may require additional review by the NRC staff and may increase the time and resources needed for the review. Significant variations from the approach, or inclusion of additional changes to the license, will result in staff rejection of the submittal. Instead, licensees desiring significant variations and/or additional changes should submit a LAR that does not claim to adopt TSTF-477.]
[LICENSEE] has reviewed the proposed no significant hazards consideration determination (NSHC) published in the
As discussed in the notice of availability published in the
In addition, [LICENSEE] has proposed TS Bases consistent with TSTF-477 which provide guidance and details on how to implement the new requirements. Finally, [LICENSEE] has a Bases Control Program consistent with Section 5.5 of the Standard Technical Specifications (STS).
The amendment changes requirements with respect to the installation or use of a facility component located within the restricted area as defined in 10 CFR part 20. The NRC staff has determined that the amendment adopting TSTF-477, Rev 3, involves no significant increase in the amounts and no significant change in the types of any effluents that may be released offsite, and that there is no significant increase in individual or cumulative occupational radiation exposure. The Commission has previously issued a proposed finding that TSTF-477, Rev 3, involves no significant hazards considerations, and there has been no public comment on the finding in
1. TSTF-477, Revision 3, “Adding an Action Statement for Two Inoperable Control Room Air Conditioning Subsystems.”
2. NRC Model Safety Evaluation Report.
[Clean copies of Licensee specific Technical Specification (TS) pages, corresponding to the TS pages changed by TSTF-477, Rev 3, are to be included in Enclosure 3]
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to list and trade options on the Vanguard® Emerging Markets Exchange Traded Fund (“Fund Options”). The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The purpose of this rule change is to obtain approval to list for trading on the Exchange options on the Vanguard® Emerging Markets Exchange Traded Fund (“Fund”) on a pilot basis for six months to commence on the date of approval and through six months after that date. The Exchange currently has in place initial listing and maintenance standards set forth in CBOE Rules 5.3.06 and 5.4.08, respectively (“Listing Standards”) that are designed to allow the Exchange to list funds structured as open-end investment companies, such as the Fund, without having to file for Commission approval to list for trading options on the fund.
As provided in the Fund's most recent prospectus, dated November 10, 2006, the Fund is an open-end investment company that is designed to hold a portfolio of securities that tracks the Morgan Stanley Capital International, Inc. Emerging Markets Index (“MSCI Emerging Markets Index” or “Index”), which includes approximately 850 common stocks of companies located in 25 emerging markets around the world.
As of January 31, 2007, the Fund was comprised of 862 securities and the ten largest holdings in the fund made up 18.5% of the total assets in the Fund.
The Exchange believes that Vanguard's stated investment policies prevent the Fund from being excessively weighted in any single security or small group of securities and significantly reduces concerns that trading in the Fund could become a surrogate for trading in unregistered securities.
Shares of the Fund (“Fund Shares”) are issued in exchange for an “in kind” deposit of a specified portfolio of securities, together with a cash payment, in minimum size aggregation of 100,000 shares (each, a “Creation Unit”), as set forth in the Fund's prospectus.
The Exchange notes that the maintenance Listing Standards set forth in Rule 5.4.08 for open-end investment companies do not include criteria based on either the number of shares or other units outstanding or on their trading volume. As explained in SR-CBOE-97-03,
The Exchange has reviewed the Fund and determined that it satisfies the Listing Standards, except for the requirement set forth in CBOE Rule 5.3.06(A), which requires the Fund to meet the following condition: “any non-U.S. component securities of the index or portfolio on which the Units are based that are not subject to comprehensive surveillance agreements do not in the aggregate represent more than 50% of the weight of the index or portfolio.” The Exchange currently has in place comprehensive surveillance sharing agreements (“CSSA”) with foreign exchanges that cover 48.10% of the securities in the Fund. One of the foreign exchanges on which component securities of the Fund are traded and with which the Exchange does not have a CSSA is the Bolsa Mexicana de Valores (“Bolsa”). The percentage of the weight of the Fund represented by these securities is 6.60%.
The Exchange notes that the Commission recently approved the listing and trading of options on the iShares MSCI Emerging Markets Index Fund on a on a pilot basis
Specifically, in connection with the listing and trading of options on the iShares MSCI Emerging Markets Index Fund, the Exchange contacted the Bolsa with a request to enter into a CSSA. In response, the Bolsa expressed a willingness to enter into a surveillance sharing agreement but indicated that it was unable to provide certain information that is required as part of a CSSA. As a result of being unable to secure a CSSA with the Bolsa, the Exchange requested permission to rely for a pilot period on the MOU and the Exchange agreed to use its best efforts that during this period to obtain a CSSA with the Bolsa, which would reflect the following: (1) Express language addressing market trading activity, clearing activity, and customer identify; (2) the Bolsa's reasonable ability to obtain access to and produce requested information; and (3) based on the CSSA and other information provided by the Bolsa, the absence of existing rules, law or practices that would impede the Exchange from obtaining foreign information relating to market activity, clearing activity, or customer identity, or in the event such rules, laws, or practices exist, they would not materially impede the production of customer or other information.
On other occasions, the Commission has been willing to allow an exchange to rely on a memorandum of understanding entered into between regulators in the event that the exchanges themselves cannot enter into a CSSA. For example, the Exchange previously attempted to enter into a CSSA with the Bolsa around the time the Exchange sought approval to list for trading options on the CBOE Mexico 30 Index in 1995, which was comprised of stocks trading on the Bolsa.
The Commission noted in the Approval Order regarding the CBOE Mexico 30 Index that, in cases where it would be impossible to secure a CSSA, the Commission has relied in the past on surveillance sharing agreements between the relevant regulators. The Commission further noted in the Approval Order that, pursuant to the terms of the MOU, it was the Commission's understanding that both the Commission and the CNBV could acquire information from and provide information to the other, similar to that which would be required in a CSSA between exchanges. Therefore, should CBOE need information on Mexican trading in the component securities of the CBOE Mexico 30 Index, the Commission could request such information from the CNBV under the MOU.
The practice of relying on surveillance agreements between regulators when a foreign exchange was unable or unwilling to provide a CSSA was affirmed by the Commission in the Commission's New Product Release.
Given the Exchange's current inability to enter into a CSSA with the Bolsa, the Exchange requests permission to rely on a pilot basis on the MOU entered into between the Commission and the CNBV for purposes of satisfying its surveillance and regulatory responsibilities for the component securities in the Fund that trade on the Bolsa until the Exchange is able to secure a CSSA with the Bolsa. The Exchange believes this request is reasonable because the Commission has already acknowledged that the MOU permits both the Commission and the CNBV to acquire information from and provide information to the other, which is similar to that which would be required in a surveillance sharing agreement between exchanges.
Additionally, if the Commission approves the listing of the Fund on a pilot basis, during this period, the Exchange represents that it will continue its efforts to obtain a CSSA with the Bolsa. The Exchange also represents that it will regularly update the Commission on the status of its discussions with the Bolsa. The Commission's approval of this request would otherwise render the Fund compliant with all of the Listing Standards.
The Exchange believes the proposed rule change is consistent with the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The listing of the Fund Options does not satisfy CBOE Rule 5.3.06(A), which requires that: “any non-U.S. component securities of the index or portfolio on which the Units are based that are not subject to comprehensive surveillance agreements do not in the aggregate represent more than 50% of the weight of the index or portfolio.” Although the Commission has been willing to allow an exchange to rely on a memorandum of understanding entered into between regulators where the listing SRO finds it impossible to enter into an information sharing agreement, it is not clear that that CBOE has exhausted all avenues of discussion with foreign markets, including Bolsa, in order to obtain such an agreement. Indeed, with regard to Bolsa, conditions may have changed in the time period since CBOE last raised the issue with Bolsa in 1995 such that Bolsa now would be able to entering a comprehensive surveillance agreement with CBOE.
Consequently, the Commission has determined to approve CBOE's listing and trading of Fund Options for a six-month pilot period during which time CBOE may rely on the MOU with respect to Fund components trading on Bolsa. During this period, the Exchange has agreed to use its best efforts to obtain a comprehensive surveillance agreement with Bolsa, which shall reflect the following: (1) Express language addressing market trading activity, clearing activity, and customer identify; (2) the Bolsa's reasonable ability to obtain access to and produce requested information; and (3) based on the CSSA and other information provided by the Bolsa, the absence of existing rules, law or practices that would impede the Exchange from obtaining foreign information relating to market activity, clearing activity, or customer identity, or in the event such rules, laws, or practices exist, they would not materially impede the production of customer or other information.
The Exchange also represents that it will regularly update the Commission on the status of its negotiations with Bolsa. In approving the proposed rule change, the Commission notes that CBOE currently has in place surveillance agreements with foreign exchanges that cover 48.10% of the securities in the Fund and that the Index upon which the Fund is based appears to be a broad-based index.
The Exchange has requested accelerated approval of the proposed rule change. The Commission finds good cause, consistent with Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
NASD is proposing to amend the By-Laws of NASD (“NASD By-Laws”) to implement governance and related changes to accommodate the consolidation of the member firm regulatory functions of NASD and NYSE Regulation, Inc. (“NYSE Regulation”). The proposed rule change also would make limited conforming changes to the By-Laws of NASD Regulation, Inc. (“NASD Regulation By-Laws”).
The text of the proposed rule change is available on the NASD's Web site (
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 securities industry—both domestically and internationally—is in the midst of dramatic change. As the industry changes, it has become clear that the self-regulatory organization (“SRO”) model must be adapted to ensure efficient and effective regulation. At the moment, both NASD and NYSE Regulation oversee the activities of U.S.-based broker-dealers doing business with the public, approximately 170 of which are regulated by both organizations. The result is a duplicative, sometimes conflicting system that makes inefficient use of resources and, as such, can be detrimental to the ultimate goal of investor protection.
NASD has long supported the idea of one SRO having responsibility for all member firm regulation.
With the support and encouragement of the SEC, NASD and NYSE Group, Inc. (“NYSE Group”) representatives began meeting in June 2006 to discuss options for changes to the self-regulatory system. A determination was made that the scope of the discussions should be limited to eliminating redundant member regulation and not to combine the market regulatory responsibilities of NASD and NYSE Regulation.
On November 28, 2006, NASD and the NYSE Group announced the plan to consolidate their member regulation operations into a combined organization that will be the sole U.S. private-sector provider of member firm regulation for securities firms that do business with the public (the “Transaction”).
The goals of the consolidation plan are to:
• Establish a new organization that will be the single SRO for all securities firms doing business with the public in the U.S.;
• Build and sustain the confidence critical to the operation of vibrant capital markets;
• Increase efficient, effective, and consistent regulation of securities firms;
• Provide cost savings to securities firms of all sizes; and
• Strengthen investor protection and market integrity.
• Regulatory oversight of all securities firms that do business with the public;
• Professional training, testing and licensing of registered persons;
• Arbitration and mediation;
• Market regulation by contract for The Nasdaq Stock Market, Inc. (“Nasdaq”), the American Stock Exchange LLC, and the International Securities Exchange, LLC; and
• Industry utilities, such as Trade Reporting Facilities and other over-the-counter operations.
The consolidation plan addresses key issues raised in the SEC's 2004
The closing of the Transaction and the consolidation of the member firm regulatory functions of the two organizations is subject to the SEC's approval of this proposed rule change, the execution of definitive agreements between NASD and NYSE Group and obtaining certain additional regulatory approvals.
The proposed rule change will implement the governance changes at the combined organization, including a Board structure that balances public and industry representation, and designates certain governor seats to represent member firms of various sizes. As further described below, the new governance structure guarantees industry participation that provides for fair and balanced member representation on the Board.
For a transitional period commencing on the date of closing of the Transaction and ending on the third anniversary of the date of closing (the “Transitional Period”), the New SRO Board of Governors (“New SRO Board”) will consist of 23 governors as follows: (1) Eleven of the governors will be “Public Governors”; (2) ten of the governors will be “Industry Governors”; and (3) two of the governors will initially be Richard G. Ketchum, Chief Executive Officer (“CEO”) of NYSE Regulation and Mary L. Schapiro, CEO of NASD. Mr. Ketchum will serve as Non-Executive Chairman of the New SRO for a term of three years. Ms. Schapiro will serve as CEO of the New SRO.
The eleven Public Governors will have no material business relationship with a broker or dealer or an SRO registered under the Exchange Act.
Of the ten Industry Governors, (1) Three will be registered with a member that employs 500 or more registered persons (the “Large Firm Governors”); (2) one will be registered with a member that employs at least 151 and no more than 499 registered persons (the “Mid-Size Firm Governor”); (3) three will be registered with a member that employs at least one and no more than 150 registered persons (the “Small Firm Governors”); (4) one will be associated with a floor member of the New York Stock Exchange (the “Floor Member Governor”); (5) one will be associated with an independent dealer or insurance affiliate (the “Independent Dealer/Insurance Affiliate Governor”); and (6) one will be associated with an investment company affiliate (the “Investment Company Affiliate Governor”).
The Industry Governors and Public Governors will be appointed or nominated during the Transitional Period as follows:
• The three Small Firm Governors will be nominated by the NASD Board and elected by members that have at least one and no more than 150 registered persons; provided that members of that size also can nominate such candidates.
• The one Mid-Size Firm Governor will be nominated jointly by the Board of Directors of NYSE Group (“NYSE Group Board”) and the NASD Board and elected by members that have at least 151 and no more than 499 registered persons; provided that members of that size also can nominate such candidates.
• The three Large Firm Governors will be nominated by the NYSE Group Board and elected by members that have 500 or more registered persons; provided that members of that size also can nominate such candidates.
• Five Public Governors will be appointed by the NYSE Group Board.
• Five Public Governors will be appointed by the NASD Board.
• One Public Governor will be appointed jointly by the NYSE Group Board and the NASD Board.
• The one Floor Member Governor will be appointed by the NYSE Group Board.
• The one Independent Dealer/Insurance Affiliate Governor will be appointed by the NASD Board.
• The one Investment Company Affiliate Governor will be appointed jointly by the NYSE Group Board and the NASD Board.
Effective as of closing of the Transaction, the NYSE Group Board and the NASD Board in office prior to the closing will appoint the Public Governors and Industry Governors they, either individually or jointly, have the power to appoint. The Public Governors will hold office for the Transitional Period. The three Large Firm Governors, three Small Firm Governors and one Mid-Size Governor will be elected as Governors at the first annual meeting of members following the closing, which is expected to be held within ninety days after closing of the Transaction and will hold office until the first annual meeting of members following the Transitional Period. During the interim period from closing of the Transaction until the annual meeting, these seven seats will be filled by three interim Industry Governors appointed by the NASD Board prior to the closing of the Transaction from industry governors currently on the NASD Board, three interim Industry Governors appointed by the NYSE Group Board and one interim Industry Governor jointly appointed by the NYSE Group Board and the NASD Board prior to the closing of the Transaction.
As a result of the NASD By-Law amendments, members will no longer have the ability to vote for all New SRO Board candidates in elections, but will have an opportunity to vote on designated seats on the New SRO Board. Specifically, firms will vote for industry nominees that are similar in size to their own firm. This means that small firms and large firms will vote for candidates running for the seats reserved for their firm size and the mid-sized firms will likewise vote for the mid-sized firm seat. All other New SRO Board seats will be appointed as described above. All members will continue to have the ability to vote on any future amendments to the New SRO By-Laws, as well as in district elections.
The New SRO Board will have a Governor who will preside over executive sessions of the New SRO Board in the event the Non-Executive Chairman is recused (“Lead Governor”). The Lead Governor will be selected by the New SRO Board, after consultation with the CEO. The Board, the CEO, the Non-Executive Chairman and the Lead Governor will have the authority to call meetings of the New SRO Board. Both the CEO and Non-Executive Chairman, and for matters from which the CEO and Non-Executive Chairman are recused from considering, the Lead Governor, will have the authority to place items on the New SRO Board agendas.
In the event of a vacancy in the governor position held by the CEO of NYSE Regulation during the Transitional Period, the then CEO of NYSE Regulation will serve as a governor for the remainder of the Transitional Period. If the CEO of NYSE Regulation as of closing of the Transaction ceases to occupy the office of Non-Executive Chairman for any reason during the Transitional Period, then his successor as Non-Executive Chairman shall be selected by and from a committee comprised of the Governors that were appointed or nominated by the NYSE Group Board, with the exception that those Governors that also serve as NYSE Group directors may not become Non-Executive Chairman nor may his successor as CEO of NYSE Regulation become Non-Executive Chairman.
In the event of any vacancy among the Large Firm Governors, the Mid-Size Firm Governor, or the Small Firm Governors during the Transitional Period, such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board composed of the other Governors appointed or nominated by the NYSE Group Board in the case of a Large Firm Governor vacancy; such vacancy shall only be filled by the Board, and nominations for persons to fill such vacancy shall be made by the Nominating Committee in the case of a Mid-Size Firm Governor vacancy; or such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board composed of the other Governors appointed or nominated by the NASD Board in the case of a Small Firm Governor vacancy. In the event the remaining term of office of any such governor is more than twelve months, nominations shall be made as set forth above, but such vacancy will be filled by the New SRO members entitled to vote on such governor position at a meeting of such members called to fill the vacancy.
In the event of any vacancy among the Floor Member Governor, the Investment Company Affiliate Governor or the Independent Dealer/Insurance Affiliate Governor during the Transitional Period, such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board composed of the other Governors appointed or nominated by the NYSE Group Board in the case of a Floor Member Governor vacancy; such vacancy shall only be filled by the New SRO Board, and nominations for persons to fill such vacancy shall be made by the Nominating Committee in the case of an Investment Company Affiliate Governor vacancy; or such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board composed of other Governors appointed or nominated by the NASD Board in the case of an Independent Dealer/Insurance Affiliate Governor vacancy.
In the event of any vacancy among those Public Governors appointed by the NYSE Group Board, such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board composed of the other Governors appointed or nominated by the NYSE Group Board. In the event of any vacancy among those Public Governors appointed by the NASD Board, such vacancy shall only be filled by, and nominations for persons to fill such vacancy shall be made by, a committee of the New SRO Board comprised of the other Governors appointed or nominated by the NASD Board. In the event of any vacancy of the Public Governor position jointly appointed by the NYSE Group Board and the NASD Board, such vacancy shall only be filled by the New SRO Board, and nominations for persons to fill such vacancy shall be made by the Nominating Committee.
Upon the expiration of the Transitional Period, the term of office of the CEO of NYSE Regulation as a member of the New SRO Board will automatically terminate and the authorized number of members of the New SRO Board will be reduced by one.
As of the first annual meeting of members following the Transitional Period, the Large Firm Governors, the Mid-Size Firm Governor and the Small Firm Governors will be elected into three classes. The composition of the classes will be arranged as follows:
• The first class, being comprised of one Large Firm Governor and one Small Firm Governor, will be elected for a term of office expiring at the first succeeding annual meeting of members;
• The second class, being comprised of one Large Firm Governor, one Mid-Size Firm Governor and one Small Firm Governor, will be elected for a term of office expiring at the second succeeding annual meeting of members; and
• The third class, being comprised of one Large Firm Governor and one Small Firm Governor, will be elected for a term of office expiring at the third succeeding annual meeting of members.
While these classes are designed to ensure staggered board seats, at no time will there be less than ten Industry Governor positions on the New SRO Board. At each annual election following the first annual meeting of members after the Transitional Period, Large Firm Governors, Small Firm Governors, and Mid-Size Firm Governors will be elected for a term of three years to replace those whose terms expire.
As of the first annual meeting of members following the Transitional Period, the Public Governors, the Floor Member Governor, the Independent Dealer/Insurance Affiliate Governor, and the Investment Company Affiliate Governor (the “Appointed Governors”) will be divided by the New SRO Board into three classes, as equal in number as possible, with the first class holding office until the first succeeding annual meeting of members, the second class holding office until the second succeeding annual meeting of members, and the third class holding office until the third succeeding annual meeting of members. Each class will initially contain as equivalent a number as possible of Appointed Governors who were members of the New SRO Board appointed or nominated by the NYSE Group Board or are successors to such governor positions, on the one hand, and Appointed Governors who were members of the New SRO Board appointed or nominated by the NASD Board or are successors to such governor positions, on the other hand, to the extent the New SRO Board determines such persons are to remain Governors after the Transitional Period. At each annual election following the first annual meeting of members following the Transitional Period, Appointed Governors will be appointed by the New SRO Board for a term of three years to replace those whose terms expire.
The Nominating Committee will be a committee of the New SRO Board and will replace the current National Nominating Committee. For the first
During the Transitional Period, the Nominating Committee will be responsible solely for nominating persons to fill vacancies in governor seats for which the full New SRO Board has the authority to fill. Following the Transitional Period, the Nominating Committee will be responsible for nominating persons for appointment or election to the New SRO Board, as well as nominating persons to fill vacancies in appointed or elected governor seats.
During the Transitional Period, members of the Nominating Committee will be appointed jointly by the New SRO CEO and the CEO of NYSE Regulation as of closing of the Transaction (or his duly appointed successor as Chair of the New SRO Board), subject to ratification of the appointees by the New SRO Board. Following the Transitional Period, the composition of the Nominating Committee will be determined by the New SRO Board. At all times, the number of Public Governors on the Nominating Committee must equal or exceed the number of Industry Governors on the Nominating Committee. In addition, the Nominating Committee must at all times be comprised of a number of governors that is a minority of the entire New SRO Board. The New SRO CEO may not be a member of the Nominating Committee.
The following chart summarizes the material proposed changes as compared to the current NASD By-Laws and the timing of their effectiveness. The following is only a summary; the text of the proposed rule change is available on the NASD's Web site (
The proposed amendments to the NASD By-Laws also include changes or additions to certain defined terms. In addition to changes to accommodate the new governance structure, the proposed rule change would amend the definition of “disqualification” in the NASD By-Laws to conform to the federal securities laws, such that any person subject to a statutory disqualification under the Exchange Act also would be subject to disqualification under NASD rules.
These changes or additions to the defined terms in the NASD By-Laws include the following:
There also are certain other non-substantive changes reflected in the rule text. For example, each reference to “the NASD” or “NASD” in the NASD By-Laws will be replaced with “the Corporation” in contemplation of the change in the name of the corporation. In addition, each reference to the “Rules of the Association” in the NASD By-Laws will be replaced with the “Rules of the Corporation.” The effective date of the proposed rule change will be the closing of the Transaction. Assuming SEC approval of the proposed rule change, corresponding changes will be made to NASD's Certificate of Incorporation. The effective date of the corresponding changes to NASD's Certificate of Incorporation also will be the closing of the Transaction.
In 1996, based on recommendations of a committee appointed by the NASD Board, NASD formed its subsidiary NASD Regulation (in addition to the already existing Nasdaq) and adopted the Plan of Allocation and Delegation of Functions by NASD to Subsidiaries (“Delegation Plan”) to reflect its change
First, in light of the new proposed composition of the New SRO Board, the proposed rule change would amend Section 5.2 of the NASD Regulation By-Laws (Number of Members and Qualifications of the National Adjudicatory Council (“NAC”)) to eliminate the reference that the Chairman of the NAC shall serve as a Governor of the NASD Board for a one-year term. Second, because the Chairman of the NAC may continue to serve as a Director of the NASD Regulation Board, the proposed rule change would eliminate the requirement in Section 4.3 (Qualifications) that only Governors of the NASD Board shall be eligible for election to the NASD Regulation Board. Finally, NASD proposes to amend the statement in Section 4.3 that provides that the CEO of NASD shall be an ex-officio non-voting member of the NASD Regulation Board, to reflect that Ms. Schapiro will occupy both the position of CEO of the New SRO and the President of NASD Regulation. In particular, the proposed rule change would clarify that where the CEO of the New SRO also serves as President of NASD Regulation, then the person shall have all powers, including voting powers, granted to all other Directors pursuant to applicable law, the Restated Certificate of Incorporation, the Delegation Plan and the NASD Regulation By-Laws.
The effective date of the proposed rule change will be the closing of the Transaction.
NASD believes that the proposed rule change is consistent with the provisions of Section 15A of the Act, including Section 15A(b)(2) 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.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to 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.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Iowa ( FEMA—1688—DR), dated 03/14/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 03/14/2007, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Oregon (FEMA-1683-DR), dated 02/22/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Oregon, dated 02/22/2007, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
By virtue of the authority vested in me as Secretary of State, including Section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a) and Executive Order 13313 of July 31, 2003 (68 FR 45151), I hereby delegate to the Under Secretary for Arms Control and International Security the authority to submit the annual report on the implementation of the Moscow Treaty by the United States and Russian Federation pursuant to Condition (2) of the March 6, 2003, Resolution of Advice and Consent to Ratification of the Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions (the Moscow Treaty).
Any act, executive order, regulation or procedure subject to, or affected by, this delegation shall be deemed to be such act, executive order, regulation or procedure as amended from time to time.
Notwithstanding this delegation of authority, the Secretary, the Deputy Secretary, or the Under Secretary for Policy may at any time exercise any authority or function delegated by this delegation of authority.
This delegation of authority shall be published in the
This document was received at the Office of the Federal Register on March 21, 2007.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. This proposal establishes requirements for the certification, operation, and maintenance of light-sport aircraft.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. At the request of the FAA, the Flight Standards office (AFS) is planning to conduct a targeted survey of general aviation pilots to measure the change in their use of and satisfaction with the FAA-sponsored Safety Seminar Program.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. The date of manufacture and compliance status stamped on a nameplate of each turbojet engine permits rapid determination by FAA inspectors, owners, and operators whether an engine can legally be installed and operated on an aircraft in the United States.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. Enplanement data collected from air taxi and commercial operators are required for the calculation of air carrier airport sponsor apportionments as specified by the Airport Improvement Program (AIP), and 49 U.S.C. Part A, Air Commerce Safety, and Part B, Airport Development and Noise.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Divsion, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. Airworthiness directives are regulations issued to require corrective action to correct unsafe conditions in aircraft, engines, propellers, and appliances.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address; Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. The information collected is used to determine compliance with applicant eligibility.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
The FAA invites public comments about our intention to request the Office of Management and Budget (OMB) to approve a current information collection. 49 U.S.C. Section 44718 states that the Secretary of Transportation shall require notice of structures that may affect navigable airspace, air commerce, or air capacity.
Please submit comments by May 25, 2007.
Carla Mauney on (202) 267-9895, or by e-mail at:
Send comments to the FAA at the following address: Ms. Carla Mauney, Room 712, Federal Aviation Administration, Strategy and Investment Analysis Division, AIO-20, 800 Independence Ave., SW., Washington, DC 20591.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of Availability of an EA and FONSI/ROD for the evaluation of environmental impacts associated with the proposed rehabilitation of Runway 3R-21L at Detroit Metropolitan Wayne County Airport.
The FAA is making available the EA and FONSI/ROD for the evaluation of environmental impacts associated with proposed rehabilitation of Runway 3R-21L at Detroit Metropolitan Wayne County Airport. The EA was prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, FAA Orders 1050.1E, “Environmental Impacts: Policies and Procedures” and FAA Order 5050.4B, “NEPA Implementing Instructions for Airport Actions”.
Mr. Ernest Gubry, Environmental Protection Specialist, DET-605, Federal Aviation Administration, Detroit Airport District Office, 11677 South Wayne Road, Suite 107, Romulus, MI 48174. Telephone number: 734-229-2905.
The FAA is making an EA and FONSI/ROD for the evaluation of environmental impacts associated with the proposed rehabilitation of Runway 3R-21L for the Detroit Metropolitan Wayne County Airport (the Airport), located in Detroit, Michigan. The proposed project consists of the demolition, removal and full-depth replacement of the pavement section for the northern-most 7,600 feet of the 150 feet wide Runway 3R-21L and associated work. The Project is planned to take 175 days and is proposed to start in the spring of 2007. During the 175 day construction period aircraft operations typically assigned to Runway 3R-21L would be reassigned to one of the other parallel runways or the crosswind runways. This would result in Runways 3L-21R, 4R-22L, 4L-22R and 9R-27L being used more often than would typically occur without the Proposed Action and as a result, a temporary increase in the number of aircraft and noise over residences immediately north and east of the airport is anticipated. This temporary operation would not result in the creation of any new air traffic procedures but would result in additional numbers of operations on existing flight tracks during the construction period. Runway 3R-21L will be reconstructed to its original length, width and strength and will not result in increases in operations or changes in types of aircraft using the runway. The flight tracks and percentage of use will also return to their prior usage. These documents will be available for public review during normal business hours at the Detroit Airport District Office, 11677 South Wayne road, Suite 107, Romulus, MI 48174. Please call the point of contact prior to visiting this office.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specific requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before April 16, 2007.
Send comments on the petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2007-27562 at the beginning of your comments. If you wish to receive confirmation that the FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Susan Boylon, ANM-113 (425-227-1152), Federal Aviation Administration, 1601 Lind Avenue, SW., Renton, WA 98057-3356 (for Dassault Aviation), or Frances Shaver, (202-267-9681), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of petitions seeking relief from specific requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before April 16, 2007.
Send comments on the petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2007-27330 at the beginning of your comments. If you wish to receive confirmation that the FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Frances Shaver (202-267-9681), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591-3356 or Tyneka Thomas (202-267-7626), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591-3356.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specific requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before April 16, 2007.
Send comments on the petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2007-27452 at the beginning of your comments. If you wish to receive confirmation that the FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to
Jan Thor, ANM-113, (425) 227-2127, Federal Aviation Administration, 1601 Lind Avenue SW, Renton, WA 98057-3356 (for STRONG Aero Engineering), or Frances Shaver, (202-267-9681), Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Transit Administration, DOT.
Notice of request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the Federal Transit Administration (FTA) to request the Office of Management and Budget (OMB) to extend the following currently approved information collection:
49 U.S.C. 5310 and 5311—Capital Assistance Program for Elderly Persons and Persons with Disabilities and Nonurbanized Area Formula Program
Comments must be submitted before May 25, 2007.
All written comments must refer to the docket number that appears at the top of this document and be submitted to the United States Department of Transportation, Central Dockets Office, PL-401, 400 Seventh Street, SW., Washington, DC 20590. All comments received will be available for examination at the above address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard/envelope.
Ms. Cheryl Oliver, Office of Program Management, (202) 366-2053.
Interested parties are invited to send comments regarding any aspect of this information collection, including: (1) The necessity and utility of the information collection for the proper performance of the functions of the FTA; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the collected information; and (4) ways to minimize the collection burden without reducing the quality of the collected information. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Safety advisory.
The Pipeline and Hazardous Materials Safety Administration is issuing this advisory to inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried aboard aircraft. Thousands of batteries and battery-powered devices are safely carried aboard passenger aircraft each day, but several recent incidents involving batteries in checked or carry-on baggage illustrate the risks of overheating and fire that can occur when the regulations are not followed. Federal regulations require that
Hazardous Materials Information Center, Office of Hazardous Materials Standards, PHMSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC, 20590-0001. Telephone: (800) 467-4922 or (202) 366-4488.
Technological advances and the demands of a mobile society have made the use of portable electronic equipment and other battery-powered devices an established part of the modern American lifestyle. Americans increasingly own—and travel with—portable telephones, computers, cameras, camcorders, entertainment devices, and medical equipment—even cordless power tools. The batteries that power these devices are increasingly as varied as the products themselves: they are manufactured by many different companies, foreign and domestic, rely on a variety of power-generating technologies, established and newer; and come in all manner of shapes and sizes.
Portable battery-powered devices and batteries are safe for transportation when packed properly. But like many other materials that are part of daily consumer use, they must be handled and packaged appropriately to prevent unsafe conditions. A power tool that can be safely used for its intended purpose can cause damage if it is unintentionally activated inside a closed suitcase. Similarly, a battery can cause damage if it is improperly charged, abused, or short-circuited.
As the Federal regulatory agency with responsibility for the safe movement of hazardous materials by all modes of transportation, it is PHMSA's job to establish safety standards for the safe transportation of batteries and battery-powered devices. Our goal is to minimize risks to persons, property, and the environment, while keeping these materials moving in commerce. We apply the highest standards to transportation by air, recognizing that any fire aboard a passenger flight is unacceptable.
PHMSA's regulations (Hazardous Materials Regulations (HMR; Title 49, Code of Federal Regulations, parts 171-180)) prohibit the transportation of electrical devices, unless the devices are packed in a manner to prevent sparks or overheating (see § 173.21(c)). Airline passengers who carry batteries or electrical devices in carry-on or checked baggage are responsible for ensuring appropriate steps are taken to protect against dangerous levels of heat that can be generated by inadvertent activation or short-circuiting of these devices while in transportation.
Over the past several years, we have received a number of reports of transportation incidents involving various kinds of batteries and battery-powered devices, including incidents involving passenger airline operations. The most recent incident occurred on February 10, 2007, aboard a flight originating at JFK International Airport. Shortly after takeoff, a fire ignited in a passenger bag stowed in an overhead bin. Fast and appropriate action by the crew brought the fire under control and prevented injury to passengers and crew. The flight crew promptly extinguished the fire and the flight returned to JFK for an emergency landing. Although the fire is still under investigation by PHMSA, the Federal Aviation Administration (FAA), and the National Transportation Safety Board (NTSB), preliminary reports indicate batteries were involved in the incident.
Other incidents have occurred on the ground. Last May, we received a report of a fire involving a spare lithium ion battery that had been stowed in a passenger's notebook computer carrying case. A flight attendant removed the burning case from the passenger cabin, and tossed it onto the ramp, where the fire was extinguished by ground personnel.
On April 18, 2004, at Chicago's Midway Airport, a power drill with an installed nickel cadmium battery activated while in checked luggage. This caused a fire that spread to other bags on a luggage cart waiting to be loaded onto a passenger aircraft.
In June 2003, we received reports that an overheated battery had been discovered in a routine baggage inspection of a flight departing from Logan Airport in Boston. The battery had been loosely packed in a toolbox, along with various metal tools. We believe the heat build-up was caused by short-circuiting when the battery's exposed terminals came in contact with metal objects in the toolbox.
By design, all batteries operate through a controlled chemical reaction, which generates electrical energy and, in the process, some degree of heat. Batteries are designed to generate an electrical current and transmit power through terminals made of a conductive metal. It is their capacity to perform that basic function that makes them useful but, if not properly handled, designed or manufactured, poses a risk of overheating and fire.
External short-circuiting of a battery can occur from contact or close proximity of metal objects or other batteries near exposed terminals. The newest generation of batteries using lithium metal or lithium ion technology pose particular risks, based on their energy density and chemistry, and because fires involving these batteries are more difficult to extinguish or suppress. Even nickel cadmium and nickel metal-hydride batteries can generate large amounts of current and heat when short-circuited.
As with any product, manufacturing defects also can cause safety problems. Last summer, several major notebook computer manufacturers initiated recalls of their lithium ion batteries after learning of overheating and fires caused by a production defect in the batteries installed in the notebooks. According to the Consumer Product Safety Commission, manufacturers have voluntarily recalled over 10 million lithium-ion batteries in the last few years. We are also aware of risks associated with overcharging and internal short circuits that have led to battery recalls.
We are aware that travelers want to take appropriate measures to ensure their safety and that of their fellow passengers and may need reminders or assistance to know how to travel safely with batteries. We recommend the following measures to ensure battery terminals are effectively insulated and
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Do not carry aboard a plane recalled, damaged or counterfeit batteries. Information about recalled batteries can be found at the manufacturer's Web site or from the Consumer Product Safety Commission (
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Leaving batteries in battery-powered devices is an effective means of insulating the terminals and protecting against internal short-circuiting. However, battery-powered devices with installed batteries must be packaged to prevent inadvertent activation. Cordless power tools, for instance, should be packed in a protective case, with a trigger lock engaged.
The publication of this safety advisory is one of several measures PHMSA is taking, in consultation with FAA, the NTSB, manufacturers of batteries and consumer products, airlines, testing laboratories, the emergency response and law enforcement community and other stakeholders, to respond to the battery-related incidents.
The Air Line Pilots Association, in conjunction with the International Federation of Air Line Pilots Associations, plans to simultaneously publish to their members a Safety Alert and Safety Bulletin respectively, concerning the hazards associated with in-flight passenger electronic equipment fires, and steps crewmembers should take in the event of a fire.
Over the next few months, PHMSA, FAA, and other interested public and private sector organizations will move ahead with actions to enhance battery transportation safety through development and revision of safety standards and public education and outreach.
In the meantime, airline passengers and crew members are reminded of their existing obligations under PHMSA's regulations. As noted above, airline passengers are prohibited from carrying batteries and battery-powered equipment aboard an aircraft unless the device and batteries have been packaged or protected against short-circuiting and overheating.
Providence and Worcester Railroad Company (P&W) has filed a notice of exemption under 49 CFR 1152 Subpart F—
P&W has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements of 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(l) (notice to governmental agencies) have been met.
As a condition to this exemption, any employees adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on April 25, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to P&W's representative: Edward D. Greenberg, 1054 Thirty-First Street, NW., Washington, DC 20007.
If the verified notice contains false or misleading information, the exemption is void
P&W has filed environmental and historic reports which address the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by March 30, 2007. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), P&W shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by P&W's filing of a notice of consummation by March 26, 2008, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Environmental Protection Agency.
Supplemental Proposed Rule.
The Environmental Protection Agency (EPA) is today publishing a supplemental proposal which would revise the definition of solid waste to exclude certain hazardous secondary materials from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA). We are also soliciting comments on regulatory factors to be used to determine whether recycling of hazardous secondary materials is legitimate. The Agency first proposed changes to the definition of solid waste on October 28, 2003 (68 FR 61558). The purpose of this proposal is to encourage safe, environmentally sound recycling and resource conservation and to respond to several court decisions concerning the definition of solid waste.
Comments must be received on or before May 25, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by OMB on or before April 25, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ -RCRA 2002-0031 by one of the following methods:
For more detailed information on specific aspects of this rulemaking, contact Marilyn Goode, Office of Solid Waste, Hazardous Waste Identification Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460 (703) 308-8800, (
Entities potentially affected by this action include about 4600 facilities in 530 industries in 17 economic sectors that generate or recycle hazardous secondary materials which are currently regulated as RCRA Subtitle C hazardous wastes (e.g., industrial co-products, by-products, residues, unreacted feedstocks). About 80 percent of these affected facilities are classified in NAICS code economic sectors 31, 32, and 33 (manufacturing), and the remainder are in NAICS code economic sectors 21 (mining), 22 (utilities), 23 (construction), 42 (wholesale trade), 44 and 45 (retail trade), 48 and 49 (transportation), 51 (information), 54 (professional, scientific and technical services), 56 (administrative support, waste management and remediation), 61 (educational services), 62 (health care and social assistance, and 81 (other services). About 0.65 million tons per year of recyclable industrial materials handled by these entities may be affected, of which the most common types are metal-bearing hazardous secondary materials (e.g., sludges and spent catalysts) for commodity metals recovery, and organic chemical liquids for recycling as solvents. This proposed rule, if promulgated, is expected to result in regulatory and materials recovery cost savings to these industries of approximately $107 million per year. Taking into account impact estimation uncertainty factors, this rule, if promulgated, could affect between 0.3 to 1.7 million tons per year of industrial hazardous secondary materials handled by 3600 to 5400 entities in 460 to 570 industries, resulting in $93 million to $205 million per year of net cost savings. More detailed information on the potentially affected entities, industries, and industrial materials, as well as the economic impacts of this
1. Submitting CBI. Do not submit this information to EPA through
2. Tips for Preparing Your Comments.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions. The Agency may ask for commenters to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or Section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If estimating burden or costs, explain methods used to arrive at the estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate any concerns and suggest alternatives.
• Make sure to submit comments by the comment period deadline identified above.
These regulations are proposed under the authority of sections 2002, 3001, 3002, 3003, 3004, 3007, 3010, and 3017 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.
In today's notice, EPA is proposing to revise the definition of solid waste in order to exclude from regulation under Subtitle C of RCRA certain hazardous secondary materials sent for recycling. We are also seeking comment on certain changes to the proposed regulatory factors for determining whether recycling is legitimate. The Agency first proposed changes to the definition of solid waste, as well as regulatory criteria for legitimacy, on October 28, 2003 (68 FR 61581-61588).
The scope of the regulatory changes proposed today are as follows:
This provision, with regulatory language proposed in 40 CFR 261.2(a)(2)(ii), would exclude certain hazardous secondary materials (i.e., spent materials, listed sludges, and listed byproducts) that are generated and legitimately reclaimed
(1) It is generated and then reclaimed at the generating facility; or
(2) It is generated and reclaimed by the same company, if the generator certifies that it is under the same ownership as the reclaimer and that the owner company has acknowledged responsibility for safe management of the hazardous secondary materials; or
(3) It is generated and reclaimed pursuant to a written agreement between a tolling contractor and batch manufacturer, if the tolling contractor retains ownership of, and responsibility for, the hazardous secondary materials that are generated during the course of the manufacture.
This proposed exclusion would not include recycling practices that involve discard of materials. These practices include recycling of inherently waste-like materials (40 CFR 261.2(d)), recycling of materials that are used in a manner constituting disposal or used to produce products that are applied to or placed on the land (40 CFR 261.2(c)(1)), and burning of materials for energy recovery or used to produce a fuel or otherwise contained in fuels (40 CFR 261.2(c)(2)). This proposed exclusion is further described in section IX of this
This provision, with regulatory language proposed in 40 CFR 261.4(a)(23), would exclude certain hazardous secondary materials that are generated and legitimately reclaimed within the United States or its territories and handled in land-based units (
This conditional exclusion, with regulatory language proposed in 40 CFR 261.4(a)(24), (hereinafter referred to as the “transfer-based exclusion”) would apply to hazardous secondary materials (i.e., spent materials, listed sludges, and listed byproducts) that are generated and subsequently transferred to a different person or company for the purpose of reclamation. As long as the conditions to the exclusion are satisfied, the hazardous secondary materials would not be subject to Subtitle C regulation. The conditions are intended to ensure that such materials are handled as commodities rather than wastes. They will also help guarantee that protection of human health and the environment will not be compromised in the absence of hazardous waste regulatory requirements for these materials. It is important to note that when hazardous secondary materials are generated and reclaimed within the United States pursuant to a written agreement between a tolling contractor and a batch manufacturer as defined in proposed 40 CFR 260.10, these materials would be subject to the requirements of proposed 40 CFR 261.2(a)(ii) or 261.4(a)(23) rather than the more extensive requirements of proposed 40 CFR 261.4(a)(24).
If any of the hazardous secondary materials under proposed 40 CFR 261.4(a)(24) are generated and then exported to another country for reclamation, we are also proposing that the exporter notify the receiving country of the export through EPA and obtain consent from that country before shipment of the material. This requirement is proposed to be codified in 40 CFR 261.4(a)(25). Like the previously discussed exclusion for hazardous secondary materials recycled under the control of the generator, this exclusion would not cover recycling of inherently waste-like materials, recycling of materials that are used in a manner constituting disposal, and burning of materials for energy recovery. The proposed exclusion is described in more detail in section X of this preamble.
In addition to the exclusions discussed above, the Agency also is proposing a petition process, with regulatory language found in proposed 40 CFR 260.30(d), 260.30(e), 260.30(f), and 260.34, for obtaining a case-specific non-waste determination for certain hazardous secondary materials that are recycled. This process would allow a petitioner to receive a formal determination from the Agency that its hazardous secondary material is clearly not “discarded” and therefore is not a solid waste. The procedure would allow EPA or the authorized state to take into account the particular fact pattern of the recycling and to determine that the hazardous secondary material in question is not a solid waste without imposing additional requirements. The determination would be available to petitioners who could demonstrate that their hazardous secondary materials were recycled in a continuous industrial process, or that the materials were indistinguishable in all relevant aspects from a product or intermediate, or that the materials were under the control of the generator via a tolling arrangement or similar contractual arrangement. The petition process for the non-waste determinations would be the same as that for the variances from the definition of solid waste found in 40 CFR 261.31. This process and the criteria for making these determinations, are described in section XII of this preamble.
On October 28, 2003 (68 FR 61581-61588), EPA extensively discussed our position on the relevance of legitimacy to hazardous waste recycling in general and to the redefinition of solid waste specifically. We proposed to codify in the RCRA regulations four general criteria to be used in determining whether recycling of hazardous secondary materials is legitimate. In today's action, we are proposing changes to the proposed legitimacy criteria and asking for public comment on these revisions. The changes consist of a restructuring of the proposed criteria, called factors in this proposal, by making two of these factors mandatory and two non-mandatory considerations, and providing further guidance and clarification on how the economics of recycling should be considered in making legitimacy determinations. The changes are described in section XI of this preamble.
Today's supplemental proposal would revise and clarify the RCRA definition of solid waste as it pertains to certain types of hazardous secondary materials that would not be considered wastes subject to regulation under RCRA Subtitle C. This notice builds on our October 28, 2003 proposal (68 FR 61558) which was initiated partially in response to decisions by the United States Court of Appeals for the DC Circuit, which, taken together, have provided the Agency with additional direction in this area.
This proposal represents an important restructuring of the RCRA regulations that distinguish wastes from non-waste materials for RCRA purposes, and that ensure environmental protections over hazardous secondary materials recycling practices. As such, it also is an opportunity for the Agency to clarify in a regulatory context the concept of “legitimate recycling,” which has been and is a key component of RCRA's regulatory program for recycling, but which to date has been implemented without regulatory criteria. Today's supplemental proposal thus includes specific regulatory provisions for determining when hazardous secondary materials are recycled legitimately.
Today's supplemental proposal is de-regulatory in nature because certain recyclable materials that have heretofore been subject to the hazardous waste regulations would no longer be regulated as hazardous waste. The factors to consider for legitimate recycling codify existing principles without increasing regulation. This proposal is not intended to bring new wastes into the RCRA regulatory system.
By removing unnecessary hazardous waste regulatory controls over certain recycling practices, and by providing more explicit criteria for determining the legitimacy of recycling practices in general, EPA expects that this proposal will encourage the safe, beneficial recycling of hazardous secondary materials. This regulatory initiative is thus consistent with the Agency's longstanding policy of encouraging the recovery and reuse of valuable resources as an alternative to land disposal, while at the same time maintaining protection of human health and the environment.
On October 28, 2003 (68 FR 61558), the Agency proposed to exclude from the definition of solid waste any material generated and reclaimed in a continuous process within the same industry, provided the reclamation was legitimate. “Same industry” was defined as industries sharing the same 4-digit North American Industry Classification System (NAICS) code. The basis for that exclusion was the holding in
After evaluating comments received on the October 2003 proposal and conducting an independent analysis, EPA decided to restructure its approach. Following the decision of the DC Circuit Court in
The basic regulatory provisions for defining “solid wastes” and “hazardous wastes” under RCRA are found in part 261 of Title 40 of the Code of Federal Regulations (CFR). To be subject to RCRA's hazardous waste regulatory program, a material must be a solid waste that is also a hazardous waste. A solid waste is a hazardous waste if it is explicitly listed as such (in subpart D of part 261), or if it exhibits one or more of the hazardous characteristics (as specified in subpart C of part 261).
In general, hazardous wastes are subject to RCRA's full “cradle to grave” regulatory system from the time they are generated to the time that they are ultimately disposed. However, hazardous secondary materials often can be recycled instead of being disposed, which can change how those wastes are regulated. The “definition of solid waste” regulations in part 261 in effect separate recyclable hazardous secondary materials into two broad categories—those that are classified as solid wastes when recycled, and are therefore subject to regulation under Subtitle C of RCRA if they are listed or characteristic hazardous wastes, and those that are not considered solid wastes when they are recycled, and thus are not regulated. It should be understood that the term “hazardous secondary material” as it is used in today's rule and preamble therefore refers to both categories of recyclable materials; that is, materials that are regulated as hazardous wastes when recycled, and materials that are not considered wastes when recycled.
Hazardous secondary materials that are currently not regulated as wastes when they are recycled include, for example, those which are used or reused directly as effective substitutes for commercial products, and those which can be used as ingredients in an industrial process, provided the materials are not being reclaimed. See 40 CFR 261.2(e). In essence, EPA considers these types of recycling practices to be more akin to normal industrial production rather than waste management.
In contrast, in some recycling practices, the hazardous secondary material cannot be used as is and must be significantly processed before it can be reused in a manner similar to products in commerce. In these cases, EPA has found that the material may be more “waste-like” and the hazardous secondary materials therefore have been regulated as hazardous wastes. One type of recycling that falls within this category and that is especially relevant to this rule is reclamation of certain types of hazardous secondary materials. Reclamation involves the processing of hazardous secondary materials in some way in order so that they can be used or reused. See 40 CFR 261.1(c)(4) and 40 CFR 261.2(c)(3). An example of reclamation is processing of a spent solvent to restore its solvent properties before it is suitable for reuse as a solvent. As explained elsewhere in today's preamble, this supplemental proposal would reexamine the regulatory status of these hazardous secondary materials and de-regulate a specific subset of these materials that are recycled by being reclaimed.
In the existing Part 261 regulations, EPA identified other types of recycling practices that are fully regulated because, we concluded, they involve discard of materials. These practices include recycling of “inherently waste-like” materials (40 CFR 261.2(d)), recycling of materials that are “used in a manner constituting disposal,” or “used to produce products that are applied to or placed on the land,”(40 CFR 261.2(c)(1)) and “burning of materials for energy recovery” or “used to produce a fuel or otherwise contained in fuels” (40 CFR 261.2(c)(2)). Today's supplemental proposal is not intended to affect how these recycling practices are regulated.
The current regulations also provide certain specific exemptions and exclusions from the definition of solid waste for particular recycling practices. For example, pulping liquors from paper manufacturing that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process are
RCRA gives EPA the authority to regulate the disposal of “solid wastes” under its non-hazardous waste program. See,
The statute defines “solid waste” as “* * * any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and
Since 1980, EPA has interpreted “solid waste” under its Subtitle C regulations to encompass both materials that are destined for final, permanent placement in disposal units, as well as some materials that are destined for recycling. 45 FR 33090-95 (May 19, 1980); 50 FR 604-656 (Jan. 4, 1985) (see especially pages 616-618). EPA has offered three arguments in support of this approach:
• The statute and the legislative history suggest that Congress expected EPA to regulate as solid and hazardous wastes certain materials that are destined for recycling (see 45 FR 33091, citing numerous sections of the statute and
• Hazardous secondary materials stored or transported prior to recycling have the potential to present the same types of threats to human health and the environment as hazardous wastes stored or transported prior to disposal. In fact, EPA found that recycling operations have accounted for a number of significant damage incidents. For example, materials destined for recycling were involved in one-third of the first 60 filings under RCRA's imminent and substantial endangerment authority, and 20 of the initial sites listed under CERCLA. (48 FR 14474, April 4, 1983.) Congress also cited some damage cases which can be interpreted to involve recycling. (H.R. Rep. 94-1491, 94th Cong., 2d Sess., at 17, 18, 22). More recent data (i.e., information on damages occurring after 1982) included in the rulemaking docket for today's supplemental proposal corroborate the fact that recycling operations can result in significant damage incidents. (See section IV.B.2 of today's preamble.)
• Excluding all hazardous secondary materials destined for recycling would allow materials to move in and out of the hazardous waste management system depending on what any person handling the material intended to do with it. This seems inconsistent with the mandate to track hazardous wastes and control them from “cradle to grave.”
EPA has interpreted the statute to confer jurisdiction over at least certain hazardous secondary materials destined for recycling. The Agency has therefore developed in Part 261 of 40 CFR a definition of “solid waste” for Subtitle C regulatory purposes. (
Under its current Subtitle C regulations, EPA classifies as solid wastes some—but not all—hazardous secondary materials that are recycled by “reclamation.” The regulations define “spent materials” as being “discarded” if they are destined for reclamation. However, “commercial chemical products” are not defined as “discarded” when reclaimed. In addition, byproducts and sludges are defined as “discarded” when reclaimed on a case-by-case basis. That is, EPA considers these materials to be “discarded” when they are specifically listed as a hazardous waste at 40 CFR 261 Subpart D. See Table 1 to 40 CFR 261.2. EPA has also promulgated three exceptions from the Subtitle C definition for materials destined for reclamation. See 260.31(b) and (c); 40 CFR 261.4(a)(8).
Finally, EPA has always asserted that materials are not excluded from its jurisdiction simply because someone claims that they will be recycled. EPA has consistently considered hazardous secondary materials destined for “sham recycling” to be discarded and, hence, to be solid wastes for Subtitle C purposes. See 45 FR 33093 (May 19, 1980), 50 FR 638-39 (Jan. 4, 1985). The U.S. Court of Appeals for the DC Circuit has agreed that materials undergoing sham recycling are discarded and, consequently, are solid wastes under RCRA. See
Trade associations representing mining and oil refining interests challenged EPA's 1985 regulatory definition of solid waste. In 1987, the DC Circuit held that EPA exceeded its authority “in seeking to bring materials that are not discarded or otherwise disposed of within the compass of ‘waste.’ ”
The Court held that certain of the materials EPA was seeking to regulate were not “discarded materials” under section 1004(27). After reviewing numerous statutory provisions and portions of the legislative history, the Court held that Congress used the term “discarded” in its ordinary sense, to mean “disposed of” or “abandoned 824 F.2d at 1188-89. The Court further held that the term “discarded materials” could not include materials * * * destined for beneficial reuse or recycling in a continuous process by the generating industry itself (because they) are not yet part of the waste disposal problem. 824 F.2d at 1190. The Court held that Congress had directly spoken to this issue, so that EPA's use of a conflicting definition was not entitled to deference under
At the same time, the Court did
It also is worth noting that two other Circuits also have held that EPA has authority over at least some materials destined for reclamation rather than final discard. The U.S. Court of Appeals for the 11th Circuit found that “[i]t is unnecessary to read into the term ‘discarded’ a congressional intent that the waste in question must finally and forever be discarded.”
Considering all of these decisions (except the
The mining industry challenged the rule, and the DC Circuit vacated the provisions that expanded jurisdiction over characteristic by-products and sludges destined for reclamation.
At the same time, the Court did not hold that storage before reclamation automatically makes materials “discarded.” Rather, it held that “* * * at least some of the secondary material EPA seeks to regulate as solid waste (in the mineral processing rule) is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away.” 208 F.3d at 1056.
In its most recent opinion dealing with the definition of solid waste,
EPA's reasoning was that market participants, consistent with the EPA-required conditions in the rule, would treat the exempted materials more like valuable products than like negatively-valued wastes and, thus, would manage them in ways inconsistent with discard. In addition, the fertilizers derived from these recycled feedstocks are chemically indistinguishable from analogous commercial products made from raw materials. 350 F.3d at 1269. The court upheld the rule based on EPA's explanation that market participants manage materials in ways inconsistent with discard, and the fact that the levels of contaminants in the recycled fertilizers were “identical” to the fertilizers made with raw materials. The court held that this interpretation of “discard” was reasonable and consistent with the statutory purpose. The court
However, the Court specifically stated that it “need not consider whether a material could be classified as a non-discarded exclusively on the basis of the market-participation theory.” 350 F.3d at 1269. The court only determined that the combination of market participants' treatment of the materials, EPA required management standards and the “identity principle” are a reasonable set of tools to establish that the recycled secondary materials and fertilizers are not discarded.
As a result of the court decision in ABR to vacate the provisions in the May 1998 final rule that increased regulation of characteristic by-products and sludges from mineral processing, EPA promulgated a final rule removing from the Code of Federal Regulations the byproduct and sludge provisions (67 FR 11251 (Mar. 13, 2002)). Later, prompted by concerns articulated in the various Court opinions up to the ABR decision, EPA issued the October 2003 notice, which proposed that material generated and reclaimed in a continuous process within the same industry is not discarded for purposes of Subtitle C, provided that the recycling process is legitimate. However, for the reasons described elsewhere in today's notice, we are proposing different types of exclusions from the definition of solid waste in this supplemental proposal that we believe more directly consider whether particular materials are not considered “discarded”, and are not solid and hazardous wastes subject to regulation under Subtitle C of RCRA. The October 2003 proposal and how it relates to today's supplemental proposal is further discussed elsewhere in today's preamble.
The concept of “discard” is the central organizing idea behind today's supplemental proposal, which reflects the fundamental logic of the RCRA statute. As stated in RCRA Section 1004(27), “solid waste” is defined as “* * * any garbage, refuse, sludge from a waste treatment plant, or air pollution control facility and other discarded material * * * resulting from industrial, commercial, mining and agricultural activities* * *” Therefore, in the context of this supplemental proposal, a key issue is the circumstances under which a material that is recycled by reclamation is or is not discarded.
In the series of decisions discussed above relating to the RCRA definition of solid waste, the Court of Appeals for the DC Circuit has consistently cited a plain language definition of discard, as meaning “disposing, abandoning or throwing away.” EPA believes that this is a workable and logical definition of the term, and the underlying logic of today's proposed exclusions is consistent with this definition.
The basic rationale that EPA is applying in this case differentiates between recycled hazardous secondary materials over which the generator maintains control and recycled hazardous secondary materials over which the generator relinquishes control. If the generator maintains control over the recycled hazardous secondary material and it is legitimately recycled under the standards established in this proposal and the material is not speculatively accumulated within the meaning of EPA's regulations, the hazardous secondary material is not discarded. This is because the material is being treated as a valuable commodity rather than as a waste. By maintaining control over, and potential liability for, the recycling process, the generator ensures that the materials are not discarded. See
In those cases, however, where generators of hazardous secondary materials do not re-use or recycle the materials themselves, it often may be a sound business decision to ship the material to be recycled to a commercial facility or another manufacturer in order to avoid the costs of disposing of the material. In such situations, the generator has relinquished control of the hazardous secondary material and the entity receiving such materials may not have the same incentives to manage the hazardous secondary material as a useful product. Accordingly, the Agency believes that conditions are needed for the Agency to determine that this material is not discarded. However, if the recycler legitimately recycles the hazardous secondary material, it is not regulated as a solid waste, provided certain additional conditions are met. Further discussion of the Agency's rationale for this concept appears in section X.A. of this preamble.
This is the general logic we have used in developing the exclusions in today's supplemental proposal. The proposed exclusion for hazardous secondary materials that are recycled under the control of the generator is based on the notion that as long as the generator has control over the recycling process, has chosen to legitimately reclaim it within the United States or its territories, retains liability in the event that the hazardous secondary materials (be they the materials that were generated, residuals from a reclamation process, or both) are somehow released into the environment, these materials are not discarded. In addition, if the materials are managed in a land-based unit, the generator must ensure that the materials are contained. Of course, if such hazardous secondary materials are released into the environment and are not recovered in a timely manner, these materials have been discarded and the generator is subject to all applicable federal and state regulations, and applicable cleanup authorities. The “broader” exclusion for materials that are transferred by the generator to another person or company for reclamation is based on the idea subsequent activities are more likely to involve discard, given that the generator has relinquished control of the hazardous secondary material, and additional conditions are needed for the Agency to determine that these materials are not discarded.
In response to the October, 2003 proposal, a number of commenters criticized the Agency specifically for not having conducted a thorough study of the potential impact of the proposed regulatory changes. These commenters expressed the general concern that deregulating hazardous secondary materials that are reclaimed in the manner proposed could result in mismanagement of these materials, and thus could create new cases of environmental damage that would require remedial action under federal or
However, a number of other commenters expressed the view that the great majority of these cases of recycling-related environmental problems occurred before RCRA, CERCLA or other environmental programs were established in the early 1980s. These commenters further argued that these environmental programs—most notably, RCRA's hazardous waste regulations, and the liability provisions of CERCLA—have created strong incentives for proper management of recyclable materials and recycling residuals. Several commenters further noted that because of these developments, industrial recycling practices have changed substantially since the early 1980s, and present day generators and recyclers are much better environmental stewards than in the pre-RCRA/CERCLA era. Thus, they argued, cases of “historical” recycling-related environmental damage are not particularly relevant or instructive with regard to modifying the current RCRA hazardous waste regulations for hazardous material recycling.
In light of these comments and in deliberating on how to proceed with this rulemaking effort, the Agency decided that additional information on hazardous material recycling would benefit the regulatory decision-making process, and would provide stakeholders with a clearer picture of the hazardous material recycling industry in this country. Accordingly, the Agency examined three basic issues that we believed were of particular importance to informing this rulemaking effort:
• How do responsible generators and recyclers of hazardous secondary materials ensure that recycling is done in an environmentally safe manner?
• To what extent have hazardous secondary material recycling practices resulted in environmental problems in recent years, and why?
• Are there certain economic forces or incentives specific to hazardous secondary material recycling that can explain why environmental problems can sometimes originate from such recycling activities?
Reports documenting these studies are in the administrative record for this rulemaking, under the following titles:
• “An Assessment of Current Good Practices for Recycling of Hazardous Secondary Materials”
• “An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary Materials”
• “Potential Effects of Market Forces on the Management of Hazardous Recyclable Materials”
The findings of these background studies have informed many of the Agency's policy decisions in developing this regulatory proposal. However, it should be understood that these three reports are not definitive, peer-reviewed documents of a technical nature. We fully acknowledge that in some respects they may not paint a complete picture, or capture every detail of the subject matter that was examined. However, we believe that the information in the studies provides an important perspective on current recycling practices, and that it supports our policy direction in developing today's supplemental proposal. EPA solicits comment on the policy and regulatory implications of the information in these studies.
One of the studies that EPA has completed is an examination of what practices many generators and recyclers currently use to ensure that their hazardous secondary materials are recycled safely and responsibly. One purpose of this study was to provide the Agency and the rulemaking record with another angle from which to view the hazardous secondary material recycling industry. In addition, the results of this study suggest what kinds of regulatory controls might be appropriate for these hazardous secondary materials to determine that they are handled as commodities rather than wastes. The practices have helped the Agency develop elements of the supplemental proposal presented today.
The Agency has long heard from various representatives of industry and other stakeholders that management of hazardous secondary materials has changed and improved since the inception of the RCRA hazardous waste regulations in the early 1980s and that these hazardous secondary materials are being managed much more carefully than they were historically. The successful recycling study examines which improved practices are used by many companies in the industry and the reasons the practices are implemented.
To complete this study, EPA spoke with representatives from multiple organizations that regularly manage hazardous secondary materials, both for recycling and for treatment followed by disposal, and examined literature and publicly available information on the Internet focused on the subject of recycling of hazardous secondary materials. The study uses these sources to assemble an overall picture of the good practices that are currently in use by a number of companies. The full study can be found in the docket for today's supplemental proposal, available at
The successful recycling study found two main drivers behind companies adopting responsible recycling practices in the management of their hazardous secondary materials. The first is concern of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. Under CERCLA, a company can be held liable as an arranger for disposal for contamination caused by its materials sent for recycling at another facility's site. Therefore, it is in that company's best interest to ensure that the facility to which it sends its waste is not likely to become a Superfund site or to fall under CERCLA in the future either because of financial failure or because of bad materials management practices. The threat of Superfund liability was cited by many of the sources for the responsible recycling study as the main reason for the development of their audit programs in this area.
The other reason for adoption of responsible recycling practices cited falls into a broad category of concerns about corporate responsibility and public relations. Many companies now have very public environmental policies and have implemented environmental management systems that are part of their programs for corporate responsibility. Although the real effects of these corporate policies are hard to gauge, EPA observed during this study that audit programs that were developed in response to CERCLA, now are maintained as part of a philosophy of corporate responsibility, which is part of the image a corporation sells to its customers.
EPA found that responsible recycling practices used by generators and recyclers to manage hazardous secondary materials fall into two general categories. The first category includes the audit activities and inquiries performed by a generator of a material to determine whether the entity to which it is sending the hazardous secondary material is equipped to responsibly manage those materials without the risk of releases or other environmental damage. These recycling and waste audits of other companies' facilities form a backbone of many of the transactions in the hazardous secondary
In this study, EPA found that certain generators of hazardous secondary materials perform facility audits—a kind of environmental due diligence—on the facilities to which they send their materials. These audits can take many forms and can be of varying degrees of complexity, depending on the secondary material or, in some cases, on the size and sophistication of the generator. Although large companies are more likely to perform in-depth facility audits, possibly because they more frequently have environmental health and safety divisions coordinating audits or because they may have greater amounts of hazardous secondary materials they are sending off-site, some smaller companies are also performing some kind of audit on the recycling facility receiving the hazardous secondary material.
The exact nature of each generator's audit process will vary, but there are some common elements. Often the audit has two parts: (1) A remote screening audit during which the auditor examines the recycler's compliance history and financial records and the recycler may fill out a questionnaire about its operations and facility and (2) a visit to the recycler's facility, which can take anywhere from several hours to several days. Some common elements examined in both phases of an audit include: (1) Site history; (2) history of compliance with environmental requirements and permits; (3) general appearance and housekeeping at the facility; (4) description of process design and capability; (5) residuals management; (6) financial soundness of the recycler; and (7) possession of adequate pollution liability and general insurance.
In addition to generators auditing recycling facilities, another example of a practice that EPA believes helps to ensure responsible management is the design of hazardous secondary materials recycling contracts and tracking systems to manage information about the location of a particular container and to document its eventual recycling.
Recycling contracts are normal business practice and minimize the potential for recyclers to receive shipments of hazardous secondary materials that they are not equipped to recycle. In these contracts, the two parties can lay out specifications for the make-up of materials being shipped to the recycler and describe the protocol for actions taken if a material not meeting these specifications arrives at the recycling facility. In some cases, the recycler can still handle the material, but may charge the generator an additional fee for having to alter the material to meet specifications. In other cases, the recycler may not be able to accept the material at all. Through the contract mechanism, both parties then agree on whether that hazardous secondary material should be returned to the generator or sent to a different recycler or waste disposal facility.
EPA also found that knowing whether materials conform to the contract specifications necessitated sampling of the hazardous secondary material arriving at a recycler. Several recyclers told EPA that they sample each rail car, truck, and drum arriving at their facilities before accepting them. Legitimate recycling practices operate as a manufacturing process might and there is tight control over the nature of the materials being recycled. Recyclers who are seeking to make a salable product will make sure that the inputs meet specifications.
Due to time and resource limitations, EPA's examination of successful recycling practices was not exhaustive, as we were able to gather information from a limited number of sources. We believe that the practices and situations outlined in the study are representative of industry practices performed by many companies, but ask today for comments on the results of the study and for relevant information not represented therein.
a.
• Cases where environmental damage clearly can be attributed to some type of recycling activity. In conducting this study, we limited our search to those environmental problems in which environmental damages were clearly caused by some type of recycling-related activity. In this context, “recycling-related activities” included—
• accumulation or storage of hazardous secondary materials by the generator, the recycler or an intermediary;
• illegal disposal or abandonment of recyclable hazardous secondary materials or recycling residuals;
• transportation of recyclable hazardous secondary materials;
• “sham” recycling operations (i.e., illegal disposal or treatment disguised as recycling);
• production and/or use of contaminated products from recycled hazardous secondary materials, reclamation and/or production processes;
• management of residuals from reclamation or production processes, or
• other activities associated with the management of recyclable hazardous secondary materials, recycling residuals, or the products of recycling processes.
The study identified a number of cleanup sites at which a recycling process had operated, but where other sources of contamination made it extremely difficult to determine with any certainty that the recycling activity contributed to the environmental problems at the site. These cases were not included in this study.
• Relatively recent cases. Many of the environmental problems that were examined in the course of this study occurred before RCRA, CERCLA or other environmental programs were established in the early 1980s. The Agency believes that, for the purpose of this rulemaking effort, these “historical” recycling-related damage cases are much less relevant and instructive than cases which have occurred within the current regulatory and liability “landscape.” This belief is based in large part on the findings of our companion study of current good hazardous secondary material recycling practices, which indicate that in today's era (though there are exceptions), most generators and recyclers are aware of their environmental responsibilities, and generally make considerable efforts to ensure that materials are recycled and otherwise managed responsibly. Therefore, all the cases included in the data for this study occurred after 1982.
• Cases involving recycling of regulated hazardous secondary materials that are specifically excluded from RCRA regulation. The study was intended to identify environmental problems associated with recycling of regulated hazardous secondary materials, as well as those involving the recycling of hazardous secondary materials that are not regulated because
b.
• Comments on the October 28, 2003, proposed rule
• The Superfund National Priorities List
• National EPA data bases maintained for the CERCLA, RCRA, and enforcement programs
• Contacts with staff in state environmental agencies
• Contacts with staff in EPA Regional Offices
• State agency data bases maintained for state Superfund programs and other environmental programs
• Internet searches
• News media reports
For those environmental problems found at recycling facilities or resulting in the mismanagement of hazardous secondary materials to be recycled that were relevant to the study, we gathered available information to identify certain key facts relating to when the problem occurred, the type of recycling practice involved, the types of materials recycled, how and why the environmental damage occurred, and other key data (these data are summarized in tabular form in Appendix 1 of the report entitled The Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary Materials). A written description of each case was then prepared—these are in Appendix 2 of the same report.
Many of the cases that were investigated, including many of the Superfund sites, were well-documented, and we were able to assemble relatively complete profiles for those cases. For many other cases, however, much less complete information was available, while at some of the sites, we were able to collect only very basic information.
In addition, because of time and resource limitations, the search for potentially relevant cases was not exhaustive. For example, we did not systematically survey all state environmental agencies for relevant cases, nor did we search paper files in EPA Regional Offices. Because of this relatively limited scope, we believe that the cases we have identified and described in this report in effect represent those that were relatively easy to find, and that there are likely to be additional cases that we did not identify. However, we have no reason to think that additional cases would substantially change the overall picture. Nevertheless, the Agency requests information on relevant cases of environmental problems that we did not identify, as well as comments or supplemental information on those that were characterized in the report. If you provide data on additional cases of environmental problems from recycling, Appendix 2 of the study is a good resource for the types of information most useful to the Agency, particularly when the problem occurred; the type of recycling practice involved; whether recycling occurred at an on-site or off-site recycling facility; the types of hazardous secondary materials being recycled; and how and why the problem occurred.
With regard to the types of materials associated with the cases that were documented in the study, most common were scrap metals, solvents, used oil, non-ferrous metals, lead-acid batteries, and used drums sent for cleaning and reconditioning. Less common were cases involving mercury, precious metals, and hazardous foundry sands.
The types of environmental damage that occurred varied widely; many were relatively small incidents involving contaminated soils and/or residuals, such as battery casings, while a number were much more substantial and expensive, with large-scale soil and ground water contamination, and remediation costs in the tens of millions of dollars. A surprising number of cases (sixty-nine) involved materials that were abandoned in one way or another.
The study also tried to identify the cause of the environmental problems for each case that was investigated. In large part, we were able to identify, or at least infer, how the problems occurred, although for four percent of the cases examined, we were unable to determine the primary cause of damage. However, in only a few cases were we able to identify with any certainty why they occurred. For example, in approximately one-third of the cases, we were able to conclude that mismanagement of recycling residuals was at least partly the cause of contamination problems. We were unable, however, to identify why the residuals were managed improperly.
Mismanagement of the hazardous secondary materials prior to their reclamation or reuse caused contamination at forty percent of sites, whereas mismanagement of recycling residuals was the primary cause at thirty-four percent of the sites. Often, at the latter category of sites, reclamation processes generated residuals in which the toxic components of the recycled materials became concentrated, and these wastes were then mismanaged. Examples of this include a number of drum reconditioning facilities, where large numbers of used drums were cleaned out to remove small amounts of remaining product such as solvent, and these wastes were then improperly stored or disposed of.
As already noted, sixty-nine of the cases examined in the study involved abandonment of recyclable hazardous secondary materials as the primary cause of damage. In most of these cases, business failure appears to have been the main reason the hazardous secondary materials were abandoned. Seven of the cases that were examined appear to have been outright “sham” recyclers. In most of these cases, companies advertised themselves to local generators as recyclers and accumulated considerable quantities of waste materials, but did not actually recycle them. These sites were also then abandoned.
Since a considerable number of commenters to the October 2003 proposal supported the idea of a regulatory exclusion for on-site recycling (i.e., at the generating facility), the study also distinguished between environmental problems from recycling
The study also addressed whether or not instances of environmental damage occurred at hazardous waste recycling facilities with RCRA permits (
Twenty-four of the cases identified were, at one time or another, operating under RCRA hazardous waste permits. However, only nine clearly appear to have been operating under RCRA permits at the time the damage occurred. Two of these cases involved fires and/or explosions.
The study also looked at some of the financial circumstances regarding clean up of environmental problems. At thirteen of the twenty-four hazardous waste permitted facilities, all or part of the funds used to clean up environmental damages were contributed by the owner/operator of the facility, either voluntarily or under some form of consent agreement. In at least two of these cases, it appears that cleanup funds became available by means of a RCRA-required financial assurance mechanism, such as a surety bond. Thirteen of the facilities appear to have been cited for serious permit violations, either before or as a result of the damage incident. In four cases, the facility permits were revoked because of compliance issues. Eleven of the twenty-four facilities were found to be no longer in business, because of bankruptcy or for other reasons.
Of the 208 cases that were documented in the study, fifty-one were or are listed on the CERCLA National Priorities List (NPL). Fifty-five additional cases were addressed under CERCLA authorities, but the sites were not listed on the NPL. State cleanup authorities were used to address sixty-five of the cases, while thirty were addressed using RCRA corrective action authorities. For nineteen of the cases, we were unable to identify what remedial program, if any, was used to clean up the sites. (In some cases, there was more than one type of cleanup action at a site).
For eighty-nine of the cases, we were able to identify the costs, or at least cost estimates, associated with addressing the environmental problems caused by recycling activities. Thirty-seven of these cases required less than one million dollars to clean up; forty-four cost between one and ten million dollars; and eight cost more than ten million dollars to remediate.
It is possible that these cost data are incomplete and are not an accurate representation of actual cleanup costs for the entire sample of 208 cases. For one thing, cost data were much easier to find for CERCLA-lead cleanups than cleanups done under other programs. Another uncertainty with regard to these cost data is that in some cases, it was not possible to distinguish between cleanup costs that were incurred specifically to address recycling-related contamination, and costs for other cleanup activities at the site. The Agency solicits additional information from commenters regarding cleanup costs (actual or estimated) incurred in remediating these recycling-related environmental problems.
EPA also has completed a study of how market forces can affect the management of recyclable hazardous secondary materials. This study uses economic theory to describe how various market incentives can influence a firm's decision making process when the recycling of hazardous secondary material is involved. Because the study is largely theoretical, the results should be interpreted with caution, but it does provide insights that can explain some of the possible fundamental economic drivers of both the successful and unsuccessful recycling practices, which in turn help us to design the exclusions that we are proposing today.
The October 2003 proposal was based in part on the premise that some types of recycling are more akin to manufacturing than waste management and therefore are not appropriate for regulation as waste management. [“In EPA's view, a recycler will value secondary materials that provide an important contribution to his process or product and will manage them in a manner consistent with a valuable feedstock material (i.e., will manage them to minimize their loss)”; 68 FR 61583].
However, as pointed out by some commenters to the proposed rule, the economic forces shaping the behavior of firms that recycle hazardous secondary materials can be different from those at play in manufacturing processes using virgin materials. For example, the inherent value of hazardous secondary materials can be much lower than virgin materials used in manufacturing, resulting in a different set of economic incentives. Additionally, different economic incentives between the recycling of hazardous secondary materials and manufacturing may arise due to differences in these two business models. As opposed to manufacturing, where the cost of raw materials or intermediates (or inputs) is greater than zero and revenue is generated primarily from the sale of the output, some models of hazardous materials recycling involve generating revenue primarily from receipt of the hazardous secondary materials. Recyclers of hazardous secondary materials in this situation may thus respond differently from traditional manufacturers to economic forces and incentives.
An increased understanding of these aspects of hazardous secondary material recycling can help to craft a rule that takes advantage of the positive economic forces, and compensates for the negative ones, in order to produce an optimal amount of recycling. An optimal amount of recycling is one that maximizes the net benefits (private and social benefits minus private and social costs). One sub-optimal outcome of not providing a proper balance could be too little recycling, resulting in inefficiencies. In this case, increasing the rate of recycling (for example, via today's proposed changes) would realize additional net benefits. However, sub-
The market incentive study uses economic theory to provide information on how certain characteristics can influence three different recycling models to encourage or discourage an optimal outcome. The three recycling models examined are: (1) Commercial recycling, where the primary business of the firms is recycling hazardous secondary materials, which are accepted for recycling from offsite industrial sources (which usually pay a fee); (2) industrial intra-company recycling, where firms generate hazardous secondary materials as byproducts of their main production processes and recycle the hazardous secondary materials for sale or for their own reuse in production; and (3) industrial inter-company recycling, where firms whose primary business is not recycling, but use or recycle hazardous secondary materials obtained from other firms with the objective of reducing the cost of their production inputs.
For each of these recycling models, the report looks at how they are potentially affected by three market characteristics: (1) Value of the recycled product; (2) price stability of recycling output or inputs; and (3) net worth of the firm.
For all three models of hazardous secondary material recycling, a recycled product with a high value appears to contribute to an optimal outcome for hazardous secondary material recycling. For commercial and industrial inter-company firms, the value of the product can serve as a strong incentive for the firm to recycle the product with care and bring it to the market. Recycling by these firms would thus be driven primarily by the potential revenues from the recycled product, and not by other factors such as an acceptance fee. For industrial intra-company recyclers, the value of the recycled product would contribute to optimal recycling behavior even if the firm is reusing the product in its own production process instead of selling it to outside firms. Conversely, for all three models of hazardous secondary material recycling, a recycled product with a low value could be a potential indicator of sub-optimal recycling outcomes. For commercial firms in particular, the acceptance fee is likely to be a much more prevalent factor in the firm's revenue structure when the recycled product has a low value. If the value of the recycled product is low, the firm may have more of an incentive to focus on accepting hazardous secondary material than properly recycling it and selling a low-value recycled product.
Price stability is another potential indicator of hazardous secondary material recycling markets that produce optimal outcomes, particularly for commercial recyclers. When prices are stable, firms can more easily adjust their production in response to the price signals they receive from the market. They are thus less subject to sudden upsets to their revenue streams or costs which could force them to operate at a short or long-term loss. Unstable markets can contribute to sub-optimal outcomes, due to an unexpected fall in revenues or rise in costs, such that the firm is no longer able to cover the costs incurred to make the product. This could encourage the stockpiling of hazardous secondary material by the firm in order to continue collecting the acceptance fee. A commercial firm's choice to shut down can also contribute to sub-optimal recycling outcomes if this involves the abandonment of hazardous secondary material that the firm was stockpiling on-site. Since industrial intra- and inter-company recyclers are also recycling to produce a marketable product, they are subject to similar forces as commercial firms. They are less constrained in their responses to these forces, however, since recycling is not their primary business operation, and are able to switch from recycling to disposal, or from using recycled materials to raw materials, if market conditions shift.
For all three recycling models, firms that have a higher net worth have more to lose from liability issues and thus have a greater incentive to invest in safe hazardous secondary material management and recycling practices. These firms would have more incentive to practice recycling in an environmentally safe manner and also to insure against possible liability risks that would jeopardize their investments. Firms that have a relatively low worth and do not have an established history in the market could be potentially more likely to face incentives that could cause them to engage in recycling practices that impose few controls or cut corners in order to boost revenues. While we recognize that it should not be assumed that all low-value firms would engage in such practices, this can be viewed as one potential indicator of risky behavior.
As mentioned earlier, using economic theory to interpret recycling behavior should be done with extreme caution. An individual firm's decision-making process is based on many factors, and attempting to extrapolate a firm's likely behavior from a few factors, particularly based on theoretical considerations, could lead to erroneous conclusions. However, when used in conjunction with other pieces of information, the economic theory can be quite illuminating. For example, because the industrial intra- and inter-company recyclers have more flexibility (e.g., during price fluctuations, these companies can more easily switch from recycling to disposal or from recycled inputs to virgin inputs), they would be less likely to have environmental problems from over-accumulated materials. This outcome appears to be supported by the results of the assessment of environmental problems study (see section VIII.B.2 of today's supplemental proposal).
On the other hand, certain specific types of commercial recycling, where the product has low value, the prices are unstable, and/or the firm has a low net worth, could indicate that it is more likely for environmental problems to occur from over-accumulation of recycled materials, compared to recycling by a well-capitalized firm that yields a product with high value. Again, this outcome appears to be supported by the results of the assessment of environmental problems study (see section VIII.B.2 of today's supplemental proposal).
However, as shown by the study of successful recycling practices, generators who might otherwise bear a large liability from poorly managed recycling at other companies have addressed this issue by carefully examining the recyclers to which they send their hazardous secondary materials to ensure the recyclers are technically and financially capable of performing the recycling (see section VIII.B.1 of today's supplemental proposal). In addition, we have seen that successful recyclers (both commercial and industrial) have often taken advantage of mechanisms such as tolling contracts to help stabilize price fluctuations, allowing recyclers to plan their operations better.
For further discussion of this study, please see
In the October 2003 proposal, EPA proposed to exclude from the definition of solid waste hazardous secondary materials generated and reclaimed in a continuous industrial process within the same industry. “Same industry” was defined as industries sharing the same four-digit North American Industry Classification System (NAICS) code. We also co-proposed a second option, under which such materials would not be eligible for the exclusion if the reclamation took place at a facility that also recycled regulated hazardous wastes generated in a different industry. EPA chose the NAICS system as a way to define “same industry” because the system is already widely used to classify different industries. We recognized that the system was developed for statistical rather than regulatory purposes. However, the NAICS scheme employs a production-oriented concept, grouping together industries that have similar or identical production processes. In addition, the regulated community is generally familiar with the NAICS system. For these reasons, the Agency proposed this system to define “same industry”.
EPA chose the four-digit NAICS level (rather than the three or five-digit level) because that level appeared to be an appropriate compromise between being too broad or too restrictive. The Agency evaluated the potential recycling opportunities available through defining “same industry” at the three, four, and five-digit levels. We performed the analysis for the chemical manufacturing sector, which contains many RCRA hazardous waste generators and served as a surrogate for other manufacturing sectors. In general, we found that classification at the three-digit level led to grouping facilities that did not have similar production processes. Classification at the five-digit level, on the other hand, led to grouping similar processes, but greatly reduced opportunities for recycling.
In the same notice, EPA also solicited comment on several different alternatives to the proposed exclusion. The first alternative was whether to exclude from the definition of solid waste those hazardous secondary materials that are generated and reclaimed in a continuous process on-site (as defined in 40 CFR 260.10), even if different industries were involved. This option would also have required the same notification and speculative accumulation provisions proposed for the proposed option. This exclusion would be based on the premise that materials recycled on-site in a continuous process are unlikely to be discarded because they would be closely managed and monitored by a single entity who is intimately familiar with both the generation and reclamation of the material. In addition, no off-site transport of the hazardous secondary material (with its attendant risks) would occur, and there would be few questions about potential liability in the event of mismanagement or mishap. An example of such recycling given in the proposal was a facility that produces petrochemicals, as well as pharmaceuticals. Under the four-digit NAICS-based proposal, such reclamation would not have been excluded even if both establishments were located at the same site and operated by the same company. Another example might be a situation where a generator contracts with a different company to reclaim material at the generator's facility, possibly through a mobile treatment unit.
The second alternative was an exclusion for certain situations within the chemical manufacturing industry that might present unique recycling situations. Specifically, within the chemical manufacturing industry, the first manufacturer will contract out production of certain chemicals to another manufacturer (referred to as batch or tolling operations). The second manufacturer may generate hazardous secondary materials that could be returned to the larger chemical manufacturer for reclamation. In the proposal, we inquired whether some recycling could be precluded as a result of uncertain application of the NAICS classification approach due to frequently changing product slates, or different products being produced from the same equipment at different times.
The third alternative would have provided a broader conditional regulatory exclusion from RCRA regulation for essentially all hazardous secondary materials that are legitimately recycled by reclamation. The purpose of this broader exclusion would be to encourage recycling and lower costs, while still protecting human health and the environment. The Agency suggested that additional requirements or conditions might be appropriate to protect human health and the environment for this exclusion, compared to the same-industry exclusion that we proposed. Examples of such additional conditions could include record-keeping and reporting requirements, along with safeguards on storage or handling. Although the Agency solicited comment on additional conditions, the discussion in the preamble of this approach was brief and may not have provided sufficient information to commenters. Like the other exclusions discussed in the October 28, 2003 proposal, hazardous secondary materials used in a manner constituting disposal, burned for energy recovery, or materials that were inherently waste-like would not be eligible. The Agency solicited comment on the increased recycling and reuse that would result from broadening the rule in this way, as well as comment on the potential effects to human health and the environment.
EPA received many comments on the NAICS “same industry” scheme from various stakeholders. Many commenters did not agree that NAICS was an appropriate way to define “same industry”; more importantly, most commenters did not agree that excluding recycling within the same industry was justified on legal or pragmatic grounds. These commenters generally stated that EPA's proposed exclusion did not accurately reflect Congressional intent or court mandates concerning EPA's authority over legitimate recycling. They reiterated that EPA's RCRA authority extends only to materials that are truly discarded (i.e., disposed of, thrown away, or abandoned) and that have not yet become part of the waste disposal problem. Many of these commenters interpreted the relevant court decisions to mean that any legitimately reclaimed material (whether recycled within the same industry or between industries) is not “discarded” and thus cannot be regulated as a solid waste. Some of these commenters cited the “
Other commenters said that they would not benefit from the proposed exclusion because so many recycling opportunities occur among different industries. These commenters included companies in the metals recycling industry, mining and mineral processors, specialty batch chemical manufacturers, some solvent recyclers, the paint and coatings industry, spent pickle liquor generators, and small businesses.
Still other commenters argued that the Agency had read the court decisions too broadly rather than too narrowly, but some of these commenters also said that
Many commenters, on the other hand, responded positively to the Agency's solicitation of comment about excluding on-site recycling from the definition of solid waste. These commenters agreed with EPA's suggestion that generators who recycle materials on-site (even if the reclamation takes place in a different NAICS code) are likely to be familiar with the material and more likely to maintain responsibility for the materials. Some commenters wanted any exclusion confined to on-site recycling, but other commenters suggested that EPA expand any on-site exclusion to include recycling (including off-site recycling) conducted within the same company. These commenters believed that the principal reasoning applied to on-site recycling would also apply to same-company recycling—i.e., that the same entity would be familiar with the material and would remain responsible for it.
Concerning our solicitation of comments on tolling arrangements, some stakeholders commented that the specialty batch chemical industry, in particular, might present unique situations regarding appropriate exclusions, principally due to the varying nature of production and hence of potential hazardous secondary materials available for recycling. Because of these circumstances, stakeholders believed that exclusions targeted to the types of tolling arrangements common in this industry would be easier to implement.
After evaluating the comments, the Agency has concluded that its proposed approach to “same industry recycling” does not accurately delineate EPA's RCRA jurisdiction over hazardous secondary materials. We agree with the many commenters who said that whether materials are recycled within the same NAICS code is not an appropriate indication of whether they are discarded. NAICS designations are designed to be consistent only with product lines, so that the effect of our October 2003 proposal would be that materials generated and reclaimed under the control of the generator would not be excluded, even though the generator has not abandoned the material and has every opportunity and incentive to maintain oversight of, and responsibility for, the material that is reclaimed (see
Concerning tolling arrangements, we also believe that the type of tolling contract common in the specialty batch chemical industry does not constitute discard as long as the recycling is legitimate and the hazardous secondary material is not speculatively accumulated. Under a typical type of arrangement, one company (the tolling contractor) contracts with a second (often smaller) company (the batch manufacturer) to produce a specialty chemical (sometimes because of a temporary lack of capacity, or because the batch manufacturer has specialized equipment or expertise). The batch manufacturer produces the chemical and the production process generates a hazardous secondary material (such as a solvent) which is routinely reclaimed at the tolling contractor's facility through an exempt closed-loop recycling process when it has the capacity to manufacture the chemical in question at its own facility. However, if the batch manufacturer transports the hazardous secondary material back to the tolling contractor for reclamation, the tolling contractor would be deemed under existing regulations to be reclaiming a spent material, and an RCRA storage permit would generally be required. The typical contract in the specialty batch chemical industry contains detailed specifications about the product to be manufactured, including management of any hazardous secondary materials that are produced and returned to the tolling contractor for reclamation. Under this scenario, the hazardous secondary material continues to be managed as a valuable product, so discard has not occurred. Moreover, if hazardous secondary materials are generated and reclaimed pursuant to a written contract between a tolling contractor and a batch manufacturer, and if the contract specifies that the tolling contractor retains ownership of, and responsibility for, the hazardous secondary materials, there is a strong incentive to avoid any mismanagement or release.
In today's supplemental notice, EPA has described three general situations where we believe that discard has not taken place and where the potential for environmental releases is therefore low. The three situations involve circumstances under which hazardous secondary materials are generated and reclaimed within the United States or its territories. They are either generated and reclaimed at the generating facility, at a different facility, but within the same company, or through a tolling arrangement. Because the facility owner in these situations still finds value in the hazardous secondary materials, has retained control over them, and intends to use them, EPA is proposing to exclude these materials from being a solid waste and thus from regulation under Subtitle C of RCRA, if the recycling is legitimate (see 40 CFR 261.4(g)), and if the hazardous secondary materials are not speculatively accumulated. We are proposing slightly different exclusions, depending on whether or not the excluded hazardous secondary materials are stored in land-based units prior to reclamation or as part of the reclamation process. The scope and applicability of the exclusions are described below.
As stated above, the Agency generally believes that discard has not occurred if hazardous secondary materials are legitimately recycled under the control of the generator, provided they are not speculatively accumulated, and provided they are reclaimed within the United States or its territories. We are therefore proposing an exclusion for these hazardous secondary materials under § 261.2(a)(2)(ii), except if such materials are managed in a land-based unit prior to reclamation or as part of the reclamation process. See section B.2 below for discussion of management in land-based units. Examples of non-land-based units include, but are not limited to, tanks, containers, and containment buildings.
The definition of “hazardous secondary material generated and reclaimed under the control of the generator” is proposed in 40 CFR 260.10 and consists of three parts. The first part
The second part of the definition of hazardous secondary materials generated and reclaimed under the control of the generator would apply to hazardous secondary materials generated and reclaimed by the same company (i.e., by the same “person” as defined in § 260.10). The generator must certify that the hazardous secondary materials will be sent to a company under the same ownership as the generator, and that the owner corporation has acknowledged full responsibility for the safe management of the hazardous secondary materials. Because of existing complexities in corporate ownership and liability, we are proposing to require the generator to certify regarding ownership and responsibility for the recyclable hazardous secondary materials. EPA solicits comment on any other certification language that might accomplish the same end, and we also seek comment on other definitions of “same-company.”
The third part of the definition of hazardous secondary materials generated and reclaimed under the control of the generator would apply to hazardous secondary materials that are generated pursuant to a written contract between a tolling contractor and batch manufacturer and reclaimed by the tolling contractor. Under today's proposal, the tolling contractor must retain ownership of, and responsibility for, the hazardous secondary materials that are generated during the course of the manufacture. For purposes of this exclusion, tolling contractor means a person who arranges for the production of a product made from raw materials through a written contract with the batch manufacturer. Batch manufacturer means a person who produces a product made from raw materials pursuant to a written contract with a tolling contractor. As stated above, this type of contract appears to be common within the specialty batch chemical manufacturing industry.
EPA notes that in order to be eligible for this exclusion, it is not a requirement that the contractual arrangement in question refer specifically to “tolling” or “batch manufacturing,” as long as the person commissioning the manufacture of the product retains ownership of, and responsibility for, the hazardous secondary materials that are generated during the course of the manufacture. The Agency also solicits comment on other types of contractual arrangements under which discard is unlikely to happen and which could appropriately be covered by an exclusion for “generator-controlled” hazardous secondary material. For example, one company may enter into a contractual arrangement for a second company to reclaim and reuse (or return for reuse) the first company's hazardous secondary material. The first company could create a contractual instrument that exhibits the same degree of control over how the second company manages the hazardous secondary material as is found in a tolling agreement. EPA solicits comment on whether hazardous secondary materials recycled under such contracts also should be included within the scope of the exclusion.
As stated above in section B.1 of this preamble, the exclusion proposed today at 40 CFR 261.2(a)(2)(ii) would apply to materials generated and reclaimed within the United States or its territories that are under the control of the generator and that are stored in non-land-based units. However, some hazardous secondary materials that are generated and reclaimed within the United States or its territories under the control of the generator (i.e., at the generating facility, within the same company, or through a tolling arrangement) are managed in units that are land-based. For these materials, we are proposing a slightly different exclusion at 40 CFR 261.4(a)(23).
The Agency is proposing to place this exclusion in 40 CFR 261.4(a)(23) because while we recognize that raw materials and hazardous secondary materials can be and are stored in land-based units (such as mineral processing residues or pulping liquors), we also recognize that such management clearly presents a greater potential for releases to the environment than management in non-land-based units. Therefore, we are proposing an additional requirement which provides that if hazardous secondary materials are managed in land-based units, such materials must be contained in the units. We are not proposing that the units meet any particular design requirement or that the hazardous secondary materials in the unit be managed in a particular way. Rather, we are only proposing that the hazardous secondary material in the unit be “contained” and not released into the environment. The definition of land-based unit is proposed in § 260.10, and is taken from section 3004(k) of RCRA (i.e., landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave). Examples of surface impoundments include ditches and sumps.
Whether the hazardous secondary material is “contained” in the land-based unit will necessarily be determined on a case-by-case basis. Generally, however, recyclable material is “contained” if it is placed in a unit that controls the movement of the hazardous secondary material out of the unit. Hazardous secondary material that remains contained in a land-based unit that experiences a release would still meet the terms of the exclusion in 261.4(a)(23), unless the hazardous secondary material is not managed as a valuable product and as a result, a significant release from the unit occurs. In this situation, the hazardous secondary material in the land-based unit would be considered discarded. In determining whether hazardous secondary materials in a land-based unit are contained, a facility should consider the circumstances under which the materials are stored. For example, materials that are stored in direct contact with the soil in a natural or man-made impoundment may be more likely to leak. However, the local geological and meteorological conditions can greatly influence whether such materials would be contained. These local conditions, along with specific measures that a facility employs, such as liners, leak detection
Hazardous secondary materials released from any storage unit, whether land-based or non-land based, are discarded and if such materials upon discard would be either a listed hazardous waste or exhibit a hazardous waste characteristic, the hazardous secondary materials would be part of the waste disposal problem and would be subject to the hazardous waste regulations, unless they are immediately cleaned up.
We also note that hazardous secondary materials excluded from the definition of solid waste generally become wastes when they are speculatively accumulated, because at that point they are considered to be discarded. For this reason, all hazardous secondary materials excluded under proposed 40 CFR 261.2(a)(2)(ii) or 261.4(a)(23) would be subject to the speculative accumulation provisions of 40 CFR 261.1(c)(8). In addition, as with other excluded recycling operations, residuals from the recycling process are considered to be newly generated solid wastes, which can also be hazardous wastes if they exhibit a hazardous characteristic under Subpart C of Part 261 or if they are specifically listed under Subpart D of Part 261.
The Agency is soliciting comment on whether additional requirements might be necessary to demonstrate absence of discard when hazardous secondary materials are recycled under proposed 40 CFR 261.2(a)(2)(ii) or 261.4(a)(23). Our analysis has led us to conclude that discard has not occurred and releases are highly unlikely when hazardous secondary materials are generated and reclaimed under these circumstances, except possibly when such materials are managed in land-based units. Nevertheless, we are requesting comment on other points of view. An example of such conditions would be recordkeeping requirements, such as those proposed today in 40 CFR 261.4(a)(24)). Another example would be appropriate limitations on storage, such as performance-based standards designed to address releases to the environment. The Agency solicits comment on whether additional management requirements are appropriate for hazardous secondary materials that are generated and reclaimed under the control of the generator. If commenters believe such additional requirements are appropriate, they should specify the technical rationale for each requirement suggested, and why the requirement is necessary if the hazardous secondary material remains under the control of the generator.
We are also proposing that generators (and reclaimers, where the generator and reclaimer are located at different facilities) of hazardous secondary materials recycled under the control of the generator, whether managed in a land-based or non-land based unit, would be required to submit a one-time notice to the EPA Regional Administrator or, in an authorized state, to the state Director. The notice would need to identify the name, address, and EPA ID number (if it has one) of the generator or reclaimer, the name and phone number of a contact person, the type of hazardous secondary material that would be managed according to the exclusion, and when the hazardous secondary materials would begin to be managed in accordance with the exclusion. A revised notice would be required to be submitted in the event of a change to the name, address, or EPA ID number of the generator or reclaimer or a change in the type of hazardous secondary material being recycled.
The intent of this proposed notification requirement is to provide basic information to regulatory agencies about who will be managing hazardous secondary materials under the exclusion, and the types of hazardous secondary materials that would be recycled. For hazardous secondary materials that would be excluded under 40 CFR 261.2(a)(2)(ii), this proposed notification requirement would be specified in 40 CFR 260.42 (i.e., separate from 40 CFR 261.2). For hazardous secondary materials that would be excluded under 40 CFR 261.4(a)(23), this proposed notification requirement is included in the exclusion. We note that in both cases, the requirement to provide this notification would not be a condition of the exclusion. Thus, failure to comply with the requirement would constitute a violation of RCRA, but would not affect the excluded status of the waste.
We believe our authority to request such information is inherent in our authority to determine whether a material is discarded, and we consider this to be the minimum information needed to enable credible evaluation of the status of a hazardous secondary material under section 3007 of RCRA. EPA further believes that RCRA section 3007 allows it to gather information with regard to any material when the Agency has reason to believe that the material may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). Section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA.
We also note that after EPA promulgates regulations listing a material as a hazardous waste or identifying it by its characteristics, section 3010 of RCRA requires generators of such materials to submit a notification to EPA within 90 days. Since the changes proposed today could substantially affect this universe of facilities in the Subtitle C system, we believe the notifications are appropriate and useful.
EPA notes that the information discussed above can be difficult for regulatory authorities to retrieve and use if it is not placed into a data management system. Similarly, using different notification procedures and data management systems for different regulated materials can be confusing and time-consuming for the regulated community. For these reasons, the Agency requests comment on whether the Subtitle C Site Identification Form (EPA Form 8700-12) or the comparable state form should be used to provide the information required in this supplemental proposal. This form is used to enter data into the RCRAInfo data management system managed by the states and EPA. To implement use of this form for the notification requirements proposed today, we would revise the form to include a section for materials covered by this exclusion, with spaces for the appropriate data elements.
In addition, we are considering including additional information in the notification in order to measure the impact of the proposed rulemaking. More data would assist EPA in targeting future resources and activities to further increase recycling and to report to the public the impacts of the proposed rulemaking. The additional data elements for which we are requesting comment are discussed in section XIV of today's notice.
We note that this exclusion applies only to hazardous secondary materials generated and reclaimed within the United States or its territories, because most of our information about recycling comes from these geographical areas. We do not have sufficient information about most recycling activities outside of the United States to decide whether discard is likely or unlikely. However, we are soliciting comment on whether
Under today's proposal, hazardous secondary materials generated and reclaimed within the United States under the control of the generator would be excluded from RCRA Subtitle C regulation, but would be subject to certain restrictions, principally speculative accumulation. Persons that handle these hazardous secondary materials would be responsible for maintaining the exclusion by ensuring that these restrictions are met. If the hazardous secondary materials were not managed pursuant to these restrictions, they would not be excluded. They would then be considered solid and hazardous wastes if they were listed or they exhibited a hazardous waste characteristic for Subtitle C purposes from the time they were generated. Persons operating under the exclusion would also be required to notify EPA or the authorized state.
Persons taking advantage of today's proposed exclusion that fail to meet the requirements may be subject to enforcement action and the materials could be considered hazardous waste from the point of their generation. EPA could choose to bring an enforcement action under RCRA section 3008(a) for all violations of the hazardous waste requirements occurring from the time they are generated through the time they are ultimately disposed or reclaimed. The Agency believes that this approach provides generators with an incentive to handle (or in the case of tolling or other contractual arrangements, ensure that their contractors handle) the hazardous secondary materials pursuant to the requirements. It also encourages each person to take appropriate steps to ensure that such materials are safely handled and legitimately recycled by others in the management chain. If there is a release of the hazardous secondary materials into the environment, they are considered discarded and subject to all applicable hazardous waste regulations.
EPA is today proposing an exclusion from the definition of solid waste for hazardous secondary materials that are generated and subsequently transferred to another company or person for the purpose of reclamation, provided that certain conditions are met. Recycling that conforms to these conditions would not involve discard and therefore the recyclable materials would not be regulated as solid waste. Such excluded hazardous secondary materials would also need to be recycled legitimately, as determined according to the provisions of 40 CFR 261.2(g), which also are being proposed today, and could not be speculatively accumulated, as defined in 40 CFR 261.1(c)(8).
The conditions that EPA is proposing today are based on our understanding of how successful third-party recycling currently operates (and, conversely, how unsuccessful recycling practices can result in recyclable hazardous secondary materials being discarded), and are supported by the information included in the recycling studies that are described in section VIII of this preamble. For example, the study of current good recycling practices indicates that many generators examine the recycler's technical capabilities, business viability, environmental track record, and other relevant questions before sending hazardous secondary materials for recycling. These recycler audits, which can be thought of as a form of environmental “due diligence,” are in essence a precaution to minimize the prospect of incurring CERCLA liability in the event that the recycling, or lack thereof, results in discard of the material. The fact that these companies are willing to incur the expense of auditing recyclers as a business practice is of itself a marketplace affirmation that sending hazardous secondary materials to other companies for recycling involves some degree of risk. Although these risks may be small when the recycler is a well established, successful enterprise with a good record of environmental stewardship, it also is apparent that not all recyclers fit this profile, as evidenced in the study of environmental problems associated with hazardous secondary material recycling. Thus, we believe that there is sufficient reason for the Agency to place certain conditions on this proposed exclusion for the generator to determine that the material is not discarded, particularly since we expect that this rulemaking, if implemented, could encourage some number of companies that may be unfamiliar with recycling to enter the hazardous secondary material recycling business.
In proposing this conditional exclusion, EPA's objectives are to encourage recycling of hazardous secondary materials, and reduce unnecessary regulatory compliance costs to industry, while maintaining protection of human health and the environment. We believe that this proposed conditional exclusion is a workable, common sense approach to meeting these objectives, is well supported by the record for this rulemaking, including the recent recycling studies that EPA has conducted, and in important ways reflects current good industry practices that are used by certain generators for recycling of hazardous secondary materials.
The conditional exclusion for transferred materials would potentially apply to materials that are currently regulated as hazardous wastes because their recycling involves reclamation—specifically, spent materials, and listed sludges and listed by-products.
This is the same universe of materials that would have potentially been eligible for the exclusion proposed in October, 2003, except that that proposed exclusion would have applied only to these types of hazardous secondary materials that were recycled within the “same industry.” It would not be available for recycled materials that are regulated as hazardous wastes for other reasons, such as “inherently waste-like materials,” materials that are “used in a manner constituting disposal,” or “materials burned for energy recovery.”
The exclusion proposed today also would not address materials that are currently excluded from the definition of solid waste according to other, existing provisions of 40 CFR part 261. For example, the wood preserving exclusion in 40 CFR 261.4(a)(9) includes conditions for managing materials on drip pads. Today's proposed exclusion, if finalized, would not supersede or otherwise affect this conditional exclusion; such hazardous secondary materials would need to continue being managed in accordance with that existing exclusion.
Today's proposed exclusion specifies three restrictions, in addition to conditions for both generators and the reclaimers to whom excluded materials would be transferred. One restriction is that materials that are speculatively accumulated would not be eligible for the exclusion. Restrictions on speculative accumulation (see 40 CFR 261.1(c)(8)) have been an important element of the RCRA recycling regulations since they were promulgated on January 4, 1985. According to this regulatory provision, a hazardous secondary material is accumulated speculatively if the person accumulating it cannot show that the material is
A second restriction or pre-condition specified in the proposed exclusion is that excluded hazardous secondary materials would need to be transferred directly from the generator to the reclaimer, and not be handled by anyone else other than a transporter. Thus, a generator who wished to maintain the excluded status of his hazardous secondary materials would not be able to ship those materials to a “middleman,” such as a broker. This restriction is consistent with a premise underlying this proposed exclusion—that is, in order to ensure that unregulated materials will not be discarded, generators should have a reasonable understanding of who will be reclaiming the materials and how they will be managed and reclaimed, and a reasonable assurance that the recycling practice is safe and legitimate (see the following discussion of the proposed condition for “reasonable efforts”). A generator who ships materials to a middleman such as a broker typically does not know who will ultimately manage and reclaim them, or how they will be reclaimed. Thus, we believe that this restriction helps ensure that materials that become unregulated under the terms of this conditional exclusion will not be discarded by the generator. The Agency requests comment on this aspect of the proposed exclusion.
The Agency recognizes that, in some cases, recycling of an excluded hazardous secondary material may involve more than one reclamation step. For example, a recyclable hazardous secondary material such as an electroplating waste might have a relatively high moisture content, and a somewhat variable chemical composition. Such materials might thus need to be dried and blended to a suitable, consistent specification before they are amenable to a “final” reclamation process (e.g., metals smelting). In this example, the two different reclamation processes might be conducted by different companies and/or at different facilities. The Agency sees no reason to discourage this kind of recycling, and we are thus proposing that today's transfer-based exclusion would be available for materials that are recycled by means of one or more reclamation processes. Note, however, that the condition for generators to make “reasonable efforts” under the terms of this exclusion would apply in the same way, regardless of how many reclamation steps were involved with recycling of an excluded material. In other words, if the excluded hazardous secondary material were reclaimed by more than one facility or company, the generator of such material would need to make “reasonable efforts” to examine each facility or company in order to ensure that the hazardous secondary materials will be safely and legitimately recycled. We believe that this is a consistent application of the idea of requiring “reasonable efforts” as a condition of this proposed exclusion; where recycling of a hazardous secondary material involves more than one reclamation step at more than one facility, generators should nevertheless be well informed as to how the materials will be reclaimed, and by whom, throughout the recycling process.
The third specified pre-condition is that, for all hazardous secondary materials that would be excluded under 40 CFR 261.4(a)(24), generators and reclaimers that are currently subject to the hazardous waste regulations would need to submit a one-time notice to EPA or the authorized state. The notice would need to identify the name, address, and EPA ID number (if applicable) of the generator or reclaimer, the name and phone number of a contact person, the type of hazardous secondary material that would be managed according to the exclusion, and when the hazardous secondary materials would begin to be managed in accordance with the exclusion. A revised notice would be required to be submitted in the event of a change to the name, address, or EPA ID number of the generator or reclaimer or a change in the type of material recycled.
The intent of this proposed notification requirement is to provide basic information to regulatory agencies about who would be managing hazardous secondary materials under the exclusion, and the types of materials that would be recycled. We believe our authority to request such information is inherent in our authority to determine whether a material is discarded, and we consider this to be the minimum information needed to enable credible evaluation of the status of a material under section 3007 of RCRA. We also note after EPA promulgates regulations listing a material as a hazardous waste or identifying it by its characteristics, section 3010 of RCRA requires generators of such materials to submit a notification to EPA within 90 days. Since the changes proposed today could substantially affect this universe of facilities in the Subtitle C system, we believe the notifications are appropriate and useful.
The Agency requests comment on alternative notification requirements for this exclusion. One such alternative would be to require that more detailed information be provided in the notice, such as identification of the reclamation facility to which it will be shipped, how it will be stored at the generator's facility, and/or a detailed characterization of the hazardous secondary material and of the recycling process.
Another option being considered with regard to notification would be a requirement that it be signed by an authorized representative. In addition, we are considering the option of requiring persons using this exclusion to submit periodic (e.g., annual) reports detailing their recycling activities, to provide information on the types of volumes of hazardous secondary materials recycled, to whom the materials were sent for reclamation, the types of products that were produced from the reclamation processes, or other relevant information. We are also considering (and soliciting comment on) the option of requiring the information to be submitted in a particular format, or submitted electronically, and whether, in lieu of sending it to the implementing agency, it should be maintained at the facility.
EPA notes that the information discussed above can be difficult for regulatory authorities to retrieve and use if it is not placed into a data management system. Similarly, using different notification procedures and data management systems for different regulated materials can be confusing and time-consuming for the regulated community. For these reasons, the Agency requests comment on whether the Subtitle C Site Identification Form (EPA Form 8700-12) or the comparable state form should be used to provide the information required in this supplemental proposal. This form is used to enter data into the RCRAInfo data management system managed by the states and EPA. To implement use of this form for the notification
Today's proposed conditional exclusion for transferred materials specifies conditions for generators, as well as the reclaimers to whom generators transfer their hazardous secondary materials.
In addition to the three pre-conditions described above, EPA is proposing that generators who wish to avail themselves of the exclusion for transferred materials must satisfy two basic conditions: record keeping, which includes export notification, and “reasonable efforts,” which in effect would require the generator to make an assessment of the reclaimer so as to ensure that the hazardous secondary materials he or she generates will be recycled legitimately and would allow the Agency to determine that the materials are not discarded.
It is our understanding, supported by the information in the study of current good recycling practices, that generators who are concerned about potential environmental liability maintain these types of records as a routine business matter. Thus, we expect that this record-keeping condition will impose a minimal additional paperwork burden for those facilities. We also believe that this recordkeeping condition will help to clarify what “appropriate documentation” the generator would need to provide in the event of some type of RCRA enforcement action (see 40 CFR 261.2(f)). This proposed condition is also very similar to the recordkeeping condition that currently applies to excluded hazardous secondary materials used to make zinc fertilizer (see 40 CFR 261.4(a)(20)(ii)(D)). We are also requesting comment on whether to require the generator to maintain a copy of a confirmation of the receipt of the hazardous secondary material by the reclaimer. Based on our conversations with commercial recycling facilities, they routinely issue receipt confirmations or “recycling certificates” as a way of helping the generator verify that the hazardous secondary material reached its intended destination. The Agency solicits comment on this proposed condition for recordkeeping, including whether retention of confirmation of receipt is a normal business practice.
We considered additional record keeping conditions for generators who would operate under this proposed exclusion, but are not proposing them today, primarily because we are committed to limiting such conditions to those we believe are essential to allowing proper oversight of hazardous secondary materials that are managed outside of the existing RCRA hazardous waste regulatory system. Examples of such additional conditions would include more thorough characterization of the materials that are transferred for reclamation, the types of units in which they were accumulated at the generating facility, how they were transported (e.g., by truck), whether or not the hazardous secondary materials were transported as a DOT hazardous material, the date the hazardous secondary materials were generated, the quantity of hazardous secondary materials generated, and other similar conditions. We request comment on whether such additional record keeping conditions or others not mentioned here are warranted for generators who would manage materials under this proposed exclusion.
Similarly, under today's supplemental proposal, exporters of hazardous secondary materials that are excluded under 40 CFR 261.4(a)(24) would be required to notify the receiving country through EPA and obtain consent from that country before shipment of the hazardous secondary materials could take place (see 40 CFR 261.4(a)(25)). This requirement would serve as a notification to the receiving country so that it can ensure that the hazardous secondary materials are recycled rather than disposed. As an additional benefit, the receiving country has the opportunity to consent or not based on its analysis of whether the recycling facility can properly recycle the hazardous secondary materials and manage process residuals in an environmentally sound manner within its borders. EPA believes that sections 2002, 3002, 3007, and 3017 of RCRA provide authority to impose this condition because such notice and consent help determine that the materials are not discarded.
Under today's supplemental proposal, hazardous secondary materials that are exported from the United States and recycled at a reclamation facility located in a foreign country are not solid wastes, provided that the exporter complies with the requirements of 40 CFR 261.4(a)(24)(i)-(iv) and notifies EPA and obtains a subsequent written consent forwarded by EPA from the receiving country. The provisions that we are proposing today in 40 CFR 261.4(a)(25) require exporters to notify EPA of an intended export 60 days before the initial shipment is intended to be shipped off-site. The notification may cover export activities extending over a 12 month or shorter period. The notification must include contact information about the exporter and the recycler, including any alternate recycler. The notification must include a description of the manner in which the hazardous secondary materials will be recycled. It must also include the frequency and rate at which they will be exported, the period of time over which they will be exported, the means of transport, the estimated total quantity of hazardous secondary materials to be exported, and information about transit countries through which such materials will pass. Notifications must be sent to EPA's Office of Enforcement and Compliance Assurance, which will notify the receiving country and any transit countries. When the receiving country consents in writing to the receipt of the hazardous secondary materials, EPA will forward the written consent to the exporter. The exporter may proceed with shipment only after it has received a copy of the written consent from EPA. If the receiving country does not consent to receipt of the hazardous secondary materials or withdraws a prior consent, EPA will notify the exporter in writing. EPA also will notify the exporter of any responses from transit countries. Exporters must keep copies of notifications and consents for a period of three years following receipt of the consent. These procedures are similar to those required for exports of hazardous waste under 40 CFR Subpart E, except for the use of the hazardous waste manifest.
Some generators, particularly those who generate relatively large volumes of hazardous secondary materials, audit recyclers before shipping such materials to them. EPA's study of good practices for recycling quotes one large recycling and disposal vendor as stating that of its new customers, sixty percent of the large customers and thirty to fifty percent of the smaller customers now perform audits on them. Under current practices, such audits can involve a site visit to the recycling facility, and an examination of the company's finances, technical capability, environmental compliance record, and housekeeping practices. (
Today's proposed condition that addresses “reasonable efforts” is intended to reflect and capture in a regulatory context how many generators currently inquire and make decisions about whom they should do business with, and how they manage their potential liability and regulatory non-compliance risks.
Currently, under 40 CFR 262, a generator must make a hazardous waste determination and thus, already has an obligation to determine whether the waste is subject to regulation. EPA believes that to make a parallel determination that hazardous secondary materials are not solid wastes because they are destined for reclamation and are not discarded, the generator must make a reasonable effort to ensure that the reclaimer intends to legitimately recycle the material pursuant to 40 CFR 261.2(g) and not discard it, and that the reclaimer will manage the material in a manner that is protective of human health and the environment.
EPA is also proposing that the generator can use any credible evidence available in making his reasonable efforts, including information gathered by the generator, provided by the reclaimer, and/or provided by a third party, in lieu of personally performing an environmental audit. (In fact, in some cases, the generator may not be an expert in different aspects of recycling, and reliable third-party information or judgment would play an important part in the generator's conclusion.) For example, the generator might hire an independent auditor to review the operations of a recycler. Also, the generator might rely on third-party certifying bodies to provide a reasonable level of confidence that a recycler would safely manage his materials. Trade associations might make available to their members information on specific facilities that could be used to determine that the facility is safely and legitimately recycling the hazardous secondary material. Likewise, a parent corporation might perform an environmental audit of a recycler, and the audit could then be used by several of the company's facilities. In fact, EPA believes that many reputable third party auditors, and trade associations that might make available to their members information on specific facilities, already assemble the types of information that would be needed for a generator to determine, based on credible evidence, that the hazardous secondary material is being legitimately recycled. EPA would encourage this type of pooling of information in order to reduce the burden and take advantage of specialized technical expertise.
This proposed provision requiring reasonable efforts by generators would only apply to generators who send hazardous secondary materials to recyclers that are not operating under RCRA Part B permits or interim status standards. RCRA permitted facilities and interim status facilities are already subject to stringent design and operating standards, must demonstrate financial assurance, are subject to corrective action requirements in the event of environmental problems, and are typically given more thorough oversight than facilities without RCRA Part B permits. Thus, the Agency believes that permitted and interim status recycling facilities provide generators with environmental assurances that would ensure the hazardous secondary materials sent to such a facility are not discarded. Not requiring reasonable efforts for generators who ship hazardous secondary materials to RCRA permitted or interim status recycling facilities would likely be of particular benefit to relatively smaller volume generators who may not have the resources required to undertake “reasonable efforts.”
EPA requests comment on whether to require generators to maintain at the generating facility documentation showing the reasonable efforts made before transferring the hazardous secondary materials to the reclamation facility. Such records would presumably include copies of audit reports, and/or other relevant information that was used as the basis for the generator's determination that the reclamation facilities to which the hazardous secondary materials were sent would legitimately recycle the hazardous secondary material in a protective manner. Requiring specific documentation would help EPA or the authorized state to determine whether the generator did make reasonable efforts to ensure that his hazardous secondary material was not discarded.
In addition, EPA requests comment on whether, as part of the documentation, the generator should also be required to maintain at the generating facility a certification statement, signed and dated by an authorized representative of the generator company, that for each reclamation facility to which the generator transferred excluded hazardous secondary materials, that the generator made reasonable efforts that the hazardous secondary material was legitimately recycled. Such certification statement could, for example, be worded as follows:
“I hereby certify in good faith and to the best of my knowledge that, prior to arranging for transport of excluded hazardous secondary materials to [insert name of reclamation facility], reasonable efforts were made to ensure that the hazardous secondary materials would be recycled legitimately, and otherwise managed in a manner that is protective of human health and the environment, and that such efforts were based on current and accurate information.”
Today's proposed condition for reasonable efforts is in effect a general standard; we are not proposing specific questions that generators would need to assess in satisfying this condition of the exclusion. However, we acknowledge that specifying in more explicit terms the questions that should be examined in making such reasonable efforts could provide more certainty to generators, as well as overseeing agencies. On the other hand, more explicit provisions for defining reasonable efforts in this context could also limit a generator's flexibility. The Agency requests comment on whether more specific provisions to define reasonable efforts for the purpose of this exclusion should be specified in the final rule.
If EPA were to specify in more explicit terms how generators should perform reasonable efforts with respect to this regulatory exclusion, one approach could be to identify specific questions that generators would need to address in satisfying this condition. Such questions would be focused on ensuring that the hazardous secondary material will not be discarded. The following are examples of possible questions that EPA could specify in the final regulatory condition for determining reasonable efforts, with an explanation of how each question could potentially assist in determining that the hazardous secondary material is not discarded. EPA then outlines two options for how to determine “reasonable efforts;” the first option would use the broader list of questions (A through F) and the second option would use a subset of questions (A and F) that some believe have a more bright-line nature. EPA requests comment on whether any or all of these questions should be included in the regulation (including the advantages and disadvantages of the various questions, as well as of the two options outlined below), and if there are other questions that should be also be considered.
(A) Has the reclaimer notified the appropriate authorities pursuant to § 261.4(a)(24)(iii) and does he have financial assurance as required under § 261.4(a)(24)(v)(D)?
(B) Does the reclamation facility have the equipment and trained personnel to safely recycle the hazardous secondary material?
(C) Are there any unresolved significant violations of environmental regulations at the reclamation facility, or any formal enforcement actions taken against the facility in the previous three years for violations of environmental regulations? If yes, then the generator must have credible evidence that the reclaimer will manage the materials safely.
(D) Does the material being recycled provide a useful component that will be reused in the product of the recycling process or aid in the recycling process itself?
(E) Is the product (or intermediate) of recycling at the reclamation facility a generally traded commodity meeting applicable specifications? If not, is there other available information, such as sales records or long-term contracts, demonstrating that there is a reliable market for the product (or intermediate)? If not, then the generator must have credible evidence that the recycling at the reclamation facility will produce a valuable product or intermediate.
(F) Does the reclamation facility have the permits required (if any) to manage the residuals (if any) generated from reclamation of the excluded hazardous secondary material? If not, does the reclaimer have a contract with an appropriately permitted facility to dispose of the residuals (if any) generated from the reclamation of the excluded hazardous secondary material? If not, then the generator must have credible evidence that the residuals generated from the recycling of the excluded secondary hazardous material will be managed in a manner that is protective of human health and the environment.
The first possible question (A) focuses on whether the recycler has met two of the requirements he must fulfill before accepting excluded hazardous secondary materials for reclamation: notification of the appropriate regulatory authority that he plans to reclaim excluded hazardous secondary material (see Section X.B of today's proposal), and establishment of financial assurance to cover the costs of managing any hazardous secondary materials that remain if the facility closes (see Section X.C.2 of today's proposal). If a recycler were found to have failed to meet these requirements then he will have also failed to show a good faith effort towards demonstrating that he intends to recycle the material and not discard it, and will manage the material in a manner that is not protective of human health and the environment.
The second possible question (B) focuses on the technical capability of the recycler, the most basic of requirements for ensuring safe recycling of hazardous secondary material. If a reclamation facility were found to not have adequate equipment or trained personnel, it raises serious questions as to whether the facility would be engaged in safe recycling.
The third set of possible questions (C) focuses on the compliance history of the recycler. Although compliance data are an imperfect tool for determining whether a recycler would safely manage the hazardous secondary material, EPA believes that they are a reasonable starting point. Facility-specific enforcement data on unresolved alleged significant violations and on formal enforcement actions (by both EPA and states) and specific case information for the formal enforcement actions are readily available on EPA's public Web site at
The fourth possible question (D) focuses on the usefulness of the secondary material to the recycling process. EPA's study of the potential effect of market forces on the recycling of hazardous secondary materials shows that there is a particular incentive for materials to be recycled when it can be done at a lower cost than disposing of the material. In some cases, however, a hazardous secondary material with little value can be put into a “recycling” process, but not add anything of value either to the end product or to the process itself. In such cases, the hazardous secondary material is effectively being discarded rather than recycled. A material being legitimately recycled can contribute value to the process in two ways. The recycled material can contain a constituent that is being reused and which also appears in the final product. Alternatively, the material being recycled can aid in the process itself, such as by replacing a raw material that would otherwise be needed. For example, a hazardous
The fifth set of possible questions (E) focuses on the products of recycling. According to EPA's study of the potential effect of market forces on the management of recyclable hazardous secondary materials, there is a relationship between the value of the product from recycling and the likelihood of successful recycling. Products with little or no value can result in recyclable materials being over-accumulated and mismanaged. Mismanagement of recyclable materials was a major cause of environmental damage in forty percent of the cases that EPA has studied. To provide assurance that the products created from the hazardous secondary materials are in fact valuable, the generator would need to determine if the products are general commodities that meet applicable standards, or that there is a reliable market based on sales records or long-term contracts.
For most recycled products, this determination would be straightforward and the product specifications are well known. Metals reclamation and solvents, for example, results in the production of valuable products that are readily traded on the open market. Other products, however, may be unique or recycled in a different manner and may require a closer look to determine if they meet minimum standards. For example, in one of the damage cases, the reclamation facility used spent plastic blast media to make certain construction materials, which are a generally traded commodity with rigorous standards. However, in this case, the “recycling” process resulted in cinder blocks that would crumble on contact, and concrete slabs that would not support the weight of a person. In some cases, there may be no formal standard for a product, but a commonsense informal standard would still apply, particularly in regards to toxic constituents. For example, in another of the damage cases, children's play sand was made from foundry sands highly contaminated with lead, which, in this situation would not meet such a commonsense standard. There are also other instances in the damage cases of recyclers marketing their product as appropriate for “fill” despite high levels of toxic constituents. In one case, a battery recycler distributed material from old battery casings to a community to be used as fill and driveway paving material, resulting in elevated levels of lead at 96 of the 109 properties. In order to determine whether a reclamation facility is legitimately recycling, the generator will need to check to make sure that the recycling results in a valuable product or intermediate.
Although a typical audit of a recycling facility would include an examination of the facility's finances, EPA does not have information on whether this financial evaluation would include an investigation as to whether the recycling process results in a valuable product. EPA requests comment on how including such a question might affect the scope of a typical audit.
The sixth set of possible questions (F) focuses on another major cause of environmental problems from hazardous secondary material recycling: the management of the residuals. Roughly one-third of the damage cases that EPA documented were caused by mismanagement of the residuals from recycling. Because the residuals from recycling can contain the hazardous constituents that originated with the hazardous secondary materials, it is important that the generator understands how those residuals will be disposed. These residuals may or may not be regulated hazardous wastes, but in either case, the generator would need to determine that they are managed in units that have the necessary permits (either solid waste permits or hazardous waste permits) or otherwise comply with applicable environmental standards (whether federal or state), such that the material is being managed in a manner that is protective of human health and the environment.
In drafting these possible questions to establish reasonable efforts, we have attempted to write them in as an objective a manner as possible, but we recognize that answering these questions still requires a certain amount of judgment. We understand that generators might prefer more definitive criteria. Therefore, we ask for suggestions on how the possible reasonable efforts questions (if they are included in the regulation) could be more objective, yet provide the necessary information, or any other information that should be required for making a reasonable efforts determination.
In particular, as noted at the beginning of this discussion, EPA requests comment on the alternative option of focusing “reasonable efforts” only on questions A and F above. This second of the two options would limit the generator's reasonable efforts requirement to determining whether the reclaimer has notified EPA or the authorized state that he is engaged in recycling excluded hazardous secondary material; whether the recycler complies with the financial requirements of this part; and whether the reclaimer has obtained the appropriate permits for managing residuals onsite or, alternatively, ships the material offsite under a contract with an appropriately permitted facility. These requirements would assure the generator that the reclaimer's operations are known to the regulatory authority and therefore can be inspected for compliance, that residuals would be properly managed (thus addressing the second most common environmental problem in the recycling case studies EPA has analyzed), and that financial assurance would cover the cost of facility closure and other potential environmental liabilities. While this list would not be as comprehensive, this option of focusing on a set of criteria that some believe is of a more bright-line nature could make it easier for the generator to determine whether the criteria have been met and thereby make, in good faith, a certification that would demonstrate “reasonable efforts.”
In addition, EPA requests comment on how difficult it would be for a generator to address and certify in good faith the responses to questions B through E. In this regard, EPA requests comment on whether generators already possess, or would be able to acquire through reasonable efforts, the information and ability necessary to evaluate the relevant aspects of the recycling industry, especially in situations where the generator does not work in that industry or otherwise have a reason to be familiar with it. For example, under question (B), to what extent do generators already posses, or would be able to acquire readily, the information and ability needed to evaluate the adequacy of “the equipment and trained personnel” in a different industry than the one in which the generator operates? Similarly, under question (E), to what extent do generators already possess, or would be able to acquire readily, the required knowledge of markets (in which they might not participate) for purposes of determining whether something constitutes a “valuable product or intermediate”?
EPA also requests comment on whether, if the final regulation does include specific questions for the generator to consider when making reasonable efforts, (1) should all generators be required to answer those questions and document their responses to each of them—that is, this
Note that codifying “reasonable efforts” standards that the generator would certify have been met would have the effect of placing on the generator the responsibility of assessing the recycler and ensuring that the hazardous secondary materials would not be discarded. EPA is seeking comment on this aspect of the proposal. Further, the Agency seeks comment on whether any or all of the questions are appropriate for the generator to answer in making reasonable efforts to ensure that the reclaimer intends to legitimately recycle the material and will not discard it pursuant to the criteria in 261.2(g), and that the reclaimer will manage the material in a manner that is protective of human health and the environment.
Of course, regardless of the type of information/questions EPA may include in the final rule, if any, the generator could choose to seek additional information or ask additional questions, and as shown in EPA's study of good recycling practices, many generators already do so. EPA anticipates generators may seek additional information in determining that their hazardous secondary materials will not be discarded due to concerns about CERCLA liability (which is unaffected by today's proposal, see Section XIII.D. of today's proposal).
EPA also requests comment on the relationship between the reasonable efforts questions and legitimacy (discussed in more detail in section XI of today's preamble). Two of the questions identified above, questions D and E, are related to the two factors that EPA is proposing today to be the “core” considerations for determining whether a recycling operation is legitimate, rather than sham recycling (i.e., whether the hazardous secondary material makes a useful contribution, and whether the recycling process results in a valuable product). EPA believes that it is appropriate to include these concepts in “reasonable efforts,” thus allowing the generator to make only one determination before sending hazardous secondary material for recycling. In other words, if these reasonable efforts questions are codified in the regulations, EPA is proposing that by satisfying reasonable efforts, the generator would have also satisfied the obligation to determine his hazardous secondary material would be legitimately recycled per proposed 40 CFR 261.2(g). However, because EPA is also requesting comment on recordkeeping and certification requirements related to reasonable efforts, incorporating questions D and E could alter the implementation of the legitimacy determination for materials excluded under this provision. EPA requests comment on whether to keep the legitimacy determination an independent requirement for generators who would claim today's proposed exclusion and not directly link it to “reasonable efforts.”
Finally, EPA also solicits comment on whether the frequency of periodic updates of the “reasonable efforts” should be identified in the regulations, or whether that question should be left to individual situations applying an objectively reasonable belief standard. Information on industry standards for facility audits of off-site activities, including how frequently they are conducted, would be especially helpful.
However, the Agency is also considering several other conditions for generators under this exclusion. One option would be a condition addressing storage of accumulated recyclable hazardous secondary materials by the generator prior to shipping them to a reclamation facility. For example, we are proposing today a condition that specifies a general performance standard for storage of excluded hazardous secondary materials at reclamation facilities. Arguably, the same or a similar standard could be required for generators who take advantage of the exclusion. The Agency requests comment as to whether a storage condition (beyond the requirement that material in land-based units be contained) should be imposed on generators as part of this exclusion, and if so, what type of condition(s) it should be.
EPA is proposing that reclaimers of conditionally excluded materials will have to satisfy four general conditions, which pertain to record keeping, storage of recyclable hazardous secondary materials, management of the residuals from reclamation processes, and financial assurance.
In addition to these proposed record keeping provisions, the Agency is considering additional records that would more thoroughly document excluded recycling activities by reclaimers. Examples of such additional records would include more thorough characterization of the hazardous secondary materials that are received for reclamation, the types of units in which they were stored at the reclamation
Storage conditions for reclamation facilities that operate under today's proposed exclusion would allow the Agency to determine that the recyclable materials are not discarded. The great majority of damages documented in the study of recent recycling-related damage incidents occurred at commercial reclamation facilities, and mismanagement of hazardous secondary materials was found to be a cause of environmental problems in 35% of the incidents. Accordingly, EPA believes that this proposed condition for storage, or some similar condition, is necessary and appropriate for reclamation facilities that take advantage of this exclusion, and will establish an expectation for the owner/operators of such facilities; i.e., that they must manage hazardous secondary materials in at least as protective a manner as they would an analogous raw material, and in such a way that materials would not be released into the environment.
The Agency considered a number of alternatives to this proposed storage condition, including specifying a much more rigorous set of conditions equivalent to current Subtitle C regulatory requirements for storage (see, for example, the requirements for tanks and containers, which are specified in subparts I and J of 40 CFR Part 264), or to a similar, but less stringent set of storage conditions (e.g., requiring the hazardous secondary material to be stored in an engineered unit). However, we do not believe that an elaborate set of conditions for storage are necessary for the purpose of this exclusion. For one thing, we are proposing today that generators who wish to take advantage of this exclusion must make “reasonable efforts” to evaluate the reclamation facilities they ship materials to, to ensure that the hazardous secondary materials will be legitimately and safely recycled. In making such reasonable efforts, we expect that generators will make an assessment of the reclamation facilities' material storage practices and equipment. Thus, we believe generators will themselves evaluate the storage and handling practices of hazardous secondary materials at the reclamation facilities they do business with. We request comment on whether or not the condition should be written in more specific terms, that is, in a way that would provide greater clarity with regard to how storage units should be designed and operated.
The purpose of this condition is primarily to clarify the regulatory status of these waste materials, and to emphasize in explicit terms that recycling residuals must be managed properly. The study of recent (i.e., post-CERCLA, post-RCRA) recycling-related environmental problems revealed that mismanagement of residuals was the cause of such problems in one third of the incidents that were documented. Some common examples of these mismanaged residuals were acids and casings from processing of lead-acid batteries, solvents and other liquids generated from cleaning drums at drum reconditioning facilities, and PCBs and other oils generated from disassembled transformers. In many of these damage incidents, the residuals were simply disposed in on-site landfills or piles, with little apparent regard for the environmental consequences of such mismanagement, or possible CERCLA liabilities associated with cleanup of these releases.
One issue that the Agency considered with respect to this proposed condition was the regulatory status of wastes generated from the reclamation of hazardous secondary materials that would be listed hazardous wastes if they were not recycled. One argument could be that these residuals should be regulated as listed hazardous wastes, since they were derived from materials that were physically and chemically identical to listed hazardous wastes, and could contain hazardous constituents that might pose significant threats to human health and the environment if the residuals were mismanaged. A different argument would be that such a regulatory construct is unwarranted, since the recycled hazardous secondary materials are not wastes, provided they meet the conditions of the exclusion, and therefore the “derived from” concept as articulated in § 261.3(c)(2) should not be applied to these wastes. Further, such waste residuals from reclamation processes often do not resemble the hazardous secondary materials that were reclaimed, and thus, the argument goes, it should not be assumed that they would always need to be managed as hazardous wastes.
The Agency does not believe it is necessary to apply the “derived-from” principle to the residuals generated from the reclamation of excluded hazardous secondary materials. If the residuals exhibited a hazardous characteristic, or they themselves were a listed hazardous waste, they would be considered hazardous wastes, and would have to be managed accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a
We believe that requiring financial assurance for these reclamation facilities is necessary for the Agency to determine that the materials managed at these facilities are not discarded, and is supported by the findings of the recycling studies we conducted as part of this rulemaking effort.
For example, the study of current good recycling practices indicated that one of the main reasons that generators audit recyclers is to evaluate their financial health and resources to respond to accidents or other problems that could cause adverse environmental or human health consequences. This is primarily because of the joint-and-several liability provisions of CERCLA, under which a generator can become a “responsible party” obligated to help pay for remediation expenses if (in this example) a recycler to whom he sent recyclable hazardous secondary materials were to create contamination problems, but lacked the resources to pay for their cleanup. Because American manufacturers have considerable experience with these types of CERCLA liability issues, evaluating the financial health of the reclamation facility before shipping recyclable materials to them has become a standard business precaution for many generators. Today's proposed condition for financial assurance thus can be seen as a regulatory precaution against the same concern, ensuring that the reclamation facility owner/operators who would operate under the terms of this proposed exclusion are financially sound.
The need for some type of financial assurance for recyclers in this context also is supported by the study of recycling-related environmental problems. The study indicates that business failure is a primary causative factor associated with these damage incidents. For example, of the 208 damage incidents that were documented, at least 138 of the recyclers are no longer in business. While there may not be a clear cause-and-effect relationship in all of these cases, we believe that this clearly suggests a correlation between the financial health of recycling companies and the probability that their recycling activities will result in some form of environmental damage. In our view, this further supports the need for some type of financial assurance condition for this exclusion.
As proposed, reclaimers of excluded hazardous secondary materials would need to have financial assurance in accordance with the applicable financial assurance requirements for hazardous waste treatment storage and disposal facilities (cited above). We believe that these financial assurance requirements are appropriate for reclamation facilities that would be managing excluded hazardous secondary materials, since such management will typically involve some type of storage, and reclamation, which is defined as “treatment” under the existing RCRA regulations. If a reclamation facility were to manage excluded materials in land-based units (e.g., piles), it would be subject to the additional Subpart H financial assurance requirements for land disposal facilities.
The Agency currently has underway a review of the Subpart H financial assurance regulations now in effect for hazardous waste treatment, storage and disposal facilities. The Agency does not intend to address general issues related to the financial assurance mechanisms as a part of today's rulemaking, since these issues are being addressed in the broader review. However, in the context of this rulemaking, the Agency is interested in receiving comments as to whether or not the existing Subpart H requirements need to be modified in some way specifically for reclamation facility owner/operators that would be affected by today's proposed exclusion. EPA also solicits comment on whether we should adopt the financial assurance requirements that were promulgated as part of the standardized permit rule (see 70 FR 53419, September 8, 2005), which are EPA's most recently issued RCRA financial assurance requirements.
We are also interested in options that would involve tailoring the costing requirements associated with Subpart H requirements for today's rulemaking. For example, the Subpart H financial obligations are tied in large part to the estimated future cost of closing the hazardous waste facility. Closure costs can be difficult to estimate, or subject to disagreement, and failure to close might not be the problem at a given facility. For example, closure cost estimates might not address the kind of releases identified in the recycling study. Thus, a simpler alternative might be to set a standard, fixed amount of financial assurance that would need to be demonstrated. For example, EPA's study of environmental problems associated with hazardous material recycling was able to identify actual or estimated cleanup costs associated with 89 of the damage cases that were documented. Of these cases, 71 (80%) involved cleanup costs of $5 million or less, while 81 cases (91%) cost $10 million or less. It should be noted that there are important uncertainties associated with these cost data, as explained in our study report. With these uncertainties in mind, these findings might be used as the basis for identifying a specific, minimum amount of financial assurance that reclamation facility owner/operators would need to demonstrate. Such funds would thus be available for any environmental damage associated with the reclamation operations at such facilities.
This type of approach to establishing financial assurance requirements for reclamation facilities would be less flexible than the current regulations, but it would have the virtue of simplicity and transparency. Similarly, the regulatory language of individual financial assurance mechanisms might need to be modified slightly, to make it clear that funds would be available for environmental damages beyond closure. The Agency solicits comment on such alternative approaches to financial assurance requirements for reclamation facilities that would operate under today's proposed exclusion.
Finally, the Agency anticipates that, when and if today's proposed exclusion for transferred materials is promulgated and becomes effective, there are likely to be some generators of recyclable hazardous wastes that will choose not to use the exclusion, and thus will continue to manage their wastes under the current hazardous waste regulatory
Under today's proposal, hazardous secondary materials transferred for the purpose of reclamation would be excluded from RCRA subtitle C regulation, but would be subject to certain conditions and restrictions. If a generator fails to meet any of the above-described conditions or restrictions on the management of hazardous secondary materials that are applicable to the generator, then the materials would be considered discarded by the generator and would be subject to RCRA subtitle C regulations from the point at which the material was used and could not be reused without reclamation. If a reclaimer were to fail to meet any of the above-described pre-conditions or restrictions on the management of hazardous secondary materials that are applicable to the reclaimer, then the materials would be considered discarded by the reclaimer and would be subject to RCRA subtitle C regulation from the point at which the reclaimer failed to meet a condition or restriction, thereby discarding the material.
Please note that the failure of the reclaimer to meet conditions or restrictions does not mean the material was considered waste when handled by the generator, as long as the generator can adequately demonstrate that he has met his obligations, including the obligation under proposed 40 CFR 261.4(a)(24)(iv)(A) to make reasonable efforts to ensure that the material will be recycled legitimately and otherwise managed in a manner that is protective of human health and the environment. A generator who met his reasonable efforts obligations could in good faith ship his excluded materials to a reclamation facility where, due to circumstances beyond his control, they were released and caused environmental problems at that facility. In such situations, and where the generator's decision to ship to that reclaimer is based on an objectively reasonable belief that the hazardous secondary materials would be recycled legitimately and otherwise managed in a manner consistent with this regulation, the generator would not have violated the terms of the exclusion.
Under the RCRA Subtitle C definition of solid waste, many existing hazardous secondary materials are not solid wastes and thus, not subject to RCRA's “cradle to grave” management system if they are recycled. The basic idea behind this construct is that recycling of such materials often closely resembles normal industrial manufacturing, rather than waste management. However, since there can be significant economic incentive to manage hazardous secondary materials outside the RCRA regulatory system, there is a clear potential for some handlers to claim that they are recycling, when in fact they are conducting waste treatment and/or disposal in the guise of recycling. To guard against this, EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” recycling, beginning with the preamble to the 1985 regulations that established the definition of solid waste (50 FR 638, January 4, 1985) and continuing with the 2003 proposed codification of criteria for identifying legitimate recycling.
On October 28, 2003 (68 FR 61581-61588), EPA extensively discussed our position on the relevance of legitimate recycling to hazardous secondary materials recycling in general and to the redefinition of solid waste specifically. We proposed to codify in the RCRA hazardous waste regulations four general criteria to be used in determining whether recycling of hazardous secondary materials is legitimate. In today's action, we are proposing two changes to the proposed legitimacy criteria and asking for public comment on those changes. The changes are (1) a restructuring of the proposed criteria, called factors in this proposal, to make two of them mandatory, while leaving the rest as factors to be considered, and (2) additional guidance on how the economics of the recycling activity should be considered in a legitimate recycling determination.
As we explained in the 2003 proposal, it is the Agency's longstanding policy that, for activities to qualify as recycling of hazardous secondary materials, they must be legitimate. This principle applies to both recycling of excluded hazardous secondary materials and recycling of regulated hazardous secondary materials. The definition of legitimate recycling is intended to apply to all recycling of hazardous secondary materials, including:
• Recyclable hazardous secondary materials that would be excluded from Subtitle C regulation as wastes under today's proposed exclusion from the definition of solid waste.
• Hazardous secondary materials that, because they are recycled, are excluded or exempted from Subtitle C regulation under other regulatory provisions (e.g., see the exclusions in 40 CFR 261.2(e) and 261.4).
• Recyclable hazardous wastes that are regulated under Subtitle C prior to recycling.
Apart from the definition of solid waste implications, the concept of legitimate recycling also is used to determine if a recycling unit is exempt from RCRA Subtitle C permitting (except for certain air emission standards) or a regulated waste treatment or disposal unit, subject to full RCRA Subtitle C permitting.
The concept of legitimate recycling is designed to be used in addition to and in concert with more specific criteria or requirements when they have been established in the regulations for specific recycling activities or recycled hazardous secondary materials. Affected parties should look to those regulatory provisions, in addition to the definition of legitimate recycling, to ensure compliance. For example, for a zinc micronutrient fertilizer manufacturer who uses hazardous secondary materials as a feedstock, the consideration of hazardous constituents in the final product would involve an analysis of whether the operation is legitimate recycling and an analysis of whether the fertilizer meets the contaminant limits specified in 40 CFR 261.4(a)(21).
By ensuring that use of hazardous secondary materials in an industrial process is legitimate recycling, the Agency seeks to ensure that when a facility claims that it is recycling, the hazardous secondary material is in fact being recycled and is contributing to a valuable product and is not being treated or disposed of in the guise of recycling.
In the 2003 proposed rule (68 FR 61581-61588), EPA proposed codifying specific regulatory provisions for determining when hazardous secondary materials are recycled legitimately. Previously, the criteria considered in
The 2003 proposal consolidated the criteria in that memorandum into four criteria. EPA was clear in its expectation that most, if not all, legitimate recycling would conform with all four of the criteria, but stated that the application of those criteria would require some subjective evaluation of the criteria in each specific situation to which they are being applied. In those cases where a legitimate recycling operation does not meet all four criteria, the structure of the definition of legitimacy was designed to be flexible enough to allow those situations to be deemed legitimate.
In general, the proposed regulatory language stated that legitimacy determinations must be made by considering whether:
• The hazardous secondary material to be recycled is managed as a valuable commodity;
• The hazardous secondary material provides a useful contribution to the recycling process or to a product of the recycling process;
• The recycling process yields a valuable product or intermediate;
• The product of the recycling process does not contain significant amounts of hazardous constituents that are not found in the analogous products or exhibit a hazardous characteristic not exhibited by the analogous product.
The full proposed regulatory text can be found in the proposed rule (68 FR 61596).
It is the Agency's opinion that the concept of legitimate recycling proposed in the October 2003 proposal and in today's supplemental proposal is not substantively different than our longstanding policy, as expressed in earlier preamble and guidance statements. As part of proposing regulatory provisions on the legitimacy of recycling, we are simply reorganizing, streamlining, and clarifying the existing legitimacy principles. We believe that the regulatory definition of legitimate recycling, when applied to specific recycling scenarios, will result in determinations that are consistent with the earlier policy. Therefore, we generally do not see the need for the regulated community or overseeing agencies to revisit previous determinations and expect any written determinations from these agencies to, in effect, be grandfathered. For a more detailed analysis on how the definition of legitimacy has evolved from earlier preamble and guidance statements, see the October 28, 2003 proposal (68 FR 61581-61588), where we provided a thorough explanation of how the proposed criteria related to existing guidance. The Agency does not intend to reiterate that analysis in today's supplemental proposed rule, but will explain below the changes we are proposing to make from the 2003 proposal.
The 2003 proposal did result in comments on the Agency's proposal to codify legitimacy and we are requesting further comment on this issue. The Agency believes that there are many benefits to codifying the legitimacy factors, as discussed in the 2003 proposal. Many commenters, particularly the state regulatory agencies, but some members of industry as well, agreed with EPA's rationale for codifying the legitimacy in part 261. However, some commenters urged EPA to retain the existing legitimacy guidance instead of codifying it in the regulations. These commenters stated that the existing guidance provides a more flexible way to assess whether an activity constitutes legitimate recycling and raised several concerns with the codification of legitimacy. The commenters expressed concern that codification could alter the application of legitimacy. Although EPA intends to preserve current interpretations of legitimacy, the commenters raised the concern that putting legitimacy in the regulations could eliminate the flexibility in the existing guidance for subjective evaluation and balancing of the factors when making a determination. EPA is requesting comment on this issue.
In addition, the commenters raised the concern that codification of legitimacy would place too much burden on the regulated entity to make a showing that it is engaged in legitimate recycling. The Agency believes that it has always been the responsibility of the regulated entity to ensure, and if requested, to show that its recycling is legitimate. EPA expects that regulated entities have evaluated and will continue to evaluate their recycling operations using these factors and will reach their conclusions about legitimacy without prior approval by an overseeing agency. However, EPA is requesting comment on whether codifying the factors in today's proposal would place increased burden on the regulated entity and, if so, what the reasons are for such increased burden. Finally, the concern has been expressed that codification would fix into place a specific formulation of EPA's legitimacy factors, and therefore would limit future evolution of them. Future changes to the factors could become more difficult if they have been codified. The Agency believes there are many benefits to codifying the legitimacy factors, as discussed in the 2003 proposal, but is requesting comment on this issue.
EPA is interested in comments about the benefits and drawbacks of codifying legitimacy. In particular, EPA solicits comments on current practices for assessing legitimacy, on any problems with current practices that may be alleviated by codifying the factors, and on alternative means of addressing any such problems.
a.
The second part of the proposed structure for legitimacy is a list of two factors that must be considered, but not necessarily met, when a recycler is making a legitimacy determination. EPA believes that these factors are important in determining legitimacy, but has not proposed to make them mandatory because the Agency believes that there may be some situations in which a legitimate recycling process does not conform to one of these factors. Therefore, EPA is proposing that the management of the hazardous secondary material and the presence of hazardous constituents in the product of the recycling activity be factors that must be considered in the overall legitimacy determination, but not mandatory requirements that must be met as part of a definition of legitimacy. The full proposed regulatory text for the legitimacy portion of this supplemental proposal is found in 40 CFR 261.2(g).
b.
In the 2003 proposed rule, the application of the four criteria to a recycling process was proposed to require some evaluation and balancing. That is, although the Agency expected that most legitimate recycling practices would conform to all the pieces of legitimacy, it was aware that there would be some cases in which legitimate recycling may not conform to one or more of the criteria. As in the Lowrance Memo, the structure of legitimacy allowed circumstances in which certain criteria weighed more heavily than others in the final legitimacy determination.
Analysis of public comment on the 2003 proposal shows that there was general agreement from industry, states, and other commenters that recycling cannot be legitimate if the hazardous secondary material being recycled does not provide a useful contribution to the process or to the product and if the recycling process does not yield a product or intermediate that is valuable to someone. Certain commenters requested that EPA provide more information on how it defines the terms used in the regulation and there was some disagreement with the specifics laid out in the preamble. Some commenters, particularly several states, felt that all four criteria should be mandatory requirements. However, almost all commenters agreed that proposed criteria 2 and 3 should be met in order for recycling to be considered legitimate.
EPA agrees with the importance of criteria 2 and 3 and, for this proposal, has decided that these two concepts are, in fact, at the very core of what it means to recycle legitimately. Therefore, today's proposed regulatory language states in 40 CFR 261.2(g)(2) that “Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product of the recycling process and the recycling process must produce a valuable product or intermediate.” This statement is followed by paragraphs (i) and (ii) to give more details on how the Agency defines these critical concepts.
EPA has determined that the other criteria in the 2003 proposal, criterion 1 and criterion 4, are still important concepts in making legitimacy determinations, but should not be mandatory. Instead, today's proposed regulations state these two factors need to be considered in making a determination as to the overall legitimacy, which are found in 261.2(g)(3). In stating these factors need to be considered, EPA expects that anyone making a legitimacy determination will look carefully at how their hazardous secondary materials are managed as compared to analogous raw materials and at the hazardous constituents in their products.
However, these two factors would not be mandatory because EPA and commenters were able to identify situations in which a recycling scenario appears to be legitimate, but one of these factors was not met in the way EPA described because that factor is not applicable or relevant to the materials being recycled or to the particulars of the recycling process. For example, it is possible that a solid, powdery hazardous secondary material could be shipped to a recycling facility in flexible, woven “supersack” containers, where the supersacks are then stored at the facility in a well-designed, designated indoor containment area and then legitimately recycled. If, however, an analogous raw material (i.e., with similar physical and chemical characteristics) was typically received and stored at the same facility in sealed steel drums, one could conclude that the hazardous secondary material was not managed “in a manner consistent with the analogous raw material.” In this case, therefore, a strict finding could be made that this factor was not met, even though the differences in storage practices do not affect protectiveness. In evaluating the legitimacy of a recycling process in situations like this, EPA does not believe that such a strict finding should necessarily be the determining factor. We are proposing that this factor not be mandatory in making legitimacy determinations in order to allow flexibility for these types of situations.
For similar reasons, the Agency is also proposing that the factor which addresses “toxics along for the ride” be a consideration in making legitimacy determinations, rather than a mandatory requirement. One illustration as to why some flexibility may be needed in assessing this proposed factor could be a hypothetical situation in which a pharmaceutical manufacturer uses a “virgin” solvent (“Solvent X”) as a process ingredient, and generates a spent solvent that is identical to the virgin solvent, except that it has become contaminated with a relatively small amount of a different solvent (“Solvent Y”). Solvents X and Y are assumed to have essentially the same toxicity and solvent properties, and both chemicals would be considered “hazardous constituents” under RCRA for waste identification purposes. In this example, the spent material (i.e., the mixture of solvents “X” and “Y”) is no longer useful to the generator in making pharmaceuticals. It would potentially be useful, however, to a manufacturer of oil-based paints, as a substitute for virgin Solvent X. If the spent material was used in this manner by the paint manufacturer, the resulting paint products could contain significant concentrations of a hazardous constituent (i.e., “Solvent Y”) not found in analogous products made from virgin Solvent X. Thus, this recycling practice could be determined as not meeting today's proposed legitimacy factor that addresses “toxics along for the ride.”
Given that the paint products made from spent (i.e., secondary) materials would essentially have the same solvent properties and potential environmental hazards as paint made from virgin solvents, it might be reasonable to determine that the overall recycling practice was legitimate. Again, because of situations like this, we believe that this factor is best expressed as a consideration in making legitimacy determinations, rather than as a mandatory requirement.
At the same time, it should be noted that “toxics along for the ride” is an important consideration when the toxic constituents affect either the performance of the product or cause adverse environmental or health effects. For example, elevated levels of lead in foundry sand would not be a problem when the sand is re-used in the foundry molds, but it has been a significant problem when the sand was sold as children's play sand.
Under this proposed structure, if a facility making a legitimacy determination decides that one of these
EPA believes that the new structure for the definition of legitimacy will clarify what the Agency believes are the most important elements of legitimacy and requests comment on this structure for making legitimacy determinations related to hazardous secondary material recycling.
EPA also notes that the economics of the recycling activity may be relevant to legitimate recycling determinations. Consideration of economics has long been a part of the Agency's concept of legitimacy, as evident in the Lowrance Memo and earlier preamble text (50 FR 638, January 4, 1985 and 53 FR 522, January 8, 1988) [see also American Petroleum Institute v. EPA (“API II”), 216 F.3d 50, 57-58 (DC Cir. 2000)]. In addition, in our October 2003 proposal, EPA proposed that consideration of economics be part of the second legitimacy criterion (i.e., whether the hazardous secondary material provides a useful contribution). In their comments to the October 2003 proposal, states and some other stakeholders supported including a consideration of economics when making legitimacy determinations, although they also expressed a need for clarification of how economics should inform legitimacy determinations. Today's proposal, unlike the October 2003 proposal, does not codify specific regulatory language on economics, but offers further guidance and clarification on how economics may be considered in making legitimacy determinations. The Agency believes that we are clarifying how economics has traditionally been implemented via the Lowrance Memo guidance, and therefore, does not believe the consideration of economics as explained below impacts existing legitimacy determinations.
Specifically, EPA believes that consideration of the economics of a recycling activity can be used to inform and help determine whether the recycling operation is legitimate. Positive economic factors would be a strong indication of legitimate recycling, whereas negative economic factors would be an indication that a further look at the recycling operation may be warranted in assessing its legitimacy. While not specifically addressed in the proposed regulations, consideration of economics could be a factor in informing whether the hazardous secondary material input provides a useful contribution and whether the product of the recycling operation is of value.
Consideration of the economics of a particular recycling operation can greatly assist in making legitimacy determinations. Appropriate information for this consideration could include an understanding of the major costs, revenues, and economic flows for a recycling operation. Information that may be useful could include (1) the amount paid or revenue generated by the recycler for recycling hazardous secondary materials; (2) the revenue generated from the sale of recycled products; (3) the future cost of processing existing inventories of hazardous secondary materials and (4) other costs and revenues associated with the recycling operation. The economics of the recycling transaction may be more of an issue when hazardous secondary materials are sent to a third-party recycler, although where the hazardous secondary material being recycled is under the control of the generator, the generator must still be able to show that the hazardous secondary material is, at a minimum, providing a useful contribution and producing a valuable product.
The basic economic flows can suggest whether the recycling operation will process inputs, including hazardous secondary materials, and produce products over a reasonable period of time, recognizing that there will be lean and slow times.
Two examples illustrate this concept. A recycling operation that generates revenues from sales of recycled products that greatly exceed the costs of the operation is likely to quickly process the hazardous secondary materials it receives into useful products. A very different example is an operation that has, relative to its revenues, large inventories of unsold product and large future liabilities in terms of stocks of unprocessed hazardous secondary material. This operation would draw closer attention to determine whether it is engaged, in essence, in treatment and/or abandonment in the guise of recycling.
When the economics of a recycling operation is similar to that of manufacturing using raw materials, the Agency believes that such an operation is likely to be legitimate. That is, the recycler pays for hazardous secondary materials as a manufacturer would pay for raw materials, the recycler sells products from the recycling process as a manufacturer would sell products of manufacturing, and revenues equal or exceed costs. In this scenario, hazardous secondary materials are valuable (i.e., the recycler is willing to pay for them) and make a useful contribution to a valuable recycled product (otherwise the recycler would not be willing to pay for them). In addition, the sale of the products of recycling demonstrates their value.
However, we also recognize that the economics of many legitimate recycling operations that utilize hazardous secondary materials differs from the economics of more traditional manufacturing operations. An understanding of the economics of these
Any analysis of the economics of a recycling operation should recognize that a recycler may be able to charge generators and still be a legitimate recycling operation properly excluded from regulation. In short, because these hazardous secondary materials are hazardous wastes if disposed of, typically the generators' other alternative management option already carries a cost that is based on the existing market for hazardous waste transportation and disposal. Hence, unless there is strong competition in recycling markets or the hazardous secondary materials are extremely valuable, a recycler may be able to charge generators simply because alternative disposal options cost more. While the generator's objective may be finding the least cost alternative for getting rid of the hazardous secondary material, the recycling may well be a legitimate recycling operation.
Recognizing that such a dynamic exists can assist those making determinations in evaluating legitimacy of the recycling operation. For example, if a recycler is charging generators fees (or receiving subsidies from elsewhere) for taking hazardous secondary material and receives a far greater proportion of its revenue from acceptance fees than from the sale of its products, both the useful contribution and the valuable product factors may warrant further review, unless other information would indicate that such recycling is legitimate. Fees and subsidies could indicate that the economic situation allows the recycler to charge high fees, regardless of the contribution provided by the inputs, including hazardous secondary materials. In this situation, recyclers may also have an increased economic incentive to over-accumulate or overuse hazardous secondary materials, or to manage them less carefully than one might manage more valuable inputs. Additionally, if there is little competition in the recycling market, and/or if acceptance fees seem to be set largely to compete with the relative costs of alternative disposal options rather than to reflect the quality or usefulness of the input to the recycling operation, this may also suggest a closer look at “useful contribution.”
A relatively low proportion of revenues coming from sales of recycled products compared to payments by generators may suggest the need for more consideration of the “valuable product” criterion. It is possible that it is appropriate for product sales revenues to be dwarfed by acceptance fee revenues because markets for the particular products are highly competitive or because high alternative disposal costs allow for high acceptance fees. However, relatively low sales revenues could also point to a review of product sales prices to see whether they are lower than other comparable products, products are being stockpiled rather than sold, or very little product is being produced relative to the amount of inputs to the recycling operation. These could be possible indicators that the recycled product may not be valuable and, thus, sham recycling may be occurring.
A consideration of the future cost of processing or alternatively managing existing inventories of hazardous secondary material inputs also can inform the legitimacy determination. When hazardous secondary materials make a significant useful contribution to the recycling activity, a recycler will have an economic incentive to process input materials relatively quickly or efficiently, rather than to maintain large inventories. While recyclers often need to acquire a sufficient amount of a hazardous secondary material to make it economically feasible to recycle, there should be little economic incentive to over-accumulate such materials that make a useful contribution. Overly large accumulations of input materials may indicate that the input materials are not providing a useful contribution or that the recycler is increasing its future costs of either processing or disposing of the material, and hence may be faced with an unsound recycling operation in the future. Again, it is important to weigh this factor against other considerations. For example, it is possible that the recycler has acquired a large stock of hazardous secondary material because the price was unusually low or perhaps the material is generated episodically and the recycler has few opportunities to collect it.
When recycling is conducted under the control of the generator, the recycler may not account formally for some of the costs and savings of the operation. Still, when deciding whether to undertake or continue the recycling operation or to utilize alternative outside recycling or disposal options, the recycler will evaluate basic economic factors as a part of doing business. Also, the recycler would be likely to account for the costs of virgin materials avoided by using hazardous secondary materials. Similarly, sales of recycled products under the control of the generator that are sold to an external market may be used to evaluate the valuable product criterion. Thus, the recycler should have available the basic information necessary to consider the economics of an on-site or internal recycling operation for purposes of making a legitimacy determination. We recognize, however, that an evaluation of the economic structure of a recycling operation under the control of the generator is likely to be less rigorous than that of a typical offsite commercial recycling operation.
We request comment on how the economics of the recycling activity should be considered in making overall legitimate recycling determinations consistent with prior legitimacy determinations under the Lowrance Memo. We are specifically interested in whether economics should simply be a consideration that informs legitimacy overall or whether the economics of recycling should be a separate factor, including regulatory language, to consider. In addition, we are interested in hearing from both the regulated community and the States about other ways in which consideration of economics can inform and support determinations of legitimate recycling for both on-site and offsite recycling.
The intent of the non-waste determination petition process is to provide petitioners with an administrative procedure for receiving a formal determination that their recycled hazardous secondary material is not discarded. This process would be available in addition to the solid waste exclusions proposed today. Once a non-
The petition process would be voluntary. Facilities may choose to continue to self-implement any applicable waste exclusions and, for the vast majority of cases, where the regulatory status of the material is evident, self-implementation will still be the most appropriate approach. In addition, facilities may continue to contact EPA or the authorized state asking for informal assistance in making these types of waste determinations. However, for cases where there is ambiguity about whether a hazardous secondary material is a solid waste, the formal petition process will provide regulatory certainty for both the facility and the implementing Agency
EPA anticipates that most generators who recycle their hazardous secondary materials would use either the self-implementing exclusions proposed today or existing exclusions. We request comment on how frequently the non-waste determination process is likely to be used and how best to minimize the burden to the authorized states and to the regulated community.
The Agency is proposing three types of non-waste determinations: (1) For hazardous secondary materials recycled in a continuous industrial process, (2) for hazardous secondary materials indistinguishable in all relevant aspects from a product or intermediate, (3) for hazardous secondary materials that is recycled under the control of the generator, such as through contracts similar to the tolling arrangements proposed in section IX of today's preamble.
As discussed earlier in today's supplemental proposal, court decisions have made it clear that hazardous secondary material that is recycled in a continuous industrial process is not discarded and therefore, not a solid waste. The October 2003 proposed rule attempted to parse the language of some of those decisions in order to identify when material destined for recycling is clearly not a solid waste. As explained earlier, we are not finalizing that approach. Instead, the Agency has decided to link the rulemaking more explicitly to the concept of “discard” which underlie those decisions. EPA believes that today's supplemental proposal excludes from the definition of solid waste hazardous secondary materials recycled in a continuous industrial process by virtue of the determination that such materials that are legitimately recycled under the control of the generating facility and not speculatively accumulated are not discarded and therefore not solid waste.
However, production processes can vary widely from industry to industry. In the October 2003 proposal, we attempted to define “recycled in a continuous industrial process” using the NAICS codes. Based on the comments we received, we determined that identifying which hazardous secondary materials are recycled within a continuous industrial process presents difficulties as courts have, at least implicitly, acknowledged.
In the case of today's supplemental proposal, which applies across industries, there are far larger and more diverse processes. While the Agency believes it is proposing a reasonable set of principles, they must still be applied to the details of the industrial processes in question.
EPA is proposing four criteria for making this “non-waste determination” that a specific hazardous secondary material is reclaimed in a continuous industrial process. The first is the extent that the management of the hazardous secondary material is part of the continuous production process. At one end of the spectrum, if the material is handled in a manner identical to virgin feedstock, then it is fully integrated into the production process. At the other end of the spectrum, materials indisputably discarded prior to being reclaimed are not a part of the continuous primary production process. (“
The second criterion for making this non-waste determination is the capacity of the production process to use the hazardous secondary material in a reasonable timeframe and ensure that it will not be abandoned (for example, based on past practices, market factors, the nature of the material, and any contractual arrangements). Abandonment of stockpiled recyclable hazardous secondary materials is one way that discard can occur at recycling operations and is one of the major causes of environmental problems. As indicated in the recycling studies, 69 of the 208 incidents of environmental damage involve abandonment of the hazardous secondary material as the primary cause of damage. For today's proposed exclusions for hazardous secondary materials recycled under the control of the generating facility and hazardous secondary materials transferred to another facility for recycling, EPA is proposing speculative accumulation (as defined in 40 CFR 261.1(a)(8)) as the method for determining when a material is unlikely to be recycled and therefore may end up being discarded via abandonment. For the non-waste determination, the petitioner would not necessarily need to demonstrate that the material would not be accumulated speculatively per 40 CFR 261.1(a)(8), but he must provide sufficient information about the material and the process to demonstrate that the
The third criterion for this non-waste determination is whether the hazardous constituents in the hazardous secondary material are recycled rather than released to the air, land or water at significantly higher concentrations from either a statistical or from a health and environmental risk perspective than would otherwise be released by the primary production process. To the extent that the hazardous constituents are a continuation of the original hazardous secondary material, their release to the environment is an indicator of discard. The Agency recognizes that normal production processes also result in a certain level of releases and, in evaluating this criteria, would not deny a petition if the increase in releases is not significantly different from either a statistical or risk perspective. However, when unacceptably high levels of the constituents that make the hazardous secondary material of regulatory concern are released to the environment rather than recycled, then that material (or at least the portion of the material that is of most concern) is not in fact being “reused within an ongoing industrial process.”
The fourth and final criterion for this non-waste determination includes any other relevant factors that demonstrate the hazardous secondary material is not discarded. This “catch-all” criterion is intended to allow the applicant to provide any case-specific information it deems important in making the case that its material is not discarded and therefore not a solid waste.
EPA requests comment on these criteria, as well as any other criteria that may be relevant for making this non-waste determination.
Although the courts have made clear that hazardous secondary materials recycled within a continuous industrial process are not discarded and therefore not solid waste, they have also said that hazardous secondary materials destined for recycling in another industry are not
The first criterion for this non-waste determination is consideration of likely markets for the hazardous secondary material (for example, based on the current positive value of the material, stability of demand, and any contractual arrangements). This evaluation of market participation is a key element for determining whether companies view and handle these hazardous secondary materials like products rather than like negatively-valued wastes. EPA's report on how market incentives affect the management of hazardous secondary materials indicates that both high value and stable markets are strong incentives to refrain from over-accumulating recyclable materials, thus maximizing the likelihood that the hazardous secondary materials will be recycled and not abandoned.
The second criterion for this non-waste determination is the chemical and physical identity of the hazardous secondary material and whether it is comparable to commercial products or intermediates. This “identity principle” is a second key factor that the Court in
The third criterion for this non-waste determination is whether the hazardous constituents in the hazardous secondary materials are recycled rather than released to the air, land or water at significantly higher concentrations from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process. The Agency believes that to the extent that the hazardous constituents are a continuation of the original hazardous secondary material, their release to the environment is a possible indicator of discard. The Agency recognizes that normal production processes also result in a certain level of releases and, in evaluating this criteria, would not deny a petition if the increase in releases is not significant from either a statistical or a health and environmental risk perspective. However, when high concentrations of the constituents that make the hazardous secondary material of regulatory concern are released to the environment rather than reclaimed, then that material (or at least the portion of the material that is of most concern) is not being handled as a commercial product or intermediate.
As with the non-waste determination for hazardous secondary materials reclaimed in a continuous industrial process, the fourth and final criterion for this non-waste determination includes any other relevant factors that demonstrate the material is not discarded. This “catch-all” criterion is intended to allow the applicant to provide any case-specific information it deems important in making the case that its material is not discarded.
EPA requests comment on these criteria, as well as any other criteria that may be relevant for making this non-waste determination.
As discussed earlier in today's preamble, EPA is proposing that hazardous secondary materials recycled via a specific type of tolling (or contractual) arrangement are not discarded and therefore are not solid waste, and is requesting comment if other types of tolling arrangements would also not involve discard. Because the generator maintains control over the recycled hazardous secondary material and it is legitimately recycled, the hazardous secondary material would not be considered discarded. By maintaining control over, and potential liability for, the recycling process, the generator ensures that the materials are not discarded. See ABR 208 F.3d at 1051 (“Rather than throwing these materials [destined for recycling] away,
However, the large variety of contractual arrangements may preclude EPA from identifying all possible arrangements that clearly do not involve discard. For this reason, the Agency also is proposing that generators may seek a non-waste determination for tolling or other contractual arrangements not covered by the proposed exclusion discussed in section IX of today's preamble.
The first criterion for this non-waste determination would be whether the generator retains ownership and responsibility via a contract or other mechanism for the hazardous secondary materials and the residuals that result from their recycling. Assumption of responsibility of both the hazardous secondary materials and the residuals that would result from their recycling is a key indication that the generator is not abandoning the hazardous constituents that would have caused the hazardous secondary materials to have been hazardous waste had they been discarded.
The second criterion for this non-waste determination is whether the hazardous constituents in the hazardous secondary materials are recycled rather than released to the air, land or water at significantly higher concentrations from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process. The Agency believes that to the extent that the hazardous constituents are a continuation of the original hazardous secondary material, their release to the environment is a possible indicator of discard. The Agency recognizes that normal production processes also result in a certain level of releases and, in evaluating this criteria, would not deny a petition if the increase in releases is not significant from either a statistical or a health and environmental risk perspective. However, when high concentrations of the constituents that make the hazardous secondary material of regulatory concern are released to the environment rather than reclaimed, then that material (or at least the portion of the material that is of most concern) is not being recycled under the control of the generator.
As with the other types of non-waste determinations, the final criterion for this non-waste determination includes any other relevant factors that demonstrate the material is not discarded. This “catch-all” criterion is intended to allow the applicant to provide any case-specific information it deems important in making the case that its material is not discarded.
EPA requests comment on these criteria, as well as any other criteria that may be relevant for making this non-waste determination.
As with any solid waste determination that involves recycling, hazardous secondary materials presented for a non-waste determination must be legitimately recycled. In other words, the hazardous secondary material must provide a useful contribution to the recycling process or to a product of the recycling process, and the recycling process must produce a valuable product or intermediate. For further discussion of legitimacy and the factors to be considered, see section XI of today's preamble.
In addition, non-waste determinations are limited to reclamation activities and would not apply to recycling of “inherently waste-like” materials (40 CFR 261.2(d)), recycling of materials that are “used in a manner constituting disposal,” or “used to produce products that are applied to or placed on the land,” (40 CFR 261.2(c)(1)) and “burning of materials for energy recovery” or “used to produce a fuel or otherwise contained in fuels” (40 CFR 261.2(c)(2)). Today's supplemental proposal is not intended to affect how these recycling practices are regulated. However, we request comment on whether such practices should be eligible for the case-specific non-waste determinations.
The petition process for the non-waste determination would be the same as that for the solid waste variances found in 40 CFR 260.31. In order to obtain a non-waste determination, a facility that manages a hazardous secondary material that would otherwise be regulated under 40 CFR 261 as either a solid waste, or as a conditionally excluded waste, must apply to the Administrator or the authorized state per the procedures described in 40 CFR 260.33. EPA proposes to amend section 260.33 to apply to non-waste determinations also. The application must address the relevant criteria (discussed in further detail above). The Administrator would evaluate the petition and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the facility is located. The Administrator would accept comment on the tentative decision for 30 days, and also may hold a public hearing. The Administrator would issue a final decision after receipt of comments and after the hearing (if any). If the application is denied, the facility may still pursue a solid waste variance or exclusion (for example, one of the solid waste variances under 40 CFR 260.31 or solid waste exclusions under 40 CFR 261.4). EPA also may choose to specify the Regional Administrator as the appropriate level of review for this process.
As discussed in more detail in section XV of today's supplemental proposal, under section 3006 of RCRA, EPA would authorize states to administer the non-waste determinations as part of their base RCRA program. Because states are not required to implement Federal requirements that are less stringent or narrower in scope than current requirements, authorized states are not required to adopt the non-waste determination process, and ordinarily the proposed provision could not go into effect in an authorized state until it does choose to adopt it. However, because the non-waste determination process is a formalization of determinations that states may already perform on an ad hoc basis, EPA is proposing to allow states that have not yet formally adopted the proposed regulation in 40 CFR 260.34 to participate in non-waste determinations if the following conditions are met: (1) The state determines that the hazardous secondary material meets the criteria in either paragraph (b), (c) or (d) of proposed section 40 CFR 260.34; (2) the state requests EPA to review its determination; and (3) EPA approves the state determination.
If a regulatory authority determines that a hazardous secondary material is not a solid waste via the proposed petition process, the material is not subject to Subtitle C hazardous waste regulations. However, as part of this process, the applicant has an obligation to submit, to the best of its ability, complete and accurate information. If the information in the application is found to be incomplete or inaccurate and, as a result, the hazardous secondary material does not meet the criteria for a non-waste determination, then the material may be subject to RCRA Subtitle C regulation and EPA or the authorized state could choose to bring an enforcement action under RCRA section 3008(a). Moreover, if the petitioner is found to have knowingly submitted false information, then it also may be subject to criminal penalties under RCRA section 3008(d).
A special situation occurs when a material meets all the criteria at the time the determination is made, but, as circumstances change, ceases to meet the criteria. In particular, proposed criteria 40 CFR 260.34(b)(2) and 40 CFR 260.34(c)(1) depend at least in part on market conditions, which can change over time. EPA requests comments on whether there should be as part of the petition process an obligation for the petitioner to inform the Agency when circumstances change, and whether there should be a formal mechanism for the Agency to revoke a determination if the change in circumstances results in the hazardous secondary material no longer meeting the criteria for a non-waste determination.
In the October 2003 proposal, EPA proposed a number of specific “conforming changes” to existing exclusions (68 FR 61578-61580). The purpose of these conforming changes was to simplify and clarify the regulations. EPA did not intend to make any substantive changes as to how currently excluded materials would need to be managed or regulated. However, comments to the proposed changes were overwhelming in favor of retaining the existing exclusions. These existing exclusions are familiar to both the States and the regulated community, and making wholesale adjustments appears to have had unintended consequences in many cases.
Thus in today's supplemental proposal, EPA is proposing to retain the existing exclusions (for example, the scrap metal exclusion in 40 CFR 261.4(a)(13)) exactly as written. However, we request comment on whether any specific regulatory exclusion would need revision in order to avoid confusion or contradictions. EPA also is proposing that hazardous secondary materials that are currently excluded with specific requirements or conditions should be required to continue to meet those requirements (e.g., the drip pad requirements for the wood preserving exclusion in 40 CFR 261.4(a) (9)). In addition, recycling of such materials at new facilities, or at existing facilities that are not currently operating under the terms of an existing exclusion, would also be subject to the existing applicable regulatory exclusion, rather than today's proposed exclusions.
We request comment on the option of allowing a regulated entity to choose which exclusion the person is subject to in those cases where more than one exclusion could apply and, if so, whether that entity should be required to document the choice made.
Facilities that currently have RCRA permits or interim status, and are managing hazardous wastes that would become excluded under this rule, could be affected by today's supplemental proposal in a number of ways. Under one scenario, a facility that manages a variety of hazardous waste materials, including some hazardous secondary materials that would become excluded under this rule, would be affected only to the extent that certain units or processes at the facility would no longer be subject to hazardous waste regulations. A somewhat different scenario could involve a facility whose hazardous secondary materials would all become excluded from regulation when this rule takes effect (i.e., the facility is no longer a hazardous waste management facility).
For permitted facilities that would be managing hazardous secondary materials excluded under this rule in addition to regulated hazardous wastes, changes to the facility's permit would be necessary. These facilities would need to maintain their permits, but the units used solely to manage hazardous secondary materials would no longer be regulated solid waste management units subject to permit requirements. (Of course, to the extent that the exclusion were conditional, the owner/operator of the facility would need to comply with the applicable conditions to maintain the exclusion.) In such cases, the facility owner/operator could seek a permit modification from EPA or more typically the authorized state agency to remove the formerly subject unit(s) from the permit.
The Agency believes that owners and operators modifying their permits to remove units managing only wastes excluded by this rule should comply with the requirements of section 270.42(a) for Class 1 permit modifications, with prior Agency approval. Under this approach, owners and operators would be required to submit notification of the permit modification to the implementing agency, along with documentation demonstrating that the operations at the unit meet the conditions of the exclusion, and that the unit is used solely to manage excluded hazardous secondary materials. In addition, the owner or operator would be required to comply with the requirements of section 270.42(a)(ii) for public notification. Under section 270.42(a)(2), the permit modification would not become effective until the owner or operator received written approval by the implementing agency. The implementing agency would approve the permit modification so long as the owner or operator complied with the procedural requirements of section 270.42(a), that the operations met the conditions of the exclusion, and adequately demonstrated that the unit did not manage non-excluded hazardous wastes. EPA believes that Class 1 permit modifications with approval are appropriate in this case even though the proposal would establish a self-implementing exclusion, which does not require a regulatory agency's approval. In this case, the unit in question has been through a formal permit process, and the Agency believes it appropriate that the regulatory agency have the opportunity for a brief review before the permit conditions it imposed are removed. For example, the unit might be intimately tied into other waste management operations at the facility, or perhaps the regulatory agency imposed special provisions under the omnibus provision, which it would want to consider. EPA seeks comment on this approach.
A permitted facility that would no longer be considered a hazardous waste management facility under the exclusion (e.g., a facility managing only hazardous secondary materials that become excluded under today's supplemental proposal) would no longer need a hazardous waste operating permit nor need to comply with the existing hazardous waste regulations governing permitted facilities. (Again, to the extent that the exclusion is conditional, the owner/operator of the facility would need to comply with the applicable conditions to maintain the exclusion.) Owners or operators of such facilities could, therefore, apply to the overseeing agency to terminate the permit by modifying the permit term. The Agency believes that owners or operators seeking to terminate the facility's permit by modifying the permit term should comply with the requirements of section 270.42(a) for Class 1 modifications with prior Agency approval, as described above. To support a request for permit termination by modifying the permit term, the owner or operator would have to demonstrate that the operations meet the conditions of the exclusion, and that the facility does not manage non-excluded hazardous wastes. Further, as discussed below, the owner or operator would have to demonstrate that corrective action obligations at the facility have been addressed, or, where
As was explained in the October 2003 proposal (68 FR 61580), where a permitted facility has not yet completed facility-wide corrective action, but manages only hazardous secondary materials that would become excluded under this proposed rule (see 40 CFR 264.101), the obligation to address facility-wide corrective action would remain in effect.
At some facilities, corrective action obligations will likely continue to be addressed through the corrective action provisions of the permit. In these cases, maintenance of the permit would ensure that facility-wide corrective action will be addressed. Thus, in these cases, the permit would not be terminated by modifying the permit term, but would be modified to remove the provisions that applied to the now-excluded hazardous secondary material. The facility's permit would, thereafter, only address corrective action.
In other cases, however, EPA or an authorized state may have available an alternative federal or state enforcement mechanism, or other federal or state cleanup authority, through which it could choose to address the facility's cleanup obligations, rather than continue to pursue corrective action under a permit. In these cases, where the alternate authority would ensure that facility-wide corrective action will be addressed, maintenance of the permit would not be necessary.
A facility that is operating under interim status would be affected by promulgation of today's supplemental proposal in much the same way as would a permitted facility, and the issue of corrective action would be addressed in a similar manner. At an interim status facility managing only hazardous secondary materials that become excluded under today's supplemental proposal, the Part 265 interim status standards that applied to the hazardous waste management units at the facility, as well as the general facility standards in Part 265, would no longer apply. At the same time, the owner or operator would retain responsibility for unaddressed corrective action obligations at the solid waste management units.
Owners and operators of permitted and interim status facilities with corrective action obligations should refer to the Agency's February 25, 2003 guidance entitled “Final Guidance on Completion of Corrective Action Activities at RCRA Facilities,” (68 FR 8757) for a detailed discussion of corrective action completion.
In addition to the above described issues relating to permits and corrective action, today's supplemental proposal also may have implications with regard to closure of hazardous waste storage units at affected facilities. In cases where hazardous waste storage units would only be managing excluded hazardous secondary material pursuant to today's supplemental proposal, the current regulations could be read as triggering the closure requirements for those units, since owners/operators of non-land-based hazardous waste units (e.g., tanks, containers, containment buildings) must begin closure within 90 days of receiving a unit's final volume of hazardous wastes. See 40 CFR 264.113(a) and 265.113(a).
In the October, 2003 proposal (68 FR 61580-61581), EPA expressed the view that requiring closure of units in these situations would serve little environmental purpose, since after closure the unit would be immediately reopened and used to store the same (now excluded) hazardous secondary material. In that notice, the Agency proposed that closure of storage units would not be required when the wastes in such units were excluded under the proposal.
In response to that proposal, several commenters stated that one of the main purposes of the RCRA subtitle C closure requirements is to identify and remediate any releases originating from the units. The Agency notes that releases from these units are discarded and solid and hazardous wastes, and agrees with commenter's concern that such releases should be addressed. The Agency does not agree, however, that the specific subtitle C closure requirements are most appropriate to address cleanup of releases from these units, if any have occurred. Rather, the Agency believes that a better approach would be to address potential releases from these units as part of corrective action for all releases at the facility. This approach would achieve the same environmental results, and would provide the owner or operator the option of integrating the cleanup more closely into the broader facility response.
When considering the issue of addressing releases from these units, the question arises about what happens to the funds that provide financial assurance for closure. The requirements in Part 264 and 265 Subpart H, which apply at these units prior to the exclusion taking effect, provide for release of financial assurance upon certification by the owner or operator that closure has been completed in accordance with the approved closure plan, and Agency verification of that certification (see 264.143(i) and 265.143(h)). Similar provisions at sections 264.145(i) and 265.145(h) provide for release of financial assurance for post-closure care.
Under the approach to closure discussed above, owners and operators of units that manage only wastes that would be excluded under this supplemental proposal would not be subject to closure requirements and, therefore, would not submit a certification of closure, and thus would not trigger release of financial assurance. As discussed in section X.C.2 of today's preamble, reclaimers who receive hazardous secondary materials that have been excluded under the proposed 40 CFR 261.4(a)(24) would still be required to meet Subpart H financial assurance requirements as a condition of the exclusion. In this case, the financial assurance provided for closure would satisfy that requirement (perhaps with some modification).
However, persons who recycle materials under the proposed exclusions for materials recycled under the control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) would not be required to meet Subpart H financial assurance requirements as a condition of the exclusion. The Agency believes that those owners and operators should be released from financial assurance requirements upon demonstrating that no releases from the unit remain to be addressed. In complex facilities, that demonstration might be difficult, or it might be inconsistent with broader corrective action strategy (for example, if historical releases from the unit were mingled with other general facility contamination). Where such a situation exists, the Agency believes that financial assurances obtained for closure and/or post-closure should be redirected to address the corrective action needs at the unit. (In general, however, EPA believes that these situations will be the exception rather than the rule, since the overwhelming majority of units in question would have upgraded to current subtitle C standards, e.g., secondary containment for tanks, etc.). The Agency requests comment on modifying the regulations to allow financial assurances obtained for closure and/or post-closure to be redirected to address the corrective action needs at units that manage only
The proposed exclusion for hazardous secondary materials recycled under the control of the generating facility is limited to recycling performed in the United States or its territories. However, the transfer-based recycling exclusion and non-waste determinations included in today's supplemental proposal do not place any geographic restrictions on movements of such hazardous secondary materials, provided they meet the description of the exclusion. It is therefore possible that in some cases excluded hazardous secondary materials could be generated in the United States or its territories and subsequently exported for reclamation to a facility in a foreign country. Under today's supplemental proposal, the exclusion would be effective while the hazardous secondary material is within the United States or its territories. However, such excluded hazardous secondary materials may be subject to regulation as hazardous wastes in the receiving country, even if they are excluded from the definition of solid waste domestically (i.e., under RCRA). If this is the case, the U.S. exporter of the hazardous secondary material will need to comply with any applicable requirements of the importing country. (For further discussion, see section X.C.1 of today's preamble regarding specific export/import conditions for hazardous secondary materials excluded under this proposal.)
A primary purpose of today's supplemental proposal is to encourage the safe, beneficial recycling of hazardous secondary materials. In 1999, Congress enacted the Superfund Recycling Equity Act (SREA), explicitly defining those hazardous substance recycling activities that potentially may be exempted from liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA section 127. Today's supplemental proposal does not change the universe of recycling activities that could be exempted from CERCLA liability pursuant to CERCLA section 127. Today's supplemental proposal only changes the definition of solid waste for purposes of RCRA subtitle C requirements. The supplemental proposal also does not limit or otherwise affect EPA's ability to pursue potentially responsible persons under section 107 of CERCLA for releases or threatened releases of hazardous substances.
If today's proposed changes to the RCRA definition of solid waste are promulgated, the Agency expects that affected companies will take advantage of this new regulatory framework by exploring new opportunities to recycle their hazardous secondary materials. We believe that these regulatory changes are consistent with EPA's efforts to encourage and promote sustainable methods and practices by manufacturers and other businesses. In this context, “sustainability” is defined as economic development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
The National Partnership for Environmental Priorities (NPEP) is a voluntary program administered by EPA that fosters the establishment of a new corporate/federal partnership in which both work collaboratively towards voluntary reductions in the use of certain chemicals. Recycling is one means of achieving such reductions in chemical use. The NPEP can provide technical assistance and expertise to assist companies in successfully achieving these goals, while at the same time saving money or increasing production. NPEP members' successes are voluntarily reported to EPA, and members are publicly recognized and rewarded for their accomplishments. For further information on the NPEP program, visit the NPEP Web site at
Since today's supplemental proposal, if finalized, would make important changes to the Agency's current RCRA regulatory framework for industrial recycling of hazardous secondary materials, and is designed to encourage industrial recycling of such materials, the Agency has a strong interest in being able to measure the performance outcomes that these regulatory changes may have on the regulated community. In general, it is important for the Agency to be able to quantify, monitor, and report to the public the actual performance outcomes of this supplemental proposal. In general, performance measurement of federal programs is expected of by Congress according to the 1993 Government Performance and Results Act (
To measure performance outcomes, the Agency is interested in being able to measure the numbers of existing and new industrial facilities that actually take advantage of these regulatory changes, as well as the quantities and types of hazardous secondary materials that are affected, and the specific types of industries that are affected. We also are interested in measuring the extent to which industrial recycling that is affected by today's supplemental proposal occurs onsite or offsite, and the extent to which small quantity and large quantity hazardous waste generators (i.e., SQGs and LQGs) are able to take advantage of an exclusion. Such information on the actual outcomes of these regulatory changes could enable the Agency to measure, rather than estimate, the actual cost savings benefits to industries affected by the regulatory changes, as well as to measure environmental benefits (e.g., annual quantities of specific materials conserved, avoided raw material inputs, reduced pressure on landfill capacity, water and energy conserved).
Today's supplemental proposal includes a requirement that facilities (both generators and recyclers) taking advantage of an exclusion provide regulatory authorities with certain basic items of information through a one-time
There are two existing data systems which may be of limited utility to EPA for measuring the performance outcomes of this supplemental proposal.
(a) RCRA Biennial Report. Under 40 CFR 262.41, large quantity hazardous waste generators and hazardous waste treatment, storage, recycling and disposal facilities (TSDRFs) are required to prepare and submit Biennial Reports to RCRA-authorized states on the types and quantities of hazardous wastes generated and managed during the reporting year (
(b) Toxic Release Inventory. Compared to the BR, the Toxic Release Inventory (TRI) may provide greater utility for the purpose of measuring future performance outcomes of today's supplemental proposal, because the TRI is not limited to hazardous waste and not limited to LQGs, but includes annual reporting on industrial materials manufactured, imported, processed, otherwise used, transferred offsite, treated or disposed as waste, or recycled by certain industries. Consequently, by its design and relatively broader scope, the TRI (Form R;
In combination, both the BR and TRI data systems may provide a skeletal but complementary framework for measuring future performance outcomes.
Another option, either as a stand-alone option or used in combination with the BR/TRI option above, could be to conduct a mail or phone survey of affected facilities. The main advantage of a survey would be the ability to collect data on targeted performance measures that would not be available through either the BR or TRI. Moreover, a survey mechanism could potentially serve a dual purpose as a form of communications outreach to industrial facilities that are not recycling or are unaware of today's supplemental proposal, which would assist EPA in better understanding why some generators are unable or unwilling to recycle their hazardous secondary materials. Such a survey could be voluntary or mandatory, and could involve a statistically-valid sample of industrial facilities, or could focus on particular industries or affected materials. It could be conducted as a one-time effort or periodically (e.g., once every four years) to capture recycling trends over time. To minimize burden, it could also be conducted electronically over the internet. It should be noted, however, that with some exceptions (e.g., surveys of fewer than 10 respondents), conducting a survey of this nature would need OMB approval in accordance with the provisions of the Paperwork Reduction Act.
Measuring the impact of today's supplemental proposal might also be done with the voluntary assistance of stakeholder industry and trade associations, many of which also may have a vested interest in assessing their success, or lack thereof. We are aware that some trade associations may maintain data on the recycling activities of their member companies; such associations might be willing to share some of that existing information with the Agency. Another option could be to partner with certain trade associations that may be willing on a voluntary basis to gather relevant information from their members.
As discussed in the preceding section of this preamble, EPA's National Partnership for Environmental Priorities (NPEP) is a voluntary program that encourages companies and federal facilities to reduce priority chemicals through waste minimization, reuse, recycling, and reclamation, and to report achievements in reductions. Companies that choose to change their materials management practices from disposal to recycling as a result of today's supplemental proposal could be eligible for membership in NPEP. Companies that join NPEP could identify voluntary goal(s) to initiate new recycling or to increase current recycling at their facility of priority chemicals. Upon completion of their goal(s), the partners can submit a success story of their accomplishments. In turn, these partners will receive EPA support and assistance for reducing priority chemicals and award recognition for their success. Thus, information from NPEP partners might also be of assistance to EPA in evaluating the impacts of today's proposed rule.
The Agency requests comment on the alternative performance measurement approaches described above for enabling the Agency to measure the actual performance outcomes of today's supplemental proposal. In addition to satisfying federal performance measurement requirements, we are also interested in stakeholder views as to the potential utility of measuring the effectiveness of today's proposed exclusions in achieving their intended induced new recycling and industry cost-savings objectives, and how such information might benefit stakeholders and the regulated community. Finally, we also solicit comment on other performance measurement approaches than those described above, that may be more effective in enabling EPA to
Under section 3006 of RCRA, EPA may authorize qualified states to administer the RCRA Subtitle C hazardous waste program within the state. Following authorization, EPA retains Subtitle C enforcement authority, although authorized states have primary enforcement responsibility. EPA retains authority under sections 3007, 3008, 3013, 3017 and 7003. The standards and requirements for state authorization are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program (see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.
Today's proposed rule would eliminate specific requirements that apply to materials currently managed as hazardous waste, and is being proposed, at least in part, in response to recent court decisions on the definition of solid waste. Specifically, in several decisions, courts have held that EPA's current definition of solid waste at 40 CFR 261.2 is overly broad and would lead to the regulation of some hazardous secondary materials that are not discarded and, therefore, are not solid wastes. In this rulemaking, the exclusion for materials reclaimed under the control of the generator (proposed 40 CFR 261.2(a)(2)(ii)) identifies those hazardous secondary materials that are not discarded and, therefore, are not solid wastes under RCRA. EPA also recognizes that there may be some hazardous secondary materials that are not recycled under the control of the generator, but are not solid wastes because they are reclaimed in a continuous industrial process. Because it was not possible to identify all of the continuous industrial process recycling fact patterns, EPA has proposed a petition process for non-waste determinations at proposed 40 CFR 260.30 (see Section VII above).
EPA believes that the proposed rule describes the appropriate scope of the federal program under RCRA. Thus, reclamation under the control of the generator and recycling in a continuous process, as described herein, are not activities associated with discarded materials and would not be subject to RCRA. In addition, today's proposal also conditionally excludes from the definition of solid waste reclaimed materials that are not under the control of the generator and are not recycled in a continuous industrial process. EPA believes that these exclusions will encourage recycling and that they are consistent with RCRA's statutory objective of conserving valuable material and energy resources.
EPA would strongly encourage states to adopt the regulations being proposed today. When EPA authorizes a state to implement the RCRA hazardous waste program, EPA determines whether the state program is consistent with the federal program, and whether it is no less stringent. This process, codified in 40 CFR 271, ensures national consistency and minimum standards, while providing flexibility to states in implementing rules. In making this determination, EPA evaluates the state requirements to ensure they are no less stringent than the federal requirements. Because today's rule would eliminate specific requirements for hazardous secondary materials that are currently managed as hazardous waste, state programs would no longer need to include those specific requirements in order to be consistent with EPA's regulations, when and if today's rule is finalized.
However, under RCRA section 3009, a state may adopt standards that are more stringent than the federal program. Thus, a state is not required to adopt today's proposal, or a state may choose to adopt only part of today's proposal. Some states incorporate the federal regulations by reference or have specific state statutory requirements that their state program can be no more stringent than the federal regulations. In those cases, EPA anticipates that the exclusions in today's proposal, when and if finalized, would be adopted by these states, consistent with state laws and state administrative procedures, unless they take explicit action as specified by their respective state laws to decline the proposed revisions. We note that if states choose not to adopt the provisions of today's proposal concerning exports, the provisions of 40 CFR 262 Subparts E or H would apply to hazardous secondary materials that are exported.
Because some states may choose not to seek authorization for today's supplemental proposal, there will probably be cases where the hazardous secondary materials in question will be transported through states with different regulations governing them.
First, a hazardous secondary material which is subject to an exclusion from the definition of solid waste regulations may be sent to a state, or through a state, where it is subject to the hazardous waste regulations. In this scenario, for the portion of the trip through the originating state, and any other states where the hazardous secondary material is excluded, neither a hazardous waste transporter with an EPA identification number per 40 CFR 263.11 nor a manifest would be required. However, for the portion of the trip through the receiving state, and any other states that do not consider the hazardous secondary material to be excluded, the transporter must have a manifest, and must move the hazardous secondary material in compliance with 40 CFR part 263. In order for the final transporter and the receiving facility to fulfill the requirements concerning the
Second, a hazardous secondary material generated in a state that does not provide an exclusion for the hazardous secondary material may be sent to a state where it is excluded. In this scenario, the hazardous secondary material must be moved by a hazardous waste transporter while the hazardous secondary material is in the generator's state or any other states where it is not excluded. The initiating facility would complete a manifest and give copies to the transporter as required under 40 CFR 262.23(a). Transportation within the receiving state and any other states that exclude the hazardous secondary material would not require a manifest and need not be transported by a hazardous waste transporter. However, it is the initiating facility's responsibility to ensure that the manifest is forwarded to the receiving facility by any non-hazardous waste transporter and sent back to the initiating facility by the receiving facility (see 40 CFR 262.23 and 262.42).
One final point is that RCRA-regulated hazardous wastes, when transported, require an EPA hazardous waste manifest, and are incorporated by reference in Department of Transportation (DOT) regulations in the DOT definition of hazardous material (49 CFR 171.8). Under today's supplemental proposal, a hazardous secondary material that is not a solid waste would no longer need an EPA manifest when transported off-site for recycling, and therefore would not automatically be considered a DOT hazardous material (hazmat). However, if the material contains a chemical or falls into a class of substances that DOT has determined to pose an unacceptable hazard during transportation, it would still be regulated as a DOT hazardous material (a table at 49 CFR 172.101 lists materials considered “hazardous” by DOT, according to 23 DOT hazard classes). If it does not, then it would not be so regulated by DOT. EPA believes this is appropriate, since when sent to recycling rather than disposal, these hazardous secondary materials pose no greater risk than similar types of non-waste materials already in transportation for commerce under non-hazmat DOT status. Moreover, regardless of a hazardous secondary material's EPA manifest and DOT hazmat status, EPA believes that today's supplemental proposal is likely to result in a net reduction in annual transportation accident risks during transport of affected materials, due to the expected net reduction in annual miles transported, as a result of the companies which would choose to switch from current offsite hazardous waste management to recycling at either on-site or closer facilities to the generating facility.
Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is an “economically significant regulatory action” because the annual effect on the economy of this proposed action is expected to be greater than $100 million, and the proposed action contains novel policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.
EPA prepared an analysis of the potential national economic costs and benefits associated with this proposed action. The analysis is contained in our “Economics Background Document: Regulatory Impact Analysis (RIA) for EPA's 2007 Supplemental Proposed Revisions to the Industrial Recycling Exclusions of the RCRA Definition of Solid Waste” (January 22, 2007, 284 pages) which is available for public review and comment in the EPA Docket (
These impact estimates are EPA's best estimates within the economic impact estimation uncertainty range of $93 million to $205 million in annual materials management cost savings, and 0.33 to 1.70 million tons per year in affected hazardous secondary materials, respectively, for the net effect of the proposed regulatory exclusions. The purpose of these impact ranges is to reveal two major sources of uncertainty at the launch of our RIA prior to the final draft of this proposal: (1) Our RIA assigned eight implementation conditions to the best estimate impact for the proposed exclusions from a list of 18 possible conditions formulated at the launch of the RIA. In comparison, today's notice proposes nine conditions which differ by five conditions and standards (i.e., recycling legitimacy criteria, reasonable effort by generators, onsite recordkeeping, land placement, and offsite shipment tracking); the impact uncertainty range lower and upper bounds reflect inclusion of two conditions and of 17 conditions, respectively; and (2) the main underlying data in the RIA is the RCRA Biennial Report database about RCRA
In addition to these uncertainty factors which the RIA attempted to address directly in the impact computations, there are five other sources of impact uncertainty that our RIA describes as sensitivity analyses and provides estimates of potential overall magnitude: (1) Based on extrapolating the adverse comments by some state governments on exclusion options described in the October 2003 proposal, the economic impacts could be 4% to 46% less than estimated in the RIA from state non-adoption of this rule if promulgated; (2) the RIA is based on a single year 2003 snapshot of RCRA hazardous waste data, but recent (1997-2003) trend data show −17% to +38% fluctuation about mean in annual waste tonnages recycled and disposed, and −54% to +54% fluctuation in annual count of hazardous waste facilities; consequently, future annual impacts could fluctuate rather widely relative to the average annual impact estimates of our RIA based on 2003 data; (3) our RIA is based on hazardous waste tonnages reported as managed in 2003 rather than reported as generated; however, recent trend (1997-2003) data show −34% to +39% annual fluctuations between management and generation quantities; (4) to a large degree macro economic conditions determine the quantity of hazardous waste and secondary industrial materials generated and managed in any given year; for example, although our RIA is built upon a single year 2003 snapshot, one of the top-5 industries generating such materials is NAICS 3241 petroleum refining which is expected to grow almost 6% annually through 2010, which could increase future impacts; and (5) our RIA is founded on the “large quantity generator” (LQG) and the “treatment, storage, disposal, recycler facility” (TSDRF) data from the RCRA Biennial Report, and therefore to some degree if not double-counted in the TSDRF data, excludes from the impact estimates the RCRA regulatory class of “small quantity generators” (SQGs), which may represent a 2% to 3% impact underestimation.
Furthermore, our RIA estimate of potential new induced recycling as a result of this proposal if promulgated, does not include an evaluation of whether the U.S. or global markets for recycled industrial secondary materials are large enough to absorb a potential increase in supply of recycled materials. Market conditions for recycled secondary materials can vary considerably over time. Demand for recycled solvents, for example, is largely dependent on the petroleum market: because virgin solvents are made from petroleum products, high petroleum prices encourage solvent recycling. Similarly, high metals prices obviously favor the recycling of metal-bearing secondary materials. In addition, there are four physical factors that suggest U.S. industries may be near their current technical and economic limits for recycling RCRA hazardous wastes: (1) The recent hazardous waste generation trend shows a 25% decline between 1999 and 2003; (2) the recent hazardous waste recycling trend shows a 73% increase in baseline recycling between 1999 and 2003 accounting in aggregate for metals recycling plus solvents recycling plus other materials recycling (e.g., acid regeneration, non-solvent liquid recycling); (3) recycling of RCRA hazardous wastes and secondary industrial materials is technically difficult in some cases because of numerous chemical co-contaminates in the materials; for example, based on a national survey of large RCRA hazardous waste TSDRFs, 90% of facilities reported between 10 and 60 hazardous chemical constituents in wastes, with 287 constituents reported for a single wastestream, and a total of 724 different chemical constituents reported in surveyed wastes; this survey suggests that most LQGs must address a relatively high number of hazardous chemical constituents in evaluating the feasibility of their waste management options such as recycling; and (4) some RCRA hazardous wastes have relatively low (e.g., less than 1%) assay values for constituents with market value.
EPA requests comment on the regulatory impact analysis, including both the estimates of additional recycling and the cost savings that may result from this proposed rule, and welcomes data from the public about the possible impacts of the uncertainty factors. For example, EPA is seeking comments about whether the codification of the legitimacy criteria, while not intended to impose any additional requirements as compared to the current practice, may result in additional costs or benefits that are not included in the RIA, and, if so, what those additional costs or benefits would be.
In addition to estimating the potential impact of this proposal, EPA's economic analysis also examined three other alternative approaches for recycling exclusions: On-site-only exclusion, intra-industry offsite exclusion, and broad inter-industry transfer exclusion with few conditions, as discussed in EPA's October 2003 proposed rule. Our best estimates of the potential net cost savings for these three other approaches are $63 million, $72 million, and $129 million per year, associated with 0.35 million tons, 0.38 million tons, and 0.67 million tons per year secondary materials potentially affected, respectively. Accounting for estimation uncertainty factors, net cost savings and potentially affected materials for these three options could range between $45 million to $147 million per year and 0.24 million to 0.91 million tons per year for the on-site option, between $56 million to $156 million per year and 0.27 million to 0.98 million tons per year for the intra-industry option, and between $114 million to $206 million per year and 0.46 million to 1.57 million tons per year for the broad inter-industry transfer option. In comparison to these three options, and taking account of impact uncertainty factors, the proposed approach is expected to result in approximately the same range in annual cost savings as the highest impact broad inter-industry transfer option of these three alternatives, because it consists of four components: a broad transfer option with certain conditions plus the two generator controlled options plus the case-by-case petition option, but is expected to affect slightly more waste quantities annually from addition of the case-by-case exclusion.
In selecting the options for today's proposal, EPA considered both the cost and benefits of the different options and the potential for each option to result in materials being discarded and then resulting in remediation or environmental damages. The proposed combination option of excluding materials recycled under the control of the generator, hazardous secondary materials transferred for recycling with certain conditions, and a case-by-case non-waste determination results in the second highest estimated cost savings, number of entities affected and amount of material expected to be induced to new recycling. EPA chose not to pursue the option with the highest estimated annual cost savings ($129 million versus $107 million per year for today's proposed approach) because the lack of conditions for materials transferred to a third-party recycler may result in material being discarded and increase the likelihood of new cleanup sites that would need to be funded by public
The information collection requirements in this supplemental proposal have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501
The information requirements established for this action, and identified in the ICR supporting today's supplemental proposal, are largely self-implementing, except for notice and consent requirements for hazardous secondary materials exported for recycling. This process will ensure that (1) Regulated entities are held accountable to the applicable requirements; (2) state inspectors can verify compliance when needed; and (3) hazardous secondary materials exported for recycling are actually handled as commodities abroad.
EPA has carefully considered the burden that would be imposed upon the regulated community by the regulations. EPA is confident that those activities required of respondents are necessary, and, to the extent possible, has attempted to minimize the burden imposed. EPA believes that if the minimum requirements specified under the proposed requirements are not met, neither the facilities nor EPA can ensure that hazardous secondary materials sent for recycling are being managed in a manner protective of human health and the environment.
For the recordkeeping and reporting requirements applicable to hazardous secondary materials sent for recycling, the aggregate annual burden to respondents over the three-year period covered by this ICR is estimated to be 11,552 hours, with a cost to affected entities (i.e., industrial facilities) of $1,417,242. However, this represents an annual reduction in burden to respondents of 52,050 hours, representing a cost reduction of $3,474,035 per year. The estimated annual operation and maintenance costs to affected entities are $739,469 per year, primarily for purchasing audit reports. There are no startup costs and no costs for purchases of services. Administrative costs to the Agency are estimated to be 1,257 hours per year, representing an annual cost of $49,891.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust existing systems to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this rule, which includes this ICR, under Docket ID No. EPA-HQ-RCRA-2002-0031. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See the
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
EPA therefore concludes that today's supplemental proposal will relieve regulatory burden for all size entities, including small entities. The Agency continues to be interested in the potential impacts of the proposed rule on small entities and welcomes comments on issues related to such impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA must prepare a written analysis, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials to have meaningful and timely input in the development of regulatory proposals, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not include a Federal mandate that may result in expenditures of $100 million or more for State, local, or tribal governments, in the aggregate, or the private sector in any one year. This is because this supplemental proposal imposes no enforceable duty on any State, local, or tribal governments. EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. Therefore, today's supplemental proposal is not subject to the requirements of sections 202 and 205 of UMRA.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure a 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.
This supplemental proposal does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. There are no State and local government bodies that incur direct compliance costs by this rulemaking. State and local government implementation expenditures are expected to be less than $500,000 in any one year. Thus, the requirements of Section 6 of the Executive Order do not apply to this supplemental proposal. In addition, because this rule is less stringent than the current federal program, states are not required to adopt it.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this supplemental proposal from State and local officials.
Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure a meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. This supplemental proposal does not have tribal implications, as specified in Executive Order 13175. It does not significantly or uniquely affect the communities of Indian tribal governments, nor would it impose substantial direct compliance costs on them. Thus, Executive Order 13175 does not apply to this supplemental proposal.
The Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children; and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This supplemental proposal is not subject to the Executive Order because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed rule present a disproportionate risk to children.
This supplemental proposal is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This supplemental proposal reduces regulatory burden and as explained in our Economics Background Document, may possibly induce fuel efficiency and energy savings from voluntary shifting of some types of secondary industrial materials, where cost-effective for firms to do so, from current landfill and incineration disposal, to industrial recycling. It therefore should not adversely affect energy supply, distribution, or use.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (ANTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. Today's supplemental proposal does not contain technical standards and therefore the NTTAA is not applicable.
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (February 11, 1994), is designed to address the environmental and human health conditions of minority and low-income populations. EPA is committed to addressing environmental justice concerns and has assumed a leadership role in environmental justice initiatives to enhance environmental quality for all citizens of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, income, or
This supplemental proposal would streamline hazardous waste management requirements for certain hazardous secondary materials sent for recycling. Facilities that would be affected by today's proposal include those generating hazardous secondary materials, as well as facilities which recycle such materials. Disposal facilities would not be affected by this proposal. The wide distribution of affected facilities throughout the United States does not suggest any distributional pattern around communities of concern. Specific impacts on low income or minority communities, therefore, are undetermined. Overall, no disproportionate impacts to minorities or low income communities are expected.
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Reporting and recordkeeping requirements.
Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for part 260 continues to read as follows:
42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935, 6937, 6938, 6939 and 6974.
2. Section 260.10 is amended by adding in alphabetical order the definitions of “Land-based unit” and “Hazardous secondary materials generated and reclaimed under the control of the generator” to read as follows:
(1) That such material is generated and reclaimed at the generating facility (for purposes of this paragraph, generating facility means all contiguous property owned by the generator); or
(2) That such material is generated and reclaimed by the same “person” as defined in § 260.10, if the generator certifies the following: “on behalf of [insert company name] I certify that the indicated hazardous recyclable material will be sent to [insert company name], that the two companies are under the same ownership, and that the owner corporation [insert company name] has acknowledged full responsibility for the safe management of the hazardous recyclable material,” or
(3) That such material is generated pursuant to a written contract between a tolling contractor and a batch manufacturer and are reclaimed by the tolling contractor, if the tolling contractor retains ownership of, and responsibility for, the recyclable material that is generated during the course of the production of the product. For purposes of this paragraph, tolling contractor means a person who arranges for the production of a product made from raw materials through a written contract with a batch manufacturer. Batch manufacturer means a person who produces a product made from raw materials pursuant to a written contract with a tolling contractor.
3. Section 260.30 is amended as follows:
a. By revising the section heading.
b. By revising paragraph (b).
c. By adding paragraphs (d), (e), and (f).
(b) Materials that are reclaimed and then reused within the original production process in which they were generated;
(d) Materials that are reclaimed in a continuous industrial process;
(e) Materials that are indistinguishable in all relevant aspects from a product or intermediate; and
(f) Materials that are reclaimed under the control of the generator, including control through contracts, such as tolling arrangements.
4. Section 260.33 is amended by revising the section heading, the introductory text, and paragraph (a) to read as follows:
The Administrator will use the following procedures in evaluating applications for variances from classification as a solid waste, applications to classify particular enclosed controlled flame combustion devices as boilers, or applications for non-waste determinations.
(a) The applicant must apply to the Administrator for the variance or non-waste determination. The application must address the relevant criteria contained in § 260.31, § 260.32, or § 260.34 as applicable.
5. Section 260.34 is added to Subpart C to read as follows:
(a) An applicant may apply to the Administrator for a formal determination that a material is clearly not discarded and therefore not a solid waste. The determinations will be based on the criteria contained in paragraphs (b), (c), or (d) of this section as applicable. If an application is denied, the material might still be eligible for a solid waste variance or exclusion (for example, one of the solid waste variances under § 260.31 or solid waste exclusions under § 261.4). Determinations may also be granted by the State if the State is either authorized for this provision or if the following conditions are met:
(1) The State determines the material meets the criteria in paragraphs (b), (c), or (d) of this section;
(2) The State requests that EPA review its determination; and
(3) EPA approves the State determination.
(b) The Administrator may grant a non-waste determination for material which is reclaimed in a continuous industrial process if the applicant demonstrates that the material is a part of the production process and is not discarded. The determination will be based on the following criteria:
(1) The extent that the management of the material is part of the continuous primary production process and is not waste treatment;
(2) Whether the capacity of the production process would use the material in a reasonable timeframe and ensure that the material will not be abandoned (for example, based on past practices, market factors, the nature of the material, and any contractual arrangements);
(3) Whether the hazardous constituents in the secondary material are reclaimed rather than discarded to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the primary production process; and
(4) Other relevant factors that demonstrate the material is not discarded.
(c) The Administrator may grant a non-waste determination for material which is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the material is comparable to a product or intermediate and is not discarded. The determination will be based on the following criteria:
(1) Whether market participants treat the material as a product rather than a waste (for example, based on the current positive value of the material, stability of demand, and any contractual arrangements);
(2) Whether the chemical and physical identity of the material is comparable to commercial products or intermediates;
(3) Whether the hazardous constituents in the material are reclaimed rather than discarded to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process.
(4) Other relevant factors that demonstrate the material is not discarded.
(d) The Administrator may grant a non-waste determination for material which is reclaimed under the control of the generator, including control through contracts such as tolling arrangements, if the applicant demonstrates that the generator retains control of the production and the residuals, and that the material is not discarded. The determination will be based on the following criteria:
(1) Whether the generator retains ownership and liability via a contract or other mechanism for the material and the residuals resulting from its recycling.
(2) Whether the hazardous constituents in the material are reclaimed rather than discarded to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by a production process.
(3) Other relevant factors that demonstrate the material is not discarded.
6. Section 260.42 is added to Subpart C read as follows:
Generators of hazardous secondary material that has previously been subject to regulation as hazardous wastes, but which will be excluded from regulation under § 261.2(a)(2)(ii) must send a one-time notification to the Regional Administrator. Such notices must identify the name, address, and EPA ID number of the generator (if applicable); the name and phone number of a contact person; the type of material that will be managed according to this exclusion; and when the material will begin to be managed in accordance with this exclusion. A revised notice must be sent to the Regional Administrator in the event of a change to the name, address or EPA ID number of the generator, or a change in the type of material generated. If reclamation takes place at a facility other than the generating facility, the reclaimer must also send a one-time notification to the Regional Administrator. Such notices must identify the name, address, and EPA ID number of the reclamation facility (if applicable); the name and phone number of a contact person; the type of material that will be managed according to the exclusion; and when the material will begin to be managed in accordance with this conditional exclusion. A revised notice must be sent to the Regional Administrator in the event of a change to the name, address or EPA ID number of the reclamation facility, or a change in the type of material reclaimed.
7. The authority citation for part 261 continues to read as follows:
42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.
8. Section 261.2 is amended as follows:
a. By revising paragraph (a)(1).
b. By revising paragraph (a)(2).
c. By revising paragraph (c)(3).
d. By revising Table 1 in paragraph (c)(4).
e. By adding paragraph (g).
(a)(1) A
(2)(i) A
(A) Abandoned, as explained in paragraph (b) of this section; or
(B) Recycled, as explained in paragraph (c) of this section; or
(C) Considered inherently waste-like, as explained in paragraph (d) of this section; or
(D) A military munition identified as a solid waste in 40 CFR 266.202.
(ii) A hazardous secondary material is not discarded if it is generated and reclaimed within the United States or its territories, provided that the material is only handled in non-land-based units, it is a hazardous secondary material generated and reclaimed under the control of the generator as defined in § 260.10, and it is not speculatively accumulated as defined in § 261.1(c)(8). (See also § 260.42)
(c) * * *
(3) Reclaimed. Materials noted with a “—” in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with an “*” in column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements of §§ 261.2(a)(2)(ii), or 261.4(a)(17), or 261.4(a)(23), or 261.4(a)(24) and 261.4(a)(25).
(4) * * *
(g) Legitimate Recycling.
(1) Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. Persons who recycle such material, as well as persons claiming to be excluded from hazardous waste regulation under § 260.31, § 260.34, § 261.2 or § 261.4 because they are engaged in recycling, must be able to demonstrate that the recycling is legitimate. Moreover, hazardous secondary material must be legitimately recycled to qualify for special management standards under § 261.6 and 40 CFR Part 266.
(2) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product of the recycling process, and the recycling process must produce a valuable product or intermediate.
(i) The hazardous secondary material provides a useful contribution if it:
(A) Contributes valuable ingredients to a product or intermediate; or
(B) Replaces a catalyst or carrier in the recycling process; or
(C) Is the source of a valuable constituent recovered in the recycling process; or
(D) Is recovered or regenerated by the recycling process; or
(E) Is used as an effective substitute for a commercial product.
(ii) The product or intermediate is valuable if it is:
(A) Sold to a third party; or
(B) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
(3) The following factors need to be considered in making a determination as to the overall legitimacy of a specific recycling activity. If these factors are not met, then this fact may be an indication that the material is not legitimately recycled:
(i) How the hazardous secondary material to be recycled is managed. The generator and the recycler should manage such material as a valuable commodity. Where there is an analogous raw material, the hazardous secondary material should be managed, at a minimum, in a manner consistent with the management of the raw material. Where there is no analogous raw material, the hazardous secondary material should be contained. Materials that are released to the environment and are not recovered in a timely manner are discarded. If the material is not managed as a valuable commodity, that fact may be an indication that the material is not legitimately recycled.
(ii) Whether the product of the recycling process:
(A) Contains significant concentrations of any Appendix VIII of Part 261 hazardous constituents that are not found in analogous products; or
(B) Contains concentrations of any Appendix VIII of Part 261 hazardous constituents at levels that are significantly elevated from those found in analogous products; or
(C) Exhibits a hazardous characteristic (as defined in Part 261 subpart C) that analogous products do not exhibit. If a product contains any of these concentrations or exhibits a hazardous characteristic, that fact may be an indication that the material is not legitimately recycled.
9. Section 261.4 is amended by adding new paragraphs (a)(23), (24), and (25) to read as follows:
(a) * * *
(23) Hazardous secondary material generated and reclaimed within the United States or its territories is not a solid waste provided that:
(i) If it is managed in a land-based unit as defined in § 260.10, the material must be contained; and
(ii) It is a hazardous secondary material generated and reclaimed under the control of the generator as defined in § 260.10; and
(iii) It is not speculatively accumulated, as defined in § 261.1(c)(8); and
(iv) Generators of hazardous secondary material that has previously been subject to regulation as hazardous wastes, but which will be excluded from regulation under this paragraph (a)(23) must send a one-time notification to the Regional Administrator. Such notices must identify the name, address, and EPA ID number of the generator (if applicable); the name and phone number of a contact person; the type of material that will be managed according to this exclusion, and when the material will begin to be managed in accordance with this exclusion. A revised notice must be sent to the Regional Administrator in the event of a change to the name, address or EPA ID number of the generator, or a change in the type of material generated. If reclamation takes place at a facility other than the generating facility, the reclaimer must send a one-time notification to the Regional Administrator. Such notices must identify the name, address, and EPA ID number of the reclamation facility (if applicable); the name and phone number of a contact person; the type of material that will be managed according to the exclusion, and when the material will begin to be managed in accordance with this conditional exclusion. A revised notice must be sent to the Regional Administrator in the event of a change to the name, address
(24) Hazardous secondary material that is generated and then transferred to another person for the purpose of reclamation is not a solid waste, provided that:
(i) The material is not speculatively accumulated, as defined in § 261.1(c)(8); and
(ii) The material is not handled by any person or facility other than the generator, the transporter, or a reclaimer; and
(iii) The generator and each reclaimer of hazardous secondary material that has previously been subject to regulation as hazardous wastes, but which will be excluded from regulation under this paragraph, must send a one-time notification to the Regional Administrator. Such notices must identify the name, address, and EPA ID number of the generator or reclaimer (if applicable); the name and phone number of a contact person; the type of material that will be managed according to the exclusion, and when the materials will begin to be managed in accordance with this conditional exclusion. A revised notice must be sent to the Regional Administrator in the event of a change to the name, address or EPA ID number of the generator, or a change in the type of material generated, and
(iv) Generators of hazardous secondary materials that are eligible for this exclusion must satisfy the following conditions:
(A) Prior to arranging for transport of excluded material to a reclamation facility that is not operating under a RCRA Part B permit or interim status standards, the generator must make reasonable efforts to ensure that the reclaimer intends to legitimately recycle the material and not discard it pursuant to the criteria in § 261.2(g), and that the reclaimer will manage the material in a manner that is protective of human health and the environment. In making these reasonable efforts, the generator may use any credible evidence available, including information gathered by the generator, provided by the reclaimer, and/or provided by a third party.
(B) The generator must maintain at the generating facility for no less than three years records of all off-site shipments of excluded material. For each shipment, these records must at a minimum contain the following information:
(C) If it is managed in a land-based unit as defined in § 260.10, the material must be contained.
(v) Reclaimers of hazardous secondary material excluded from regulation under this exclusion must satisfy the following conditions:
(A) The reclaimer must maintain at the reclamation facility for no less than three years records of all shipments of excluded material that were received at the facility. For each shipment, these records must at a minimum contain the following information:
(B) The reclaimer must manage the hazardous secondary material in a manner that is at least as protective as that employed for analogous raw material or is otherwise contained. An “analogous raw material” is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar physical and chemical properties as the hazardous secondary material. Where there is no analogous raw material, or if the secondary hazardous material is managed in a land-based unit as defined in defined in § 260.10, the material must be contained.
(C) Any residuals that are generated from reclamation processes will be managed in a manner that is protective of human health and the environment. If any residuals exhibit a hazardous characteristic according to subpart C of 40 CFR part 261, or if they themselves are specifically listed in subpart D of 40 CFR part 261, such residuals are hazardous wastes and must be managed according to the applicable requirements of 40 CFR parts 260 through 272.
(D) The reclaimer must comply with the financial requirements of 40 CFR part 264, subpart H.
(vi) A reclamation facility at which hazardous secondary materials are managed in accordance with the provisions of this exclusion may also accept and manage fully regulated hazardous wastes from generators who do not use this exclusion. Such materials are not solid wastes, and the RCRA regulatory status of the reclamation facility will not be affected, provided that the reclamation facility complies with the requirements specified in § 261.4(a)(24)(i), (ii), (iii) and (v).
(25) Exports. Hazardous secondary material that is exported from the United States and recycled at a reclamation facility located in a foreign country, provided that the exporter complies with the requirements of § 261.4(a)(24)(i)-(iv) and also with the following requirements:
(i) Notify EPA of an intended export before the hazardous secondary material is scheduled to leave the United States. A complete notification must be submitted at least sixty (60) days before the initial shipment is intended to be shipped off-site. This notification may cover export activities extending over a twelve (12) month or lesser period. The notification must be in writing, signed by the exporter, and include the following information:
(A) Name, mailing address, telephone number and EPA ID number (if applicable) of the exporter.
(B) The estimated frequency or rate at which the materials is to be exported and the period of time over which it is to be exported.
(C) The estimated total quantity of material specified in kilograms.
(D) All points of entry to and departure from each foreign country through which the material will pass.
(E) A description of the means by which each shipment of the material will be transported (e.g., mode of transportation vehicle (air, highway, rail, water, etc.), type(s) of container (drums, boxes, tanks, etc.)).
(F) The name and address of the reclaimer and any alternate reclaimer.
(G) A description of the manner in which the material will be recycled in the foreign country that will be receiving it.
(H) The name of any transit country through which the material will be sent and a description of the approximate length of time it will remain in such country and the nature of its handling while there.
(ii) Notifications submitted by mail should be sent to the following mailing address: Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, (Mail Code 2254A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Hand-delivered notifications should be sent to: Office of Enforcement and Compliance Assurance, Office of Federal Activities, International Compliance Assurance Division, (Mail Code 2254A), Environmental Protection Agency, Ariel Rios Bldg., Room 6144, 1200
(iii) Upon request by EPA, the exporter shall furnish to EPA any additional information which a receiving country requests in order to respond to a notification.
(iv) EPA will provide a complete notification to the receiving country and any transit countries. A notification is complete when EPA receives a notification which EPA determines satisfies the requirements of paragraph (a) (5) (i) of this section. Where a claim of confidentiality is asserted with respect to any notification information required by paragraph (a)(5)(i) of this section, EPA may find the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(v) The export of hazardous secondary material under this paragraph is prohibited unless the receiving country consents to the intended export. When the receiving country consents in writing to the receipt of the material, EPA will forward an Acknowledgment of Consent to the exporter. Where the receiving country objects to receipt of the material or withdraws a prior consent, EPA will notify the exporter in writing. EPA will also notify the exporter of any responses from transit countries.
(vi) When the conditions specified on the original notification change, the exporter must provide EPA with a written renotification of the change, except for changes to the telephone number in paragraph (a)(5)(i)(A) of this section and decreases in the quantity indicated pursuant to paragraph (a)(5)(i)(C) of this section. The shipment cannot take place until consent of the receiving country to the changes has been obtained (except for changes to information about points of entry and departure and transit countries pursuant to paragraphs (a)(5)(i)(D) and (a)(5)(i)(H) of this section) and the exporter receives from EPA a copy of the Acknowledgment of Consent to Export reflecting the receiving country's consent to the changes.
(vii) A copy of the Acknowledgment of Consent to Export must accompany the shipment. The shipment must conform to the terms of the Acknowledgment.
(viii) If a shipment cannot be delivered for any reason to the recycler or the alternate recycler, the exporter must renotify EPA of a change in the conditions of the original notification to allow shipment to a new recycler in accordance with paragraph (a)(5)(vi) of this section and obtain another Acknowledgment of Consent to Export.
(ix) Exporters must keep copies of notifications and Acknowledgments of Consent to Export for a period of three years following receipt of the Acknowledgment.
Environmental Protection Agency (EPA).
Final rule.
This rule modifies the EPA's Guidelines that establish approved bacterial testing procedures for analysis and sampling under the Clean Water Act. EPA proposed these changes for public comment on August 16, 2005 and April 10, 2006. These changes include approval for new methods for monitoring microbial pollutants in wastewater and sewage sludge, including EPA methods, vendor-developed methods and methods developed by voluntary consensus bodies (VCSB) as well as updated versions of currently approved methods. The addition of new and updated methods to the wastewater regulations provides increased flexibility to the regulated community and laboratories in the selection of analytical methods. In addition, EPA has made a technical, non-substantive correction.
This regulation is effective April 25, 2007. The incorporation by reference of these methods is approved by the Director of the Federal Register on April 25, 2007. For judicial review purposes, this final rule is promulgated as of 1 p.m. (Eastern time) on April 9, 2007 as provided at 40 CFR 23.2 and 23.7.
EPA has established a docket for this action under Docket ID No. EPA-OW-2004-0014. All documents in the docket are listed on the
The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to visit the Public Reading Room to view documents. Consult EPA's
For information regarding the changes to wastewater regulations, contact Robin K. Oshiro, Engineering and Analysis Division (4303T), USEPA Office of Science and Technology, 1200 Pennsylvania Ave., NW., Washington, DC 20460, 202-566-1075 (e-mail:
EPA Regions, as well as States, Territories and Tribes authorized to implement the National Pollutant Discharge Elimination System (NPDES) program, issue permits with conditions designed to ensure compliance with the technology-based and water quality-based requirements of the Clean Water Act (CWA). These permits may include restrictions on the quantity of pollutants that may be discharged as well as pollutant measurement and reporting requirements. If EPA has approved test procedures for analysis of a specific pollutant, an NPDES permittee (or applicant for an NPDES permit) must use an approved test procedure (or an approved alternate test procedure) for the specific pollutant when testing for the required waste constituent. Similarly, if EPA has established permit monitoring requirements, measurements taken and reported under an NPDES permit must comply with these requirements. Therefore, entities with NPDES permits will potentially be regulated by the actions in this rulemaking. Categories and entities that may potentially be subject to the requirements of today's rule include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability language at 40 CFR 122.1 (NPDES purpose and scope), 40 CFR 136.1 (NPDES permits and CWA), 40 CFR 403.1 (Pretreatment standards purpose and applicability). If you have questions regarding the applicability of this action to a particular entity, consult the appropriate person listed in the preceding
Under Section 509(b)(1) of the Clean Water Act (CWA), judicial review of today's CWA rule may be obtained by filing a petition for review in the United States Circuit Court of Appeals within 120 days from the date of promulgation of this rule. For judicial review purposes, this final rule is promulgated as of 1 p.m. (Eastern time) on April 25, 2007 as provided at 40 CFR 23.2. The requirements of this regulation may also not be challenged later in civil or criminal proceedings brought by EPA.
EPA is promulgating today's rule pursuant to the authority of sections 301(a), 304(h), and 501(a) of the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. 1311(a), 1314(h), 1361(a). Section 301(a) of the Act prohibits the discharge of any pollutant into navigable waters unless the discharge complies with a National Pollutant Discharge Elimination System (NPDES) permit issued under section 402 of the Act. Section 304(h) of the Act requires the Administrator of the EPA to “* * * promulgate guidelines establishing test procedures for the analysis of pollutants that shall include the factors which must be provided in any certification pursuant to [section 401 of this Act] or permit application pursuant to [section 402 of this Act].” Section 501(a) of the Act authorizes the Administrator to “* * * prescribe such regulations as are necessary to carry out this function under [the Act].” EPA generally has codified its test procedure regulations (including analysis and sampling requirements) for CWA programs at 40 CFR Part 136, though some requirements are codified in other Parts (e.g., 40 CFR Chapter I, Subchapters N and O).
The following sections describe the changes EPA is making in today's final rule.
This rule approves new and revised methods for inclusion in 40 CFR Part 136. These methods include EPA methods, vendor methods submitted by IDEXX and Hach, and voluntary consensus standards.
The following discussion briefly describes the changes to Part 136 methods approved today.
1. This rule amends the regulations at 40 CFR Part 136 to approve five
2. The rule approves two fecal coliform and one Salmonella method for monitoring microbial pollutants in sewage sludge (biosolids). The fecal coliform methods include EPA Methods 1680 (LT-EC) and 1681 (A-1) and the Salmonella Method 1682 (Modified MSRV). The methods approved today are alternative methods to those currently prescribed for measuring fecal coliform and salmonella in sewage sludge identified in 40 CFR § 503.8(b).
3. The rule amends the regulations by moving the microbial methods approved for use in ambient waters from Table IA to a new Table IH, and adding Table IH to section 136.3(a).
4. The rule extends the holding time for fecal coliforms using EPA Methods 1680 (LTB-EC) or 1681 (A-1) in sewage sludge for Class A composted, Class B aerobically or anaerobically digested sewage sludge.
5. The rule amends 40 CFR 136.1 to add a new provision that authorizes the use of the methods identified at 40 CFR 503.8(b) and the newly approved Part 136 methods for fecal coliform and Salmonella for permit applications and recordkeeping and reporting required under EPA's sewage sludge regulations at 40 CFR Part 503.
This rule amends the regulations at 40 CFR Part 503 by adding a cross reference to the 40 CFR Part 136 methods in section 503.8(b).
Except as noted below, the content of the final rule is the same as that of the proposed rule. In some instances, EPA revised for clarity the language of the final rule from that in the proposed rule.
Based on comment received on the Agency's proposal of methods for use in sewage sludge, EPA has amended the applicability provision to clarify that the applicable procedures of Part 136 and Part 503 must be used for measurements for sewage sludge permit applications and reporting and recordkeeping requirements under Part 503.
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's changes to the rule final without prior proposal and opportunity for comment. Notice and opportunity for public comment is not necessary with respect to these changes because they are not substantive and merely correct errors in cross-referenced provisions as explained below.
Section 136.3(a) provides that discharge parameter values for which reports are required must be determined either by the standard analytical test procedures described in the tables in Part 136 or approved additional or alternate test procedures. EPA has modified the language of 40 CFR 136.3(a) to make three corrections. First, EPA has changed the citation in the last sentence before Table IA from “paragraphs (b) or (c) of this section or 40 CFR 401.13” to “paragraphs (c) of this section, 40 CFR 136.5(a)-(d) and 40 CFR 401.13.” Paragraph (b) does not describe circumstances in which alternate procedures may be approved while section 136.5 does.
Second, EPA has deleted the clause at the end of the last sentence which states that other test procedures may be used
“* * * when such other test procedures have been previously approved by the Regional Administrator of the Region in which the discharge will occur, and providing the Director of the State in which
The cross-referenced provisions authorize the use of additional or alternate test procedures in described circumstances. Thus, section 136.3(c) authorizes approval by the Regional Administrator (or Director of an approved State NPDES Program) for analysis of additional pollutants or parameters required to be reported for a particular discharge. Section 136.5(a)-(d) authorizes approval by the Regional Administrator of alternate procedures for use within a particular EPA Region. 40 CFR section 401.13 authorizes the use of analytical procedures that are specifically defined in 40 CFR Parts 402-699. This last category of analytical procedures that are promulgated for specific effluent limitations guidelines and pretreatment standards and not codified in Part 136 do not require the approval of the Director of a State as the current language erroneously implies.
Third, EPA removed an erroneous reference that was listed as a source for the methods listed in section 136.3.
EPA has modified the regulation to provide the correct citation and delete the inaccurate and misleading language. None of the changes EPA is promulgating today are themselves substantive but rather, as noted, only either correct an error in citing to the other applicable provisions of these regulations or correct inaccuracies. The substantive provisions in question were previously subject to notice and comment. Thus, notice and public procedures are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
The rule revises the title to Table IA from “List of Approved Biological Methods” to “List of Approved Biological Methods for Wastewater and Sewage Sludge.” Today's action updating Table IA at § 136.3 more clearly defines the removal of approved microbiological methods for ambient waters from this table. Such methods have been moved to a new table, Table IH.
The rule revises Table II (Required Containers, Preservation Techniques, and Holding Times), and the footnotes to Table II at 40 CFR 136.3(e). Today's action updating Table II at § 136.3(e) more clearly defines the holding time for bacterial testing as 6 hours holding time with 2 hours to process samples.
Based on comments received on the Agency's proposal of methods for use in sewage sludge, EPA is including a cross reference to 40 CFR Part 136 in 40 CFR 503.8(b) which prescribes the methods that must be used for sampling and analysis of sewage sludge.
EPA received 39 comments regarding methods included in this final rule from the August 16, 2005 proposal (70 FR 48256), and 9 comments on the April 10, 2006 Notice of Data Availability (NODA) (71 FR 18329). Commentors represented a number of different interests, including analytical laboratories, water utilities, instrument manufacturers, State and local governments, trade associations, scientists, and private citizens. The public docket for this rule includes the Agency's response to all comments. The majority of the comments were with regard to method inclusion, method use, and quality control requirements. The following is a summary of our response to comments about the lack of connecting language between 40 CFR Parts 136 and 503 for sewage sludge methods.
EPA proposed to approve methods in 40 CFR Part 136 for sewage sludge but did not include an appropriate cross reference in 40 CFR Part 503 to Part 136 so as to allow the use of appropriate 40 CFR 136.3 methods as alternative methods to those listed in 40 CFR 503.8. Based on comments to the proposal, EPA has amended the language in 40 CFR 503.8(b). In addition, as discussed above, EPA has also amended the language in 40 CFR 136.1 regarding the applicability of the methods in this section to 40 CFR Part 503.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.
The RFA generally requires an agency to prepare 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.
For purposes of assessing the impacts of this rule on small entities for methods under the Clean Water Act, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation of why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for the notification of potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
This rule contains no Federal mandates (under the regulatory provisions of Title II of UMRA) for State, local, or Tribal governments or the private sector. The rule imposes no enforceable duty on any State, local, or Tribal governments or the private sector. In fact, this rule should (on the whole) save money for governments and the private sector by increasing method flexibility, and allowing these entities to reduce monitoring costs by taking advantage of innovations. Thus, today's rule is not subject to the requirements of Sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Generally, this action will have a positive impact by increasing method flexibility, thereby allowing method users to reduce costs by choosing more cost effective methods. In some cases, analytical costs may increase slightly due to changes in methods, but these increases are neither significant nor unique to small governments. This rule merely approves new and updated versions of testing procedures, withdraws some older testing procedures, and approves new sample collection, preservation, and holding time requirements. Thus, today's rule is not subject to the requirements of Section 203 of UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include 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.”
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule merely approves new and updated versions of testing procedures, withdraws some older testing procedures, and approves new sample collection, preservation, and holding time requirements. The costs to State and local governments will be minimal (in fact, governments may see a cost savings), and the rule does not preempt State law. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”
This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, 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. This rule merely approves new and updated versions of testing procedures, withdraws some older testing procedures, and approves new sample collection, preservation, and holding time requirements. The costs to Tribal governments will be minimal (in fact, governments may see a cost savings), and the rule does not preempt State law. Thus, Executive Order 13175 does not apply to this rule.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.
As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995, (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standard bodies. The NTTAA directs EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking involves technical standards. EPA has decided to use
The
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Incorporation by reference, Reporting and recordkeeping requirements, Water pollution control.
Environmental protection, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.
The Office of the Federal Register received this document on March 8, 2007.
Secs. 301, 304(h), 307, and 501(a) Pub. L. 95-217, 91 Stat. 1566,
(a) The procedures prescribed herein shall, except as noted in § 136.5, be used to perform the measurements indicated whenever the waste constituent specified is required to be measured for:
(1) An application submitted to the Administrator, or to a State having an approved NPDES program for a permit under section 402 of the Clean Water Act of 1977, as amended (CWA), and/or to reports required to be submitted under NPDES permits or other requests for quantitative or qualitative effluent data under parts 122 to 125 of title 40, and,
(2) Reports required to be submitted by dischargers under the NPDES established by parts 124 and 125 of this chapter, and,
(3) Certifications issued by States pursuant to section 401 of the CWA, as amended.
(b) The procedure prescribed herein and in part 503 of title 40 shall be used to perform the measurements required for an application submitted to the Administrator or to a State for a sewage sludge permit under section 405(f) of the Clean Water Act and for recordkeeping and reporting requirements under part 503 of title 40.
(a) Parameters or pollutants, for which methods are approved, are listed together with test procedure descriptions and references in Tables IA, IB, IC, ID, IE, IF, IG, and IH. In the event of a conflict between the reporting requirements of 40 CFR Parts 122 and 125 and any reporting requirements associated with the methods listed in these tables, the provisions of 40 CFR Parts 122 and 125 are controlling and will determine a permittee's reporting requirements. The full text of the referenced test procedures are incorporated by reference into Tables
(b) The full texts of the methods from the following references which are cited in Tables IA, IB, IC, ID, IE, IF, IG and IH are incorporated by reference into this regulation and may be obtained from the source identified. All costs cited are subject to change and must be verified from the indicated source. The full texts of all the test procedures cited are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(2) USEPA. 1978. Microbiological Methods for Monitoring the Environment, Water, and Wastes. Environmental Monitoring and Support Laboratory, U.S. Environmental Protection Agency, Cincinnati, Ohio. EPA/600/8-78/017. Available at
(6) American Public Health Association. 1992, 1995, and 1998. Standard Methods for the Examination of Water and Wastewater. 18th, 19th, and 20th Edition (respectively). Available from: American Public Health Association, 1015 15th Street, NW., Washington, DC 20005. Standard Methods Online is available through the Standard Methods Web site (
(10) ASTM International. Annual Book of ASTM Standards, Water, and Environmental Technology, Section 11, Volumes 11.01 and 11.02, 1994, 1996, 1999, Volume 11.02, 2000, and individual standards published after 2000. Available from: ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, or
(11) USGS. 1989. U.S. Geological Survey Techniques of Water-Resources Investigations, Book 5, Laboratory Analysis, Chapter A4, Methods for Collection and Analysis of Aquatic Biological and Microbiological Samples, U.S. Geological Survey, U.S. Department of the Interior, Reston, Virginia. Available from USGS Books and Open-File Reports Section, Federal Center, Box 25425, Denver, Colorado 80225. Table IA, Note 5; Table IH.
(34) USEPA. October 2002. Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms. Fifth Edition. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA 821-R-02-012. Available at
(38) USEPA. October 2002. Short-Term Methods for Measuring the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms. Fourth Edition. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA 821-R-02-013. Available at
(39) USEPA. October 2002. Short-Term Methods for Measuring the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms. Third Edition. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA 821-R-02-014. Available at
(52) IDEXX Laboratories, Inc. 2002. Description of Colilert®, Colilert-18®, Quanti-Tray®, Quanti-Tray®/2000, Enterolert® methods are available from IDEXX Laboratories, Inc., One Idexx Drive, Westbrook, Maine 04092. Table IA, Notes 17 and 23; Table IH, Notes 16 and 22.
(53) Hach Company, Inc. Revision 2, 1999. Description of m-ColiBlue24® Method, Total Coliforms and
(54) USEPA. July 2006. Method 1103.1:
(55) USEPA. July 2006. Method 1106.1: Enterococci in Water by Membrane Filtration Using membrane-Enterococcus-Esculin Iron Agar (mE-EIA). U.S. Environmental Protection Agency, Office of Water, Washington DC EPA-621-R-06-008. Available at
(56) USEPA. July 2006. Method 1603:
(57) Brenner
(58) USEPA. September 2002. Method 1604: Total Coliforms and
(59) USEPA. July 2006. Method 1600: Enterococci in Water by Membrane Filtration Using membrane-Enterococcus Indoxyl-β-D-Glucoside Agar (mEI). U.S. Environmental Protection Agency, Office of Water, Washington DC EPA-821-R-06-009. Available at
(60) USEPA. April 2001. Method 1622:
(61) USEPA. April 2001. Method 1623:
(62) AOAC. 1995. Official Methods of Analysis of AOAC International, 16th Edition, Volume I, Chapter 17. AOAC International, 481 North Frederick Avenue, Suite 500, Gaithersburg, Maryland 20877-2417. Table IA, Note 11; Table IH.
(70) USEPA. July 2006. Method 1680: Fecal Coliforms in Sewage Sludge (Biosolids) by Multiple-Tube Fermentation using Lauryl Tryptose Broth (LTB) and EC Medium. U.S. Environmental Protection Agency, Office of Water, Washington DC. EPA 821-R-06-012. Available at
(71) USEPA. July 2006. Method 1681: Fecal Coliforms in Sewage Sludge (Biosolids) by Multiple-Tube Fermentation using A-1 Medium. U.S. Environmental Protection Agency, Office of Water, Washington DC. EPA 821-R-06-013. Available at
(72) USEPA. July 2006. Method 1682:
(e) Sample preservation procedures, container materials, and maximum allowable holding times for parameters are cited in Tables IA, IB, IC, ID, IE, IF, IG and IH are prescribed in Table II. Information in the table takes precedence over information in specific methods or elsewhere. Any person may apply for a variance from the prescribed preservation techniques, container materials, and maximum holding times applicable to samples taken from a specific discharge. Applications for variances may be made by letters to the Regional Administrator in the Region in which the discharge will occur. Sufficient data should be provided to assure such variance does not adversely affect the integrity of the sample. Such data will be forwarded by the Regional Administrator, to the Alternate Test Procedure Program Coordinator, Washington, DC, for technical review and recommendations for action on the variance application. Upon receipt of the recommendations from the Alternate Test Procedure Program Coordinator, the Regional Administrator may grant a variance applicable to the specific discharge to the applicant. A decision to approve or deny a variance will be made within 90 days of receipt of the application by the Regional Administrator.
Secs. 405(d) and (e) of the Clean Water Act, as amended by Pub. L. 95-217, sec. 54(d), 91 Stat. 1591 (33 U.S.C. 1345(d) and (e)); and Pub. L. 100-4, title IV, sec. 406(a), (b), 101 Stat., 71, 72 (33 U.S.C. 1251 et seq.).
(b)
Copies may be obtained from the standard producer or publisher listed in the regulation. The methods in the materials listed below (or in 40 CFR Part 136) shall be used to analyze samples of sewage sludge.