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Commodity Credit Corporation, United States Department of Agriculture.
Interim final rule with request for comment.
The Natural Resources Conservation Service (NRCS) is amending the regulations for the Agricultural Management Assistance program (AMA). Section 2801 of the Food, Conservation, and Energy Act of 2008 (2008 Act) amended the Agricultural Management Assistance program (AMA) by: Expanding the program's geographic scope to include Hawaii; and providing $15 million in mandatory funding for each of fiscal years 2008 through 2012. NRCS issues this interim final rule with request for comment to incorporate statutory changes resulting from the 2008 Act and to make administrative changes to improve program efficiency.
You may send comments (identified by Docket Number NRCS-IFR-08002) using any of the following methods:
• Government-wide rulemaking Web site: go to
• Mail: Director, Financial Assistance Programs Division, Natural Resources Conservation Service, Agricultural Management Assistance Program Comments, P.O. Box 2890, Room 5237-S, Washington, DC 20013.
• Fax: (202) 720-4265
• Hand Delivery: Room 5237-S of the USDA South Office Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. Please ask the guard at the entrance to the South Office Building to call: (202) 720-4527 in order to be escorted into the building.
• This interim final rule may be accessed via Internet. Users can access the NRCS homepage at
Director, Financial Assistance Programs Division, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013-2890; Phone: (202) 720-1844; Fax: (202) 720-4265; or e-mail:
The Office of Management and Budget (OMB) has determined that this interim final rule is a non-significant regulatory action under Executive Order 12866.
NRCS has determined that the Regulatory Flexibility Act is not applicable to this interim final rule because NRCS is not required by 5 U.S.C. 553, or any other provision of law, to publish a notice of proposed rule making with respect to the subject matter of this rule.
The National Environmental Policy Act (NEPA) applies to “major Federal actions” where the agency has control and responsibility over the actions and has discretion as to how the actions will be carried out (40 CFR part 1508.18). Accordingly, any actions that are directed by Congress to be implemented in such manner that there is no discretion on the part of the agency are not required to undergo an environmental review under NEPA. The lack of discretion over the action by the agency undermines the rationale for NEPA review—evaluation of the environmental impacts of the proposed action and consideration of alternative actions to avoid or mitigate the impacts. Where Congress has directed that a specific action be implemented and an agency has no discretion to consider and take alternative actions, NEPA review would be moot.
For AMA, Congress has mandated the addition of Hawaii to the list of States to which the Secretary is authorized to provide financial assistance. The Secretary of Agriculture is, therefore, required to make this addition to the program. There is no discretion on the part of the agency to take this action. For this reason, an environmental review of these changes under NEPA is not required.
NRCS has determined through a Civil Rights Impact Analysis that the issuance of this interim final rule will not have a significant effect on minorities. Copies of the Civil Rights Impact Analysis may be obtained from Director, Financial Assistance Programs Division, U.S. Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), P.O. Box 2890, Washington, DC 20013-2890.
Section 2904 of the 2008 Act requires that implementation of programs authorized by Title II of the 2008 Act be made without regard to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
NRCS is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. To better accommodate public access, NRCS has developed an online application and information system for public use.
This interim final rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. The provisions of this interim final rule are not retroactive. Furthermore, the provisions of this interim final rule preempt State and local laws to the extent such laws are inconsistent with this interim final rule. Before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded persons at 7 CFR parts 11 and 614 must be exhausted.
USDA classified this interim final rule as “not major” under Section 304 of the Department of Agriculture Reorganization Act of 1994, Public Law 104-354. Therefore, a risk assessment is not required.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, NRCS assessed the effects of this rulemaking action on State, local, and Tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or Tribal governments, or anyone in the private sector, and therefore, a statement under section 202 of the Unfunded Mandates Reform Act is not required.
The conservation provisions of AMA are administered and implemented under the general supervision and direction of the Chief of NRCS, who is a Vice President of the Commodity Credit Corporation (CCC). Accordingly, where NRCS is mentioned in this rule it also refers to the CCC's funds, facilities, and authorities where applicable. While NRCS has leadership for the conservation provisions of AMA, other agencies have authority for different aspects of the program. The Agricultural Marketing Service (AMS) has responsibility for the organic certification cost-share program and the Risk Management Agency (RMA) has responsibility for the insurance cost-share program for mitigation of financial risk.
Through AMA, NRCS provides technical and financial assistance to participants in eligible States to address issues, such as water management, water quality, and erosion control by incorporating conservation practices into their agricultural operations. Producers may construct or improve water management structures or irrigation structures; plant trees for windbreaks or to improve water quality; and mitigate risk through production diversification or resource conservation practices, including soil erosion control, integrated pest management, or organic farming.
Section 524(b) of the Federal Crop Insurance Act, as amended by Section 133 of the Agricultural Risk Protection Act of 2000, authorized AMA to provide assistance to producers in States that historically had low participation in the Federal Crop Insurance Program. The Farm Security and Rural Investment Act of 2002 (2002 Act) made amendments to AMA to specify the eligible States and provide additional clarity to the assistance to be made available. The AMA regulation (7 CFR part 1465) was published in the
Section 2801 of the 2008 Act amended AMA to include Hawaii as an eligible State, and to authorize $15 million in funding each year from fiscal year (FY) 2008 through FY 2012. NRCS has evaluated seven years of program implementation and identified opportunities to improve program administration and alignment with other financial assistance programs administered by the Agency. The revisions to the AMA regulation, described below, reflect the changes mandated by the 2008 Act and opportunities to improve program administration for greater efficiency.
Section 1465.1, “Purposes and Applicability,” sets forth the purpose, scope, and objectives of AMA. Through AMA, NRCS provides technical and financial assistance to producers in statutorily-designated States. Section 2801 of the 2008 Act expanded AMA's geographic scope to include the State of Hawaii. In response, NRCS revises § 1465.1 to add Hawaii to the list of States eligible for AMA assistance and replaces “15” with the number “16” when referring to the number of eligible States. AMA is now available in Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Maine, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
Section 1465.2, “Administration,” describes the role of NRCS and provides a brief overview of the Agency's administrative responsibilities. NRCS amends § 1465.2 to reflect the 2003 decision made by USDA to have NRCS administer the AMA natural resource conservation provisions and to clarify NRCS's relationship with the Commodity Credit Corporation (CCC). Prior to FY 2004, NRCS and the Farm Service Agency (FSA) jointly administered the AMA natural resource conservation provisions. A 2003 decision made by USDA transferred all administrative responsibilities to NRCS. Therefore, § 1465.2 is revised to remove reference to Farm Service Agency (FSA) and reflect that NRCS has the responsibility for issuing payments for conservation practices. NRCS also revises § 1465.2(c) to clarify that lower delegations of authority can be overridden by the Chief, if necessary, to uphold the purposes of AMA. This addition is consistent with other NRCS natural resource conservation programs.
Section 1465.3 sets forth definitions for terms used throughout this regulation. Several new definitions have been added or revised to align AMA terms with terms used by other NRCS conservation programs. The following existing definitions are revised: “Applicant,” “Conservation district,” “Conservation practice,” “Contract,” “Indian Tribe,” “Liquidated damages,” “Participant,” “Producer,” “State Conservationist,” and “Technical assistance.” NRCS also replaces several existing terms with terms more reflective of AMA's purposes. The term,“Cost-share payment” is replaced with “Payment,” to reflect the breadth of the types of costs that may be considered in determining payments. The term “Indian trust lands” is replaced with the term “Indian land” to broaden the scope and align AMA with other NRCS conservation programs. Finally, the term “Conservation plan” is replaced with the term “AMA plan of operations (APO)” to align AMA with other NRCS conservation programs that identify a plan of operations. NRCS adds the following terms and definitions to the AMA regulations to be consistent with related conservation programs: “Agricultural land,” “Agricultural operation,” “Beginning farmer or rancher,” “Historically underserved producer,” “Joint operation,” “Legal entity,” “Limited resource farmer or rancher,” “Livestock,” “Natural Resources Conservation Service (NRCS),” “Nonindustrial private forest land,” “Operation and maintenance (O&M) agreement,” “Person,” “Resource concern,” “Socially disadvantaged farmer or rancher,” “Structural
Specifically, the following definitions have been amended:
NRCS adds the definition of “agricultural land” to better define the land where AMA assistance will be provided. Agricultural land is cropland, grassland, rangeland, pasture, and other agricultural land, on which agricultural and forest-related products or livestock are produced and resource concerns may be addressed. Agricultural lands include cropped woodland, marshes, incidental areas included in the agricultural operation, and other types of agricultural land used for the production of livestock.
NRCS adds the definition of “agricultural operation” to closely align AMA's definitions with definitions used by other NRCS conservation programs. Section 1465.3 defines an “agricultural operation” as “a parcel or parcels of land whether contiguous or noncontiguous, which the producer is listed as the operator or owner/operator in the Farm Service Agency (FSA) record system, which is under the effective control of the producer at the time the producer applies for a contract, and which is operated by the producer with equipment, labor, management, and production, forestry, or cultivation practices that are substantially separate from other operations.”
NRCS replaces the term, “conservation plan” with “AMA plan of operations” to ensure consistency across NRCS programs. Prior to this regulation, AMA participants developed and implemented an AMA plan of operations. The addition of this term and associated definition clarifies what constitutes an AMA plan of operations and clarifies existing processes and documentation procedures. An AMA plan of operations, which is part of the AMA contract, identifies the location and timing of conservation practices that the participant agrees to implement.
NRCS revises the definition, “applicant,” to simplify the definition and incorporate the 2008 Act's references to “person” and “legal entity.” The term, “applicant,” is defined as follows: “a person, legal entity, or joint operation that has an interest in an agricultural operation, who has requested in writing to participate in AMA.”
NRCS adds the definition, “beginning farmer and rancher” in accordance with Section 2708 of the 2008 Act which seeks to expand conservation program participation among farmers and ranchers who have been historically underserved. The definition of “beginning farmer and rancher” reflects the definition provided defined in 1201(a) of the Food Security Act of 1985. Generally speaking, a “beginning farmer or rancher” is an individual who has not operated a farm or ranch, or who has operated a farm or ranch for not more than 10 consecutive years. This requirement applies to all members of an entity, who will materially and substantially participate in the operation of the farm or ranch. NRCS also revises the “conservation district” definition to reflect the 2008 Act's definition. A conservation district means “any district or unit of State, Tribal, or local government formed under State, Tribal, or territorial law for the express purpose of developing and carrying out a local soil and water conservation program.” Such district or unit of government may be referred to as a “conservation district,” “soil conservation district,” “soil and water conservation district,” “resource conservation district,” “natural resource district,” “land conservation committee,” or similar name.
NRCS revises “conservation practice” to clarify what is meant by conservation treatment. Specifically, a conservation practice means “one or more conservation improvements and activities, including structural practices, land management practices, vegetative practices, forest management, and other improvements that achieve program purposes.”
NRCS revises the definition of “contract” in an effort to make definitions consistent across other programs. A contract is “a legal document that specifies the rights and obligations of any participant in the program. An AMA contract is a binding agreement for the transfer of assistance from USDA to the participant to share in the costs of applying conservation practices.”
The term, “historically underserved producer,” merges the terms “beginning farmer or rancher,” “limited resource farmer or rancher,” and “socially disadvantaged farmer or rancher” into one definition to simplify terms within this regulation.
NRCS revises the definition of “Indian Tribe” to ensure the definition incorporates Alaska Native village corporations, as established pursuant to the Alaska Claims Settlement Act (43 U.S.C. 1601
NRCS replaces the term and definition, “Indian trust land,” to make it consistent with the term and associated definition, “Indian land,” which is used by other NRCS conservation programs. The “Indian land” definition encompasses lands which are also held in fee title by Indian tribes or Tribal members. Specifically, “Indian land” is “an inclusive term describing all lands held in trust by the United States for individual Indians or Tribes, or all lands, titles to which are held by individual Indians or Tribes, subject to Federal restrictions against alienation or encumbrance, or all lands which are subject to the rights of use, occupancy and/or benefit of certain Tribes.”
NRCS adds the term, “joint operation,” to maintain consistency across all NRCS conservation programs. A joint operation is “a general partnership, joint venture, or other similar business arrangement, in which the members are jointly or severally liable for the obligations of the organization.”
NRCS adds the term, “legal entity,” to maintain consistency across all NRCS conservation programs. As defined by 7 CFR 1400, “a legal entity is an entity created under Federal or State law that: (1) Owns land or an agricultural commodity, product, or livestock; or (2) produces an agricultural commodity, product, or livestock.”
NRCS adds the term and associated definition “limited resource farmer,” in accordance with Section 2708 of the 2008 Act which seeks to expand conservation program participation among farmers and ranchers who have been historically underserved. The definition of “limited resource farmer” reflects the definition used in the Environmental Quality Incentive Program's regulation, 7 CFR part 1466. Generally speaking, a limited resource farmer is a person with direct or indirect gross farms sales not more than $155200 in each of the previous two years, who has a total household income at or below the national poverty level for a family of four, or less than 50 percent of the county median household income in each of the two previous years.
NRCS revises the definition, “liquidated damages,” to make the definition consistent with the definition used by other NRCS conservation programs; however, the overall meaning of the term remains the same as the original regulation's definition. Liquidated damages is “a sum of money stipulated in the AMA contract that the participant agrees to pay NRCS if the participant fails to adequately complete the terms of the contract. The sum represents an estimate of the expenses incurred to service the contract and reflects the difficulties of proof of loss and the inconvenience or non-feasibility
NRCS adds the term, “livestock,” to maintain consistency across NRCS conservation programs.
NRCS adds the term, “nonindustrial private forest land,” to further define land eligible for AMA assistance. Nonindustrial forest land is rural land that has existing tree cover or is suitable for growing trees; and is owned by any nonindustrial private individual, group, association, corporation, Indian Tribe, or other private legal entity that has definitive decisionmaking authority over the land.
NRCS adds the term “operation and maintenance agreement” to describe the document that, in conjunction with the AMA plan of operations, specifies the participant's operation and maintenance responsibilities for conservation practices installed with AMA assistance.
NRCS revises the definition of “participant,” to make it consistent with other NRCS conservation programs. A participant is “a person, joint operation, or legal entity who is receiving payment or is responsible for implementing an AMA contract's terms and conditions.”
NRCS replaces the term, “cost share payment” with the term, “payment” to more adequately describe how participants will be compensated.
NRCS adds the term, “person,” to maintain consistency across all NRCS conservation programs. As defined by 7 CFR part 1400, a person is “an individual, natural person and does not include a legal entity.”
NRCS expands upon the definition of “producer,” to include persons or entities involved in forestry management.
NRCS adds the term, “resource concern,” to maintain a consistency of terms across NRCS conservation programs. A resource concern is “a specific natural resource problem that represents a significant concern in a State or region and is likely to be addressed successfully through the implementation of the conservation practices by producers.”
NRCS adds the term, “socially disadvantaged farmer or rancher,” in accordance with Section 2708 of the 2008 Act which seeks to expand conservation program participation among farmers and ranchers who have been historically underserved. A socially disadvantaged famer or rancher is one “who has been subjected to racial or ethnic prejudices because of their identity as a member of a group without regard to their individual qualities.”
NRCS revises the definition, “State Conservationist,” to clarify that the former State Conservationist of Hawaii has become the director of the Pacific Islands.
NRCS adds the term, “structural practice,” to better define a conservation practice that involves establishing, constructing, or installing a site-specific measure to conserve and protect a resource from degradation, or improve soil, water, air, or related natural resources in the most cost-effective manner.
NRCS revises the term, “technical assistance,” to further clarify the nature of technical assistance under AMA, as well as the types of land where AMA technical assistance is available.
NRCS adds the term and definition, “Technical Service Provider (TSP)” to clarify that participants may receive technical assistance from an individual, private-sector entity, or public agency certified by NRCS to provide technical services, in lieu of or on behalf of NRCS.
NRCS inserts a new § 1465.4, entitled “National Priorities,” and redesignates the subsequent sections accordingly. The new § 1465.4 provides that NRCS establishes national priorities to guide funding allocations to States, selection of AMA contracts, and implementation priority for AMA conservation practices. This new section also states that the national priorities are reviewed periodically by NRCS to ensure that the program is addressing priority conservation concerns. This addition improves AMA consistency with related conservation programs administered by NRCS.
Section 1465.5, “Program requirements,” sets forth land and applicant eligibility. Throughout the Section the terminology is revised to make it consistent with the terms used in § 1465.3, “Definitions.”
Specifically, NRCS revises paragraph (a), replacing the term, “cost share” payment with the term, “payment,” to more adequately reflect the type of payments a participant may receive. NRCS also replaces the term, “conservation plan,” with the term, “AMA plan of operations,” to describe the specific document that contains the conservation practice implementation schedule.
NRCS revises paragraph (c)(2), which requires that the applicant provide written evidence of ownership or legal control for the life of the contract and its associated O&M agreement, which is consistent with additions in §§ 1465.3 and 1465.22. NRCS also revises paragraph (c)(4) to clarify that additional information required by NRCS is for the purposes of assessing a proposed project's merits and to assist in monitoring contract compliance.
Section 1465.5 is revised to incorporate existing program requirements that previously have not been included in the AMA regulations because they apply via other statutory provisions. In particular, NRCS revises § 1465.5(c)(6) to clarify that AMA participants are subject to AGI limitations, 7 CFR Part 1400 and amendments to Section 1001D of the Food Security Act of 1985 as authorized by Section 1604 of Title I of the 2008 Act. The AGI and program eligibility requirements also necessitate that NRCS obtain from legal entities a list of members, including members in embedded entities, along with their social security numbers, and percent interest in the legal entity. Specifically, text has been added to § 1465.5, “Program requirements,” that requires participants to “supply other information, as required by NRCS, to determine payment eligibility as established by 7 CFR 1400, Adjusted Gross Income (AGI).” This revision also makes AMA consistent with other NRCS conservation programs.
Paragraph (c) is revised to further clarify that applicants must provide a list of all members of the legal entity and embedded entities along with members' social security numbers and percentage interest in the entity. In the event an applicant uses a unique identification number rather than a social security or tax identification number, the unique identification number must be used universally for any and all AMA contracts. The original subparagraph 1465.5(c)(4) has been removed as it is redundant with § 1465.5(c)(6), and subparagraph 1465.5(c)(5) has been redesignated as § 1465.5(c)(8). Subparagraph 1465.5(c)(10) is added to clarify that a participant must develop and agree to comply with an APO and to describe the
NRCS adds new program requirements in paragraph (c)(9) to improve program administration and ensure that AMA program goals are met. A provision is added that requires AMA participants to be in compliance with terms of all other USDA-administered agreements to which they are a party. In this manner, NRCS ensures that a participant who receives NRCS conservation program benefits is meeting existing responsibilities prior to receiving additional assistance.
Sections 1465.5(d)(2)(i) through § 1465.5(d)(2)(iii) are redesignated as § 1465.5(d)(2)(A), § 1465.5(d)(2)(B), and § 1465.5(d)(2)(C), respectively. In an effort to make AMA consistent with other programs, the language contained within paragraph (d)(2) that addresses enrolling public land is slightly revised, although the overall intent of the language remains the same.
NRCS inserts a new section § 1465.6, entitled “AMA plan of operations,” which describes the AMA plan of operations as the document that contains the information related to practices and activities to be implemented under AMA. Section 1465.6 specifies the requirements for the APO and that participants are responsible for implementing the APO. This addition brings AMA into alignment with other NRCS conservation programs. Subsequent sections are redesignated accordingly.
Section 1465.7, “Conservation practices,” describes how NRCS determines eligible conservation practices. Specifically, § 1465.7(a) is revised to clarify that NRCS will identify and provide public notice of the conservation practices eligible for payments under the program. This revision improves AMA consistency with related NRCS conservation programs. The reference to “State Technical Committees” providing advice on the types of conservation practices eligible for payment is removed, since State Technical Committees are permitted only to provide advice on conservation programs, authorized by Title XII of the Food Security Act of 1985. AMA is authorized by the Federal Crop Insurance Act; therefore, State Technical Committees are not authorized to provide advice on AMA.
Section 1465.20, “Application for participation and selecting applications for contracting,” describes the processes for submitting and selecting applications. This Section remains the same; however, the term, “national priorities,” is inserted in paragraphs (c) and (d) to account for the policy outlined in § 1465.4, “National priorities.” The reference to “State Technical Committees” providing advice on AMA ranking criteria is removed, since State Technical Committees are permitted only to provide advice on conservation programs, authorized by Title XII of the Food Security Act of 1985. AMA is authorized by the Federal Crop Insurance Act; therefore, State Technical Committees are not authorized to provide advice on AMA.
Section 1466.21, “Contract requirements,” identifies elements contained within an AMA contract and the responsibilities of the participant who is party to the AMA contract. Specifically, paragraph (a) is revised to change the term “cost-share payments” to “payments,” and clarify that costs related to technical services may be included in the contract. This revision does not change current program practice.
Under § 1465.21(b)(2), contract duration is revised from 3 to 10 years to a minimum duration of one year after completion of the last practice, and a maximum of 10 years. This provides the flexibility needed for establishing agreement lengths based on conservation concerns and other factors, and aligns AMA with other conservation programs administered by NRCS.
Overall, § 1465.21(b) is restructured to account for additions to the section and to make the formatting consistent throughout the AMA regulations, although with the exception of replacing the terms, “contract and conservation plan” with “APO,” the text has not changed. Accordingly, subparagraphs 1465.21(b)(3)(i) through 1465.21(b)(3)(iv) are redesignated as 1465.21(b)(3)(A) through 1465.21(b)(3)(D).
Section 1465.22, “Conservation practice operation and maintenance,” addresses the participant's responsibility for operating and maintaining conservation practices. Section 1465.22 is divided into logical content paragraphs and revised to be consistent with the O&M agreement definition in § 1465.3. NRCS revised § 1465.22 to clarify that the O&M agreement is part of the AMA contract. The O&M agreement specifies the terms and conditions under which the participant must operate and maintain the conservation practices installed with AMA assistance. This section also clarifies that NRCS may periodically inspect conservation practices to ensure that they are being maintained for the conservation practice lifespan as detailed in the O&M agreement. In the event that NRCS finds that a participant is not operating and maintaining practices for the specified lifespan during the contract duration, NRCS may request a refund of payments in accordance with the AMA contract. NRCS has created an O&M agreement to articulate the Agency's expectation that the participant is responsible for maintaining each conservation practice. NRCS has developed this O&M agreement for two reasons: (1) To increase transparency of a participant's contract responsibilities; and (2) To ensure these conservation practices are maintained for the length in time in which they were designed and created.
NRCS adds § 1465.22(d) to clarify to the participant that conservation practices installed before contract approval, but included in the application in order to obtain ranking points, must be operated and maintained as specified in the contract and O&M agreement. This addition is consistent with other NRCS conservation programs' policies.
The Section title is revised from “Cost-share payments” to “Payments” to reflect the variety of costs that are considered in establishing program payments. Accordingly, the term “cost-share payment” is replaced by “payment” throughout the Section. This section addresses payments and payment limitations applicable to a participant. Subparagraphs 1465.23(a)(1), 1465.23(a)(2), 1465.23(a)(3), 1465.23(b), 1465.23(c), and 1465.23(d) are redesignated as 1465.23(a), 1465.23(b), 1465.23(c), 1465.23(d), 1465.23(e), 1465.23(f), and 1465.23(g), respectively, to accommodate additions to the section and to make the formatting consistent throughout the AMA regulations.
Section 1465.23(a) is revised to allow payments of “up to 75 percent of the estimated cost of an eligible practice
Section 1465.23(c) is revised to clarify how conservation practices implemented or initiated prior to AMA contract approval will be handled. Section 1465.23(c)(1) states that payments will not be made for practices applied prior to contract approval. Section 1465.23(c)(2) describes that practices initiated prior to contract approval are not eligible for payment, unless the participant had obtained a waiver in advance from the State or Designated Conservationist. This revision aligns AMA with other NRCS-administered conservation programs.
NRCS revises § 1465.23(e) as follows: § 1465.23(e) is expanded to include the statutory reference of the “Payment Limitation and Payment Eligibility” at 7 CFR part 1400. NRCS will attribute payments to each participating person and legal entity using the same protocol outlined in 7 CFR part 1400 for commodity and conservation programs. This is consistent with other conservation programs administered by NRCS. Subparagraphs 1465.23(c)(i) through 1465.23(c)(iv) are removed as the majority of the provisions are addressed by reference to 7 CFR part 1400 in the Section.
Section 1465.23(f) is added to state that payments will not be made for conservation practices on eligible land if payments are already being received for the same practice on the same land under a USDA conservation program. These additions are consistent with other related conservation programs administered by NRCS.
Section 1465.23(h) is added to state that subject to fund availability, the payment rates for conservation practices scheduled after the year of contract obligation may be adjusted to reflect increased costs. NRCS adds this paragraph to enable the Agency to adjust payments to accommodate for inflation, higher fuel costs, and increased labor, which impact the cost of implementing a conservation practice.
Section 1465.24, “Contract modifications, extensions, and transfers of land,” addresses contract modifications, changes in land ownership or control of the land, and contract implications if the participant loses control of the land. Specifically, § 1465.24(a) is revised to state that when an AMA contract is revised, the APO also must be revised. The designated conservationist must approve the modified contract. This new language is consistent with modifications made in § 1465.6 and with other conservation programs administered by NRCS.
Language related to contract extensions for up to the 10-year limit is deleted in § 1465.24(b) because contract duration is addressed in § 1465.21(b)(2). New language is included to clarify that participants are responsible for notifying NRCS if they anticipate loss of control of the land. This addition is consistent with other related conservation programs administered by NRCS.
Section 1465.24(c) is revised to clarify contract transfer issues related to division of payments and transferee eligibility. Subparagraphs 1465.24(c)(1) and 1465.24(c)(2) explain the requirements for a transferee to receive payments, the obligations of the transferee to comply with the terms of the contract and O&M agreement, and the rights of the parties in distribution of payments. This revision brings AMA into alignment with related conservation programs administered by NRCS.
Section 1465.24(e) is added to clarify that participants to a contract will be jointly and severally responsible for refunding payments. The language is consistent with related NRCS-administered conservation programs.
Section 1465.24(f) is added to ensure that in the event a conservation practice fails through no fault of the participant, the State Conservationist may issue payments to re-establish the conservation practice, in accordance with established payment rates and limitations.
Section 1465.25, “Contract violations and terminations,” addresses the procedures that NRCS takes where a violation has occurred or a contract termination is necessary. Section 1465.25 is revised to account for additions to the Section and to make the formatting consistent throughout the AMA regulations. Section 1465.25(a) is revised by removing the term “reasonable” as it is too subjective and replaces it with “60 days, unless otherwise determined by the State Conservationist.” This language is consistent with related NRCS-administered conservation programs. Subparagraphs 1465.25(a)(1) and 1465.25(a)(2) are redesignated as § 1465.25(a) and § 1465.25(b), respectively.
The terms “scheme or device” are added to § 1465.25(b) to be clear that such actions may result in contract violation or termination. This revision is consistent with § 1465.35 and with related conservation programs administered by NRCS. Subparagraphs 1465.25(b)(1), 1465.25(b)(2), 1465.25(b)(3), 1465.25(b)(4), and 1465.25(b)(5) are redesignated as 1465.25(c), 1465.25(c)(2), 1465.25(c)(2)(A), 1465.25(c)(2)(B), and 1465.25(c)(2)(C), respectively.
Section 1465.25(c) is revised as follows: § 1465.25(c) is expanded to clarify that participants who are in violation of AMA contracts may be ineligible for future NRCS-administered conservation program funding. The language is consistent with other NRCS conservation programs. Subparagraph 1465.25(c)(2)(A) is revised to clarify that hardship claims must be well documented and must result from conditions that did not exist prior to application to the program. This revision is consistent with related conservation programs administered by NRCS.
Section 1465.30, “Appeals,” references the policies that govern when a producer seeks an appeal to an adverse decision made by NRCS. NRCS has not made any substantive changes to this section, other than formatting. The following formatting changes are made to § 1465.30: § 1465.30(b)(4)(i) through § 1465.30(b)(4)(iii) are redesignated as § 1465.30(b)(4)(A), § 1465.30(b)(4)(B), and § 1465.30(b)(4)(C), respectively.
No changes have been made in this section.
Section 1465.32, “Access to operating unit,” provides notice to applicants, participants, and the public that NRCS has the right to enter an operating unit or tract for the purpose of ascertaining the accuracy of any representations related to contract performance. Section 1465.32 is amended to notify potential AMA applicants that an authorized NRCS representative may enter an agricultural operation for the purposes of eligibility determinations. NRCS will continue to provide the participant notice, prior to entering the property.
The caption of § 1465.33 is changed from “Performance based upon advice or action or representatives of NRCS” to “Equitable relief” to be consistent with related NRCS-administered conservation programs. Section 1465.33, “Equitable relief,” outlines the policy when a participant relies upon erroneous advice provided by NRCS. Specifically, § 1465.33 is divided into two paragraphs. Paragraph 1465.33(b) is revised to add that any action the participant has taken based on the advice of a certified TSP is the responsibility of that certified TSP. The language clarifies program administration and is consistent with other NRCS conservation programs.
Paragraph 1465.33(c) clarifies that AMA participants who acted in good faith based on erroneous information provided by NRCS or its representatives may be entitled to equitable relief. This revision makes AMA consistent with other conservation programs administered by NRCS.
Section 1465.34, “Offsets and assignments,” governs offsets and withholdings, as well as assignment of payments. The term “person” is changed to “participant” to reflect that this policy applies to persons, joint operations, and legal entities who are party to an AMA contract.
Section 1465.35, “Misrepresentation and scheme or device,” outlines the policies governing producers who have erroneously or fraudulently represented themselves. Section 1465.35 is revised to improve transparency related to the participant actions and consequences of engaging in misrepresentation or scheme or device. This revision aligns AMA with other NRCS conservation programs.
Paragraph 1465.35(b) expands on the actions that may be deemed misrepresentation or scheme or device to include any action intended to deprive a tenant or sharecropper of entitled payments. These revisions are consistent with other NRCS conservation programs.
Paragraph 1465.35(c) is added to clarify that if paragraphs § 1465.35(a) or § 1465.35(b) apply to a participant, their interest in all contracts will be terminated and they may be determined ineligible for future funding from any NRCS conservation programs.
Section 1465.36 is added to provide clarity related to environmental credits that may be produced on lands under AMA contracts. It establishes that NRCS asserts no interest in credits earned, but that the Agency retains the authority to ensure that the requirements for AMA-funded improvements are met and maintained consistent with the terms of the contract. Where activities may affect the land covered by an AMA contract, participants are highly encouraged to request a compatibility assessment from NRCS prior to entering into any environmental credit agreements. This provision is consistent with other conservation programs administered by NRCS.
Conservation contract, Conservation plan, Conservation practices, Soil and water conservation.
7 U.S.C. 1524(b).
Through the Agricultural Management Assistance program (AMA), the Natural Resources Conservation Service (NRCS) provides financial assistance funds annually to producers in 16 statutorily designated States to: Construct or improve water management structures or irrigation structures; plant trees to form windbreaks or to improve water quality; and mitigate risk through production diversification or resource conservation practices, including soil erosion control, integrated pest management, or the transition to organic farming. AMA is applicable in Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
(a) Administration and implementation of the conservation provisions of AMA for the Commodity Credit Corporation (CCC) is assigned to the NRCS, using the funds, facilities, and authorities of the CCC. Accordingly, where NRCS is mentioned in this Part, it also refers to the CCC's funds, facilities, and authorities, where applicable.
(b) NRCS will:
(1) Provide overall management and implementation leadership for AMA;
(2) Establish policies, procedures, priorities, and guidance for implementation;
(3) Establish payment limits;
(4) Determine eligible practices;
(5) Develop and approve AMA plans of operation and contracts with selected participants;
(6) Provide technical leadership for implementation, quality assurance, and evaluation of performance;
(7) Make funding decisions and determine allocations of AMA funds; and
(8) Issue payments for conservation practices completed.
(c) No delegation in this part to lower organizational levels shall preclude the Chief of NRCS from determining any issues arising under this Part or from reversing or modifying any determination made under this Part.
The following definitions apply to this part and all documents used in accordance with this part, unless specified otherwise:
(1) Has not operated a farm or ranch, or who has operated a farm or ranch for not more than 10 consecutive years. This requirement applies to all members of an entity who will materially and substantially participate in the operation of the farm or ranch.
(2) In the case of a contract with an individual, individually or with the immediate family, material and substantial participation requires that the individual provide substantial day-to-day labor and management of the farm or ranch, consistent with the practices in the county or State where the farm or ranch is located.
(3) In the case of a contract with an entity or joint operation, all members must materially and substantially participate in the operation of the farm or ranch. Material and substantial participation requires that each of the members provide some amount of the management, or labor and management necessary for day-to-day activities, such that if each of the members did not provide these inputs, operation of the farm or ranch would be seriously impaired.
(1) Owns land or an agricultural commodity, product, or livestock; or
(2) Produces an agricultural commodity, product, or livestock.
(1) A person with direct or indirect gross farm sales of not more than $155,200 in each of the previous two years (adjusted for inflation using the Prices Paid by Farmer Index as compiled by the National Agricultural Statistics Service), and
(2) Has a total household income at or below the national poverty level for a family of four, or less than 50 percent of county median household income in each of the previous two years (to be determined annually using Commerce Department data).
(a) The Chief, with advice from State Conservationists, will identify national priorities to achieve the conservation objectives of AMA.
(b) National priorities will be used to guide annual funding allocations to States.
(c) State Conservationists will use national priorities in conjunction with State and local priorities to prioritize and select AMA applications for funding.
(d) NRCS will undertake periodic reviews of the national priorities and the effects of program delivery at the State and local level to adapt the program to address emerging resource issues.
(a) Participation in AMA is voluntary. The participant, in cooperation with the local conservation district, applies for practice installation for the agricultural operation. The NRCS provides payments through contracts to apply needed conservation practices within a time schedule specified in the APO.
(b) The Chief determines the funds available for financial assistance according to the purpose and projected cost for which the financial assistance is provided in a fiscal year. The Chief allocates the funds available to carry out AMA in consideration of national priorities established under § 1465.4.
(c) To be eligible to participate in AMA, an applicant must:
(1) Own or operate an agricultural operation within an applicable State, as listed in § 1465.1;
(2) Provide NRCS with written evidence of ownership or legal control for the life of the proposed contract, including the O&M agreement. An exception may be made by the Chief:
(i) In the case of land allotted by the Bureau of Indian Affairs (BIA), Tribal land, or other instances in which the Chief determines that there is sufficient assurance of control; or
(ii) If the applicant is a tenant of the land involved in agricultural production, the applicant shall provide NRCS with the written concurrence of the landowner in order to apply a structural practice(s);
(3) Submit an application form NRCS-CPA-1200, which is located electronically at
(4) Agree to provide all information to NRCS determined to be necessary to assess the merits of a proposed project and to monitor contract compliance;
(5) Provide a list of all members of the legal entity and embedded entities along with members' tax identification numbers and percentage interest in the entity. Where applicable, American Indians, Alaska Natives, and Pacific Islanders may use another unique identification number for each individual eligible for payment;
(6) Supply other information, as required by NRCS, to determine payment eligibility as established by 7 CFR part 1400, Adjusted Gross Income (AGI);
(7) With regard to any participant that utilizes a unique identification number as an alternative to a tax identification number will utilize only that identifier for any and all other AMA contracts to which the participant is a party. Violators will be considered to have provided fraudulent representation and be subject to full penalties of § 1465.25;
(8) States, political subdivisions, and entities thereof will not be persons eligible for payment. Any cooperative
(9) Be in compliance with the terms of all other USDA-administered conservation program agreements to which the participant is a party; and
(10) Develop and agree to comply with an APO and O&M agreement, as described in § 1465.3.
(d) Land may only be considered for enrollment in AMA if NRCS determines that the land is:
(1) Privately owned land;
(2) Publicly owned land where:
(i) The land is a working component of the participant's agricultural and forestry operation; and
(ii) The participant has control of the land for the term of the contract; and
(iii) The conservation practices to be implemented on the public land are necessary and will contribute to an improvement in the identified resource concern that is on private land; or
(3) The land is federally recognized Tribal, BIA allotted, or Indian land.
(a) All conservation practices in the APO must be approved by NRCS and developed and carried out in accordance with the applicable NRCS technical guidance.
(b) The participant is responsible for implementing the APO.
(c) The APO must include:
(1) A description of the participant's specific conservation and environmental objectives to be achieved;
(2) To the extent practicable, the quantitative or qualitative goals for achieving the participant's conservation and environmental objectives;
(3) A description of one or more conservation practices in the conservation system, including conservation planning, design, or installation activities, to be implemented to achieve the conservation and environmental objectives;
(4) A description of the schedule for implementing the conservation practices, including timing, sequence, operation, and maintenance; and
(5) Information that will enable evaluation of the effectiveness of the plan in achieving the environmental objectives.
(d) An APO may be modified in accordance with § 1465.24.
(a) The State Conservationist will determine the conservation practices eligible for AMA payments. To be considered eligible conservation practices, the practices must meet the purposes of the AMA as set out in § 1465.1. A list of eligible practices will be available to the public.
(b) The APO includes the schedule of operations, activities, and payment rates of the practices needed to solve identified natural resource concerns.
(a) Any producer who has eligible land may submit an application for participation in AMA at a USDA service center. Producers who are members of a joint operation shall file a single application for the joint operation.
(b) NRCS will accept applications throughout the year. The State Conservationist will distribute information on the availability of assistance, national priorities, and the State-specific goals. Information will be provided that explains the process to request assistance.
(c) The State Conservationist will develop ranking criteria and a ranking process to select applications, taking into account national, State, Tribal, and local priorities.
(d) The State Conservationist or designated conservationist using a locally led process will evaluate, rank and select applications for contracting based on the State-developed ranking criteria and ranking process.
(e) The State Conservationist or designated conservationist will work with the applicant to collect the information necessary to evaluate the application using the ranking criteria.
(a) In order for a participant to receive payments, the participant shall enter into a contract agreeing to implement one or more eligible conservation practices. Costs for technical services may be included in the contract.
(b) An AMA contract will:
(1) Incorporate by reference all portions of an agricultural operation receiving AMA assistance;
(2) Be for a minimum duration of one year after completion of the last practice, but not more than 10 years;
(3) Incorporate all provisions as required by law or statute, including participant requirements to:
(i) Not conduct any practices on the agricultural operation that would tend to defeat the purposes of the contract according to § 1465.25;
(ii) Refund any AMA payments received with interest, and forfeit any future payments under AMA, on the violation of a term or condition of the contract, consistent with the provisions of § 1465.25;
(iii) Refund all AMA payments received on the transfer of the right and interest of the producer in land subject to the contract, unless the transferee of the right and interest agrees to assume all obligations, including operation and maintenance of the AMA contract's conservation practices, consistent with the provisions of § 1465.24; and
(iv) Supply information as required by NRCS to determine compliance with the contract and requirements of AMA.
(4) Specify the participant's requirements for operation and maintenance of the applied conservation practices consistent with the provisions of § 1465.22; and
(5) Specify any other provision determined necessary or appropriate by NRCS.
(c) The participant must apply the practice(s) according to the schedule set out in the APO.
(a) The contract will incorporate the O&M agreement that describes the lifespan and operation and maintenance of the conservation practices applied under the contract.
(b) The O&M agreement incorporates the Agency expectation that the participant will operate and maintain the conservation practice(s) installed under the contract for its intended purpose for the lifespan of the conservation practice, as specified in the O&M agreement.
(c) NRCS may periodically inspect the conservation practice(s) during the contract duration to ensure that operation and maintenance requirements are being carried out, and that the conservation practice is fulfilling its intended objectives.
(d) Conservation practices installed before the contract execution, but included in the contract to obtain the environmental benefits agreed upon, must be operated and maintained as specified in the contract and O&M agreement.
(a) The Federal share of payments to a participant will be:
(1) Up to 75 percent of the estimated incurred cost or 100 percent of the estimated income foregone of an eligible practice, except as provided in paragraph (a)(2) of this section.
(2) In the case of historically underserved producers, the payment rate will be the applicable rate and an additional rate that is not less than 25
(3) In no instance shall the total financial contributions for an eligible practice from other sources exceed 100 percent of the estimated incurred cost of the practice.
(b) Participants may contribute their portion of the estimated costs of practices through in-kind contributions, including labor and materials, providing the materials contributed meet the NRCS standard and specifications for the practice being installed.
(c) Payments for practices applied prior to application or contract approval—
(1) Payments will not be made to a participant for a conservation practice that was applied prior to application for the program.
(2) Payments will not be made to a participant for a conservation practice that was initiated or implemented prior to contract approval, unless the participant obtained a waiver from the State Conservationist or designated conservationist prior to practice implementation
(d) The total amount of payments paid to a participant under this Part may not exceed $50,000 for any fiscal year.
(e) For purposes of applying the payment limitations provided for in this section, NRCS will use the provisions in 7 CFR part 1400, Payment Limitation and Payment Eligibility.
(f) A participant will not be eligible for payments for conservation practices on eligible land if the participant receives payments or other benefits for the same practice on the same land under any other conservation program administered by USDA.
(g) The participant and NRCS must certify that a conservation practice is completed in accordance with the contract before NRCS will approve any Payment.
(h) Subject to fund availability, the payment rates for conservation practices scheduled after the year of contract obligation may be adjusted to reflect increased costs.
(a) The participant and NRCS may modify a contract if both parties agree to the contract modification, the APO is revised in accordance with NRCS requirements, and the designated conservationist approves the modified contract.
(b) It is the participant's responsibility to notify NRCS when he/she either anticipates the voluntary or involuntary loss of control of the land.
(c) The participant and NRCS may mutually agree to transfer a contract to another party.
(1) To receive an AMA payment, the transferee must be determined by NRCS to be eligible to participate in AMA and shall assume full responsibility under the contract, including the O&M agreement for those conservation practices already installed and those conservation practices to be installed as a condition of the contract.
(2) With respect to any and all payment owed to participants who wish to transfer ownership or control of land subject to a contract, the division of payment shall be determined by the original party and the party's successor. In the event of a dispute or claim on the distribution of payments, NRCS may withhold payments without the accrual of interest pending a settlement or adjudication on the rights to the funds.
(d) NRCS may require a participant to refund all or a portion of any assistance earned under AMA if the participant sells or loses control of the land under an AMA contract and the successor in interest is not eligible or refuses to accept future payments to participate in the AMA or refuses to assume responsibility under the contract.
(e) The participants to the contract shall be jointly and severally responsible for refunding the payments with applicable interest pursuant to paragraph (d) of this section.
(f) In the event a conservation practice fails through no fault of the participant, the State Conservationist may issue payments to re-establish the conservation practice, at the rates established in accordance with § 1465.23, provided such payments do not exceed the payment limitation requirements as set forth in § 1465.23.
(a) If NRCS determines that a participant is in violation of the terms of a contract, O&M agreement, or documents incorporated by reference into the contract, NRCS shall give the participant notice and 60 days, unless otherwise determined by the State Conservationist, to correct the violation and comply with the terms of the contract and attachments thereto. If a participant continues in violation, the State Conservationist may terminate the AMA contract.
(b) Notwithstanding the provisions of paragraph (a) of this section, a contract termination shall be effective immediately upon a determination by the State Conservationist that the participant has submitted false information or filed a false claim, or engaged in any act, scheme, or device for which a finding of ineligibility for payments is permitted under the provisions of § 1465.35, or in a case in which the actions of the party involved are deemed to be sufficiently purposeful or negligent to warrant a termination without delay.
(c) If NRCS terminates a contract, the participant shall forfeit all rights to future payments under the contract and refund all or part of the payments received, plus interest. Participants violating AMA contracts may be determined ineligible for future NRCS-administered conservation program funding.
(1) The State Conservationist may require only a partial refund of the payments received if the State Conservationist determines that a previously installed conservation practice can function independently, is not affected by the violation or the absence of other conservation practices that would have been installed under the contract, and the participant agrees to operate and maintain the installed conservation practice for the life span of the practice.
(2) If NRCS terminates a contract due to breach of contract or the participant voluntarily terminates the contract before any contractual payments have been made, the participant shall forfeit all rights for further payments under the contract and shall pay such liquidated damages as prescribed in the contract. The State Conservationist will have the option to waive the liquidated damages depending upon the circumstances of the case.
(i) When making all contract termination decisions, NRCS may reduce the amount of money owed by the participant by a proportion that reflects the good faith effort of the participant to comply with the contract or the existence of hardships beyond the participant's control that have prevented compliance with the contract. If the participant claims hardship, that claim must be well documented and cannot have existed when the applicant applied for participation in the program.
(ii) The participant may voluntarily terminate a contract if NRCS agrees based on NRCS's determination that termination is in the public interest.
(iii) In carrying out NRCS's role in this section, NRCS may consult with the local conservation district.
(a) A participant may obtain administrative review of an adverse decision under AMA in accordance with 7 CFR parts 11 and 614, except as provided in paragraph (b) of this section.
(b) The following decisions are not appealable:
(1) Payment rates, payment limits;
(2) Funding allocations;
(3) Eligible conservation practices; and
(4) Other matters of general applicability, including:
(i) Technical standards and formulas;
(ii) Denial of assistance due to lack of funds or authority; or
(iii) Science-based formulas and criteria.
Participants who carry out conservation practices shall be responsible for obtaining the authorities, rights, easements, permits, or other approvals necessary for the implementation, operation, and maintenance of the conservation practices in keeping with applicable laws and regulations. Participants shall be responsible for compliance with all laws and for all effects or actions resulting from the participant's performance under the contract.
Any authorized NRCS representative shall have the right to enter an operating unit or tract for the purpose of determining eligibility and for ascertaining the accuracy of any representations related to contracts and performance. Access shall include the right to provide technical assistance; determine eligibility; inspect any work undertaken under the contracts, including the APO and O&M agreement; and collect information necessary to evaluate the conservation practice performance as specified in the contracts. The NRCS representative shall make an effort to contact the participant prior to exercising this provision.
(a) If a participant relied upon the advice or action of any authorized NRCS representative and did not know, or have reason to know, that the action or advice was improper or erroneous, the State Conservationist may grant relief to the extent it is deemed appropriate by NRCS. Where a participant believes that detrimental reliance on the advice or action of a NRCS representative resulted in an ineligibility or program violation, the participant may request equitable relief under 7 CFR part 635.
(b) The financial or technical liability for any action by a participant that was taken based on the advice of an NRCS certified non-USDA TSP is the responsibility of the certified TSP and will not be assumed by NRCS when NRCS authorizes payment.
(c) If, during the term of an AMA contract, a participant has been found in violation of a provision of the contract, the O&M agreement, or any document incorporated by reference through failure to fully comply with that provision, the participant may be eligible for equitable relief under 7 CFR part 635.
(a) Except as provided in paragraph (b) of this section, any payment or portion thereof to any participant shall be made without regard to questions of title under State law and without regard to any claim or lien against the crop, or proceeds thereof, in favor of the owner or any other creditor except agencies of the United States Government. The regulations governing offsets and withholdings found at 7 CFR part 1403 shall be applicable to contract payments.
(b) AMA participants may assign any payments in accordance with 7 CFR part 1404.
(a) A participant who is determined to have erroneously represented any fact affecting an AMA determination made in accordance with this part shall not be entitled to contract payments and must refund to NRCS all payments plus interest, as determined in accordance with 7 CFR part 1403.
(b) A participant shall refund to NRCS all payments, plus interest, as determined by NRCS, with respect to all NRCS contracts to which they are a party if they are determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose of AMA;
(2) Made any fraudulent representation;
(3) Adopted any scheme or device for the purpose of depriving any tenant or sharecropper of the payments to which such person would otherwise be entitled under the program; or
(4) Misrepresented any fact affecting an AMA determination.
(c) Where paragraph (a) or paragraph (b) of this section apply, the participant's interest in all contracts shall be terminated. In accordance with § 1465.25(c), NRCS may determine the producer ineligible for future funding from any NRCS conservation programs.
USDA recognizes that environmental benefits will be achieved by implementing conservation practices funded through AMA, and that environmental credits may be gained as a result of implementing activities compatible with the purposes of an AMA contract. NRCS asserts no direct or indirect interest on these credits. However, NRCS retains the authority to ensure that the requirements for AMA funded improvements are met and maintained consistent with § 1465.22. Where activities required under an environmental credit agreement may affect land covered under an AMA contract, participants are highly encouraged to request a compatibility assessment from NRCS prior to entering into such agreements.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the animal importation regulations by removing South Carolina from the lists of States approved to receive certain stallions and mares imported into the United States from regions affected with contagious equine metritis. This action is necessary because South Carolina no longer offers contagious equine metritis quarantine or treatment services and has requested removal from the lists.
Dr. Ellen Buck, Senior Staff Veterinarian,
The regulations in 9 CFR part 93 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products to protect U.S livestock from communicable diseases.
In § 93.301, paragraph (c)(1) prohibits the importation of horses into the United States from certain regions where contagious equine metritis (CEM) exists. Paragraph (c)(2) lists categories of horses that are excepted from this prohibition, including, in § 93.301(c)(2)(vi), horses over 731 days of age imported for permanent entry if the horses meet the requirements of § 93.301(e).
One of the requirements in § 93.301(e) is that mares and stallions over 731 days old imported for permanent entry from regions where CEM exists be consigned to States listed in § 93.301(h)(6), for stallions, or in § 93.301(h)(7), for mares. The Administrator of the Animal and Plant Health Inspection Service (APHIS) has approved these States to receive stallions or mares over 731 days of age from regions where CEM exists because each State has entered into a written agreement with the Administrator to enforce State laws and regulations to control CEM, and each State has agreed to quarantine, test, and treat stallions and mares over 731 days of age from any region where CEM exists, in accordance with § 93.301(e).
The CEM program is a voluntary, cooperative initiative between APHIS and the States. As noted, States that have entered into an agreement with the Administrator and have been approved to receive horses from CEM-affected regions are listed in § 93.301(h) of the regulations. South Carolina entered into such an agreement and was included in the lists in § 93.301(h). However, it has been several years since South Carolina last received horses for CEM quarantine and treatment, and the State has ceased operation of CEM quarantine and treatment facilities. Consequently, South Carolina has requested removal from the lists of States approved to receive stallions and mares from CEM-affected regions. Therefore, in this rule, we are removing South Carolina from those lists.
This action has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
As noted, a State's decision to enter into a written agreement with the Administrator to enforce State laws and regulations to control CEM and to quarantine, test, and treat stallions and mares over 731 days of age from CEM-affected regions in accordance with § 93.301(e) is voluntary. Because the State of South Carolina has notified APHIS that it has discontinued these activities and has withdrawn from its agreement with the Administrator, it does not appear that public participation in this proceeding would make additional relevant information available to the Department.
Accordingly, pursuant to the administrative procedure provisions in 5 U.S.C. 553, we find upon good cause that prior notice and other public procedure with respect to this action are not necessary. We also find good cause for making this action effective less than 30 days after publication in the
Further, this action is not a rule as defined by the Regulatory Flexibility Act, and, thus, is exempt from the provisions of the Act.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with States and local officials. (See 7 CFR part 3015, subpart V.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Imports, Livestock, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements.
7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Airbus A318, A319, A320, and A321 series airplanes. These airplanes will have a novel or unusual design feature associated with a passenger restraint system that contains an integrated inflatable airbag installed on passenger seats. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is November 12, 2008. We must receive your comments by January 5, 2009.
You must mail two copies of your comments to: Federal Aviation
Dan Jacquet, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2676; facsimile (425) 227-1320.
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to let you know we received your comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On September 2, 2008, Airbus, 1 Rond-Point Maurice Bellonte, 31707 Blagnac, Cedex, France, applied for an amendment to Type Certificate No. A28NM to install the AmSafe Aviation Inflatable Restraint (AAIR) for head injury protection on passenger seats on Airbus A318, A319, A320 and A321 series airplanes. The AAIR is designed to limit passenger forward excursion in the event of an accident, thus reducing the potential for head injury (and head entrapment).
The AAIR behaves like an automotive inflatable airbag except that the airbag is integrated into the passenger restraint system and inflates away from the seated passenger. While inflatable airbags are standard in the automotive industry, the use of an inflatable passenger restraint system is novel for commercial aviation.
Title 14, Code of Federal Regulations (14 CFR) 25.785 requires that passengers be protected from head injury by either the elimination of any injurious object within the striking radius of the head or by padding. Traditionally, compliance has required either a setback of 35 inches from any bulkhead, front seat or other rigid interior feature or padding where a setback was not practical. The relative effectiveness of these two means of injury protection was not quantified. The adoption of Amendment 25-64 to 14 CFR part 25, specifically § 25.562, created a new standard for protection from head injury. Airbus elected to comply with § 25.562, except for § 25.562(c)(5) (protection from head injury) and § 25.562(c)(6) (protection from femur injury), for the Airbus A318, A319, and A321 series airplanes. The pertinent parts of § 25.562 for these airplanes require that dynamic tests be conducted for each seat type installed in the airplane, and that each seat type meets certain performance measures. Although the head injury protection requirements of § 25.562(e)(5) are not part of the certification basis for the affected airplanes, it is relevant for future compliance with § 121.311(j). This regulation will require full compliance with § 25.562 for airplanes manufactured on or after October 27, 2009.
Because §§ 25.562 and 25.785 do not adequately address seats with AAIRs, the FAA recognizes that we need to develop appropriate pass/fail criteria that do address the safety of occupants of those seats. These special conditions are applicable to inflatable restraint systems in general. However, because this initial application is for the AAIR, the following discussion refers specifically to the AAIR.
The AAIR has two potential advantages over other means of head impact protection. The first is that it can provide significantly greater protection than would be expected with energy-absorbing pads; the second is that it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, since such devices will likely provide a level of safety that exceeds the minimum part 25 standards.
On the other hand, AAIRs are active systems and must activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive and always available. Therefore, the potential advantages must be balanced against potential disadvantages in order to develop standards that will provide an equivalent level of safety to that intended by the regulations.
There are two primary safety concerns with the use of AAIRs: (1) They perform properly under foreseeable operating conditions, and (2) they do not perform in a way that would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.
The AAIR will rely on electronic sensors for signaling and pyrotechnic charges for activation, so that it is available when needed. These same devices could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. Airbus must substantiate that the effects of an inadvertent deployment in flight are either not a hazard to the airplane or that such deployment is an extremely improbable occurrence (occurring less than 10
The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear, so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are necessary.
Other outside influences are lightning and high intensity radiated fields (HIRF). Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. Existing regulations regarding lightning (§ 25.1316) and HIRF (§ 25.1317) are applicable in lieu of any other lightning and HIRF special conditions that have been adopted for the affected airplanes.
For the purposes of compliance, if inadvertent deployment could cause a hazard to the airplane, the AAIR is considered a critical system; if inadvertent deployment could cause injuries to persons, the AAIR is considered an essential system. Finally, the AAIR installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of a pyrotechnic squib.
In order to be an effective safety system, the AAIR must function properly and must not introduce any additional hazards to occupants as a result of its functioning. There are several areas where the AAIR differs from traditional occupant protection systems, and requires special conditions to ensure adequate performance.
Because the AAIR is essentially a single use device, there is the potential that it could deploy under crash conditions that are not sufficiently severe as to require head injury protection from the AAIR. Since an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the AAIR useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the AAIR installation should be such that the AAIR will provide protection when it is required and will not expend its protection when it is not needed. There is no requirement for the AAIR to provide protection for multiple impacts, where more than one impact would require protection.
Since each passenger's restraint system provides protection for that occupant only, the installation must address seats that are unoccupied. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats and considering that unoccupied seats may have AAIR that are active.
Since there is a wide range in the size of passengers, the AAIR must be effective over the entire range. The FAA has historically considered the range from the fifth percentile female to the ninety-fifth percentile male as the range of passengers to take into account. In this case, the FAA is proposing consideration of an even broader range of passengers, due to the nature of the AAIR installation and its close proximity to the passenger. In a similar vein, passengers may assume the brace position for those accidents where an impact is anticipated. Test data indicate that passengers in the brace position do not require supplemental protection, so that it will not be necessary to show that the AAIR will enhance the brace position. However, the AAIR must not introduce a hazard in that case by deploying into the seated, braced passenger.
Another area of concern is the use of seats occupied by children, whether lap-held, in approved child safety seats, or occupying the seat directly. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding an appropriate limitation on usage.
Since the AAIR will be electrically powered, there is the possibility that the system could fail due to a separation in the fuselage. Since this system is intended as a means of protection in a crash or after a crash, failure due to fuselage separation is not acceptable. As with emergency lighting, the system should function properly, if such a separation occurs at any point in the fuselage.
Since the AAIR is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. Since the bag deflates to absorb energy, it is likely that an AAIR would be deflated at the time that persons would be trying to leave their seats. Nonetheless, it is considered appropriate to specify a time interval after which the AAIR may not impede rapid egress. Ten seconds has been chosen as a reasonable time, since it corresponds to the maximum time allowed for an exit to be openable. In actuality, it is unlikely that an exit would be prepared this quickly in an accident severe enough to warrant deployment of the AAIR, and the AAIR will likely deflate much quicker than ten seconds.
The manufacturers of the inflatable lap belts have been unable thus far to develop a fabric that meets the inflation requirements for the bag and the flammability requirements of Part I(a)(1)(ii) of appendix F of part 25. The fabrics that have been developed that meet the flammability requirements did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric that meets the less stringent flammability requirements of Part I(a)(1)(iv) of appendix F to part 25 and has acceptable deployment characteristics.
Finally, it should be noted that the special conditions are applicable to the AAIR system, as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is a separate finding and must consider the combined effects of all such systems installed.
Under the provisions of § 21.101, Airbus must show that the A318, A319, A320 and A321 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated for each individual airplane model are defined within Type Certificate Data Sheet (TCDS) A28NM.
In addition, the certification basis includes other regulations and special conditions that are not pertinent to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, each airplane model 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, 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 novel or unusual design feature, or should any other model included on the same type certificate be modified to incorporate the same novel or unusual design
The Airbus A318, A319, A320 and A321 series airplanes will incorporate the following novel or unusual design features: These airplanes as modified by Airbus will have a passenger restraint system that contains an integrated inflatable airbag device installed on passenger seats. The AAIR will be installed to reduce the potential for head injury in the event of an accident. The AAIR works like an automotive airbag, except that the airbag is integrated with the passenger restraint system. The AAIR is considered a novel design for transport category airplanes and was not considered as part of the original type certification basis.
Section 25.785 states the performance criteria for head injury protection in objective terms. However, none of these criteria are adequate to address the specific issues raised concerning seats with AAIR. The FAA has therefore determined that, in addition to the requirements of 14 CFR part 25, special conditions are needed to address requirements particular to installation of seats with AAIR.
Accordingly, in addition to the passenger injury criteria specified in § 25.785, these special conditions are adopted for the Airbus A318, A319, A320 and A321 series airplanes equipped with AAIR. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.
From the standpoint of a passenger safety system, the airbag is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with airbags, the conditions of use and reliance on the airbag as the sole means of injury protection are quite different. In automobile installations, the airbag is a supplemental system and works in conjunction with an upper torso restraint. In addition, the crash event is more definable and of typically shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.); airplanes also operate where exposure to high intensity electromagnetic fields could affect the activation system.
The following special conditions can be characterized as addressing either the safety performance of the system, or the system's integrity against inadvertent activation. Because a crash requiring use of the airbags is a relatively rare event, and because the consequences of an inadvertent activation are potentially quite severe, these latter requirements are probably the more rigorous from a design standpoint.
As discussed above, these special conditions are applicable to Airbus A318, A319, A320 and A321 series airplanes. Should Airbus apply at a later date for a change to type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Airbus A318, A319, A320 and A321 series airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable and that good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
1. Seats with inflatable restraints. It must be shown that the inflatable restraints will deploy and provide protection under crash conditions where it is necessary to prevent serious head injury or head entrapment. The means of protection must take into consideration a range of stature from a two-year-old child to a ninety-fifth percentile male. The inflatable restraints must provide a consistent approach to energy absorption throughout that range. In addition, the following situations must be considered:
(a) The seat occupant is holding an infant.
(b) The seat occupant is a child in a child restraint device.
(c) The seat occupant is a child not using a child restraint device.
(d) The seat occupant is a pregnant woman.
2. The inflatable restraints must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active seatbelts.
3. The design must prevent the inflatable restraints from being either incorrectly buckled or incorrectly installed such that the inflatable restraints would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant and will provide the required head injury protection.
4. It must be shown that the inflatable restraints system is not susceptible to inadvertent deployment as a result of wear and tear or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.
5. Deployment of the inflatable restraints must not introduce injury mechanisms to the seated occupant or result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys and an occupant whose belt is loosely fastened.
6. It must be shown that an inadvertent deployment that could cause injury to a standing or sitting person is improbable.
7. It must be shown that inadvertent deployment of the inflatable restraints, during the most critical part of the flight, will either not cause a hazard to the airplane or is extremely improbable.
8. It must be shown that the inflatable restraints will not impede rapid egress of occupants 10 seconds after its deployment.
9. If lithium non-rechargeable batteries are used to power the inflatable restraints, the batteries must be DO-227 and UL compliant. However, if rechargeable lithium batteries are used,
10. The inflatable restraints must function properly after loss of normal airplane electrical power and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lap belt does not have to be considered.
11. It must be shown that the inflatable restraints will not release hazardous quantities of gas or particulate matter into the cabin.
12. The inflatable restraints installation must be protected from the effects of fire such that no hazard to occupants will result.
13. The system must be protected from lightning and HIRF. The threats specified in Special Conditions No. 25-ANM-23 are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lapbelt system is considered a critical system if its deployment could have a hazardous effect on the airplane; otherwise it is considered an essential system.
14. There must be a means for a crewmember to verify the integrity of the inflatable restraints activation system prior to each flight or it must be demonstrated to reliably operate between inspection intervals.
15. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test as defined in 14 CFR part 25, appendix F, part I, paragraph (b)(5).
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding an existing airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
During recent inspections it was found that some * * * bolts, that connect the horizontal stabilizer control unit actuator with the dog-links, were broken. This condition, if not corrected, could lead to [the loss of the flight control input connection to the horizontal stabilizer and consequent] partial loss of control of the aircraft.
This AD becomes effective December 26, 2008.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 26, 2008.
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
In January 1996, Fokker issued Service Bulletin (SB) SBF100-27-069 (referencing Menasco, now Goodrich, SB 23100-27-19) to introduce an inspection of bolt Part Number (P/N) 23233-1 for cracks after the examination of a failed bolt. This Service Bulletin was made mandatory by CAA-NL (Civil Aviation Authority—the Netherlands) with the issuance of AD BLA 1996-006 (A) [reference corresponding FAA AD 97-13-05]. Additionally the same SB introduced a lower torque value for these bolts.
During recent inspections it was found that some of these bolts, that connect the horizontal stabilizer control unit actuator with the dog-links, were broken. This condition, if not corrected, could lead to [the loss of the flight control input connection to the horizontal stabilizer and consequent] partial loss of control of the aircraft.
Since an unsafe condition has been identified that continues to exist or develop on other aircraft of the same type design, this Airworthiness Directive supersedes CAA-NL AD 1996-006 and requires an integrity check by a re-torque in accordance with SBF100-27-091 and the installation of a tie wrap through the bolt, which will act as a retainer for the bolt and nut. The key function for this tie-wrap is to keep the bolt in place in the event the bolt head fails.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.
We estimate that this AD will affect about 9 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,160, or $240 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective December 26, 2008.
(b) This AD supersedes AD 97-13-05, Amendment 39-10051.
(c) This AD applies to Fokker Model F.28 Mark 0100 airplanes, certificated in any category, all serial numbers.
(d) Air Transport Association (ATA) of America Code 27: Flight Controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
In January 1996, Fokker issued Service Bulletin (SB) SBF100-27-069 (referencing Menasco, now Goodrich, SB 23100-27-19) to introduce an inspection of bolt Part Number (P/N) 23233-1 for cracks after the examination of a failed bolt. This Service Bulletin was made mandatory by CAA-NL (Civil Aviation Authority—the Netherlands) with the issuance of AD BLA 1996-006 (A) [reference corresponding FAA AD 97-13-05]. Additionally the same SB introduced a lower torque value for these bolts.
During recent inspections it was found that some of these bolts, that connect the horizontal stabilizer control unit actuator with the dog-links, were broken. This condition, if not corrected, could lead to [the loss of the flight control input connection to the horizontal stabilizer and consequent] partial loss of control of the aircraft.
Since an unsafe condition has been identified that continues to exist or develop on other aircraft of the same type design, this Airworthiness Directive [European Aviation Safety Agency (EASA) Airworthiness Directive 2007-0287, dated November 15, 2007] supersedes CAA-NL AD 1996-006 and requires an integrity check by a re-torque in accordance with SBF100-27-091 and the installation of a tie wrap through the bolt, which will act as a retainer for the bolt and nut. The key function for this tie-wrap is to keep the bolt in place in the event the bolt head fails.
The corrective action includes replacing any failed bolt (
(f) Unless already done, within 6 months after the effective date of this AD, do the following actions.
(1) Perform a one-time inspection (integrity check) for failure of the lower bolts of the stabilizer control unit dog-links, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-27-091, dated August 31, 2007. If a failed bolt is found, before further flight, replace the bolt with a serviceable bolt in accordance with the Accomplishment Instructions of the service bulletin.
(2) Install a tie-wrap through the lower bolts of the stabilizer control unit, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-27-091, dated August 31, 2007.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(h) Refer to MCAI EASA Airworthiness Directive 2007-0287, dated November 15,
(i) You must use Fokker Service Bulletin SBF100-27-091, dated August 31, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands; telephone +31 (0)252-627-350; fax +31 (0)252-627-211; e-mail
(3) You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The 3 supporting blocks [installed on hydraulic tubes] were made of Teflon, which is unsuitable material for this application. Excessive wear of the blocks was discovered on numerous aircraft, as well as several cases of chafing between the loosely supported tubes. In one case, hydraulic fluid was lost due to fatigue failure of an inadequately supported tube. Loss of hydraulic fluid causes subsequent multiple failures of hydraulically operated systems.
This AD becomes effective December 26, 2008.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 26, 2008.
You may examine the AD docket on the Internet at
Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2677; fax (425) 227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
The 3 supporting blocks [installed on hydraulic tubes] were made of Teflon, which is unsuitable material for this application. Excessive wear of the blocks was discovered on numerous aircraft, as well as several cases of chafing between the loosely supported tubes. In one case, hydraulic fluid was lost due to fatigue failure of an inadequately supported tube. Loss of hydraulic fluid causes subsequent multiple failures of hydraulically operated systems.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
The statement specified in Note 1 of the NPRM is informational only and is not part of the requirements of this AD. The actions specified in that statement are required regardless of AD action. We have removed Note 1 of the NPRM from this AD and revised the numbering on the subsequent Note in this AD.
We have revised paragraph (f)(1)(iii) of this AD to clarify that the repair may be done in accordance with Chapter 20-10-12 of the Gulfstream G200 Maintenance Manual, Revision 15, dated March 31, 2008.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect about 129 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $54 per
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective December 26, 2008.
(b) None.
(c) This AD applies to Gulfstream Model Galaxy and Gulfstream 200 airplanes, serial numbers 004 through 156, certificated in any category.
(d) Air Transport Association (ATA) of America Code 29: Hydraulic Power.
(e) The mandatory continuing airworthiness information (MCAI) states:
The 3 supporting blocks [installed on hydraulic tubes] were made of Teflon, which is unsuitable material for this application. Excessive wear of the blocks was discovered on numerous aircraft, as well as several cases of chafing between the loosely supported tubes. In one case, hydraulic fluid was lost due to fatigue failure of an inadequately supported tube. Loss of hydraulic fluid causes subsequent multiple failures of hydraulically operated systems.
(f) Do the following actions.
(1) Unless already done within 300 flight hours or six months prior to the effective date of this AD: Within 50 flight hours or one month after the effective date of this AD, whichever occurs first, perform a visual inspection of the clamping blocks for wear and of the hydraulic tubes to determine if any tube is loose or damaged. Clamping blocks are shown in detail B of Figure 2 of Gulfstream Service Bulletin 200-29-316, dated June 29, 2007; or in details B and C of Figure 10, Page 0, of Chapter 29-10-30, of the Gulfstream G200 Illustrated Parts Catalog.
(i) If clamping blocks are not worn, repeat the inspections specified in paragraph (f)(1) of this AD thereafter at intervals not to exceed 300 flight hours or six months, whichever comes first, until the replacement required by paragraph (f)(2) of this AD is done.
(ii) If any hydraulic tube is loose or damaged, before further flight, inspect the hydraulic tubes along their entire length for chafing, damage, and cracks.
(iii) Before further flight, repair or replace all chafed, damaged, or cracked tubes in accordance with Chapter 20-10-12 of the Gulfstream G200 Maintenance Manual, Revision 15, dated March 31, 2008; or using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Civil Aviation Authority of Israel (CAAI) (or its delegated agent).
(iv) Before further flight, replace all worn clamping blocks by doing the replacement specified in paragraph (f)(2) of this AD, except as provided by paragraph (f)(1)(v) of this AD.
(v) If Nylon 6/6 clamping blocks part number (P/N) 4AS3565055-511 are not available during the replacement specified in paragraph (f)(1)(iv) of this AD, before further flight, install new or serviceable Teflon clamping blocks P/N 4AS3565055-507. Within 300 flight hours or six months after doing the installation, do the actions specified in paragraph (f)(1) of this AD and repeat thereafter at intervals not to exceed 300 flight hours or six months, whichever comes first, until the replacement required by paragraph (f)(2) of this AD is done.
(2) Unless already done: Within 600 flight hours or one year after the effective date of this AD, whichever comes first, replace the existing Teflon clamping blocks P/N 4AS3565055-507 with Nylon 6/6 clamping blocks P/N 4AS3565055-511 in accordance with Gulfstream Service Bulletin 200-29-316, dated June 29, 2007. Accomplishment of this replacement constitutes terminating action for all inspections of the clamping blocks required by this AD. Accomplishment of this replacement also constitutes terminating action for the repetitive
This AD differs from the MCAI and/or service information as follows:
(1) The MCAI does not specify service information if any tube replacement is done. This AD requires doing the replacement as specified in paragraph (f)(1)(iii) of this AD.
(2) The MCAI specifies doing a one-time inspection of the installed Teflon blocks but also specifies doing repetitive inspections of temporary replacement Teflon blocks until the permanent replacement with Nylon 6/6 clamping blocks is done. This AD requires repetitive inspections of all Teflon blocks until the permanent replacement is done.
(3) The MCAI specifies that doing the replacement with Nylon 6/6 clamping blocks constitutes terminating action. This AD specifies that doing the replacement with Nylon 6/6 clamping blocks constitutes terminating action for the inspections of the clamping blocks and for the repetitive inspections of the hydraulic tubes.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Mike Borfitz, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2677; fax (425) 227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(h) Refer to MCAI Israeli Airworthiness Directive 29-07-01-11, dated May 28, 2007; Gulfstream Service Bulletin 200-29-316, dated June 29, 2007; and Chapter 20-10-12 of the Gulfstream G200 Maintenance Manual, Revision 15, dated March 31, 2008; for related information.
(i) You must use Gulfstream Service Bulletin 200-29-316, dated June 29, 2007; and Chapter 20-10-12 of the Gulfstream G200 Maintenance Manual, Revision 15, dated March 31, 2008; as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
Chapter 20 of the Gulfstream G200 Maintenance Manual, Revision 15, dated March 31, 2008, contains the following effective pages:
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Gulfstream Aerospace Corporation, P.O. Box 2206, Mail Station D-25, Savannah, Georgia 31402-2206; telephone 800-810-4853; fax 912-965-3520; e-mail
(3) You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
During inspection of undercarriage main beam sidestays, bolts attaching the undercarriage main beam sidestay to frame 29 were found with the heads of the bolts sheared off. Loose bolt assemblies were also found.
If sheared or loose bolts are not detected and replaced, a possible consequence is the collapse of the main landing gear.
This AD becomes effective December 26, 2008.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 26, 2008.
You may examine the AD docket on the Internet at
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1175; fax (425) 227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
During inspection of undercarriage main beam sidestays, bolts attaching the undercarriage main beam sidestay to frame 29 were found with the heads of the bolts sheared off. Loose bolt assemblies were also found.
If sheared or loose bolts are not detected and replaced, a possible consequence is the collapse of the main landing gear.
For the reasons described above, this Airworthiness Directive (AD) requires a one-time [rotating eddy current] inspection of the bolt bores and bore dimensions and the installation of replacement bolts, as necessary.
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect about 1 product of U.S. registry. We also estimate that it will take about 24 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $1,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,920, or $2,920 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective December 26, 2008.
(b) None.
(c) This AD applies to all BAE Systems (Operations) Limited Model BAe 146-100A, -200A, and -300A series airplanes; and Model Avro 146-RJ70A, 146-RJ85A, and 146-RJ100A airplanes; certificated in any category.
(d) Air Transport Association (ATA) of America Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
During inspection of undercarriage main beam sidestays, bolts attaching the undercarriage main beam sidestay to frame 29 were found with the heads of the bolts sheared off. Loose bolt assemblies were also found.
If sheared or loose bolts are not detected and replaced, a possible consequence is the collapse of the main landing gear.
For the reasons described above, this Airworthiness Directive (AD) requires a one-time [rotating eddy current] inspection of the bolt bores and bore dimensions and the installation of replacement bolts, as necessary.
(f) Unless already done, do the following actions.
(1) Within 4,000 flight cycles or 5 years, whichever occurs first after the effective date of this AD, perform the inspections to detect defects (including sheared or loose bolts) and do the bolt replacements in accordance with the instructions of paragraphs 2.C.(1) through 2.C.(3), and paragraphs 2.D.(1) through 2.D.(3), of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007, except as required by paragraphs (f)(2), (f)(3), and (f)(4) of this AD.
(2) If any defect is found during the inspection specified in paragraph (f)(1) of this AD, before further flight, replace the affected bolts in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007, except as required by paragraphs (f)(3) and (f)(4) of this AD.
(3) For airplanes on which replacement parts are not available during the replacement specified in paragraph (f)(2) of this AD, do the actions in paragraphs (f)(3)(i) and (f)(3)(ii) of this AD in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007.
(i) Before further flight, temporarily reinstall removed oversized bolts, provided the bolts are serviceable.
(ii) Within 2,000 flight cycles after doing the inspection required by paragraph (f)(1) of this AD, replace all temporary oversized bolts that were installed in accordance with paragraph (f)(3)(i) of this AD.
(4) Where BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007, specifies to contact BAE Systems (Operations) Limited if any defect is found in the second oversize fastener bore, before further flight, contact BAE Systems (Operations) Limited for repair instructions and do the repair.
This AD differs from the MCAI and/or service information as follows: No differences.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1175; fax (425) 227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(h) Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2007-0277, dated November 5, 2007; and BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007; for related information.
(i) You must use BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-194, dated January 10, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact BAE Systems Regional Aircraft, 13850 McLearen Road, Herndon, Virginia 20171; telephone 703-736-1080; e-mail
(3) You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Boeing Model 767-200, -300, and -400ER series airplanes. This AD requires installing new relay(s), circuit breakers as applicable, and wiring to allow the flightcrew to turn off electrical power to the in-flight entertainment (IFE) systems and certain circuit breakers through a utility bus switch, and doing other specified actions. This AD results from an IFE systems review. We are issuing this AD to ensure that the flightcrew is able to turn off electrical power to IFE systems and other non-essential electrical systems through a switch in the flight compartment. The flightcrew's inability to turn off power to IFE systems and other non-essential electrical systems during a non-normal or emergency situation could result in the inability to control smoke or fumes in the airplane flight deck or cabin.
This AD is effective December 26, 2008.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of December 26, 2008.
For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You may examine the AD docket on the Internet at
Shohreh Safarian, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6418; fax (425) 917-6590.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 767-200, -300, and -400ER series airplanes. That NPRM was published in the
For certain Model 767-300 series airplanes identified in Boeing Service Bulletin 767-24-0151, dated September 14, 2006, paragraph (g) of this AD would require installing circuit breakers. We
We gave the public the opportunity to participate in developing this AD. We considered the comments received from the three commenters.
Inflight Canada (IFC) and Japan Airlines (JAL) strongly support the intent of the NPRM.
JAL states that the technical analysis and engineering background of the IFE system should be clearly explained in the NPRM. JAL also states that the NPRM does not clearly address Transistor Transistor Logic (TTL) power consumption, location or quantity of the units, operation during flight, or system shutdown in the event of smoke. For example, JAL points out that the “Discussion” section of the NPRM states that the IFE review did not consider systems that provide only audio signals to each passenger seat or the passenger flight information system, and in-seat power supply (ISPS) systems that provide power to less than 20 percent of the total passenger seats. JAL states that the NPRM provides no engineering analysis as to why 40 seats with an ISPS system are a concern on a 150-seat airplane, while 60 seats with an ISPS system on a 350-seat airplane is not a concern. JAL also states that this kind of definition leads to confusion (including IFE development and configuration in the future). JAL also states that the technical definition and background on safety must be clear and properly understood by everyone.
We infer that JAL requests that we clarify the analysis and background of the IFE system review, and we agree to provide clarification. The “Discussion” section of the NPRM provides the background information that led to FAA regulatory actions requiring the removal of power from complex IFE system installations in the event of smoke or fire, without affecting other systems essential for safe flight and landing and without the use of circuit breakers for power removal. JAL's concerns related to TTL power consumption, etc., are immaterial to correcting the unsafe condition, which is the inability to disconnect power from the IFE system in the event of smoke or fire. The FAA study focused on IFE installations that are complex in terms of electrical circuitry and power demands. This study excluded non-essential systems that are simple in design and demand low power for operation. Due to the large number of ISPS installations, we reviewed only those ISPS installations that provided power to more than 20 percent of the total passenger seats. However, the requirements of this AD apply to all airplanes that have any seats equipped with power supplies. The applicability of this AD is not limited only airplanes having more than 20 percent of the passenger seats equipped with power supplies. No change to the AD is necessary in this regard.
Boeing requests that we clarify, in the “Relevant Service Information” section of the NPRM, that the instructions in the referenced Boeing service bulletins are based upon the delivered product configuration. Boeing states that it is not obvious to operators that post-production modifications to the IFE system might require an alternative method of compliance (AMOC) to comply with the requirements of the AD.
We agree that operators might not be able to accomplish the requirements of this AD on airplanes that have been modified or altered after airplane delivery. Section 39.17 of the Federal Aviation Regulations (14 CFR 39.17) specifically addresses this situation. If a change in a product affects one's ability to accomplish the actions required by an AD, then a request for FAA approval of an AMOC addressing that configuration must be submitted. The request should include the specific actions that address the unsafe condition, unless one can show that the change eliminated the unsafe condition. No change to the AD is necessary in this regard.
IFC recommends that the primary switch to isolate any cabin system be located in the cabin, rather than in the cockpit. IFC states that, in most cases, the cabin crew will be the first to notice a problem, and that the additional time needed to notify the flightcrew will allow the problem to worsen if not immediately addressed by the trained cabin crew. Further, IFC states that the intercom system between the cabin crew and flightcrew could be damaged by the same event, and that any attempt to gain access via the fortified and locked flight deck door would only aggravate the situation.
We partially agree. It is acceptable to install a secondary, redundant switch in the passenger cabin, in addition to installing the primary switch in the flight deck. The emergency IFE power removal switch must be located as close to the power source as possible, as required by FAA Policy Memorandum PS-ANM100-2000-00105, “Interim Policy Guidance for Certification of In-Flight Entertainment Systems on Title 14 CFR Part 25 Aircraft,” dated September 18, 2000; and FAA Policy Memorandum ANM-01-111-165, “Policy Statement on Certification of Power Supply Systems for Portable Electronic Devices on Part 25 Airplanes,” dated March 18, 2005. This switch must also be accessible to the flightcrew, so that they can remove power from the IFE system in the event of smoke or fire in either the flight deck or passenger cabin. However, operators have the option of installing a secondary switch that is accessible to the cabin crew. It is not necessary to submit a request for an alternative method of compliance to install a secondary switch because the installation of a primary switch in the flight deck satisfies the requirements of this AD. We have not changed the AD in this regard.
IFC recommends that the requirement to remove power from cabin systems, which are controlled by the passengers, be expanded to include systems such as electrically-controlled seats and ISPS systems, in addition to IFE systems. IFC states that, in most cases, the ISPS and seat adjustment systems carry much higher power loads than do the IFE components.
We agree that the ISPS and electrically-controlled seat systems must also be addressed by this AD. We referred to these systems as “other non-essential electrical systems” in the NPRM. However, we disagree that this AD must be expanded because those systems are already addressed by the applicable service bulletins referenced in this AD. The ISPS and electrically-controlled seat systems are treated as non-essential loads, which the service bulletin specifies to rewire so that they will be de-powered in the same way as the IFE systems. No change to the AD is necessary in this regard.
JAL states that the NPRM does not include IFE systems that provide only audio signals to each passenger seat, or IFE systems that have only a video
We infer that JAL requests that we remove airplanes having V/N VK181, VK186, and VR461 from the applicability of this AD. We disagree with revising the applicability. The delivered configuration of the IFE systems installed on airplanes having V/Ns VK001 through VK016 do not meet the IFE complexity criteria for regulatory action at this time. Further, airplanes having V/N VB371 through VB373, VK021, and VK022 were not included in the effectivity of the referenced Boeing service bulletins because those airplanes were delivered prior to 1992, and IFE systems installed prior to 1992 are not as complex as IFE systems installed later. Although the airplane having V/N VR441 was delivered after 1992, the delivered configuration of that airplane also did not meet our criteria for a complex system. That airplane was delivered with two monitors and three projectors, but our criteria for a complex system required a combination of seven or more components. We are continuing to evaluate such less-complex systems and might consider further rulemaking in the future. We have not changed the AD in this regard.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We also determined that the change will not increase the economic burden on any operator or increase the scope of the AD.
There are about 316 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) is effective December 26, 2008.
(b) None.
(c) This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category.
(1) Boeing Model 767-200 and -300 series airplanes, as identified in Boeing Service Bulletin 767-24-0152, dated September 29, 2006; Boeing Service Bulletin 767-24-0153, dated September 29, 2006; and Boeing Service Bulletin 767-24-0154, dated September 26, 2002.
(2) Boeing Model 767-300 series airplanes, as identified in Boeing Service Bulletin 767-24-0148, dated September 14, 2006; Boeing Service Bulletin 767-24-0149, dated September 14, 2006; Boeing Service Bulletin 767-24-0150, dated September 21, 2006; and Boeing Service Bulletin 767-24-0151, dated September 14, 2006.
(3) Boeing Model 767-400ER series airplanes, as identified in Boeing Service Bulletin 767-24-0147, dated February 20, 2003.
(d) This AD results from an in-flight entertainment (IFE) systems review. We are issuing this AD to ensure that the flightcrew is able to turn off electrical power to IFE systems and other non-essential electrical systems through a switch in the flight compartment. The flightcrew's inability to turn off power to IFE systems and other non-essential electrical systems during a non-normal or emergency situation could result in the inability to control smoke or fumes in the airplane flight deck or cabin.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) For the airplanes identified in paragraph (c)(1) of this AD: Within 60 months after the effective date of this AD, install new relays and wiring to allow the flightcrew to turn off electrical power to the IFE system and certain circuit breakers through the right utility bus switch and do all other specified actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 767-24-0152, dated September 29, 2006; Boeing Service Bulletin 767-24-0153, dated September 29, 2006; and Boeing Service Bulletin 767-24-0154, dated September 26, 2002; as applicable. The other specified actions must be done before further flight after installing the new relays and wiring.
(g) For the airplanes identified in paragraph (c)(2) of this AD: Within 60 months after the effective date of this AD, install new relay(s), circuit breakers as applicable, and wiring to allow the flightcrew to turn off electrical power to the IFE system and the IFE video and audio circuit breakers through the right utility bus switch and do all other specified actions as applicable, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 767-24-0148, dated September 14, 2006; Boeing Service Bulletin 767-24-0149, dated September 14, 2006; Boeing Service Bulletin 767-24-0150, dated September 21, 2006; and Boeing Service Bulletin 767-24-0151, dated September 14, 2006; as applicable. The other specified actions must be done before further flight after installing the new relay(s) and wiring.
(h) For the airplanes identified in paragraph (c)(3) of this AD: Within 60 months after the effective date of this AD, install a new relay and wiring to allow the flightcrew to turn off electrical power to some of the IFE systems and certain circuit breakers through the left utility bus switch and do all other specified actions, by accomplishing all of the actions specified in the Accomplishment Instructions of Boeing Service Bulletin 767-24-0147, dated February 20, 2003. The other specified actions must be done before further flight after installing the new relay and wiring.
(i)(1) The Manager, Seattle Aircraft Certification Office, FAA, ATTN: Shohreh Safarian, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6418; fax (425) 917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(j) You must use the service information contained in Table 1 of this AD, as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207; telephone 206-544-9990; fax 206-766-5682; e-mail
(3) You may review copies of the service information that is incorporated by reference at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Direct final rule; confirmation of effective date; correction.
This action confirms the effective date of a direct final rule published in the
Effective 0901 UTC, November 20, 2008. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments
Melinda Giddens, Operations Support Group, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; Telephone (404) 305-5610, Fax 404-305-5572.
The FAA published this direct final rule with a request for comments in the
After publication, it was observed that a grammatical correction was required to correct the Airspace Designation. Therefore, in the
For verification and to avoid confusion, the entire description should read as follows:
That airspace extending upward from the surface within 3.2 miles each side of the 224 bearing from the Bradley International Airport (BDL) and extending from the 5 mile radius to 9.6 miles SW of the Bradley International Airport. The Class E airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility directory.
Signed by:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Napakiak, AK to provide adequate controlled airspace to contain aircraft executing Standard Instrument Approach Procedures (SIAPs). Two SIAPs are being developed for the Napakiak Airport. This action establishes Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Napakiak Airport, Napakiak, AK.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Thursday September 18, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR) part 71 to establish Class E airspace upward from 700 ft. above the surface and from 1,200 ft. above the surface at Napakiak, AK (73 FR 54092). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing instrument procedures for the Napakiak Airport. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Napakiak Airport area is created by this action.
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. The rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9S,
This amendment to 14 CFR part 71 establishes Class E airspace at the Napakiak Airport, Alaska. This Class E airspace is created to accommodate aircraft executing new instrument procedures, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Napakiak Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Napakiak Airport, AK; and that airspace extending upward from 1,200 feet above the surface within a 84-mile radius of the Napakiak Airport, AK.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace at Shageluk, AK to provide adequate controlled airspace to contain aircraft executing Standard Instrument Approach Procedures (SIAPs). Two SIAPs are being developed for the Shageluk Airport. This action establishes Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Shageluk Airport, Shageluk, AK.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Thursday, September 18, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR) part 71 to establish Class E airspace upward from 700 ft. above the surface and from 1,200 ft. above the surface at Shageluk, AK (73 FR 54091). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing instrument procedures for the Shageluk Airport. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Shageluk Airport area is created by this action.
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. The rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9S,
This amendment to 14 CFR part 71 establishes Class E airspace at the Shageluk Airport, Alaska. This Class E airspace is created to accommodate aircraft executing new instrument procedures, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rules (IFR) operations at the Shageluk Airport, Shageluk, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Shageluk Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Shageluk Airport, AK; and that airspace extending upward from 1,200 feet above the surface within a 73-mile radius of the Shageluk Airport, AK.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises Class E airspace at Badami, AK to provide adequate controlled airspace to contain aircraft executing Standard Instrument Approach Procedures (SIAPs). Two SIAPs are being developed for the Badami Airport. Additionally, a textual Obstacle Departure Procedure (ODP) is being developed. This action revises existing Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at Badami Airport, Badami, AK.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Thursday September 18, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 700 ft. above the surface and from 1,200 ft. above the surface at Badami, AK (73 FR 54093). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing instrument procedures for the Badami Airport. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface in the Badami Airport area is revised by this action.
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. The rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9S,
This amendment to 14 CFR part 71 revises Class E airspace at the Badami Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing new instrument procedures, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rules (IFR) operations at the Badami Airport, Badami, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Badami Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Badami Airport, AK; and that airspace extending upward from 1,200 feet above the surface within a 73-mile radius of the Badami Airport, AK.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is amending its regulations to clarify that post-judgment interest shall run on reparation awards in voluntary decisional proceedings and to provide that in all reparation proceedings resulting in a judgment for complainant post-judgment interest shall run whether or not expressly awarded.
December 22, 2008.
Laura Richards, Office of General Counsel, U.S. Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5126. E-mail:
Currently, 17 CFR part 12 provides the following guidance regarding the award of interest to the prevailing party in reparation proceedings. Prejudgment interest “may” be awarded in summary decisional proceedings as part of a reparation order under Rule 12.210(c), and in formal decisional proceedings under Rule 12.314(c), “if warranted as a matter of law under the circumstances of a particular case.”
Rule 12.407(d), which governs post-judgment interest, applies to all forms of reparation proceedings. It provides that interest shall run on an unpaid reparation award “at the prevailing rate computed in accordance with 28 U.S.C. 1961 from the date directed in the final order to the date of payment, compounded annually.”
To clarify existing authority, and to further just and equitable decision proceedings, the Commission hereby amends Rule 12.106(c) to state that post-judgment interest shall run on awards in voluntary proceedings. The Commission believes such a clarifying rule is appropriate to make clear that the Act intends to compensate a prevailing party for the loss of use of the party's money when a reparation judgment is not satisfied within the mandated deadline (for voluntary proceedings, within 45 days after service of the final decision,
Amended Rule 12.407(d) provides that if an initial decision inadvertently omits an award of post-judgment interest such interest shall run at the applicable rate from the date that satisfaction of the reparation judgment is due.
In furtherance of the Commission's efforts to fully inform parties and the public of practices regarding interest on reparation judgments, the Commission also is amending Form 30 (which is not included in the Code of Federal Regulations) to include details of which types of interest may be awarded in voluntary, summary and formal decisional proceedings.
The Commission has determined that these amendments are exempt from the provisions of the Administrative Procedure Act, 5 U.S.C. 553, which generally requires notice of proposed rulemaking and provides other opportunities for public participation. According to the exemptive language of 5 U.S.C. 553, these amendments pertain to “rules of agency organization, procedure or practice,” as to which there exists agency discretion not to provide notice. In addition, notice and public comment are unnecessary in this case because the amendments are self-explanatory. If made effective immediately, they will promote
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601
The amendments to Part 12 do not impose a burden within the meaning and intent of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
Section 15(a) of the Act, 7 U.S.C. 19(a), requires the Commission to consider the costs and benefits of its action before issuing a new regulation. The Commission understands that, by its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the regulation outweigh its costs. Nor does it require that each rule be analyzed in isolation when that rule is a component of a larger package of rules or rule revisions. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.
Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. Accordingly, the Commission can, in its discretion, give greater weight to any one of the five enumerated areas of concern and can, in its discretion, determine that notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest or to effectuate any of the provisions, or accomplish any of the purposes, of the Commodity Exchange Act.
The amendments to Parts 12 will not create any significant change in the Commission's reparation proceedings. The amendments will enhance the protection of market participants and the public by taking uncertainty out of the awarding of post-judgment interest in certain instances and helping to ensure that reparation awards are satisfied in a timely manner. The cost-benefit factors are not influenced by the amendments, which simply articulate and clarify applicable law and precedent in reparation proceedings.
Administrative practice and procedure, Commodity exchange, Commodity futures, Reparations.
7 U.S.C. 2a(12), 12a(5) and 18.
(c)
(d)
The following text will not appear in the Code of Federal Regulations.
Portions of the Commission's Reparations Complaint Form, available on the Commission's Web site at
__$50 Voluntary Decisional Procedure. This procedure enables you, if the respondents agree, to present your case in written form before a CFTC judgment officer. A final decision will be issued without explanation of the reasons. By electing the voluntary procedure, you will waive your right to appeal as well as prejudgment interest and costs.
__$125 Summary Decisional Procedure. If your claim is $30,000 or less, it can be heard by a CFTC Judgment Officer. You may present your case in written form, and if deemed necessary by the judgment officer, orally, in Washington, or by telephone under this procedure. The judgment officer will issue brief statements of factual findings and conclusions based on law, and may order a reparation award including prejudgment interest pursuant to Rule 12.210(c) and post-judgment interest. The judgment officer's decision is appealable first to the Commission and from there to a U.S. Court of appeals. In the event an award of post-judgment interest is inadvertently omitted, such interest nevertheless shall run according to the terms of 28 U.S.C. 1961 and the Part 12 Rules.
__$250 Formal Decisional Procedure. If your claim is over $30,000, it can be assigned to an Administrative Law Judge (ALJ) for a formal hearing. You may present your case in written form. If oral testimony is deemed necessary by the ALJ, you may be required to travel up to 300 miles to attend the hearing. The ALJ will issue findings of fact and conclusions of law, and may order a reparation award including prejudgment interest pursuant to Rule 12.314(c) and post-judgment interest. The Administrative Law
Food and Drug Administration, HHS.
Correcting amendments.
The Food and Drug Administration (FDA) is correcting a document amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) that appeared in the
This rule is effective November 20, 2008.
George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9019, e-mail:
For reasons set forth in this preamble, FDA is correcting 21 CFR part 520 as follows:
Animal drugs.
21 U.S.C. 360b.
Department of Justice.
Final rule.
This Directive delegates authority to the Postmaster General to settle administrative tort claims presented pursuant to the Federal Tort Claims Act where the amount of the settlement does not exceed $300,000. This Directive implements the Administrative Dispute Resolution Act. This Directive will alert the general public to the new authority and is being published in the Code of Federal Regulations to provide a permanent record of this delegation.
Phyllis J. Pyles, Director, Torts Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, Washington, DC 20044, (202) 616-4400.
This Directive has been issued to delegate settlement authority and is a matter solely related to the division of responsibility between the Department of Justice and the United States Postal Service. As such, this rule is a rule of agency organization, procedure, and practice that is limited to matters of agency management and personnel. Accordingly: (1) This rule is exempt from the notice requirement of 5 U.S.C. 553(b) and is made effective upon issuance; (2) the Department certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities and further that no Regulatory Flexibility Analysis was required to be prepared for this final rule since the Department was not required to publish a general notice of proposed rulemaking; (3) this action is not a “regulation” or “rule” as defined by Executive Order 12866, “Regulatory Planning and Review,” § 3(d)(3) and, therefore, this action has not been reviewed by the Office of Management and Budget.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, “Federalism,” it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.” This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Finally, this action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Authority delegations (government agencies), Claims.
5 U.S.C. 301; 28 U.S.C. 509, 510, and 2672.
(a) The Postmaster General shall have the authority to adjust, determine, compromise, and settle a claim involving the United States Postal Service under section 2672 of title 28, United States Code, relating to the administrative settlement of federal tort claims, if the amount of the proposed adjustment, compromise, or award does not exceed $300,000. When the Postmaster General believes a claim pending before him presents a novel question of law or of policy, he shall obtain the advice of the Assistant Attorney General in charge of the Civil Division.
(b) The Postmaster General may redelegate, in writing, the settlement authority delegated to him under this section.
Whenever the Postmaster General settles any administrative claim pursuant to the authority granted by section 1 for an amount in excess of $100,000 and within the amount delegated to him under section 1, a memorandum fully explaining the basis for the action taken shall be executed. A copy of this memorandum shall be sent contemporaneously to the Director, FTCA Staff, Torts Branch of the Civil Division.
Department of Justice.
Final rule.
This Directive delegates authority to the Secretary of Defense to settle administrative tort claims presented pursuant to the Federal Tort Claims Act where the amount of the settlement does not exceed $300,000. This Directive implements the Administrative Dispute Resolution Act. This Directive will alert the general public to the new authority and is being published in the Code of Federal Regulations to provide a permanent record of this delegation.
Phyllis J. Pyles, Director, Torts Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, Washington, DC 20044, (202) 616-4400.
This Directive has been issued to delegate settlement authority and is a matter solely related to the division of responsibility between the Department of Justice and the Department of Defense. As such, this rule is a rule of agency organization, procedure, and practice that is limited to matters of agency management and personnel. Accordingly: (1) This rule is exempt from the notice requirement of 5 U.S.C. 553(b) and is made effective upon issuance; (2) the Department certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities and further that no Regulatory Flexibility Analysis was required to be prepared for this final rule since the Department was not required to publish a general notice of proposed rulemaking; (3) this action is not a “regulation” or “rule” as defined by Executive Order 12866, “Regulatory Planning and Review,” § 3(d)(3) and, therefore, this action has not been reviewed by the Office of Management and Budget.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, “Federalism,” it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.” This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Finally, this action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Authority delegations (government agencies), Claims.
5 U.S.C. 301; 28 U.S.C. 509, 510, and 2672.
(a) The Secretary of Defense shall have the authority to adjust, determine, compromise, and settle a claim involving the Department of Defense under section 2672 of title 28, United States Code, relating to the administrative settlement of federal tort claims, if the amount of the proposed adjustment, compromise, or award does not exceed $300,000. When the Secretary believes a claim pending before him presents a novel question of law or of policy, he shall obtain the advice of the Assistant Attorney General in charge of the Civil Division.
(b) The Secretary may redelegate, in writing, the settlement authority delegated to him under this section.
Whenever the Secretary of Defense settles any administrative claim pursuant to the authority granted by section 1 for an amount in excess of $100,000 and within the amount delegated to him under section 1, a memorandum fully explaining the basis for the action taken shall be executed. A copy of this memorandum shall be sent contemporaneously to the Director, FTCA Staff, Torts Branch of the Civil Division.
Department of Justice.
Final rule.
This Directive delegates authority to the Secretary of Veterans Affairs to settle administrative tort claims presented pursuant to the Federal Tort Claims Act where the amount of the settlement does not exceed $300,000. This Directive implements the Administrative Dispute Resolution Act. This Directive will alert the general public to the new authority and is being published in the Code of Federal Regulations to provide a permanent record of this delegation.
Phyllis J. Pyles, Director, Torts Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, Washington, DC 20044, (202) 616-4400.
This Directive has been issued to delegate settlement authority and is a matter solely related to the division of responsibility between the Department of Justice and the Department of Veterans Affairs. As such, this rule is a rule of agency organization, procedure, and practice that is limited to matters of agency management and personnel. Accordingly: (1) This rule is exempt from the notice requirement of 5 U.S.C. 553(b) and is made effective upon issuance; (2) the Department certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities and further that no Regulatory Flexibility Analysis was required to be prepared for this final rule since the Department was not required to publish a general notice of proposed rulemaking; (3) this action is not a “regulation” or “rule” as defined by Executive Order 12866, Regulatory Planning and Review,” § 3(d)(3) and, therefore, this action has not been reviewed by the Office of Management and Budget.
This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, “Federalism,” it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.” This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Finally, this action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Authority delegations (government agencies), Claims.
5 U.S.C. 301; 28 U.S.C. 509, 510, and 2672.
(a) The Secretary of Veterans Affairs shall have the authority to adjust, determine, compromise, and settle a claim involving the Department of Veterans Affairs under section 2672 of title 28, United States Code, relating to the administrative settlement of federal tort claims, if the amount of the proposed adjustment, compromise, or award does not exceed $300,000. When the Secretary believes a claim pending before him presents a novel question of law or of policy, he shall obtain the advice of the Assistant Attorney General in charge of the Civil Division.
(b) The Secretary may redelegate, in writing, the settlement authority delegated to him under this section.
Whenever the Secretary of Veterans Affairs settles any administrative claim pursuant to the authority granted by section 1 for an amount in excess of $100,000 and within the amount delegated to him under section 1, a memorandum fully explaining the basis for the action taken shall be executed. A copy of this memorandum shall be sent contemporaneously to the Director, FTCA Staff, Torts Branch of the Civil Division.
Bureau of Prisons, Justice.
Final Rule.
In this document, the Bureau of Prisons (Bureau) finalizes its proposed rule providing definitions and standards relating to the certification of persons as sexually dangerous for the purpose of civil commitment, as authorized by the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248) (Walsh Act), enacted July 27, 2006, which amended title 18 of the United States Code, Chapter 313.
This rule is effective December 22, 2008.
Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone (202) 307-2105.
A proposed rule on this subject was published August 3, 2007. We received six comments on the proposed rule. One was in support of the rule. We discuss the issues raised by the remaining five comments below.
Also, in the proposed rule, we stated that these rules would be added to 28 CFR part 549, as “new” subpart F. However, subpart F currently contains regulations regarding “Fees for Health Care Services.” These rules will instead be added to 28 CFR part 549 as new subpart H, and are renumbered accordingly.
Several commenters requested more detail concerning the qualifications of the Bureau mental health professionals who will be making determinations regarding the eligibility of persons for civil commitment under these regulations.
The Bureau's Certification Review Panel (CRP), similar to the practice of several states' civil commitment systems, is composed of a variety of persons, including qualified health services staff as well as legal counsel. Included on the panel are appropriately-credentialed psychologists. These psychologists review each inmate's case thoroughly before the CRP decides to certify an inmate for civil commitment.
Section 549.72 of the proposed rule (now § 549.92 of the final rule) defined the term “sexually violent conduct” as “any unlawful conduct of a sexual nature with another person (“the victim”) that involves” certain elements further enumerated in the regulation. Several commenters called for a definition of the term “conduct of a sexual nature,” raising concerns that this language could be interpreted as including “flirting,” certain terms of endearment, or other “harmless conduct.”
At the outset, we note that our terminology is not limited solely to “conduct of a sexual nature,” but also includes the necessary initial component that such conduct be “unlawful.” Further, the term “conduct of a sexual nature” is not activated as a consideration unless accompanied by another qualification among those listed in the regulation. The conduct must involve one of the following:
(a) The use or threatened use of force against the victim;
(b) Threatening or placing the victim in fear that the victim, or any other person, will be harmed;
(c) Rendering the victim unconscious and thereby engaging in conduct of a sexual nature with the victim;
(d) Administering to the victim, by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance, and thereby substantially impairing the ability of the victim to appraise or control conduct; or
(e) Engaging in such conduct with a victim who is incapable of appraising the nature of the conduct, or physically or mentally incapable of declining participation in, or communicating unwillingness to engage in, that conduct.
Further, a person cannot be committed based on conduct alone. A sexually dangerous person is one who also “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. 4247(a)(6). This requires the Bureau to review not only a person's behavioral history, but also his or her mental condition and risk of engaging in sexually violent conduct or child molestation in the future to determine whether he or she should be certified as a sexually dangerous person.
Several commenters expressed concerns that § 549.72(b) of the proposed regulation (now § 549.92(b) of the final rule) “could be used to impose civil commitment on a defendant infected with HIV who had flirted with, or otherwise indicated an innocent desire to have intercourse (which was never consumated [sic]) with someone.”
In reconsidering this provision, the Bureau has determined that the best course of action is to remove this paragraph from § 549.92.
One commenter stated that “[t]he Walsh Act was recently held unconstitutional. * * *
The case cited by the commenter does not have any immediate effect on the authority for this regulation. On September 7, 2007, the district court found 18 U.S.C. 4248 unconstitutional in that case, but the court stayed its order pending the government's appeal of the ruling. The district court recognized that other district courts had upheld the constitutionality of 18 U.S.C. 4248, in the face of similar challenges. See
One commenter posited that the Bureau intends to “apply its regulation(s) retrospectively and based on any evidence regardless of source or conviction. [This] violate[s] the Fifth Amendment, U.S. Const., where applied retroactively/retrospectively to alleged conduct predating the enabling statute's enactment as attaching new legal consequences.” The commenter argues that 18 U.S.C. 4248 violates the Fifth Amendment because it attaches new legal consequences to conduct that pre-dated the effective date of the statute.
Section 4248, and the regulations implementing the statute, do not have retroactive effect. Rather, they permit civil commitment based on a determination that a person “suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” 18 U.S.C. 4247(a)(6). While past behavior is taken into account, it is only one of several factors to be considered. The determination whether to certify an inmate for civil commitment is based also on a person's current mental condition and risk of future unlawful sexual conduct. Past conduct is used for evidentiary purposes. Thus, neither section 4248 nor these regulations attaches new legal consequences solely to past behavior.
The same commenter also argued that “the intention to rely on any evidence regardless of source or conviction would * * * violate a prisoner's Sixth Amendment right to have a jury of one's peers determine the facts in accord with the Court's reasoning.”
The Sixth Amendment would not be implicated by these regulations. First, we note that the civil commitment proceeding contemplated under the Walsh Act is not a criminal proceeding to which Sixth Amendment jury rights would attach.
Further, the Walsh Act authorizes the Bureau only to certify to federal district courts that certain persons are “sexually dangerous persons” for whom civil commitment is required. The filing of the certificate by the Bureau stays the release of the person; however, the final determination that a person is “a sexually dangerous person” subject to civil commitment is made by the court after proceedings held pursuant to 18 U.S.C. 4248(b) and (c), which make applicable the procedures set forth in 18 U.S.C. 4247(b), (c), and (d). As provided in section 4248(b), the court may order that a psychiatric or psychological examination of the person be conducted, and that a psychiatric or psychological report be filed with the court. Pursuant to section 4248(c), a hearing shall be conducted in which the person shall be represented by counsel, and be afforded an opportunity to testify, present evidence, subpoena witnesses on his or her behalf, and confront and cross-examine witnesses who appear at the hearing. If the court finds by clear and convincing evidence that the person is a sexually dangerous person, the court shall commit him/her to the custody of the Attorney General as detailed in section 4248(d).
Based on the foregoing discussion, the Bureau now adopts the proposed rule as final, with minor changes.
This rule falls within a category of actions that the Office of Management and Budget (OMB) has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB.
The Bureau has assessed the costs and benefits of this rule as required by Executive Order 12866 section 1(b)(6) and has made a reasoned determination that the benefits of this rule justify its costs. This rule will have the benefit of avoiding confusion caused by the statutory change, while allowing the Bureau to operate under the definitions stated in the regulations. There will be no new costs associated with this rulemaking.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment.
The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of persons in the custody of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Prisoners.
5 U.S.C. 301; 10 U.S.C. 876b; 18 U.S.C. 3621, 3622, 3524, 4001, 4005, 4042, 4045, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 4241-4248, 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510.
(a) This subpart provides definitions and standards for review of persons for certification to federal district courts as sexually dangerous persons, as authorized by title 18 U.S.C. Chapter 313, by Bureau of Prisons staff or contractors (collectively referred to in this Part as “the Bureau”).
(b) This subpart applies to persons in Bureau custody, including those:
(1) Under a term of imprisonment;
(2) For whom all criminal charges have been dismissed solely for reasons relating to the person's mental condition; or
(3) In Bureau custody pursuant to 18 U.S.C. 4241(d).
(c) The Bureau may certify that a person in Bureau custody is a sexually dangerous person when review under this subpart provides reasonable cause to believe that the person is a sexually dangerous person. In determining whether a person is a sexually dangerous person and should be so certified, the Bureau will consider any available information in its possession and may transfer the person to a suitable facility for psychological examination in order to obtain information for this purpose.
For purposes of this subpart, a “sexually dangerous person” is a person:
(a) Who has engaged or attempted to engage in:
(1) Sexually violent conduct; or
(2) Child molestation; and
(b) Has been assessed as sexually dangerous to others by a Bureau mental health professional.
For purposes of this subpart, “sexually violent conduct” includes any unlawful conduct of a sexual nature with another person (“the victim”) that involves:
(a) The use or threatened use of force against the victim;
(b) Threatening or placing the victim in fear that the victim, or any other person, will be harmed;
(c) Rendering the victim unconscious and thereby engaging in conduct of a sexual nature with the victim;
(d) Administering to the victim, by force or threat of force, or without the knowledge or permission of the victim, a drug, intoxicant, or other similar substance, and thereby substantially impairing the ability of the victim to appraise or control conduct; or
(e) Engaging in such conduct with a victim who is incapable of appraising the nature of the conduct, or physically or mentally incapable of declining participation in, or communicating unwillingness to engage in, that conduct.
For purposes of this subpart, “child molestation” includes any unlawful conduct of a sexual nature with, or sexual exploitation of, a person under the age of 18 years.
For purposes of this subpart, “sexually dangerous to others” means that a person suffers from a serious mental illness, abnormality, or disorder as a result of which he or she would have serious difficulty in refraining from sexually violent conduct or child molestation if released.
In determining whether a person will have “serious difficulty in refraining from sexually violent conduct or child molestation if released,” Bureau mental health professionals may consider, but are not limited to, evidence:
(a) Of the person's repeated contact, or attempted contact, with one or more victims of sexually violent conduct or child molestation;
(b) Of the person's denial of or inability to appreciate the wrongfulness, harmfulness, or likely consequences of engaging or attempting to engage in sexually violent conduct or child molestation;
(c) Established through interviewing and testing of the person or through other risk assessment tools that are relied upon by mental health professionals;
(d) Established by forensic indicators of inability to control conduct, such as:
(1) Offending while under supervision;
(2) Engaging in offense(s) when likely to get caught;
(3) Statement(s) of intent to re-offend; or
(4) Admission of inability to control behavior; or
(e) Indicating successful completion of, or failure to successfully complete, a sex offender treatment program.
Coast Guard, DHS.
Temporary deviation from regulations.
The Commander, Fifth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the S.R. 44 Bridge, at mile 1.7, across Mantua Creek at Paulsboro, NJ. This deviation allows the bridge to remain closed to navigation to facilitate mechanical repairs.
This deviation is effective from 6 a.m. on December 1, 2008, to 6 p.m. on December 31, 2008.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-1060 and are available online at
Mr. Gary S. Heyer, Bridge Management Specialist, Fifth Coast Guard District, at (757) 398-6629.
The New Jersey Department of Transportation, who owns and operates this vertical-lift drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.729(b) which requires the bridge to open signal from March 1 through November 30 from 7 a.m. to 11 p.m., and on signal at all other times upon four hours notice.
The S.R. 44 Bridge, at mile 1.7, across Mantua Creek has vertical clearances in the full open and closed positions to vessels of 64 feet and 5 feet, above mean high water, respectively.
Under this temporary deviation to facilitate the repairs to the operating machinery, the S.R. 44 Bridge will be maintained in the closed-to-navigation position beginning at 6 a.m. on Monday, December 1, 2008 until and including 6 p.m. on Wednesday, December 31, 2008. There are no alternate routes for vessels with a mast height greater than 5 feet.
The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners of the opening restrictions of the draw span to minimize transiting delays caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
United States Patent and Trademark Office, Commerce.
Interpretation and effective date clarification.
On June 10, 2008, the United States Patent and Trademark Office (Office) published the final rule that amends the rules governing practice before the Board of Patent Appeals and Interferences (BPAI) in
This is effective November 20, 2008.
Kery A. Fries at (571) 272-7757 or Joni Y. Chang at (571) 272-7720, Senior Legal Advisors, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy directly by phone, or by facsimile to (571) 273-7757, or by mail addressed to: Mail Stop Comments-Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450.
On June 10, 2008, the United States Patent and Trademark Office (Office) published the final rule that amends the rules governing practice before the Board of Patent Appeals and Interferences (BPAI) in
Accordingly, appeal briefs filed before December 10, 2008, must either comply with current 37 CFR 41.37 (in effect before December 10, 2008) or revised 37 CFR 41.37 (in effect on or after December 10, 2008). Appeal briefs filed on or after December 10, 2008, must comply with the revised 37 CFR 41.37. A certificate of mailing or transmission in compliance with 37 CFR 1.8 will be applicable to determine whether the appeal brief was filed prior to the effective date in order to determine which rule applies. For any appeal brief filed in the new format under revised 37 CFR 41.37, the Office will provide an examiner's answer in the new format under revised 37 CFR 41.39 if the appeal is maintained.
Similarly, a notice of appeal filed before December 10, 2008, in compliance with revised 37 CFR 41.31 (in effect on or after December 10, 2008) will be accepted by the Office. Thus a notice of appeal filed before December 10, 2008, must either comply with current 37 CFR 41.31 (in effect before December 10, 2008) or revised 37 CFR 41.31 (in effect on or after December 10, 2008), regardless of the date of filing of the appeal brief. However, a notice of appeal filed on or after December 10, 2008, must comply with the revised 37 CFR 41.31 (
The Office has held a few appeal briefs filed in the new format prior to the publication of this clarification notice non-compliant. Any appellant who has received a notice of non-compliant appeal brief may request that the notice of non-compliant appeal brief be withdrawn if the sole reason for non-compliance is that the appeal brief was presented in the new format.
Federal Communications Commission.
Final rule; denial.
This document denies an Application for Review filed by Qantum of Fort Walton Beach License Company, LLC directed to the
Effective November 20, 2008.
Robert Hayne, Media Bureau, (202) 418-2177.
This is a synopsis of the
Radio, Radio broadcasting.
Federal Communications Commission.
Final rule; denial.
This document denies an Application for Review filed by Long Nine, Inc. directed to the
Effective November 20, 2008.
Robert Hayne, Media Bureau, (202) 418-2177.
This is a synopsis of the
Radio, Radio broadcasting.
Federal Communications Commission.
Final rule.
The Commission grants a petition for rulemaking filed by Trinity Christian Center of Santa Ana, Inc., d/b/a Trinity Broadcasting Network, licensee of station WPGD-DT, to substitute DTV channel 33 for post-transition DTV channel 51 at Hendersonville, Tennessee.
This final rule is effective December 22, 2008.
David J. Brown, Media Bureau, (202) 418-1600.
This is a synopsis of the Commission's
The Commission will send a copy of this
Television, Television broadcasting.
47 U.S.C. 154, 303, 334, 336.
Office of the Secretary, DOT.
Final rule.
On June 25, 2008, the Department issued a Final Rule amending, among other provisions, paragraph (b) of our section pertaining to urine specimen collections. This amendment required direct observation collections for all return-to-duty and follow-up tests. We sought additional comments to this provision on August 25, 2008. On October 22, 2008, the Department issued a notice responding to those comments. The Department did not change the amendment, and determined that the revised paragraph would go into effect, as scheduled, on November 1, 2008. On November 12, 2008, the United States Court of Appeals for the District of Columbia
November 20, 2008.
Jim L. Swart, Director, U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue, SE., Washington, DC 20590; (202) 366-3784 (voice), (202) 366-3897 (fax), or
The Department issued a final rule on June 25, 2008 (73 FR 35961), which included, among other things, two provisions (49 CFR 40.67(b) and (i)) concerning the use of direct observation (DO) collections, a very significant tool the Department uses to combat attempts by employees to cheat on their drug tests.
Several petitioners, including the Association of American Railroads (AAR), joined by the American Short Line and Regional Railroad Association; the Transportation Trades Department (TTD) of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); the International Brotherhood of Teamsters; and the Air Transport Association (ATA), joined by the Regional Airline Association (RAA), asked the Department to delay the effective date of these two provisions, seek further comment on them, and reconsider them. In response, the Department issued a notice delaying the effective date of 49 CFR 40.67(b)—the provision for making DO collections mandatory for all return-to-duty and follow-up tests—until November 1, 2008 (73 FR 50222; August 26, 2008). The Department opened a comment period on that provision, which closed on September 25, 2008. The Department did not delay the effective date of 49 CFR 40.67(i), and that provision went into effect, as scheduled, on August 25, 2008.
The Department fully considered the comments filed in the public docket regarding the amendment to 49 CFR 40.67(b). On October 22, 2008, at 73 FR 62910, the Department issued a notice responding to the comments and stated “the Department remains convinced that conducting all return-to-duty and follow-up tests under DO is the most prudent course from the viewpoint of safety.” (73 FR 62918) The Department decided not to change the amendment and announced that the revised 49 CFR 40.67(b) would go into effect, as scheduled, on November 1, 2008.
On October 24, 2008, several of the petitioners described above again petitioned the Department for further postponement of the final rule regarding 49 CFR 40.67(b). On October 30, 2008, the Department denied the petition. Several of the petitioners also filed a motion for stay with the United States Court of Appeals for the District of Columbia Circuit. On October 31, 2008, the Court issued a temporary administrative stay to allow more time for the court to consider the request for stay. On November 12, 2008, the court issued a further order to stay the effectiveness of section 40.67(b) (
Therefore, DO collections for return-to-duty and follow-up testing will continue to be an employer option, rather than mandatory. All other requirements of 49 CFR part 40 that went into effect on August 25, 2008, including the DO provision at 40.67(i) [checking for prosthetic and other devices used to carry “clean” urine and urine substitutes] will remain in effect.
Therefore, the revised section 40.67(b), as issued in the Department's final rule on June 25, 2008, is removed from the CFR in order to comply with the court's stay, and the prior version of 49 CFR 40.67(b), which the department reinstates with this document, will remain in effect until further notice.
40 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101
(b) As an employer, you may direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Dassault Falcon 2000 series airplanes. These airplanes, as modified by Aircell LLC, will have a novel or unusual design feature associated with the Aircell airborne satcom equipment (ASE) which use lithium battery technology. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
We must receive your comments by January 5, 2009.
You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM395, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM395. You can inspect comments in the Rules Docket weekdays, except federal holidays, between 7:30 a.m. and 4 p.m.
Nazih Khaouly, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2432; facsimile (425) 227-1149.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
We will consider all comments we receive by the closing date for comments. We will consider comments filed late, if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
If you want us to let you know we received your comments on this proposal, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On March 15, 2007, Aircell LLC, applied for a type design change to an existing STC (ST01388WI-D), to install additional equipment on Dassault Falcon 2000 series airplanes. This installation adds components to the existing airplane installation to include a low power Wi-Fi handset containing a single cell lithium polymer rechargeable battery. The battery identified for application in this design is a low capacity, single cell lithium polymer rechargeable battery, with a nominal capacity of 1400mAh and a nominal voltage of 3.7V. The battery has a weight of 26.5 grams. The battery has been Underwriters Laboratories, Inc. (UL) tested and qualified by DO-160E in the Aircell handset (P12857). The design is supported by a System Safety Assessment/Functional Hazard Assessment (SSA/FHA) analysis. The Aircell Wi-Fi handset, which is a component of the Aircell ASE, consists of a wireless handset and associated base station (cradle and charging unit), both with protective circuits and fuse devices which provide multiple levels of redundant protection from hazards, such as overcharging or discharging. The lithium battery is installed in the handset.
A lithium battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on large transport category airplanes. The FAA is proposing these special conditions to require that (1) all characteristics of the lithium batteries and their installations that could affect safe operation of the Dassault Falcon 2000 are addressed, and (2) appropriate continued airworthiness instructions, which include maintenance requirements, are established to ensure the availability of electrical power from the batteries when needed.
At present, there is limited experience with use of rechargeable lithium batteries in applications involving commercial aviation. However, other users of this technology, ranging from wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with lithium batteries. These problems include overcharging, over-discharging, and flammability of cell components.
In general, lithium batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (
Discharge of some types of lithium batteries beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flightcrews as a means of checking battery status—a problem shared with nickel-cadmium batteries.
Unlike nickel-cadmium and lead-acid batteries, some types of lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.
These problems experienced by users of lithium batteries raise concern about the use of these batteries in commercial aviation. Accordingly, the proposed use of lithium batteries in the Aircell ASE on Dassault Falcon 2000 series aircraft has prompted the FAA to review the adequacy of existing regulations in Title 14 Code of Federal Regulations (14 CFR) part 25. Our review indicates that the existing regulations do not adequately address several failure, operational, and maintenance characteristics of lithium batteries that could affect the safety and reliability of lithium battery installations.
The intent of these special conditions is to establish appropriate airworthiness standards for lithium batteries in Dassault Falcon 2000 series aircraft, modified Aircell LLC, and to ensure, as required by § 25.601, that these battery installations are not hazardous or unreliable. Accordingly, these special conditions include the following requirements:
• Those provisions of § 25.1353 which are applicable to lithium batteries.
• The flammable fluid fire protection provisions of § 25.863.
In the past, this regulation was not applied to batteries of transport category airplanes, since the electrolytes used in lead-acid and nickel-cadmium batteries are not flammable.
• New requirements to address the hazards of overcharging and over-discharging that are unique to lithium batteries.
• New Instructions for Continuous Airworthiness that include maintenance requirements to ensure that batteries used as spares are maintained in an appropriate state of charge.
Under the provisions of 14 CFR 21.101, Aircell LLC must show that the Dassault Falcon 2000 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. Type Certificate A50NM, Revision 3, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.”
The certification basis for Dassault Falcon 2000 is listed in Type Certificate A50NM, Revision 3, dated September 21, 2004. In addition, the certification basis includes certain special conditions and exemptions that are not relevant to these special conditions. Also, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Dassault Falcon 2000 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type certification basis in accordance with § 21.101.
Special conditions are initially applicable to the models for which they are issued. Should Aircell LLC apply for a supplemental type certificate to modify any other model included on Type Certificate No. A50NM to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model.
The Dassault Aviation Falcon 2000 series airplanes, as modified by Aircell LLC, to include the Aircell ASE which will use lithium battery technology, will incorporate a novel or unusual design feature. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The Aircell Access system will include lithium battery installations. The application of a rechargeable lithium battery is a novel or unusual design feature in transport category airplanes. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on large transport category airplanes. The FAA issues these special conditions to require that (1) all characteristics of the lithium battery and its installation that could affect safe operation of the satellite communication system are addressed, and (2) appropriate maintenance requirements are established to ensure that electrical power is available from the batteries when it is needed.
As discussed above, these special conditions are applicable to the Dassault Aviation 2000 series airplanes as modified by Aircell LLC. Should Aircell LLC apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A28NM to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features of the Dassault Aviation 2000 series airplanes as modified by Aircell LLC. It is not a rule of general applicability and affects only the applicant which applied to the FAA for approval of these features on the airplane.
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.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the
Lithium batteries and battery installations on Dassault Aviation 2000 series airplanes must be designed and installed as follows:
1. Safe cell temperatures and pressures must be maintained during any foreseeable charging or discharging condition and during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium battery installation must preclude explosion in the event of those failures.
2. Design of the lithium batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.
3. No explosive or toxic gases emitted by any lithium battery in normal operation or as the result of any failure of the battery charging system, monitoring system, or battery installation which is not shown to be extremely remote may accumulate in hazardous quantities within the airplane.
4. Installations of lithium batteries must meet the requirements of § 25.863(a) through (d).
5. No corrosive fluids or gases that may escape from any lithium battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more severe failure condition, in accordance with § 25.1309(b) and applicable regulatory guidance.
6. Each lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.
7. Lithium battery installations must have a system to control the charging rate of the battery automatically, so as to prevent battery overheating or overcharging, and,
(a) A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or
(b) A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.
8. Any lithium battery installation whose function is required for safe operation of the airplane must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.
9. The Instructions for Continued Airworthiness required by § 25.1529 must contain maintenance requirements to assure that the lithium battery is sufficiently charged at appropriate intervals specified by the battery manufacturer. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of lithium batteries in spares storage to prevent the replacement of batteries whose function is required for safe operation of the airplane with batteries that have experienced degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Precautions should be included in the Instructions for Continued Airworthiness maintenance instructions to prevent mishandling of the lithium battery which could result in short-circuit or other unintentional damage that could result in personal injury or property damage.
The term “sufficiently charged” means that the battery will retain enough of a charge, expressed in ampere-hours, to ensure that the battery cells will not be damaged. A battery cell may be damaged by lowering the charge below a point where there is a reduction in the ability to charge and retain a full charge. This reduction would be greater than the reduction that may result from normal operational degradation.
These special conditions are not intended to replace § 25.1353(c), Amendment 25-113 in the certification basis of the Aircell LLC supplemental type certificate. These special conditions apply only to lithium batteries and their installations. The requirements of § 25.1353(c), Amendment 25-113 remain in effect for batteries and battery installations on the Aircell LLC supplemental type certificate that do not use lithium batteries.
Compliance with the requirements of these special conditions must be shown by test or analysis, with the concurrence of the Fort Worth Special Certification Office.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking.
This action proposes to establish Class D airspace at Branson Airport, Branson, MO. The establishment of an air traffic control tower has made this action necessary for the safety of Instrument Flight Rule (IFR) operations at Branson Airport.
0901 UTC. Comments must be received on or before January 5, 2009.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You must identify the docket number FAA-2008-1102/Airspace Docket No. 08-AGL-8, at the beginning of your comments. You may also submit comments through the Internet at
Scott Enander, Central Service Area, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76193-0530; telephone: (817) 222-5582.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both
An electronic copy of this document may be downloaded through the Internet at
Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration (FAA), Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This action proposes to amend Title 14, Code of Federal Regulations (14 CFR), Part 71 by establishing Class D airspace for IFR operations at Branson Airport, Branson, MO, where a new control tower has been installed. The Class D airspace will revert to a Class E Surface Area during those periods when the control tower is not operating. This area would be depicted on appropriate aeronautical charts.
Class D airspace areas are published in Paragraph 5000 of FAA Order 7400.9S, dated October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document would be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Branson Airport, Branson, MO.
Airspace, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9S, Airspace Designations and Reporting Points, dated October 3, 2008, and effective October 31, 2008, is amended as follows:
That airspace extending upward from the surface to and including 3,800 feet MSL within a 4.1-mile radius of Branson Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Internal Revenue Service (IRS), Treasury.
Notice of public hearing on proposed rulemaking.
This document provides notice of public hearing on proposed regulations relating to credits and payments for alcohol mixtures, biodiesel mixtures, renewable diesel mixtures, alternative fuel mixtures, and alternative fuel sold for use or used as a fuel, as well as proposed regulations relating to the definition of gasoline and diesel fuel.
The public hearing is being held on Monday, February 9, 2009, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Friday, January 9, 2009.
The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue, NW., Washington, DC 20224.
Send Submissions to CC:PA:LPD:PR (REG-155087-05), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday to CC:PA:LPD:PR (REG-155087-05), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal erulemaking Portal at
Concerning the regulations, Taylor Cortright (202) 622-3130; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing Funmi Taylor at (202) 622-7180 (not toll-free numbers).
The subject of the public hearing is the notice of proposed rulemaking (REG-155087-05) that was published in the
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Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed rulemaking that provides guidance on the manner in which an S corporation reduces its tax attributes under section 108(b) for taxable years in which the S corporation has discharge of indebtedness income that is excluded from gross income under section 108(a).
The public hearing, originally scheduled for December 8, 2008, at 10 a.m. is cancelled.
Funmi Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration), at (202) 622-7180 (not a toll-free number).
A notice of proposed rulemaking and a notice of public hearing that appeared in the
The public comment period for the proposed rulemaking expired on November 4, 2008. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit an outline of the topics to be addressed. As of Thursday, November 13, 2008, no one has requested to speak. Therefore, the public hearing scheduled for December 8, 2008, is cancelled.
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Notice of extension of public comment period.
EPA is announcing an extension of the public comment period on the proposed rule, “National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources.” As initially published in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2008-0334, by one of the following methods:
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We proposed the national emission standards for hazardous air pollutants (NESHAP) as part of our effort to comply with a court-ordered deadline that requires EPA to issue final standards for 10 area source categories listed pursuant to Clean Air Act sections 112(c)(3) and (k) by December 15, 2008 (
We received several requests to extend the public comment period by up to 55 days. Commenters requested more time to review the information in the docket and prepare in-depth comments. We agree that the comment period should be extended to allow more time for interested parties to prepare comprehensive comments. At the request of EPA, the Court has extended EPA's deadline for the nine area source categories at issue in the proposed rule from December 15, 2008, to May 15, 2009. Therefore, the public comment period will now end on January 5, 2009, rather than November 20, 2008. (The public comment period is currently scheduled to end on November 20, 2008, instead of November 5, 2008, because a public hearing was requested and held on October 21, 2008.)
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The proposed rule for the National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources was published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for the U.S. DPS of smalltooth sawfish (
Comments on this proposed rule must be received by January 20, 2009.
You may submit comments, identified by the Regulatory Information Number (RIN) 0648-AV74, by any of the following methods:
Mail: Assistant Regional Administrator, Protected Resources Division, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.
Facsimile (fax) to: 727-824-5309.
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Instructions: All comments received are considered part of the public record and will generally be posted to
Shelley Norton, NMFS, Southeast Regional Office, at 727-824-5312; or Lisa Manning, NMFS, Office of Protected Resources, at 301-713-1401.
Under the ESA, we are responsible for determining whether certain species are threatened or endangered and for designating critical habitat for such species (16 U.S.C. 1533). On April 1, 2003, we listed the U.S. distinct population segment (DPS) of smalltooth sawfish (“the species”) as endangered (68 FR 15674). At the time of listing, we also announced that critical habitat was not then determinable because we were completing ongoing studies necessary for the identification of specific habitats and environmental features important for the conservation of the species. Subsequently, we have sponsored additional research on the species, its habitat use, and its conservation needs. Additionally, NMFS has developed a draft recovery plan for the species pursuant to section 4(f) of the ESA. NMFS has now reviewed the best available scientific data and identified specific areas on which are located those physical and biological features essential to the conservation of the species.
The following discussion of the distribution, life history, and habitat use of the U.S. DPS of smalltooth sawfish is based on the best available commercial and scientific information, including information provided in the Status Review (65 FR 12959, March 10, 2000) and the Draft Smalltooth Sawfish Recovery Plan (71 FR 49418, August 23, 2006).
Smalltooth sawfish are tropical marine and estuarine elasmobranch (e.g., sharks, skates, and rays) fish that are reported to have a circumtropical distribution. The historic range of the smalltooth sawfish in the United States extends from Texas to New York (NMFS, 2006). The U.S. region that has historically harbored the largest number of smalltooth sawfish is south and southwest Florida from Charlotte Harbor to the Dry Tortugas. Most capture records along the Atlantic coast north of Florida are from spring and summer months and warmer water temperatures. Most specimens captured along the Atlantic coast north of Florida have also been large (greater than 10 ft or 3 m) adults and are thought to represent seasonal migrants, wanderers, or colonizers from a core or resident population(s) to the south rather than being resident members of a continuous, even-density population (Bigelow and Schroeder, 1953). Historic records from Texas to the Florida Panhandle suggest a similar spring and summer pattern of occurrence. While less common, winter records from the northern Gulf of Mexico suggest a resident population, including juveniles, may have once existed in this region.
The Status Review Team (NMFS, 2000) compiled information from all known literature accounts, museum collection specimens, and other records of the species. The species suffered significant population decline and range constriction in the early to mid 1900's. Encounters with the species outside of Florida have been rare since that time.
Since the 1990's, the distribution of smalltooth sawfish in the United States has been restricted to peninsular Florida (Seitz and Poulakis, 2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 2005; Mote Marine Laboratory's National Sawfish Encounter Database [MMLNSED]). Encounter data indicates smalltooth sawfish encounters can be found with some regularity only in south Florida from Charlotte Harbor to Florida Bay. A limited number of reported encounters (one in Georgia, one in Alabama, one in Louisiana, and one in Texas) have occurred outside of Florida since 1998.
Peninsular Florida is the main U.S. region that historically and currently hosts the species year-round because the region provides the appropriate climate (subtropical to tropical) and contains the habitat types (lagoons, bays, mangroves, and nearshore reefs) suitable for the species. Encounter data and research efforts indicate a resident, reproducing population of smalltooth sawfish exists only in southwest Florida (Simpfendorfer and Wiley, 2005).
Smalltooth sawfish are approximately 31 in (80 cm) in total length at birth and may grow to a length of 18 ft (540 cm) or greater. A recent study by Simpfendorfer
No directed research on smalltooth sawfish feeding habits exists. Reports of sawfish feeding habits suggest they subsist chiefly on small schooling fish, such as mullets and clupeids. They are also reported to feed on crustaceans and other bottom-dwelling organisms. Observations of sawfish feeding behavior indicate that they attack fish by slashing sideways through schools, and often impale the fish on their rostral (saw) teeth (Breeder, 1952). The fish are subsequently scraped off the teeth by rubbing them on the bottom and then ingested whole. The oral teeth of sawfish are ray-like, having flattened cusps that are better suited to crushing or gripping.
Very little is known about the specific reproductive biology of the smalltooth sawfish. As with all elasmobranchs, fertilization occurs internally. The embryos of smalltooth sawfish, while still bearing the large yolk sac, resemble adults relative to the position of their fins and absence of the lower caudal lobe. During embryonic development,
No confirmed breeding sites have been identified to date since directed research began in 1998. Research is underway to investigate areas where adult smalltooth sawfish have been reported to congregate along the Everglades coast to determine if breeding is occurring in the area.
Life history information on the smalltooth sawfish has been evaluated using a demographic approach and life history data on largetooth sawfish and similar species from the literature. Simpfendorfer (2000) estimates intrinsic rates of natural population increase as 0.08 to 0.13 per year and population doubling times from 5.4 to 8.5 years. These low intrinsic rates of population increase are associated with the life history strategy known as “k-selection.” K-selected animals are usually successful at maintaining relatively small, persistent population sizes in relatively constant environments. Consequently, they are not able to respond effectively (rapidly) to additional and new sources of mortality resulting from changes in their environment. Musick (1999) and Musick
At the time of listing, very little information was known about the habitat usage patterns of the species. The Status Review and the final listing rule identified habitat loss and degradation as the secondary cause of the species' decline. The primary reason for the species' decline was bycatch in various commercial and recreational fisheries.
The Status Review (NMFS, 2000) described sawfish habitat usage as: “Sawfish in general inhabit the shallow coastal waters of most warm seas throughout the world. They are found very close to shore in muddy and sandy bottoms, seldom descending to depths greater than 32 ft (10 m). They are often found in sheltered bays, on shallow banks, and in estuaries or river mouths.” In the years since the status review, additional research on habitat use by smalltooth sawfish has been undertaken. This research confirmed this general characterization for smalltooth sawfish and has revealed a more complex pattern of habitat use than previously known, with different life history stages having different patterns of habitat use.
A variety of methods have been applied to studying habitat use patterns of smalltooth sawfish, including acoustic telemetry (Simpfendorfer, 2003), acoustic monitoring (Simpfendorfer, unpublished data; Poulakis, unpublished data), public encounter databases (Seitz and Poulakis, 2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 2005), and satellite archival tagging (Simpfendorfer and Wiley, 2005b). The majority of this research has targeted juvenile sawfish, but some information on adult habitat use has also been obtained.
Encounter databases also provide insight into the habitat use patterns of smalltooth sawfish. MML, Florida Fish and Wildlife Research Institute (FWRI, formerly managed by Poulakis and Seitz), and the Florida Museum of Natural History (FLMNH) manage encounter databases containing data on sightings and captures of smalltooth sawfish from commercial and recreational fishermen, research efforts, and other sources (e.g., divers and boaters). To request reporting of sightings/captures from the public, MML, FWRI, and FLMNH have engaged in various outreach efforts. These efforts include placing flyers at boat ramps and tackle/dive shops, media releases, articles in fishing magazines, interviews with recreational fishing guides and commercial fisheries, websites, and personal contacts with researchers. Standard questionnaires are used to collect encounter data (water depth, location, tidal states, gear information, size of animal, and various other physical and environmental features). Outreach efforts were initially focused primarily in Florida but have expanded into areas along the southeastern coasts of the United States between Texas and North Carolina. The bulk of the reports of smalltooth sawfish sightings and/or captures occur primarily in Florida between Charlotte Harbor and Florida Bay.
Based on our historic and current knowledge of where smalltooth sawfish are encountered (coastal areas), we believe recreational fishers who primarily fish in coastal areas represent the best source of data for the species. Additionally, Simpfendorfer and Wiley (2005) analyzed the number of registered fishers in Florida by county to see if fishing effort affects the distribution of the encounters. No strong correlation between the distribution of fishers and the encounter locations was found. Based on Simpfendorfer and Wiley (2005), we believe that the encounter data is not geographically biased.
The second largest source of encounter data is directed-research programs conducted by FWRI, MML, and NMFS. Directed-research efforts on the species are also primarily focused in coastal areas but are limited to southwest Florida between Charlotte Harbor and the Florida Keys. The sampling methodologies for the directed research efforts are not random or stratified: research efforts are focused in areas where sawfish have been encountered, primarily southwest Florida. We anticipate future sampling efforts for these and other areas will use a random-stratified approach. Research is underway to determine habitat usage patterns, site fidelity, movement patterns, and various genetic relationships.
Encounter and research data provide some insight into adult smalltooth sawfish habitat usage patterns. Data on adult male (at least 134 in [340 cm] in length) and adult female (142 in [360 cm] in length) smalltooth sawfish is very limited. Information on adult smalltooth sawfish comes from encounter data, observers aboard fishing vessels, and pop-up satellite archival (PAT) tags. The encounter data suggest that adult sawfish occur from shallow
Seitz and Poulakis (2002) reported that one adult-sized animal, identifiable by its broken rostrum, was captured in the same location over a period of a month near Big Carlos Pass. This suggests that adults may have some level of site fidelity for relatively short periods; however, the historic occurrence of seasonal migrations along the U.S. East Coast also suggests that adults may be more nomadic than juveniles with their distribution controlled, at least in part, by water temperature.
In summary, there is limited information on adult sawfish distribution and habitat use. Adult sawfish are encountered in various habitat types (mangrove, reef, seagrass, and coral), in varying salinity regimes and temperatures, and at various water depths. Adults are believed to feed on a variety of fish species and crustaceans. No known breeding sites have been identified. Encounter data have identified river mouths as areas where many people observe both juvenile and adult sawfish. Seitz and Poulakis (2002) noted that many of the encounters occurred at or near river mouths in southwest Florida. Simpfendorfer and Wiley (2005b) reported a similar pattern of distribution along the entire west coast of Florida. Along the Everglades coastal region, Simpfendorfer and Wiley (2005) report a strong association of smalltooth sawfish with the Chatham, Lostmans, Rodgers, Broad, Harney, and Shark Rivers.
Most of the research and encounter data on habitat usage of smalltooth sawfish has been obtained on juveniles that are less than 79 in (200 cm). Juveniles in this size class are most susceptible to predation and starvation (Simpfendorfer, 2006). Like other species of elasmobranchs, smalltooth sawfish appear to use nursery areas because of the reduced numbers of predators and abundant food resources (Simpfendorfer and Milward, 1993).
Much of the research on smalltooth sawfish juveniles indicates some differences in habitat use based on the length of the animals, between what are characterized as very small (less than 39 in [100 cm]) and small (39-79 in [100-200] cm) juveniles. Most encounters of both very small and small juveniles have been within 1,641 ft (500 m) of shore (Simpfendorfer, 2006).
Very small juvenile smalltooth sawfish show high levels of site fidelity, at least over periods of days and potentially for much longer (Simpfendorfer, 2003 and 2006). Limited acoustic tracking studies (less than five animals) have shown that, at this size, sawfish will remain associated with the same shallow mud bank over periods of several days (Simpfendorfer, 2003). Very small juveniles spend a large portion of their time on the same shallow mud or sand banks in water less than 1 ft (30 cm) deep. Since water levels on individual mud banks vary with the tide, the movements of these small animals appear to be directed toward remaining in shallow water. The mud banks are very small and preliminary home range size for the tracked animals is estimated to be 1,076 -10,763 ft2 (100-1,000 m2) (Simpfendorfer, 2003). The longer-term fidelity to these sites is poorly understood, and ongoing research is expected to provide more insight into determining how much habitat very small juveniles use on a daily basis. Simpfendorfer (2001) concludes that shallow coastal waters represent key habitat for the species, and in particular that waters less than 3.3 ft (1 m) may be very important as nursery areas. The primary purpose of staying in such shallow water is likely to avoid predators, such as bull sharks. Additionally, these shallow waters may provide warm water temperatures that may be utilized to maximize growth rates (Simpfendorfer, 2006). Simpfendorfer (2001) concludes that most smalltooth sawfish (adults and juveniles) show a preference for water temperatures greater than 17.8° C (64° F).
In addition to shallow mud banks, very small juveniles also use red mangrove prop root habitats in southern Florida (Simpfendorfer and Wiley, 2005). Animals in this size class spend the vast majority of their time in very shallow water less than 1 ft (30 cm) deep, and they tend to move into mangrove prop roots during periods of high tide. Red mangrove habitats also provide foraging opportunities for very small and small juveniles, because the prop root system provides nursery areas for various fish and crustacean species.
Small juveniles have many of the same habitat use characteristics seen in the very small sawfish. Their association with very shallow water (less than 1 ft [30 cm] deep) is slightly weaker, possibly because they are better suited to predator avoidance due to their larger size and greater experience (NMFS, 2006). They do still have a preference for shallow water, remaining in depths mostly less than 3.3 ft (1 m). Most encounters of small juveniles also occur near red mangroves. Site fidelity has also been studied on small juvenile sawfish. Several sawfish, approximately 59 in (150 cm) in length and fitted with acoustic tags, have been relocated in the same general areas over periods of several months, suggesting a high level of site fidelity (Simpfendorfer 2003). The daily home range for these animals, based on data from a few animals, appears to be much larger than that of very small juveniles (e.g., 10,763,910-53,819,552 ft
Simpfendorfer and Wiley (2005) documented that no encounters occurred within habitat in permanent freshwater areas. Many encounters occur near river mouths or near sources of freshwater inflow and encounter data suggests that estuarine habitats may be an important factor affecting the species' distribution. Simpfendorfer (2001) suggests the reason smalltooth sawfish occur in river mouth areas may be due to the lower salinity, submerged vegetation, or because prey may be abundant. We analyzed (MML and FWRI) encounter data from 1998-2008 for juveniles and the data indicates the majority of the juvenile encounters occur within euryhaline or estuarine waters. Euryhaline/estuarine waters are highly productive areas that contain a variety of food sources for the smalltooth sawfish. Mullet, clupeids, and various crustacean species that are known food sources for the smalltooth sawfish are commonly found in estuarine areas.
Juvenile smalltooth sawfish may require specific salinity regimes with specific freshwater inputs but at this time data on specific salinity regime requirements for the species does not exist. Ongoing studies of habitat use patterns of very small and small juveniles in the Caloosahatchee River are expected to provide more insight into the habitat used by or necessary for an individual juvenile (less than or
Data on large (greater than 79 in [200 cm] in length) juvenile smalltooth sawfish is limited, and more information is needed to determine the habitat usage patterns and site fidelity characteristics of this size class of smalltooth sawfish.
Critical habitat is defined by section 3 of the ESA as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.” This definition provides us with a step-wise approach to identifying areas that may be designated as critical habitat for the endangered smalltooth sawfish.
The best available scientific and commercial data identifies the geographical area occupied by the smalltooth sawfish at the time of listing (April 1, 2003) as peninsular Florida. We have interpreted “geographical area occupied” in the definition of critical habitat as the range of the species at the time of listing (45 FR 13011; February 27, 1980). The range was delineated at the time of listing from data provided by existing literature and encounter data. Because only a few contemporary encounters (one in Georgia, one in Alabama, and one in Louisiana) have been documented outside of Florida since 1998, we consider peninsular Florida to be the species' occupied range at the time of listing. At this time, we do not consider these limited observations as indicating that the species has re-established either its occupation of Gulf coast states or its seasonal migrations up the east coast of the U.S. outside of Florida.
The definition of critical habitat further instructs us to identify the specific areas on which are found the physical or biological features essential to the species' conservation. Our regulations state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area, and referencing each area by the State, county, or other local government unit in which it is located (50 CFR 424.12(c)).
According to the definition of critical habitat, the physical and biological features essential to conservation must be identified (hereafter also referred to as “essential features”). Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Our regulations at 50 CFR 424.12(b) provide guidance as to the types of habitat features that may be used to describe critical habitat.
The draft recovery plan developed for the smalltooth sawfish represents the best judgment about the objectives and actions necessary for the species' recovery. We reviewed the draft recovery plan's habitat-based recovery objective for guidance on the habitat-related conservation requirements of the species. This objective identifies the need to protect and/or restore smalltooth sawfish habitats and discusses adult and juvenile habitats separately. Habitats, especially those that have been demonstrated to be important for juveniles, must be protected and, if necessary, restored. Protected, suitable habitat throughout the species' range will be necessary to support recruitment of young individuals to the recovering population. Without sufficient habitat, the population is unlikely to increase to a level associated with low extinction risk and delisting.
The draft recovery plan also identifies specific recovery criteria that must be met to satisfy each objective. As stated in the plan, adult habitat-based recovery criteria for the species require the identification and protection of adult aggregation, mating, and/or pupping areas. Information on historic aggregation, mating, and/or pupping sites does not exist. Currently, no aggregation or mating areas have been identified for adults. Additionally, no information is available on specific pupping locations for gravid females. Tracking data on gravid females is lacking, but newborn juveniles still possessing their protective sheaths and newly pupped animals have been documented close to shore. Encounter and site fidelity data suggest juveniles are pupped in these areas, but this has not been validated. No known specific areas where adults perform any particular function, including feeding, are known. Adults are considered opportunistic feeders and forage on a variety of fish and crustacean species. Based on the available information on the habitat usage patterns of adults, we cannot identify physical or biological features essential to the species' conservation, or identify any areas on which such features may be found.
In contrast to the paucity of information available on adult smalltooth sawfish, more detailed information on habitat usage patterns of juveniles is available, and more specific habitat-based recovery criteria are identified in the recovery plan. The habitat-based recovery criterion for juveniles identifies mangrove shorelines, non-mangrove nursery habitats, and freshwater flow regimes as important features for juveniles. As stated earlier, the habitat-based recovery objective for the species focuses on protecting areas that have been identified as important for juveniles (i.e., nurseries). This objective also stresses the need to protect suitable habitats for juveniles to support their recruitment into the population. Juveniles are especially vulnerable to predation and starvation (Simpfendorfer and Wiley, 2005). Protection of the species' nurseries is crucial because the rebuilding of the population cannot occur without protecting the source (juvenile) population and its associated habitats. The recovery plan states that the recovery of the smalltooth sawfish depends on the availability and quality of nursery habitats and that protection of high-quality nursery habitats located in southwest Florida is essential to the species.
We conclude that facilitating recruitment into the population by protecting the species' juvenile nursery areas is the key conservation objective for the species that will be supported by the designation of critical habitat.
As stated in the recovery plan, smalltooth sawfish, like many sharks and rays, use specific habitats commonly referred to as nurseries or nursery areas. The recovery plan does not identify specific locations for
We evaluated information in the draft recovery plan, historical information on habitat use by sawfish, and available encounter data and scientific literature, as well as sought expert opinion, to determine where or what constitutes a “nursery area” for the species. Historical information on the species only provides limited, mostly anecdotal, information on the location of juvenile animals and does not discuss specific habitat usage patterns for them. Historical information indicates that juveniles were found in the lower reaches of the St. Johns River, the Indian River Lagoon, southwest Florida, and in areas along the Gulf coast between Florida and Texas. Using historic location information alone would not provide a reasonable basis for identification of nursery areas, given the qualitative nature of the information. Further, because most of these areas have been so physically altered, conditions present historically may not be present today, and thus features that may have provided nursery area functions in the past may be absent.
We then reviewed juvenile encounter data from the MML and FWRI databases to see whether the data alone indicates the existence of nursery areas. In summary, juvenile sawfish have been encountered in the Florida Panhandle, the Tampa Bay area, in Charlotte Harbor and the Caloosahatchee River, throughout the Everglades region and Florida Bay, the Florida Keys, and in scattered locations along the east coast of Florida south of the St. Johns River. However, apart from the Charlotte Harbor, Caloosahatchee River, and Ten Thousand Islands/Everglades (TTI/E) areas, many of these encounters are represented by a single individual in a single year.
Heupel
Using the Heupel
Based on this analysis, the juvenile encounters in the third grouping discussed above, from Charlotte Harbor through the Everglades, are the only encounters that suggest these areas meet the nursery area criteria set forth by Heupel
Juvenile encounters outside of the area between Charlotte Harbor and the Everglades and Florida Bay do not fit the framework and are not considered nursery areas at this time. Anecdotal information indicates that juvenile size animals have been encountered throughout portions of their historic range, and our recovery plan indicates that the establishment of nursery areas outside of southwest Florida is necessary for the species to recover. However, we cannot determine at this time the temporal or spatial distribution of future sawfish nursery areas.
To more specifically delineate the boundaries of the nursery area or areas, we utilized Geographical Information System (GIS) software to map the density of all juvenile (length less than or equal to 200cm) encounters (MML and FWRI) located along peninsular Florida within 500 m of land, documented between the years of 1998-2008, with all years combined. Two density maps were generated to determine the mean density for all encounters and the density for all encounters excluding the research encounters. We utilized 1km2 density grids (same grid size utilized by Simpfendorfer, 2006) to determine density levels and distributions. Juvenile densities were very similar between the two groups. However, to remove any bias from the research efforts, we utilized the juvenile density map excluding research effort. The overall nursery area between Charlotte Harbor and Florida Bay breaks naturally into two areas between Ten Thousand Islands and the Caloosahatchee River, based on a long stretch of sandy beach habitat in the Naples area that is lacking encounters with densities greater than the mean density overall. Next we mapped juvenile encounters in these two areas by year (1998-2008), to verify where repeat usage occurred over years. This produced several groupings of 1 km2 grids with higher mean juvenile densities compared to mean juvenile density throughout peninsular Florida: 1 grouping within Charlotte Harbor, 1 grouping encompassing the Caloosahatchee River, and 3 groupings from the Ten Thousand Islands area through Florida Bay. We do not believe either the Charlotte Harbor Estuary or the TTI/E nursery areas should be subdivided into multiple smaller nursery areas for several reasons. First, the Heupel
The Charlotte Harbor Estuary nursery area includes Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass, San Carlos Bay, Estero Bay, and the Caloosahatchee River in Charlotte and Lee Counties. The nursery area is defined by the following boundaries. It is bounded by the Peace River at the eastern extent at the mouth of Shell Creek and the northern extent of the Charlotte Harbor Preserve State Park. At the Myakka River the estuary is bounded by the SR-776 Bridge and Gasparilla Sound at the SR-771 Bridge. The COLREGS-72 lines between Gasparilla Island, Lacosta Island, North Captiva Island, Captiva Island, Sanibel Island, and the northern point of Estero Island are used as the coastal boundary for the nursery area. The southern extent of the area is the Estero Bay Aquatic Preserve, which is bounded on the south by the Lee/Collier County line. Inland waters are bounded at SR-867 (McGregor Blvd) to Fort Myers, SR-80 (Palm Beach Blvd), Orange River Blvd, Buckingham Rd, and SR-80 to the west side of the Franklin Lock and Dam (S-79), which is the eastern boundary on the Caloosahatchee River and a structural barrier for sawfish access. Additional inland water boundaries north and west of the lock are bounded by North River Road, SR-31, SR-78 near Cape Coral, SR-765, US-41, SR-35 (Marion Ave) in Punta Gorda, and Riverside Road to the eastern extent of the Peace River. The Charlotte Harbor nursery area is graphically displayed at the end of this document.
The Ten Thousand Islands/Everglades (TTI/E) nursery area is located within Collier, Monroe, and Miami-Dade Counties, Florida. The Everglades nursery area includes coastal and inshore waters within Everglades National Park (ENP), including Florida Bay; in the vicinity of Everglades City; within the Cape Romano-Ten Thousand Islands Aquatic Preserve (AP); and within the portion of Rookery Bay AP south of SR-92. The boundaries match the portion of Rookery Bay AP south of SR-92, and the Cape Romano-Ten Thousand Islands Aquatic Preserve AP. The nursery area boundaries also match the ENP boundaries with following two exceptions. The nursery area boundary connects points 55 and 57, which extend beyond the ENP boundary to include accessible nursery areas. The nursery area boundary is located inside the ENP boundary between points 77 and 2, omitting the northeastern portion of the ENP. The area is omitted because it is not accessible to sawfish. The TTI/E nursery area is graphically displayed at the end of this document.
Having identified the nursery areas, we next identified the physical or biological features found in these areas that are essential to the species' conservation because they provide nursery area functions to the sawfish.
Simpfendorfer (2006) analyzed MML's smalltooth sawfish encounter data to determine the importance of habitat factors to juveniles less than 79 in (200 cm) in length. Depth data is consistently reported by fishers and is accurately reported because most fishers use depth finders so depth data was extracted from the encounter database. Simpfendorfer (2006) examined the proximity of encounters to habitat features that could be evaluated from geographic information system (GIS) databases. These features were: mangroves (GIS mangrove coverages cannot distinguish between mangrove species), seagrasses, freshwater sources, and the shoreline. Simpfendorfer (2006) used GIS shapefiles for the features to determine the shortest distance from the encounter to the feature. The encounter data was converted to encounter density by gridding the data, and the results of the analysis were then used in a habitat suitability model. The model indicates that water depths less than 3 ft, mangrove buffers or shorelines, and euryhaline habitat areas (areas with wider salinity ranges and receiving freshwater input) have the strongest correlation with juvenile smalltooth sawfish encounters. Additionally, most encounters were documented within a distance of 1641 ft (500 m) from shore. The Simpfendorfer (2006) model suggests that areas of high suitability for juvenile sawfish contain all three of these features. Large areas coded as
Based on the natural history of the species, its habitat needs and the key conservation objective of protecting juvenile nursery areas, two physical and biological features are identified as essential to the conservation of the smalltooth sawfish because they provide nursery area functions. The two features are: red mangroves and shallow euryhaline habitats characterized by water depths between the Mean High Water line and 3 ft (0.9 m) measured at Mean Lower Low Water (MLLW). As discussed above, the prop root system and the location of red mangroves (close to shore), and shallow water depths provide refuge from predators. Red mangroves and shallow mud or sand bank euryhaline habitats are also highly productive and provide ample, diverse foraging resources. Among elasmobranchs, smalltooth sawfish are one of the few species known to inhabit euryhaline habitats which may provide several benefits for the species. Euryhaline habitats are very productive environments that support an abundance and variety of prey resources that can only be accessed by species that inhabit their systems. Additionally, the risk of predation may be reduced in these euryhaline habitats because potential predators (sharks) may be incapable of inhabiting these habitats.
Based on the best available information, we conclude red mangroves and adjacent shallow euryhaline habitats and the nursery area functions they provide facilitate recruitment of juveniles into the adult population. Thus, these features are essential to the conservation of the smalltooth sawfish. While some studies cite 1.0 meter as the preferred depth limit, others (Simpfendorfer, 2006), cite 3.0 ft. For this rule, the water depth feature will be defined as 3 ft (0.9 m) because the NOAA Navigational Charts depth contour lines and most GIS databases utilize English units of measure.
Based upon the best available information, we cannot conclude that any other sufficiently definable features of the environment in the two nursery areas, other than red mangroves and adjacent shallow euryhaline habitats, are essential to smalltooth sawfish conservation.
Based on the boundaries of the two nursery areas and GIS data information on the location of the features, the Charlotte Harbor Estuary and the TTI/E nursery areas contain the features essential to the conservation of smalltooth sawfish because they facilitate recruitment into the adult population. In this rule, we propose to designate these two specific areas, referred to as critical habitat “units,” as critical habitat for the smalltooth sawfish.
There are areas outside of the two nursery areas, including areas on the east and west coasts of Florida that contain some of the same features identified as essential features in our two proposed nursery areas. Habitat areas outside the specific nursery areas also meet Simpfendorfer's (2006) classification of highly suitable habitat for juveniles because they contain these features, notably areas in Tampa Bay and in the Indian River Lagoon. Because the features are essential to the conservation of the species based on the nursery functions they provide, we determined that these features are essential to the conservation of smalltooth sawfish only when present in nursery areas. None of these other areas meet the Heupel
The boundaries of the two specific areas are the same as the Charlotte Harbor Estuary and TTI/E nursery area boundaries. GIS bathymetry data, mangrove coverage data, and salinity data were used to verify the distribution of the essential features within the nursery areas. We have identified reference points and lines on standard topographic maps of the areas to describe the specific boundaries of the two units in the proposed regulatory text.
The essential features can be found unevenly dispersed throughout the two areas. The limits of available information on the distribution of the features, and limits on mapping methodologies, make it infeasible to define the specific areas containing the essential features more finely than described herein. Existing man-made structures such as boat ramps, docks, pilings, maintained channels or marinas do not provide the essential features that are essential for the species' conservation and are thus not proposed as critical habitat. Areas not accessible (i.e., areas behind water control structures) to sawfish are not part of this designation. As discussed here and in the supporting impacts analysis, given the specificity of the essential features, determining whether an action may affect one or both of the features can be accomplished without entering into an ESA section 7 consultation.
ESA section 3(5)(A)(ii) further defines critical habitat to include specific areas outside the geographical area occupied if the areas are determined by the Secretary of Commerce (Secretary) to be essential for the conservation of the species. Regulations at 50 CFR 424.12(e) specify that we shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. Habitat based recovery criteria in the recovery plan suggest areas outside the current occupied range may be important to the species' recovery. However, based on the best available information we cannot identify unoccupied areas that are currently essential to the conservation of the species. If information on essential features or habitats for the species becomes available, we will consider revising this critical habitat designation.
Specific areas within the geographical area occupied by a species may be designated as critical habitat only if they
Based on the above, we evaluated whether the essential features proposed in this document may require special management considerations or protections by evaluating four criteria:
(a) Whether there is presently a need to manage the feature;
(b) Whether there is the possibility of a need to manage the feature;
(c) Whether there is presently a negative impact on the feature; or
(d) Whether there is the possibility of a negative impact on the feature.
In evaluating present or possible future management needs for the features, we recognized that the features in their present condition must be the basis for a finding that these are essential to the smalltooth sawfish's conservation. In addition, the needs for management evaluated in (a) and (b) were limited to managing the features for the conservation of the species. In evaluating whether the essential features meet either criterion (c) or (d), we evaluated direct and indirect negative impacts from any source (e.g., human or natural). However, we only considered the criteria to be met if impacts affect or have the potential to affect the aspect of the feature that makes it essential to the conservation of the species. We also evaluated whether the features met the “may require” provision separately for the two “specific areas” proposed for designation.
Red mangroves and adjacent shallow euryhaline habitats are susceptible to impacts from human activities because they are located in areas where urbanization occurs. The Status Review (NMFS, 2000) states that habitat destruction is one of the key factors affecting the present range of the species. The continued urbanization of the southeastern U.S. has resulted in substantial habitat losses for the species. Coastal areas where these features are located are subject to various impacts from activities including, but not limited to, dredging and disposal activities, coastal maritime construction, land development, and installation of various submerged pipelines. The impact from these activities combined with natural factors (e.g., major storm events) can significantly affect the quality and quantity of the two features listed above and their ability to provide nursery area functions (i.e., refuge from predators and abundant food resources), to juvenile smalltooth sawfish to facilitate recruitment into the population. Dredging projects modify water depths to accommodate navigation needs, mangroves are removed to construct docks and various maritime structures, and water control structures are installed to modify water flows in various areas, which can alter salinity regimes downstream. Based on our past ESA section 7 consultation database records we know that coastal areas in southwest Florida will continue to experience impacts from coastal construction projects and that these features will continue to experience negative impacts in the future. Based on our past consultation history, fewer Federal actions may affect habitats in the TTI/E Unit than in the Charlotte Harbor Estuary Unit, because much of the TTI/E Unit is held in public ownership by the Department of Interior. However, coastal storm impacts to mangroves, salinity, and water depth still occur within this area, and salinity regimes as well as mangroves in this area may be altered in the future by projects implemented under the Comprehensive Everglades Restoration Project. Thus, the two essential features currently need and will continue to need special management and protection in both of the two specific areas.
Section 4(a)(3)(B) prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP), if we determine that such a plan provides a benefit to the sawfish species (16 U.S.C. 1533(a)(3)(B)). We solicited information from DOD, and received information indicating that no DOD facilities or managed areas are located within the specific areas identified as proposed critical habitat.
The foregoing discussion described the specific areas within U.S. jurisdiction that fall within the ESA section 3(5) definition of critical habitat because they contain the physical and biological features essential to the sawfish's conservation that may require special management considerations or protection. Before including areas in a designation, section 4(b)(2) of the ESA requires the Secretary to consider the economic, national security, and any other relevant impacts of designation of any particular area. Additionally, the Secretary has the discretion to exclude any area from designation if he determines the benefits of exclusion (that is, avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation based upon the best scientific and commercial data available. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any particular area under any circumstances.
The analysis of impacts below summarizes the comprehensive analysis contained in our Draft Section 4(b)(2) Report, considering the economic, national security, and other relevant impacts that we projected would result from including the two units in the proposed critical habitat designation. This consideration informed our
The ESA does not define what “particular areas” means in the context of section 4(b)(2), or the relationship of particular areas to “specific areas” that meet the statute's definition of critical habitat. As there was no biological basis to subdivide the two specific critical habitat units into smaller units, we treated these units as the “particular areas” for our initial consideration of impacts of designation.
The primary impacts of a critical habitat designation result from the ESA section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining these impacts is complicated by the fact that section 7(a)(2) also requires that Federal agencies ensure their actions are not likely to jeopardize the species' continued existence. An incremental impact of designation is the extent to which Federal agencies modify their proposed actions to ensure they are not likely to destroy or adversely modify the critical habitat beyond any modifications they would make because of listing and the jeopardy prohibition. When a modification would be required due to impacts to both the species and critical habitat, the impact of the designation may be co-extensive with the ESA listing of the species. The nature of the sawfish and the proposed essential features, and the type of projects predicted to occur in the future in the areas proposed for designation, allowed us to identify incremental impacts of the proposed designation. The Draft Section 4(b)(2) Report identifies incremental cost and benefits that may result from the designation. Additional impacts of designation include state and local protections that may be triggered as a result of designation, and positive impacts that may arise from avoiding destruction or adverse modification of the species' habitat, and education of the public to the importance of an area for species conservation.
The Draft Section 4(b)(2) Report describes the impacts analysis in detail (NMFS, 2008). The report describes the projected future Federal activities that would trigger section 7 consultation requirements because they may affect one or both of the essential features. Additionally, the report describes the project modifications we identified that may reduce impacts to the essential features. The report also discusses the lack of expected impacts on national security, and other relevant impacts including conservation benefits that are expected to result from the proposed critical habitat designation. This report is available on NMFS' Southeast Region Web site at
As discussed above, economic impacts of the critical habitat designation result through implementation of section 7 of the ESA in consultations with Federal agencies to ensure their proposed actions are not likely to destroy or adversely modify critical habitat. These economic impacts may include both administrative and project modification costs; economic impacts that may be associated with the conservation benefits of the designation are characterized as other relevant impacts and described later.
Because the smalltooth sawfish has been listed for 5 years, a consultation history exists for the species. Assumptions about the types of future Federal activities that might require ESA section 7 consultation in the next 10 years were based on the species' past consultation history. We examined our consultation records over the last 10 years, as compiled in our Public Consultation Tracking System (PCTS) database, to identify types of Federal activities that have the potential to adversely affect either both the smalltooth sawfish and its critical habitat, or just the critical habitat (actions that require consultation due to effects solely on the fish are not impacts of the designation of critical habitat). The PCTS database contains information dating from 1997, providing a consultation history for sawfish and co-located listed species spanning 10 years. Consultation data for smalltooth sawfish began when the species was listed in 2003, and available information indicates that the number of consultations increased as Federal agencies recognized those projects that might affect the species and thus require consultation. Based on our outreach efforts to Federal agencies about the need to consult on the species, we believe that our data from 2005 to the present represents the level of future actions that may trigger consultation in the two areas proposed for designation from which to estimate the number of future actions that may trigger consultation. Thus we extrapolated the number of consultation that occurred over a three-year period between 2005 and the present that required consultation due to the presence of the sawfish into the number of future consultations. We request Federal action agencies to provide us with information on future consultations if our assumptions omitted any future actions likely to affect the proposed critical habitat.
We identified four categories of activities that would require consultation due to potential impacts to one or both of the essential features: marine construction activities that require a Federal permit (e.g., docks, piers, boat ramps, dredging, shoreline stabilization, etc.); general permits authorizing specified categories and locations of construction activities without the need for individual project specific permits; water control structure repair and replacement; and road/bridge expansions, repairs and removals. No categories of future Federal actions are expected to require consultation due solely to impacts on one or both of the critical habitat features; all categories of projected future actions that may trigger consultation because they have the potential to adversely affect the essential features also have the potential to adversely affect the species itself. Therefore, we do not predict that the proposed designation will result in an increase in the number of consultations that would be required due solely to the presence of the species in the two specific units. Moreover, fewer than half of the past projects that required consultation due to effects on sawfish had actual impacts on one or both of the features now being proposed as critical habitat. A total of 76 consultations are predicted due to the proposed designation in the Charlotte Harbor Estuary Unit, and only 8 consultations in the TTI/E Unit, over the next 10 years. The U.S. Army Corps of Engineers is projected to be the Federal action agency for the majority of future projects requiring consultation due to adverse effects to critical habitat in both proposed units; the U.S. Coast Guard and/or the Federal Highways Administration may be co-action agencies that may also be involved in three consultations per unit over the next ten years. Although the TTI/E unit largely overlaps the Everglades National Park due to limitations on habitat altering activities in the park, we project one consultation with DOI over the next 10 years as a result of this designation.
Based on our consultation history, no past projects in these areas required modification to avoid adverse impacts to the sawfish; all consultations that were triggered were concluded informally. Thus, to be conservative and avoid underestimating impacts of the designation, we assumed that although all future projects will trigger consultation due to both the species and the critical habitat, the consultations will be formal and require a biological opinion based on potential adverse impacts on one or both of the essential features of the critical habitat. Thus, we have estimated incremental administrative costs of each consultation that will result from the proposed designation, as the difference in average costs of an informal and formal consultation. We have estimated the total costs for each unit as a range, reflecting the possible range in complexity and cost of consultations. The incremental administrative costs for the Charlotte Harbor Estuary Unit are estimated to range from $1,026,000 to $1,368,000 (depending on complexity) over the 10-year planning period. The incremental administrative costs for the TTI/E Unit are estimated to range from $108,000 to $144,000 (depending on complexity) over the 10-year planning period.
We next considered the range of modifications we may recommend to avoid adverse modification from projected future activities in the smalltooth sawfish critical habitat. Based on our consultation history for the sawfish, no project modifications have been recommended for categories of Federal activities projected to require consultation in the future, to avoid adverse impacts to the fish. Thus, we assumed in our analysis that the costs of project modifications to avoid destroying or adversely modifying critical habitat would not be costs that are co-extensive with the listing of the species. Similarly, we assumed that the costs of project modifications required to avoid destruction or adverse modification of critical habitat will not be costs that are co-extensive with another existing regulatory requirement. Though there are numerous existing Federal, state, or local laws and regulations that protect natural resources including the proposed essential features to some degree, none of these laws focuses on avoiding the destruction or adverse modification of these features, which provide sawfish nursery area functions, thus facilitating sawfish recovery. As a result, we assumed the proposed designation will provide unique, additional protections to the critical habitat features that would result in project modifications where existing laws would not require such modifications.
We identified eight potential project modifications that we may recommend during section 7 consultation to avoid or reduce impacts to the essential features. To be conservative in estimating impacts, we assumed that project modifications would be recommended to address adverse effects from all projected future agency actions requiring consultation. Although we made the assumption that all potential project modifications would be recommended by NMFS, not all of the modifications identified for a specific category of activity would be necessary for an individual project, but we are not able to identify the exact modification or combinations of modifications that would be required for all future actions. Conversely, more than one project modification may be required for individual future projects where both essential features may be adversely affected by a project, and multiple project modifications are required to avoid such impacts.
Table 1 provides a summary of the estimated costs, where possible, of individual project modifications. The Draft Section 4(b)(2) Report provides a detailed description of each project modification, actions for which it may be prescribed, and whether it may be useful in avoiding adverse impacts to one or both of the essential features.
Previous critical habitat designations have recognized that impacts to national security may result if a designation would trigger future ESA section 7 consultations because a proposed military activity “may affect” the physical or biological feature(s) essential to the listed species' conservation. Anticipated interference with mission-essential training or testing or unit readiness, either through delays caused by the consultation process or through requirements to modify the action to prevent adverse modification of critical habitat, has been identified as a negative impact of critical habitat designations (see, e.g., Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover, 71 FR 34571, 34583 (June 15, 2006); and Proposed Designation of Critical Habitat for Southern Resident Killer Whales; 69 FR 75608, 75633 (December 17, 2004).
These past designations have also recognized that national security impacts do not result from a critical habitat designation if future ESA section 7 consultations would be required for a jeopardy analysis even if no critical habitat was designated, in which case the critical habitat designation would not add new burdens beyond those related to the jeopardy consultation.
On April 11, 2008, we sent a letter to DOD requesting information on national security impacts of the proposed designation. We received responses from the Departments of the Army, Navy, and Air Force indicating that they have no facilities or managed areas located within the proposed critical habitat areas. Thus, consultations with respect to activities on DOD facilities or training are unlikely to be triggered as a result of the proposed critical habitat designation, and no national security impacts are anticipated as a result of this proposed critical habitat rule.
Past critical habitat designations have identified three broad categories of other relevant impacts: educational awareness benefits, conservation benefits, both to the species and to society as a result of the avoidance of destruction or adverse modification of critical habitat, and impacts on governmental or private entities that implement existing management plans in the areas covered by the proposed designation. Our Draft Section 4(b)(2) Report discusses these impacts of designating the specific areas as critical habitat for smalltooth sawfish.
As summarized in the Draft Section 4(b)(2) Report, there are potential educational benefits resulting from the designation. Particularly in Florida, the designation may expand the awareness raised by the listing of the smalltooth sawfish. Mangrove shoreline areas are often used for recreational activities such as kayaking, and provide habitat for viewable wildlife. Additionally, Federal and State protected areas, such as Everglades National Park, Rookery Bay National Estuarine Preserve, Cape Romano-Ten Thousand Islands Aquatic Preserve, and Collier-Seminole State Park may benefit from the added awareness of the endangered smalltooth sawfish within their boundaries, and from the protection critical habitat designation affords.
Implementation of ESA Section 7 to avoid destruction or adverse modification of critical habitat is expected to increase the probability of recovery for listed species. In addition to contributing to sawfish recovery, benefits associated with project modifications required through section 7 consultation to minimize or avoid the destruction or adverse modification of the essential features, would include minimizing or avoiding the destruction or adverse modification of the ecosystem services that these features provide. By definition, the proposed physical and biological features are “essential to the conservation” of the smalltooth sawfish; in other words, conservation of the species as defined in the ESA is not possible without the presence and protection of the features. As discussed above, we have determined that the two areas proposed for inclusion in the critical habitat designation are juvenile nursery areas. The essential features of these areas, red mangroves with their prop root systems, and adjacent shallow euryhaline habitats, provide protection from predators and abundant and diverse prey resources, and thus provide key nursery area functions for the sawfish.
Because the smalltooth sawfish has limited commercial and recreational value, and because the species' recovery is expected to take decades, we can predict no direct or indirect monetary value that may result from the proposed designation because of its contribution to the recovery of the smalltooth sawfish. However, as discussed in the following paragraphs, other benefits are expected to accrue to society in the course of protecting the essential features of the sawfish's critical habitat from destruction or adverse modification.
Mangrove ecosystems provide a range of important uses and services to society. As these benefits currently exist, we do not interpret them as resulting from the critical habitat designation per se. However, protection of the critical habitat from destruction or adverse modification may at a minimum prevent loss of the benefits provided by these resources, and would contribute to any benefits associated with increased future abundance of the smalltooth sawfish as it recovers. As we discuss in the Draft 4(b)(2) Report, we believe that the critical habitat designation will provide unique, additional protections to mangroves in the areas covered by the designation, relative to existing laws and regulations.
The additional protection of mangroves offered through the critical habitat designation ensures that mangroves in the areas covered by the proposed designation can continue to function as critical components of the ecosystem. The Draft 4(b)(2) Report discusses benefits of mangroves including benefits to biodiversity, benefits to fisheries, benefits to air and water quality protection, shoreline protection, and benefits to recreation and tourism. Most of these benefits are described in non-monetary metrics. Where economic values are presented, we note that they are derived from a variety of sources and studies and are provided for context in support of our conclusion that non-negligible economic benefits are expected to result from the proposed designation, because protection of the proposed critical habitat from destruction or adverse modification is expected at minimum to prevent loss of existing benefits the habitat provides.
While the shallow water euryhaline habitat feature offers important ecosystem services to various juvenile fish, invertebrates, and benthic and epibenthic organisms as described in the Draft Section 4(b)(2) Report, their conservation benefits are interrelated with the benefits offered by conservation of red mangroves. Consequently, the Draft 4(b)(2) Report focuses on the benefits of mangroves, and the interrelated benefits of the shallow water euryhaline habitat are not discussed in detail.
Very little impact on entities responsible for natural resource management or conservation plans that benefit listed species, or on the functioning of those plans, is predicted to result from the proposed critical habitat designation in the areas covered by the plans. Though the TTI/E unit largely overlaps with the Everglades National Park, our discussions with park managers identify only one park management project that will require consultation during the next 10 years.
For the reasons set forth below, based on our consideration of positive and negative economic, national security and other relevant impacts predicted to result from the proposed designation, we do not exercise our discretion to propose for exclusion all or any part of either the Charlotte Harbor Estuary Unit or the Ten Thousand Islands/Everglades Unit from the designation. No impacts on national security are projected to result from the proposed designation. Very little negative impact on existing resource management activities is projected to result from the proposed designation. Negative economic impacts resulting from section 7 consultation requirements are projected to be limited. A total of 84 Federal actions over the next ten years are projected to require ESA section 7 consultation to address predicted adverse effects to one or both of the physical or biological features of the proposed critical habitat. Only 76 of these actions are projected for the Charlotte Harbor Estuary Unit, or approximately eight per year on average. Only eight future consultations are projected to be required in the TTI/E Unit over the next ten years due to impacts on the critical habitat features, or approximately one per year on average. All of these projects would have required consultation due to the listing of the sawfish, even in the absence of the designation. We have projected that incremental section 7 costs will be associated with the designation, in the form of increased administrative costs of more complex, formal consultations, and in project modification costs. Estimated costs for these project modifications are provided in the Draft 4(b(2) Report, though we could not predict the total cost of modifications resulting from the designation given the lack of information on project design and locations. However, we may have overestimated impacts in our assumption that all modification costs will be necessary and will be incremental impacts of the designation rather than baseline impacts of existing state, local or other Federal laws or regulations that protect natural resources. We do not project that any required project modifications will have secondary impacts on local or regional economies. The majority of project modifications are projected to be recommended to avoid adverse effects to the red mangroves in the proposed critical habitat areas. We expect that the designation will provide unique, additional protections to mangroves because existing laws and regulations in these areas do not avoid the destruction or adverse modification of mangroves for the purpose of facilitating recovery of the sawfish. The proposed designation is expected to, at minimum, prevent the loss of societal benefits that mangroves and shallow euryhaline habitats currently provide in the two specific areas included in the proposal.
We propose to designate approximately 840,472 acres in two units of critical habitat occupied by the U.S. DPS of smalltooth sawfish at the time of its listing. The two units proposed for designations are: the Charlotte Harbor Estuary Unit, which comprises approximately 221,459 acres of habitat; and the Ten Thousand Islands/Everglades Unit (TTI/E), which comprises approximately 619,013 acres of habitat. The two units are located along the southwestern coast of Florida between Charlotte Harbor and Florida Bay.
The proposed specific areas contain the following physical and biological features that are essential to the conservation of this species and that may require special management considerations or protection: red mangroves and shallow euryhaline habitats characterized by water depths between the MHW line and 3 ft (0.9 m) measured at Mean Lower Low Water (MLLW). No unoccupied areas are proposed for designation of critical habitat.
Section 4(b)(8) of the ESA requires that we describe briefly and evaluate, in any proposed or final regulation to designate critical habitat, those activities that may destroy or adversely modify such habitat or that may be affected by such designation. A variety of activities may affect critical habitat that, when carried out, funded, or authorized by a Federal agency, will require an ESA section 7 consultation. Such activities include, but are not limited to, dredging and filling, and other in-water construction (docks, marinas, boat ramps, etc.), and installation of water control structures. Notably, all the activities identified that may affect the critical habitat may also affect the species itself, if present within the action area of a proposed Federal action.
We believe this proposed critical habitat designation will provide Federal agencies, private entities, and the public with clear notification of the nature of critical habitat for smalltooth sawfish and the boundaries of the habitat. This designation will allow Federal agencies and others to evaluate the potential effects of their activities on critical habitat to determine if ESA section 7 consultations with NMFS are needed, given the specific definition of the two essential features. Consistent with recent agency guidance on conducting adverse modification analyses (NMFS, 2005), we will apply the statutory provisions of the ESA, including those in section 3 that define “critical habitat” and “conservation,” to determine whether a proposed future action might result in the destruction or adverse modification of critical habitat.
We request that interested persons submit comments, information, maps, and suggestions concerning this proposed rule during the comment period (see
(1) Current or planned activities in the areas proposed for designation and their possible impacts on proposed critical habitat;
(2) Any positive or negative economic, national security or other relevant impacts expected to result from the proposed designation and our consideration of these impacts, as well as the benefits to smalltooth sawfish of the designation. (These impacts are described in a report prepared pursuant to section 4(b)(2) of the ESA.);
(3)Types and numbers of Federal activities that may trigger an ESA section 7 consultation, their possible modifications, and potential modification costs that may be required of those activities to avoid destroying or adversely modifying critical habitat.
You may submit your comments and materials concerning this proposal by any one of several methods (see
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106-554), is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005.
To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the scientific information that supports this proposal to designate critical habitat for the U.S. DPS of smalltooth sawfish and incorporated the peer review comments prior to dissemination of this proposed rulemaking. The Draft 4(b)(2) Report that supports the proposal to designate critical habitat for the species was also peer reviewed and is available on our web site located at www.fdms.gov.
We determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management programs of Florida. The determination has been submitted for review by the responsible State agencies under section 307 of the Coastal Zone Management Act.
This proposed rule has been determined to be significant under Executive Order (E.O.) 12866. We have integrated the regulatory principles of the E.O. into the development of this proposed rule to the extent consistent with the mandatory duty to designate critical habitat, as defined in the ESA.
We prepared an initial regulatory flexibility analysis (IRFA) pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule may affect small businesses, small nonprofit organizations, and small governmental jurisdictions that engage in activities that would affect the essential features identified in this proposed designation, if they receive funding or authorization for such activity from a Federal agency. Such activities would trigger ESA section 7 consultation requirements, and potential modifications to proposed activities to avoid destroying or adversely modifying the critical habitat. The consultation record from which we have projected likely actions occurring over the next 10 years indicates that applicants for Federal permits or funds may have included small entities. For example, marine contractors have been the recipients of USACE permits for dock construction; some of these contractors may be small entities. According to the Small Business Administration, businesses in the Heavy and Civil Engineering Construction subsector (NAICS Code 237990), which includes firms involved in marine construction projects such as breakwater, dock, pier, jetty, seawall and harbor construction, must have average annual receipts of no more than $31 million to qualify as a small business (dredging contractors that perform at least 40% of the volume dredged with their own equipment, or equipment owned by another small concern are considered small businesses if their average annual receipts are less than or equal to $18.5 million). Our consultation database does not track the identity of past permit recipients or whether the recipients were small entities, so we have no basis to determine the percentage of grantees or permittees that may be small businesses in the future.
Small businesses in the tourist and commercial fishing industries may benefit from the rule because avoiding the destruction or adverse modification of the critical habitat features, particularly mangroves, is expected to at minimum prevent loss of current direct and indirect use of, and values derived from, these habitats within the areas included in the proposed designation.
A review of historical ESA section 7 consultations involving projects in the areas proposed for designation is described in Section 3.2.2 of the Draft Section 4(b)(2) Report prepared for this rulemaking. We projected that, on average, about eight Federal projects with non-federal grantees or permittees will be affected by implementation of the proposed critical habitat designation, annually, across both areas proposed for inclusion in the critical habitat designation. Some of these grantees or permittees could be small entities, or could hire small entities to assist in project implementation. Historically, these projects have involved dock/pier construction and repair, water control structure installation or repair, bridge repair and construction, dredging, cable installation, and shoreline stabilization. Potential project modifications we have identified that may be required to prevent these types of projects from adversely modifying critical habitat include: project relocation; environmental conditions monitoring; horizontal directional drilling; road/utility corridor restrictions; alternative shoreline stabilization methods; dock size and width limits; restrictions on structures that modify freshwater flows; and sediment and turbidity control measures. See Table 15 of the Draft Section 4(b)(2) Report.
Even though we cannot determine relative numbers of small and large entities that may be affected by this rule, there is no indication that affected project applicants would be limited to, nor disproportionately comprised of, small entities.
It is unclear whether small entities would be placed at a competitive disadvantage compared to large entities. However, as described in the Draft Section 4(b)(2) Report, consultations and project modifications will be required based on the type of permitted action and its associated impacts on the essential critical habitat feature. Because the costs of many potential project modifications that may be required to avoid adverse modification of critical habitat are unit costs such that total project modification costs would be proportional to the size of the project, it is not unreasonable to assume that larger entities would be involved in implementing the larger projects with proportionally larger project modification costs.
It is also unclear whether the proposed rule will significantly reduce profits or revenue for small businesses. As discussed throughout the Draft Section 4(b)(2) Report, we made assumptions that all of the future consultations will be formal, that all will require project modifications, and that all costs of project modifications will be incremental impacts of the proposed designation and not a requirement of other existing regulatory requirements. These assumptions likely overestimate the impacts of the proposed designation. In addition, as stated above, though it is not possible to determine the exact cost of any given
We encourage all small businesses, small governmental jurisdictions, and other small entities that may be affected by this rule to provide comment on the number of small entities affected and the potential economic impacts of the proposed designation, such as anticipated costs of consultation and potential project modifications, to improve the above analysis.
There are no record-keeping requirements associated with the proposed rule. Similarly, there are no reporting requirements other than those that might be associated with reporting on the progress and success of implementing project modifications. However, third party applicants or permittees would be expected to incur incremental costs associated with participating in the administrative process of consultation along with the permitting Federal agency, beyond the baseline administrative costs that would be required for consultations based on the sawfish itself. Estimates of the cost to third parties from consultations were developed from the estimated Section 7 costs identified in the Economic Analysis of Critical Habitat Designation for the Gulf Sturgeon (IEc, 2003) inflated to 2008 (March) dollars. The incremental third party cost for each consultation would be the difference between the cost of an informal consultation and a formal consultation ($2,000 difference per low complexity consultation and $1,600 difference per high complexity consultation). The total impact on third party costs would be the incremental cost of the formal consultation multiplied by the increased number of formal consultations. The maximum incremental third party costs are estimated to range from $121,600 to $152,000 (depending on complexity) over the 10-year planning period.
No Federal laws or regulations duplicate or conflict with the proposed rule. Existing Federal laws and regulations overlap with the proposed rule only to the extent that they provide protection to natural resources including mangroves generally. However, no existing laws or regulations specifically prohibit destruction or adverse modification of critical habitat for, and focus on the recovery of, the smalltooth sawfish.
The alternatives to the proposed designation considered consisted of three alternatives, a no-action, our preferred alternative, and an alternative with varying numbers of units. NMFS would not designate critical habitat for the smalltooth sawfish under the no action (status quo) alternative. Under this alternative, conservation and recovery of the listed species would depend exclusively upon the protection provided under the “jeopardy” provisions of Section 7 of the ESA. Under the status quo, there would be no increase in the number of ESA consultations or project modifications in the future that would not otherwise be required due to the listing of the smalltooth sawfish. However, the physical and biological features forming the basis for our proposed critical habitat designation are essential to sawfish conservation, and conservation for this species will not succeed without the availability of this feature. Thus, the lack of protection of the critical habitat feature from adverse modification could result in continued declines in abundance of smalltooth sawfish, and loss of associated values sawfish provide to society. Further, this alternative is not consistent with the requirement of the ESA to designate critical habitat to the maximum extent prudent and determinable.
Under the preferred alternative two specific areas that provide nursery functions for juvenile sawfish are proposed as critical habitat. These areas are located along peninsular Florida, encompassing portions of Charlotte, Lee, Collier, Monroe, and Miami-Dade counties. This area contains the physical and biological features essential to the conservation of the U.S. DPS of smalltooth sawfish. The essential features are red mangroves and shallow euryhaline habitats characterized by water depths between the MHW line and 3 ft (0.9 m) measured at MLLW that provide nursery area functions to smalltooth sawfish. The preferred alternative was selected because it best implements the critical habitat provisions of the ESA, by defining the specific features that are essential to the conservation of the species, and due to the important conservation benefits are expected to result from this alternative relative to the no action alternative.
Under the varying number of units alternative, we considered both combining the Charlotte Harbor Estuary Unit and the TTI/E Unit into a single unit for designation, and alternatively we considered splitting both units into multiple smaller units.
Under the first scenario, the unit would include the Naples beach area between the two proposed units, and thus would encompass a larger total area than the two proposed units. Though juveniles have been encountered in the Naples beach area, they have not been encountered in high densities. We also do not believe that juveniles move between the Charlotte Harbor Estuary and TTI/E Units along this stretch of beach. Furthermore, while red mangroves exist along this area (though they are much more sparsely distributed than in the two proposed units), the salinity regimes are much more purely marine than estuarine, and the features are not considered to provide the nursery functions essential to the conservation of the species in these areas. Thus, we rejected this alternative because the Naples Beach area is not considered to meet the definition of critical habitat.
Under the second scenario, we considered options to split both the Charlotte Harbor Estuary Unit and the TTI/E Unit into multiple smaller units. We considered designating Charlotte Harbor and the Caloosahatchee Rivers as separate units, including limiting the sizes of each of these areas strictly to locations of past high density encounters of juveniles. We considered the same type of partitioning of the TTI/E Unit into smaller isolated units based on past high density encounters alone. We rejected the alternative of separating Charlotte Harbor and the Caloosahatchee River because state and local water resource managers consider the systems as a single integrated aquatic system. For both proposed units, we rejected the alternative of multiple smaller units drawn around past high density juvenile encounters because we believe it would have omitted habitat that is almost certain nursery habitat for the sawfish between the units. In addition, the proposed essential features are continuously distributed from the harbor into the river, so this option would have omitted areas that meet the definition of critical habitat. Moreover, a designation limited to past encounters would not take into account the limits of this type of data in defining the extent of habitat use by the sawfish, and it would not provide protection for expanded nursery habitat needed for a recovering population. In addition, it was not clear that designating multiple smaller units would result in lower economic impacts of the designation, as the precise location of future consultations within these areas cannot be predicted based on available information.
An environmental analysis as provided for under National Environmental Policy Act for critical habitat designations made pursuant to the ESA is not required. See
We do not believe the proposed action contains policies with federalism implications under E.O. 13132. However, the Assistant Secretary for Legislative and Intergovernmental Affairs will provide notice of the proposed action to and request comments from the appropriate official(s) of the State of Florida in which the species occurs.
The proposed action has undergone a pre-dissemination review and determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (Section 515 of Public Law 106-554).
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
A complete list of all references cited in this rulemaking can be found on our Web site at
Endangered and threatened species.
For the reasons set out in the preamble, we propose to amend part 226, title 50 of the Code of Federal Regulations as set forth below:
1. The authority citation of part 226 continues to read as follows:
16 U.S.C. 1533.
Critical habitat is designated for the U.S. DPS of smalltooth sawfish as described in this section. The textual descriptions in paragraph (b) of this section are the definitive source for determining the critical habitat boundaries. The maps of the critical habitat units provided in paragraph (c) are for illustrative purposes only.
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(3) 1, 25.2527, -80.7988, Main Park Road (SR 9336) at Nine Mile Pond; 2, 25.2874, -80.5736, ENP boundary; 3, 25.2872, -80.4448, ENP boundary at US HWY 1; 4, 25.2237, -80.4308, ENP boundary at US HWY 1; 5, 25.1979, -80.4173, ENP boundary at US HWY 1; 6, 25.1846, -80.3887, ENP boundary at US HWY 1; 7, 25.1797, -80.3905, ENP boundary at US HWY 1; 8, 25.148, -80.4179, ENP boundary at Intracoastal Waterway (ICW); 9, 25.1432, -80.4249, ENP boundary at ICW; 10, 25.1352, -80.4253, ENP boundary at ICW; 11, 25.1309, -80.4226, ENP boundary at ICW; 12, 25.1282, -80.4230, ENP boundary at ICW; 13, 25.1265, -80.4268, ENP boundary at ICW; 14, 25.1282, -80.4432, ENP boundary at ICW; 15, 25.0813, -80.4747, ENP boundary at ICW; 16, 25.0676, -80.4998, ENP boundary at ICW; 17, 25.0582, -80.5218, ENP boundary at ICW; 18, 25.0373, -80.5178, ENP boundary at ICW; 19, 25.0326, -80.5188, ENP boundary at ICW; 20, 25.0168, -80.5487, ENP boundary at ICW; 21, 25.0075, -80.5578, ENP boundary at ICW; 22, 24.999, -80.5609, ENP boundary at ICW near Plantation; 23, 24.9962, -80.5648, ENP boundary at ICW; 24, 24.9655, -80.6347, ENP boundary at ICW; 25, 24.943, -80.6585, ENP boundary at ICW; 26, 24.9388, -80.6716, ENP boundary at ICW; 27, 24.9124, -80.7255, ENP boundary at ICW; 28, 24.9006, -80.7348, ENP boundary at ICW; 29, 24.8515, -80.8326, ENP boundary at COLREG-72; 30, 24.873, -80.8875, ENP boundary at Arsenic Bank Light; 31, 24.9142, -80.9372, ENP boundary at Sprigger Bank Light; 32, 25.0004, -81.0221, ENP boundary; 33, 25.0723, -81.0858, ENP boundary; 34, 25.0868, -81.0858, ENP boundary; 35, 25.1567, -81.1620, ENP boundary at Middle Cape Sable; 36, 25.2262, -81.2044, ENP boundary; 37, 25.3304, -81.1776, ENP boundary at Little Shark River; 38, 25.4379, -81.1940, ENP boundary; 39, 25.5682, -81.2581, ENP boundary; 40, 25.7154, -81.3923, ENP boundary at Pavillion Key; 41, 25.8181, -81.5205, ENP
(c)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice of public meetings.
We are advising the public that the Animal and Plant Health Inspection Service will host a series of public meetings to provide the public with an opportunity to offer comments regarding current challenges and new approaches for future tuberculosis control methods and eradication in view of budgetary constraints.
The public meetings will be held in Michigan on December 8, 2008; in Minnesota on December 10, 2008; in Texas on December 11, 2008; in California on December 12, 2008; and in Washington, DC, on December 16, 2008. The public meetings will be held from 8 a.m. to 4:30 p.m., local time. Meeting registration will be from 7 a.m. to 8 a.m. prior to each public meeting.
The public meetings will be held at the following locations:
• Michigan: Holiday Inn South Convention Center, 6820 South Cedar Street, Lansing, MI 48911;
• Minnesota: Hilton Minneapolis, 1001 Marquette Avenue South, Minneapolis, MN 55403;
• Texas: Hilton Garden Inn Austin Downtown, 500 North I H 35, Austin, TX 78701;
• California: Sheraton Grand Sacramento Hotel, 1230 J Street, Sacramento, CA 95814; and
• Washington, DC: Washington Marriott at Metro Center, 775 12th Street NW, Washington, DC 20005.
Dr. Alecia L. Naugle, Program Manager, National Tuberculosis Program, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD, 20737; (301) 734-6954.
The Animal and Plant Health Inspection Service (APHIS) is announcing a series of meetings to discuss its National Tuberculosis (TB) Program. The meetings are designed to assemble a wide range of producers and other stakeholders to discuss current challenges and potential new approaches for TB control and eradication in view of budgetary constraints. The meetings will be held in various geographical locations to facilitate attendance. Participants will have the opportunity to pose questions and offer written and oral comments. Tentative topics and questions for discussion at the upcoming meetings include:
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A list of discussion topics, questions, and meeting details is also available via the APHIS Web site at:
If you require special accommodations, such as a sign language interpreter, please see the contact the person listed under
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension with revision of a currently approved information collection, Evaluating Community Knowledge, Beliefs, Attitudes and Preferences Concerning Fire and Fuels Management in Southwestern Forest, Woodland and Grassland Ecosystems.
Comments must be received in writing on or before January 20, 2009 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Dr. Carol Raish, USDA Forest Service, Rocky Mountain Research Station, 333 Broadway, SE., Suite 115, Albuquerque, New Mexico 87102-3497.
Comments also may be submitted via facsimile to 505-724-3688 or by e-mail to:
Dr. Carol Raish, 505-724-3666. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.
Phase I collected information using a mail survey of households located in Arizona and New Mexico. The response rate to the mailed questionnaires (n=2000) was 25.1 percent. The type of information collected included:
(1) Attitudes and preferences toward wildfire and fire management alternatives for public lands,
(2) Risk reduction behaviors that homeowners and individuals have undertaken to minimize wildfire risk, and
(3) Sources of information regarding wildfires and wildfire analyzed by researchers at the Rocky Mountain Research Station and cooperators.
Proponents now wish to renew this information collection and implement Phase II of the project, which will use the same questionnaire to collect data from regional experts in fire risk behavior and mitigation actions. The plan is to interview 50 experts individually or in small focus groups (5-7 participants). Interviews will last one hour per individual and two hours per focus group. Interviewers will emphasize sections A through E of the approved survey instrument of this information collection. These sections focus on wildfire risk-management options for reducing risks to homeowners, the effectiveness of each option, the responsibilities of the various parties for risk reduction actions, and the perceived knowledge of the homeowners regarding wildfire risks.
Estimates are that 60 percent of respondents will consist of State fire representatives from Arizona and New Mexico; local government fire officials at the county and city levels charged with implementing fire mitigation programs; and individual members of the private sector considered wildfire risk-mitigation experts. The remaining respondents (40 percent) will be Federal employees considered experts in this field: U.S. Forest Service in Region 3 (30 percent), and Bureau of Land Management and Bureau of Indian Affairs (10 percent). As the Paperwork Reduction Act does not regulate responses provided by Federal employees, this information collection request is for the portion of the study affecting non-Federal entities (State, county, and city officials, and individuals).
Researchers will compare results of the expert interviews with results of the previously conducted qualitative and quantitative interviews (Phase I). In addition, information from Phase II will assist in development of a more detailed survey instrument for future research. Future research will help statistically verify that there is or is not a statistically significant variation between the experts in wildfire management and homeowners in Region 3. Prior to implementing such a survey, proponents would return to OMB for approval.
This information collection provides information to decision makers, enhancing understanding of the similarities and differences between experts and the public concerning wildfire mitigation options and preferences in Arizona and New Mexico. This information will assist Forest Service land managers in their efforts to interact more effectively with the public and manage the risks associated with wildland fire. If managers do not have adequate information concerning public attitudes and actions concerning wildfire risk reduction behaviors (for example, creating defensible space on their properties by clearing brush and trees from a 30-foot area around the residence), then managers may not make well-informed decisions concerning appropriate communication techniques and needed public education information.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Rural Utilities Service, USDA.
Notice of solicitation of applications.
USDA Rural Development administers loan and grant programs through the Rural Utilities Service. USDA Rural Development announces the Public Television Digital Transition Grant Program application window for fiscal year (FY) 2009. The FY 2008 funding for the Public Television Station Digital Transition Grant Program was approximately $5 million. This notice is being issued prior to passage of a final appropriations bill, which may or may not provide funding for this program, to allow time to submit
You may submit completed applications for grants on paper or electronically according to the following deadlines:
• Paper copies must carry proof of shipping no later than February 18, 2009 to be eligible for FY 2009 grant funding. Late applications are not eligible for FY 2009 grant funding.
• Electronic copies must be received by February 18, 2009 to be eligible for FY 2009 grant funding. Late applications are not eligible for FY 2009 grant funding.
You may obtain the application guide and materials for the Public Television Station Digital Transition Grant Program via the Internet at the following Web site:
• Submit completed paper applications for grants to the Telecommunications Program, USDA Rural Development, 1400 Independence Ave., SW., Room 2844, STOP 1550, Washington, DC 20250-1550. Applications should be marked “Attention: Director, Advanced Services Division.”
• Submit electronic grant applications to Grants.gov at the following Web address:
Gary B. Allan, Chief, Universal Services Branch, Advanced Services Division, Telecommunications Program, USDA Rural Development, telephone: (202) 690-4493, fax: (202) 720-1051.
• Paper copies must carry proof of shipping no later than February 18, 2009, to be eligible for FY 2009 grant funding. Late applications are not eligible for FY 2009 grant funding.
• Electronic copies must be received by February 18, 2009, to be eligible for FY 2009 grant funding. Late applications are not eligible for FY 2009 grant funding.
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As part of the nation's transition to digital television, the Federal Communications Commission (FCC) requires all television broadcasters to begin broadcasting using digital signals, and to cease analog broadcasting, by February 17, 2009. While most urban public television stations have successfully transitioned to digital, rural public television stations are still lagging behind their urban counterparts. For rural households the digital transition could bring the end of over-the-air public television service. These rural households are the focus of the USDA Rural Development Public Television Station Digital Transition Grant Program.
Most applications to the Public Television Station Digital Transition Grant Program have sought assistance towards the goal of replicating analog coverage areas through transmitter and translator transitions. The first priority has been to initiate digital broadcasting from their main transmitters. As many stations have transitioned their transmitters, the focus has shifted to power upgrades and translators, as well as digital program production equipment and multicasting and datacasting equipment. In FY 2008 awards were made for a transmitter transition, transmitter power maximization, translators, as well as master control and production equipment. When compared with the first few years of the program, as the digital transition progresses, more applications were received for translators and master control and production equipment, than for transmitters. Some stations may not achieve full analog parity in program management and creation until after the February 2009 deadline. Continuation of reliable public television service to all current patrons understandably is still the focus for many broadcasters.
It is important for public television stations to be able to tailor their programs and services (e.g., education services, public health, homeland security, and local news) to the needs of their rural constituents. If public television programming is lost, many school systems may be left without educational programming needed for curriculum compliance.
This notice has been formatted to conform to a policy directive issued by the Office of Federal Financial Management (OFFM) of the Office of Management and Budget (OMB), published in the
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a. The amount available for grants for FY 2009 will be announced in a future Notice of Funding Availability. Under 7 CFR 1740.2, the maximum amount for grants under this program is $750,000 per public television station per year.
b. Assistance instrument: Grant documents appropriate to the project will be executed with successful applicants prior to any advance of funds.
Public Television Station Digital Transition grants cannot be renewed. Award documents specify the term of each award, and USDA Rural Development, in its sole discretion, may approve one extension of the expiration date, provided that the Grantee notify USDA Rural Development, in writing at least ten days prior to the expiration date, of the reasons and need for an extension, together with a suggested, revised expiration date.
1. Public television stations which serve rural areas are eligible for Public Television Station Digital Transition Grants, regardless of whether urban areas are additionally served. A public television station is a noncommercial educational television broadcast station that is qualified for Community Service Grants by the Corporation for Public Broadcasting under section 396(k) of the Communications Act of 1934.
2. Individuals are not eligible for Public Television Station Digital Transition Grant Program financial assistance directly.
1. Grants shall be made to perform digital transitions of television broadcasting serving rural areas. Grant funds may be used to acquire, lease, and/or install facilities and software necessary to the digital transition. Specific purposes include:
a. Digital transmitters, translators, and repeaters, including all facilities required to initiate DTV broadcasting. All broadcast facilities acquired with grant funds shall be capable of delivering digital TV (DTV) programming and high-definition television (HDTV) programming, at both the interim and final channel and power authorizations. There is no limit to the number of transmitters or translators that may be included in an application;
b. Power upgrades of existing DTV transmitter equipment, including replacement of existing low-power digital transmitters with digital transmitters capable of delivering the final authorized power level;
c. Studio-to-transmitter links;
d. Equipment to allow local control over digital content and programming, including master control equipment;
e. Digital program production equipment, including cameras, editing, mixing and storage equipment;
f. Multicasting and datacasting equipment;
g. Cost of the lease of facilities, if any, for up to three years; and,
h. Associated engineering and environmental studies necessary to implementation.
2. Matching contributions: There is no requirement for matching funds in this program (see 7 CFR 1740.5).
3. To be eligible for a grant, the Project must not do any of the following (see 7 CFR 1740.7):
a. Include funding for ongoing operations or for facilities that will not be owned by the applicant, except for leased facilities as provided above;
b. Include costs of salaries, wages, and employee benefits of public television station personnel unless they are for construction or installation of eligible facilities;
c. Have been funded by any other source; or
d. Include items bought or built prior to the application deadline specified in this Notice of Solicitation of Applications.
C. See paragraph IV.B of this notice for a discussion of the items that comprise a completed application. You may also refer to 7 CFR 1740.9 for completed grant application items.
A. Where to get application information. The application guide, copies of necessary forms and samples, and the Public Television Station Digital Transition Grant Program regulation are available from these sources:
1. The Internet:
2. The USDA Rural Development Advanced Services Division, for paper copies of these materials: (202) 690-4493.
1. Detailed information on each item required can be found in the Public Television Station Digital Transition Grant Program regulation and application guide. Applicants are strongly encouraged to read and utilize the application guide in addition to the regulation. This Notice does not change the requirements for a completed application specified in the program regulation. The program regulation and application guide provide specific guidance on each of the items listed and the application guide provides all necessary forms and sample worksheets.
2. A completed application must include the following documentation, studies, reports and information in form satisfactory to USDA Rural Development. Applications should be prepared in conformance with the provisions in 7 CFR part 1740, subpart A, and applicable USDA regulations including 7 CFR parts 3015, 3016, and 3019. Applicants must use the application guide for this program containing instructions and all necessary forms, as well as other important information, in preparing their application. Completed applications must include the following:
a. An application for federal assistance, Standard Form 424.
b. An executive summary, not to exceed two pages, describing the public television station, its service area and offerings, its current digital transition status, and the proposed project.
c. Evidence of the applicant's eligibility to apply under this Notice, proving that the applicant is a Public Television Station as defined in this Notice, and that it is required by the FCC to perform the digital transition.
d. A spreadsheet showing the total project cost, with a breakdown of items sufficient to enable USDA Rural Development to determine individual item eligibility.
e. A coverage contour map showing the digital television coverage area of the application project. This map must show the counties (or county) comprising the Core Coverage Area by shading and by name. Partial counties included in the applicant's Core Coverage Area must be identified as partial and must contain an attachment with the applicant's estimate of the percentage that its coverage contour comprises of the total area of the county (total area is available from American Factfinder, referenced above). If the application is for a translator, the coverage area may be estimated by the applicant through computer modeling or some other reasonable method, and this estimate is subject to acceptance by USDA Rural Development.
f. The applicant's own calculation of its Rurality score, supported by a worksheet showing the population of its Core Coverage Area, and the urban and rural populations within the Core Coverage Area. The data source for the urban and rural components of that population must be identified. If the application includes computations made by a consultant or other organization outside the public television station, the application shall state the details of that collaboration.
g. The applicant's own calculation of its Economic Need score, supported by a worksheet showing the National School Lunch Program eligibility levels for all school districts within the Core
h. If applicable, a presentation not to exceed five pages demonstrating the Critical Need for the project.
i. Evidence that the FCC has authorized the initiation of digital broadcasting at the project sites. In the event that an FCC construction permit has not been issued for one or more sites, USDA Rural Development may include those sites in the grant, and make advance of funds for that site conditional upon the submission of a construction permit.
j. Compliance with other Federal statutes. The applicant must provide evidence or certification that it is in compliance with all applicable Federal statutes and regulations, including, but not limited to the following:
(1) Executive Order (E.O.) 11246, Equal Employment Opportunity, as amended by E.O. 11375 and as supplemented by regulations contained in 41 CFR part 60;
(2) Architectural barriers;
(3) Flood hazard area precautions;
(4) Assistance and Real Property Acquisition Policies Act of 1970;
(5) Drug-Free Workplace Act of 1998 (41 U.S.C. 701);
(6) E.O.s 12549 and 12689, Debarment and Suspension; and
(7) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352).
k. Environmental impact and historic preservation. The applicant must provide details of the digital transition's impact on the environment and historic preservation, and comply with 7 CFR Part 1794, which contains the Agency's policies and procedures for implementing a variety of federal statutes, regulations, and executive orders generally pertaining to the protection of the quality of the human environment. This must be contained in a separate section entitled “Environmental Impact of the Digital Transition,” and must include the Environmental Questionnaire/Certification, available from USDA Rural Development, describing the impact of its digital transition. Submission of the Environmental Questionnaire/Certification alone does not constitute compliance with 7 CFR part 1794.
3. DUNS Number. As required by the OMB, all applicants for grants must now supply a Dun and Bradstreet Data Universal Numbering System (DUNS) number when applying. The Standard Form 424 (SF-424) contains a field for you to use when supplying your DUNS number. Obtaining a DUNS number costs nothing and requires a short telephone call to Dun and Bradstreet. Please see the Public Television Station Digital Transmitter Grant Program Web site or Grants.gov for more information on how to obtain a DUNS number or how to verify your organization's number.
1. Applications submitted on paper: Submit the original application and two (2) copies to USDA Rural Development.
2. Electronically submitted applications: The additional paper copies for USDA Rural Development are not necessary if you submit the application electronically through Grants.gov.
Grant applications may be submitted on paper or electronically.
a. Address paper applications for grants to the Telecommunications Program, USDA Rural Development, 1400 Independence Ave., SW., Room 2844, STOP 1550, Washington, DC 20250-1550. Applications should be marked “Attention: Director, Advanced Services Division.”
b. Paper applications must show proof of mailing or shipping consisting of one of the following:
(i) A legibly dated postmark applied by the U.S. Postal Service;
(ii) A legible mail receipt with the date of mailing stamped by the USPS; or
(iii) A dated shipping label, invoice, or receipt from a commercial carrier.
c. Non-USPS-applied postage dating, i.e. dated postage meter stamps, do not constitute proof of the date of mailing.
d. Due to screening procedures at the Department of Agriculture, packages arriving via the USPS are irradiated, which can damage the contents. USDA Rural Development encourages applicants to consider the impact of this procedure in selecting their application delivery method.
a. Applications will not be accepted via facsimile machine transmission or electronic mail.
b. Electronic applications for grants will be accepted if submitted through the Federal government's Grants.gov Web site at
c. How to use Grants.gov:
(i) Navigate your Web browser to
(ii) Follow the instructions on that Web site to find grant information.
(iii) Download a copy of the application package.
(iv) Complete the package off-line.
(v) Upload and submit the application via the Grants.gov Web site.
d. Grants.gov contains full instructions on all required passwords, credentialing and software.
e. USDA Rural Development encourages applicants who wish to apply through Grants.gov to submit their applications in advance of the deadline. Difficulties encountered by applicants filing through Grants.gov will not justify filing deadline extensions.
f. If a system problem occurs or you have technical difficulties with an electronic application, please use the customer support resources available at the Grants.gov Web site.
1. Paper applications must be postmarked and mailed, shipped, or sent overnight no later than February 18, 2009 to be eligible for FY 2009 grant funding. Late applications are not eligible for FY 2009 grant funding.
2. Electronic grant applications must be received by February 18, 2009 to be eligible for FY 2009 funding. Late applications are not eligible for FY 2009 grant funding.
1. Grant applications are scored competitively and subject to the criteria listed below.
2. Grant application scoring criteria are detailed in 7 CFR 1740.8. There are 100 points available, broken down as follows:
a. The Rurality of the Project (up to 50 points);
b. The Economic Need of the Project's Service Area (up to 25 points); and
c. The Critical Need for the project, and of the applicant, including the benefits derived from the proposed service (up to 25 points).
1. All applications for grants must be delivered to USDA Rural Development at the address and by the date specified in this notice to be eligible for funding. USDA Rural Development will review each application for conformance with the provisions of this part. USDA Rural Development may contact the applicant for additional information or clarification.
2. Incomplete applications as of the deadline for submission will not be considered. If an application is
3. Applications conforming with this part will be evaluated competitively by a panel of USDA Rural Development employees selected by the Utilities Programs Administrator, and will be awarded points as described in the scoring criteria in 7 CFR 1740.8. Applications will be ranked and grants awarded in rank order until all grant funds are expended.
4. Regardless of the score an application receives, if USDA Rural Development determines that the Project is technically or financially infeasible, USDA Rural Development will notify the applicant, in writing, and the application will be returned with no further action.
1. The applicant's self scores in Rurality and Economic Need will be verified and, if necessary, corrected by USDA Rural Development.
2. The Critical Need score will be determined by USDA Rural Development based on information presented in the application. This score is intended to capture from the rural public's standpoint the necessity and usefulness of the proposed project. This scoring category will also recognize that some transition purchases are more essential than others, so that first time transmitter transitions and power upgrades of previously installed transmitters will receive scoring advantages. Master control equipment is very important to a station's operation and first time master control equipment will also get a high priority. Local production equipment can be a high priority especially if it produces an area's only local news or if the station has been historically active in producing local programming. Translators always deliver a great deal of rural benefit and a full digital conversion of a translator will receive recognition in the project's critical need score.
USDA Rural Development recognizes that each funded project is unique, and therefore may attach conditions to different projects' award documents. The Agency generally notifies applicants whose projects are selected for awards by faxing an award letter. USDA Rural Development follows the award letter with a grant agreement that contains all the terms and conditions for the grant. An applicant must execute and return the grant agreement, accompanied by any additional items required by the grant agreement.
The items listed in the program regulation at 7 CFR 1740.9(j) implement the appropriate administrative and national policy requirements.
All recipients of Public Television Station Digital Transition Grant Program financial assistance must provide annual performance activity reports to USDA Rural Development until the project is complete and the funds are expended. A final performance report is also required; the final report may serve as the last annual report. The final report must include an evaluation of the success of the project.
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B.
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Rural Utilities Service, USDA.
Notice of funding availability and solicitation of applications.
USDA Rural Development administers rural utilities programs through the Rural Utilities Service. USDA Rural Development announces the availability of grants from the Household Water Well System (HWWS) Grant Program for fiscal year (FY) 2009, to be competitively awarded. This notice is being issued prior to passage of a final appropriations bill, which may or may not provide for funding this program, to allow applicants sufficient time to leverage financing and submit applications. USDA Rural Development will publish a subsequent notice identifying the amount received in the appropriations, if any. The HWWS Grant Program is authorized under Section 6010 of the Food Conservation and Energy Act of 2008 (The Act), Public Law 110-234. The CONACT authorizes USDA Rural Development to make grants to qualified private non-profit organizations to establish lending programs for household water wells. The non-profit organizations will use the grants to make loans to individual homeowners to construct or upgrade a household water well system for an existing home. The organizations must contribute an amount equal to at least 10 percent of the grant request to capitalize the loan fund. Applications may be submitted in paper or electronic format. The HWWS Grant Program regulations are contained in 7 CFR part 1776.
The deadline for completed applications for a HWWS grant is May 31, 2009. Applications in either paper or electronic format must be postmarked or time-stamped electronically on or before the deadline. Late applications will be ineligible for grant consideration.
Submit electronic grant applications through
Application guides and materials for the HWWS Grant Program may be obtained electronically through
Cheryl Francis, Loan Specialist, U.S. Department of Agriculture, Rural Development Programs, Water and Environmental Programs, telephone: (202) 720-1937, fax: (202) 690-0649, e-mail:
The Household Water Well System (HWWS) Grant Program has been established to help individuals with low to moderate incomes finance the costs of household water wells that they own or will own. The HWWS Grant Program is authorized under Section 306E of the Consolidated Farm and Rural Development Act (CONACT), 7 U.S.C. 1926e, as amended by Section 6010 of the Food, Conservation and Energy Act of 2008 (2008 Farm Bill, Pub. L. 110-234. The CONACT authorizes the USDA Rural Development through the Rural Utilities Service to make grants to qualified private non-profit organizations to establish lending programs for household water wells.
As the grant recipients, non-profit organizations will receive HWWS grants to establish lending programs that will provide water well loans to individuals. The individuals, as loan recipients, may use the loans to construct, refurbish, and service their household well systems. A loan may not exceed $11,000 and will have a term up to 20 years at a one percent annual interest rate.
The USDA Rural Development supports the sound development of rural communities and the growth of our economy without endangering the environment. The USDA Rural Development provides financial and technical assistance to help communities bring safe drinking water and sanitary, environmentally sound waste disposal facilities to rural Americans in greatest need.
Central water systems may not be the only or best solution to drinking water problems. Distance or physical barriers make public central water systems expensive in remote areas. A significant number of geographically isolated households without water service might require individual wells rather than connections to new or existing community systems. The goal of the USDA Rural Development is not only to make funds available to those communities most in need of potable water but also to ensure that facilities used to deliver drinking water are safe and affordable. There is a role for private wells in reaching this goal.
The purpose of the HWWS Grant Program is to provide funds to non-profit organizations to assist them in establishing loan programs from which individuals may borrow money for household water well systems. Applicants must show that the project will provide technical and financial assistance to eligible individuals to remedy household well problems. Priority will be given to the non-profit organizations that:
1. Demonstrate experience in promoting safe, productive uses of household water wells and ground water.
2. Demonstrate significant management experience in making and servicing loans to individuals.
3. Contribute more than 50 percent of the grant amount in cash or other liquid assets in order to capitalize the revolving loan fund.
4. Propose to serve rural areas containing the smallest communities with a high percentage of low-income individuals eligible for loans.
5. Target areas which lack running water, flush toilets, and modern sewage disposal systems.
Due to the limited amount of funds available under the HWWS Program, three or four applications may be funded from FY 2009 funds. Previously funded grant recipients must apply for a different target area to be considered for funding under this announcement.
1. An organization is eligible to receive a Household Water Well grant if it:
a. Is a private, non-profit organization that has tax-exempt status from the United States Internal Revenue Service (IRS). Faith-based organizations are eligible and encouraged to apply for this program.
b. Is legally established and located within one of the following:
(1) A state within the United States
(2) The District of Columbia
(3) The Commonwealth of Puerto Rico
(4) A United States territory
c. Has the legal capacity and authority to carry out the grant purpose;
d. Has sufficient expertise and experience in lending activities;
e. Has sufficient expertise and experience in promoting the safe and productive use of individually-owned household water well systems and ground water;
f. Has no delinquent debt to the Federal Government or no outstanding judgments to repay a Federal debt;
g. Demonstrates that it possesses the financial, technical, and managerial capability to comply with Federal and State laws and requirements.
2. An individual is ineligible to receive a Household Water Well grant. An individual may receive only a loan.
1.
a. Be a revolving loan fund created to provide loans to eligible individuals to construct, refurbish, and service individually-owned household water well systems (see 7 CFR 1776.11 and 1776.12). Loans may not be provided for home sewer or septic system projects.
b. Be established and maintained by a private, non-profit organization.
c. Be located in a rural area. Rural area is defined as locations other than cities or towns of more than 50,000 people and the adjacent urbanized area of such towns and cities.
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3.
a. DUNS Number. An organization must have a Dun and Bradstreet Data Universal Numbering System (DUNS) number. A DUNS number will be required whether an applicant is submitting a paper application or an electronic application through
b. Eligibility for Loans. Individuals are not eligible for grants but are eligible for loans. To be eligible for a loan, an individual must:
(1) Be a member of a household of which the combined household income of all members does not exceed 100 percent of the median non-metropolitan household income for the State or territory in which the individual resides. Household income is the total income from all sources received by each adult household member for the most recent 12-month period for which the information is available. It does not include income earned or received by dependent children under 18 years old or other benefits that are excluded by Federal law. The non-metropolitan household income must be based on the most recent decennial census of the United States.
USDA Rural Development publishes a list of income exclusions in 7 CFR 3550.54(b). Also, a list of federally Mandated Exclusions from Income, published by the Department of Housing and Urban Development may be found in the
(2) Own and occupy the home being improved with the proceeds of the Household Water Well loan or be purchasing the home to occupy under a legally enforceable land purchase contract which is not in default by either the seller or the purchaser.
(3) Own the home in a rural area.
(4) Not use the loan for a water well system associated with the construction of a new dwelling.
(5) Not use the loan to substitute a well for water service available from collective water systems. (For example, a loan may not be used to restore an old well abandoned when a dwelling was connected to a water district's water line.)
(6) Not be suspended or debarred from participation in Federal programs.
The application guide, copies of necessary forms and samples, and the HWWS Grant regulation are available from these sources:
1. On-line for electronic copies:
2. USDA Rural Development for paper copies. USDA Rural Development Utilities Programs, Water Programs Division, Room 2234 South, Stop 1570, 1400 Independence Avenue, SW., Washington, DC 20250-1570, Telephone: (202) 720-9589; Fax (202) 690-0649.
a. Detailed information on each item required can be found in the Household Water Well System Grant Program regulation (7 CFR part 1776) and the Household Water Well System Grant Application Guide. Applicants are strongly encouraged to read and apply both the regulation and the application guide. This Notice does not change the requirements for a completed application for any form of HWWS financial assistance specified in the regulation. The regulation and application guide provide specific guidance on each of the items listed.
b. Applications should be prepared in conformance with the provisions in 7 CFR part 1776, subpart B, and applicable USDA regulations including 7 CFR parts 3015 and 3019. Applicants should use the Household Water Well System Grant Application Guide which contains instructions and other important information in preparing their application. Completed applications must include the items found in the checklist in the next paragraph.
The forms in items 1 through 6 must be completed and signed where appropriate by an official of your organization who has authority to obligate the organization legally. The forms may be found on-line at the USDA Rural Development Web site:
1. SF-424, “Application for Federal Assistance.”
2. SF-424A, “Budget Information—Non-Construction Programs.”
3. SF-424B, “Assurances—Non-Construction Programs.”
4. SF-LLL, “Disclosure of Lobbying Activity.”
5. Form RD 400-1, “Equal Opportunity Agreement.”
6. Form RD 400-4, “Assurance Agreement (Under Title VI, Civil Rights Act of 1964).”
7. Project Proposal. Project Summary. Needs Assessment. Project Goals and Objectives. Project Narrative.
8. Work Plan.
9. Budget and Budget Justification.
10. Evidence of Legal Authority and Existence.
11. Documentation of non-profit status and IRS Tax Exempt Status.
12. List of Directors and Officers.
13. Financial information and sustainability (narrative).
14. Assurances and Certifications of Compliance with Other Federal Statutes.
a. 7 CFR part 15, subpart A—Nondiscrimination in Federally Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964.
b. 7 CFR part 3015—Uniform Federal Assistance Regulations.
c. 7 CFR part 3017—Governmentwide Debarment and Suspension (Non-procurement).
d. 7 CFR part 3018—New Restrictions on Lobbying.
e. 7 CFR part 3019—Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals, and Non-profit Organizations.
f. 7 CFR part 3021—Governmentwide Requirements for Drug-Free Workplace (Financial Assistance).
g. Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” For information on limited English proficiency and agency-specific guidance, go to
h. Federal Obligation Certification on Delinquent Debt.
a. For paper applications mail or ensure delivery of an original paper application (no stamped, photocopied, or initialed signatures) and two copies by the deadline date to: USDA Rural Development Utilities Programs, Water Programs Division, Room 2234 South, Stop 1570, 1400 Independence Avenue, SW., Washington, DC 20250-1570.
b. Applications must show proof of mailing or shipping by one of the following:
(1) A legibly dated U.S. Postal Service (USPS) postmark;
(2) A legible mail receipt with the date of mailing stamped by the USPS; or
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
c. If a deadline date falls on a weekend, it will be extended to the following Monday. If the date falls on a Federal holiday, it will be extended to the next business day.
d. Due to screening procedures at the Department of Agriculture, packages arriving via the USPS are irradiated, which can damage the contents. USDA Rural Development encourages applicants to consider the impact of this procedure in selecting an application delivery method.
a. Applications will not be accepted via facsimile machine transmission or electronic mail.
b. Electronic applications for grants will be accepted if submitted through Grants.gov at
c. Applicants who apply through Grants.gov should submit their applications before the deadline.
d. Grants.gov contains full instructions on all required passwords, credentialing, and software. Follow the instructions at Grants.gov for registering and submitting an electronic application. USDA Rural Development may request original signatures on electronically submitted documents later.
e. To use Grants.gov:
(1) Follow the instructions on the Web site to find grant information.
(2) Download a copy of an application package.
(3) Complete the package off-line.
(4) Upload and submit the application via the Grants.gov Web site.
f. You must be registered with Grants.gov before you can submit a grant application.
(1)You will need a DUNS number to access or register at any of the services. In addition to the DUNS number required of all grant applicants, your organization must be listed in the Central Contractor Registry (CCR). If you have not used Grants.gov before, you will need to register with the CCR and the Credential Provider. Setting up a CCR listing (a one-time procedure with annual updates) takes up to five business days. USDA Rural Development recommends that you obtain your organization's DUNS number and CCR listing well in advance of the deadline specified in this notice.
(2) The CCR registers your organization, housing your organizational information and allowing Grants.gov to use it to verify your identity. You may register for the CCR by calling the CCR Assistance Center at 1-888-227-2423 or you may register online at
(3) The Credential Provider gives you or your representative a username and password, as part of the Federal Government's e-Authentication to ensure a secure transaction. You will need the username and password when you register with Grants.gov or use Grants.gov to submit your application. You must register with the Central Provider through Grants.gov at
(4) If a system problem or technical difficulty occurs with an electronic application, please use the customer support resources available at the Grants.gov Web site.
The deadline for paper and electronic submissions is May 31, 2009. Paper applications must be postmarked and mailed, shipped, or sent overnight no later than the closing date to be considered for FY 2009 grant funding. Electronic applications must have an electronic date and time stamp by midnight of May 31, 2009, to be considered on time. USDA Rural Development will not accept applications by fax or e-mail. Applications that do not meet the criteria above are considered late applications and will not be considered. USDA Rural Development will notify each late applicant that its application will not be considered.
a. Grant funds must be used to establish and maintain a revolving loan fund to provide loans to eligible individuals for household water well systems.
b. Individuals may use the loans to construct, refurbish, rehabilitate, or replace household water well systems up to the point of entry of a home. Point of entry for the well system is the junction where water enters into a home water delivery system after being pumped from a well.
c. Grant funds may be used to pay administrative expenses associated with providing Household Water Well loans.
a. Administrative expenses incurred in any calendar year that exceed 10 percent of the HWWS loans made during the same period do not qualify for reimbursement.
b. Administrative expenses incurred before USDA Rural Development executes a grant agreement with the recipient do not qualify for reimbursement.
c. Delinquent debt owed to the Federal Government.
d. Grant funds may not be used to provide loans for household sewer or septic systems.
e. Household Water Well loans may not be used to pay the costs of water well systems for the construction of a new house.
f. Household Water Well loans may not be used to pay the costs of a home plumbing system.
This section contains instructions and guidelines on preparing the project proposal, work plan, and budget sections of the application. Also, guidelines are provided on the additional information required for USDA Rural Development to determine eligibility and financial feasibility.
(1) Document the grant applicant's ability to manage and service a revolving fund. The narrative may describe the systems that are in place for the full life cycle of a loan from loan origination through servicing. If a servicing contractor will service the loan portfolio, the arrangement and services provided must be discussed.
(2) Show evidence that the organization can commit financial resources the organization controls. This documentation should describe the sources of funds other than the HWWS grant that will be used to pay your operational costs and provide financial assistance for projects.
(3) Demonstrate that the organization has secured commitments of significant financial support from other funding sources, if appropriate.
(4) List the fees and charges that borrowers will be assessed.
a. Provide a budget with line item detail and detailed calculations for each budget object class identified in section B of the Budget Information form (SF-424A). Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. Also include a breakout by the funding sources identified in Block 15 of the SF-424.
b. Provide a narrative budget justification that describes how the categorical costs are derived for all capital and administrative expenditures, the matching contribution, and other sources of funds necessary to complete the project. Discuss the necessity, reasonableness, and allocability of the proposed costs. Consult OMB Circular A-122: “Cost Principles for Non-Profit Organizations” for information about appropriate costs for each budget category.
c. If the grant applicant will use a servicing contractor, the fees may be reimbursed as an administrative expense as provided in 7 CFR 1776.13. These fees must be discussed in the budget narrative. If the grant applicant will hire a servicing contractor, it must demonstrate that all procurement transactions will be conducted in a manner to provide, to the maximum extent practical, open and free competition. Recipients must justify any anticipated procurement action that is expected to be awarded without competition and exceed the simplified acquisition threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000).
d. The indirect cost category should be used only when the grant applicant currently has an indirect cost rate approved by the Department of Agriculture or another cognizant Federal agency. A grant applicant that will charge indirect costs to the grant must enclose a copy of the current rate agreement. If the grant applicant is in the process of initially developing or renegotiating a rate, the grant applicant shall submit its indirect cost proposal to the cognizant agency immediately after the applicant is advised that an award will be made. In no event, shall the indirect cost proposal be submitted later than three months after the effective date of the award. Consult OMB Circular A-122 for information about indirect costs.
Grant applications that are complete and eligible will be scored competitively based on the following scoring criteria:
1. Incomplete applications as of the deadline for submission will not be considered. If an application is determined to be incomplete, the applicant will be notified in writing and the application will be returned with no further action.
2. Ineligible applications will be returned to the applicant with an explanation.
3. Complete, eligible applications will be evaluated competitively by a review team, composed of at least two USDA Rural Development employees selected from the Water Programs Division. They will make overall recommendations based on the program elements found in 7 CFR part 1776 and the review criteria presented in this notice. They will award points as described in the scoring criteria in 7 CFR 1776.9 and this notice. Each application will receive a score based on the averages of the reviewers' scores and discretionary points awarded by the Rural Utilities Service Administrator.
4. Applications will be ranked and grants awarded in rank order until all grant funds are expended.
5. Regardless of the score an application receives, if USDA Rural Development determines that the project is technically infeasible, USDA Rural Development will notify the applicant, in writing, and the application will be returned with no further action.
USDA Rural Development will notify a successful applicant by an award letter accompanied by a grant agreement. The grant agreement will contain the terms and conditions for the grant. The applicant must execute and return the grant agreement, accompanied by any additional items required by the award letter or grant agreement.
1. This notice, the 7 CFR part 1776, and Household Water Well System Grant Program Application Guide implement the appropriate administrative and national policy requirements. Grant recipients are subject to the requirements in 7 CFR part 1776.
2. Direct Federal grants, sub-award funds, or contracts under the HWWS Program shall not be used to fund inherently religious activities, such as worship, religious instruction, or proselytization. Therefore, organizations that receive direct USDA assistance should take steps to separate, in time or location, their inherently religious activities from the services funded under the HWWS Program. USDA regulations pertaining to the Equal Treatment for Faith-based Organizations, which include the prohibition against Federal funding of inherently religious activities, can be found either at the USDA Web site at
a. Grantees expending $500,000 or more Federal funds per fiscal year will submit an audit conducted in accordance with OMB Circular A-133. The audit will be submitted within 9 months after the grantee's fiscal year. Additional audits may be required if the project period covers more than one fiscal year.
b. Grantees expending less than $500,000 will provide annual financial statements covering the grant period, consisting of the organization's statement of income and expense and balance sheet signed by an appropriate official of the organization. Financial statements will be submitted within 90 days after the grantee's fiscal year.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, Fax number (202) 395-7285 or via the Internet at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The current CFS registration form is available online via the Internet at
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Wendy Liberante, OMB Desk Officer, Fax number (202) 395-7285 or via the Internet at
Economic Development Administration (EDA).
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before January 20, 2009.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Diane Rodriguez, Program Analyst, Performance and National Programs Division, Room 7009, Economic Development Administration, Washington, DC 20230, telephone (202) 482-4495, facsimile (202) 482-2838 (or via the Internet at
The Economic Development Administration (EDA) administers the Trade Adjustment Assistance for Firms Program, which is authorized by chapters 3 and 5 of title II of the Trade Act of 1974, as amended (19 U.S.C. 2341
The ED-840P form is downloadable from EDA's Web site at
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Industry and Security, Department of Commerce.
Notice of Inquiry.
The Bureau of Industry and Security (BIS) is seeking public comment on the prospect of removing from de minimis eligibility commodities controlled for missile technology (MT) reasons under Category 7—Product Group A on the Commerce Control List except when the 7A commodities are incorporated as standard equipment in Federal Aviation Administration (FAA) (or national equivalent) certified civilian transport aircraft. If such a policy were implemented, foreign made items that incorporate U.S.-origin 7A commodities would be subject to the Export Administration Regulations, except when the 7A commodities are incorporated as standard equipment in FAA (or national equivalent) certified civilian transport aircraft. Specifically, BIS is seeking public input on the impact such a change would have on U.S. manufacturers of category 7A commodities, as well as the impact such a change would have on foreign manufacturers that incorporate U.S.-origin 7A commodities into their foreign-made products.
Comments must be received no later than January 20, 2009.
Written comments may be submitted via
Sharron Cook, Office of Exporter Services, Regulatory Policy Division, Bureau of Industry and Security at 202-482-2440, or fax 202-482-3355, or e-mail at
The term “
Commodities controlled by Category 7—Product Group A in the Commerce Control List are certain equipment and components related to navigation and avionics. Reviewing agencies have raised concerns that such commodities, when controlled for MT reasons, have the potential to provide a foreign product with unique military capabilities, even if the value of the commodity is below normal
BIS is seeking public comments on the expected impact on U.S. manufacturers of commodities controlled by Category 7—Product Group A, as well as the expected impact on foreign manufacturers that incorporate U.S.-origin 7A commodities into their foreign-made products, if BIS were to remove from
Finally, BIS is interested in concrete information (URL addresses, technical specifications, etc.) about the availability of equivalent commodities from foreign sources.
Import Administration, International Trade Administration, Department of Commerce.
November 20, 2008.
Brian Smith or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14
On April 25, 2008, the Department of Commerce (“the Department”) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the date of publication of an order for which a review is requested. If it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend this deadline to a maximum of 365 days.
In this review, the respondents, Max Fortune Industrial Limited and Max Fortune (FETDE) Paper Products Co., Ltd. (collectively referred to as “Max Fortune”), requested that the Department revoke the antidumping duty order on certain tissue paper products from the PRC with respect to them pursuant to 19 CFR 351.222(b). The Department requires additional time to review and analyze the revocation request and the factors of production information submitted by Max Fortune in this administrative review and, if necessary, issue an additional supplemental questionnaire. The Department also requires additional time to conduct verification of Max Fortune's questionnaire responses. Thus, it is not practicable to complete this review within the original time limit. Therefore, the Department is fully extending the time limit for completion of the preliminary results by 120 days to 365 days, in accordance with section 751(a)(3)(A) of the Act. The preliminary results are now due no later than March 31, 2009. The final results continue to
We are issuing and publishing this notice in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (the Department) preliminarily determines that citric acid and certain citrate salts (citric acid) from Canada are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to a request from the respondent, we are postponing for 60 days the final determination and extending provisional measures from a four-month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination.
November 20, 2008.
Terre Keaton Stefanova or Rebecca Trainor, 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) 482-1280 and (202) 482-4007, respectively.
On May 5, 2008, the Department initiated the antidumping duty investigation of citric acid from Canada.
The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the
On June 11, 2008, the International Trade Commission (ITC) published its affirmative preliminary determination that there is a reasonable indication that imports of citric acid and certain citrate salts from Canada are materially injuring the U.S. industry, and the ITC notified the Department of its finding.
On June 17, 2008, we selected JBLT as the sole mandatory respondent in this investigation.
In August and September 2008, we received JBLT's questionnaire responses. In September and October 2008, we issued supplemental questionnaires, and we received JBLT's responses to these questionnaires in October and November 2008. We note that JBLT's questionnaire response that was due on November 7, 2008, was not received in time for consideration in the preliminary determination, but will be considered in the final determination.
On October 22, 2008, JBLT requested that in the event of an affirmative preliminary determination in this investigation, the Department: 1) postpone its final determination by 60 days in accordance with 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii); and 2) extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to a six-month period. On October 24, 2008, the petitioner requested that in the event of a negative preliminary determination in this investigation, the Department postpone the final determination by 60 days. For further discussion, see the “Postponement of Final Determination and Extension of Provisional Measures” section of this notice, below.
On October 28, 2008, the petitioners submitted comments for consideration in the preliminary determination.
The period of investigation (POI) is April 1, 2007, to March 31, 2008. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition.
The scope of this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend. The scope of this investigation also includes all forms of crude calcium citrate, including dicalcium citrate
In accordance with the preamble to the Department's regulations (
On August 6, 2008, the Department issued a memorandum to the file regarding the petitioners' proposed amendments to the scope of the investigations. In response, on August 11, 2008, L. Perrigo Company and the petitioners submitted comments to provide clarification of the term “unrefined” calcium citrate. We analyzed the comments of the interested parties regarding the scope of this investigation.
We have taken into account the comments that were submitted by the interested parties concerning product-comparison criteria. In accordance with section 771(16) of the Act, all products produced by the respondent covered by the description in the “Scope of Investigation” section, above, and sold in Canada during the POI are considered to be foreign like product for purposes of determining appropriate product comparisons to U.S. sales. We have relied on four criteria to match U.S. sales of subject merchandise to comparison-market sales of the foreign like product: 1) type, 2) form, 3) grade, and 4) particle size. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed above.
The Department normally will use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. However, the Department's regulations provide that the Department may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale (
As the information on the record indicates that the material terms of sale (
To determine whether sales of citric acid from Canada to the United States were made at LTFV, we compared the constructed export price (CEP)
In accordance with section 772(b) of the Act, we calculated CEP for those sales where the subject merchandise
We based CEP on packed, ex-factory or delivered prices to unaffiliated purchasers in the United States. When appropriate, we adjusted the starting prices for billing adjustments, rebates and interest revenue, in accordance with 19 CFR 351.401(c). We made deductions for movement expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act; these expenses included foreign inland freight from the plant to the port of exportation, foreign inland insurance, foreign brokerage and handling, U.S. brokerage and handling, U.S. inland freight from port to warehouse, U.S. warehousing, U.S. inland freight from warehouse to the unaffiliated customer, and U.S. inland insurance. In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (
For discussion of adjustments made to JBLT's reported U.S. sales data, see Memorandum to The File entitled: “Preliminary Determination Margin Calculation for Jungbunzlauer Technology GMBH & Co KG (JBLT),” dated November 12, 2008.
To determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the export price (EP) or CEP. Pursuant to 19 CFR 351.412(c)(1), the NV LOT is based on the starting price of the sales in the comparison market or, when NV is based on constructed value, the starting price of the sales from which we derive selling, general and administrative expenses, and profit. For EP sales, the U.S. LOT is based on the starting price of the sales in the U.S. market, which is usually from exporter to importer. For CEP sales, the U.S. LOT is based on the starting price of the U.S. sales, as adjusted under section 772(d) of the Act, which is from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer.
In this investigation, we obtained information from JBLT regarding the marketing stages involved in making its reported home market and U.S. sales, including a description of the selling activities performed by the respondent and its affiliates for each channel of distribution.
During the POI, JBLT reported that it sold citric acid to end-users and distributors through two channels of distribution in both the U.S. and home markets. JBLT stated that its selling process was basically the same for all channels of distribution. As the details of JBLT's reported selling functions for each channel of distribution are business proprietary, our analysis of these selling functions for purposes of determining whether different LOTs exist is contained in a separate memorandum to James Maeder, Director, AD/CVD Operations Office 2, from the Team entitled “Preliminary Level-of-Trade Analysis,” dated November 12, 2008.
Based on our analysis, we find that the selling functions JBLT performed for each of its channels of distribution in the U.S. market were essentially the same, but for one selling function which we determined was not sufficient to warrant an LOT distinction between these channels. Therefore, we determined preliminarily that there is only one LOT (for CEP sales) in the U.S. market. Similarly, we found that the selling functions that JBLT (and its affiliates) performed for each of the channels of distribution in the home market were essentially the same, with the exception of certain selling activities which we determined were not sufficient to warrant a LOT distinction between these channels. Therefore, we determined preliminarily that there is only one LOT in the home market.
In comparing the home market LOT to the CEP LOT, we found that the selling activities performed by JBLT for its CEP sales were significantly fewer than the selling activities that it performed for its home market sales, and that the home-market LOT was more remote from the factory than the CEP LOT. Accordingly, we considered the CEP LOT to be different from the home-market LOT and to be at a less advanced stage of distribution than the home-market LOT.
Therefore, we could not match CEP sales to sales at the same LOT in the home market, nor could we determine an LOT adjustment based on JBLT's home market sales because there is only one LOT in the home market, and it is not possible to determine if there is a pattern of consistent price differences between the sales on which NV is based and home market sales at the LOT of the export transaction.
Based on our analysis of the petitioners' sales below cost of production (COP) allegation filed in the
In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the cost of materials and fabrication for the foreign like product, plus an amount for general and administrative expenses (G&A), interest expenses, and home market packing costs (see “Test of Home Market Sales Prices” section below for treatment of home market selling expenses and packing costs). We relied on the COP data submitted by JBLT in its October 27, 2008, supplemental response to section D of the questionnaire, except where noted below.
We adjusted the total cost of manufacturing for a major input used in the production of citric acid purchased from an affiliated company to reflect the higher of transfer price, market price, or cost in accordance with section 773(f)(3) of the Act. We recalculated the G&A expense ratio to include capital tax and consulting services. We applied the revised G&A expense ratio and the financial expense ratio to the total cost of manufacturing before our major input adjustment. For further discussion, see Memorandum from James Balog to Neal Halper, Director, Office of Accounting, Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - Jungbunzlauer Technology GMBH & Co KG dated November 12, 2008.
On a product-specific basis, we compared the adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, to determine whether the sale prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were adjusted for billing adjustments and interest revenue, and were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses.
Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of the respondent's sales of a given product were at prices less than the COP, we do not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of the respondent's sales of a given product during the POI were at prices less than COP, we determine that such sales have been made in “substantial quantities.”
In this case, we found that, for certain specific products, more than 20 percent of JBLT's sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We based NV for JBLT on packed, ex-factory or delivered prices to unaffiliated customers in the home market. We made adjustments to the starting price, where appropriate, for billing adjustments and interest revenue in accordance with 19 CFR 351.401(c). We made deductions, where appropriate, for movement expenses, including inland freight and inland insurance, under section 773(a)(6)(B)(ii) of the Act.
Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(b), we made, where appropriate, circumstance-of-sale adjustments for imputed credit expenses. We also deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act. Finally, we made a CEP offset pursuant to section 773(a)(7)(B) of the Act and 19 CFR 351.412(f). We calculated the CEP offset as the lesser of the indirect selling expenses on the home-market sales or the indirect selling expenses deducted from the starting price in calculating CEP.
It is our normal practice to make currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.
In the antidumping questionnaire, we instructed JBLT to report prices and expenses in the currency in which they were incurred. Nevertheless, in this case, JBLT reported data that had been converted from multiple currencies into Canadian dollars (CAD) in the home market, and U.S. dollars (USD) in the U.S. market because its company-wide electronic data processing system automatically converts all foreign currency transactions into the currency of the respective JBL Group entity at the moment of posting. According to JBLT, the entry of data and the currency conversion is a simultaneous process in its accounting system. As a result, its system does not retain the original foreign currency amount in the sales database or in the general ledger.
Because it appears that the currency conversion process is a company-wide procedure that is done in the normal course of business, we have accepted JBLT's data as reported for the preliminary determination. However, at verification we intend to examine JBLT's accounting system, and the reasonableness of its price and expense reporting based on this system.
As provided in section 782(i)(1) of the Act, we intend to verify the information relied upon in making our final determination for JBLT.
In accordance with section 733(d)(2) of the Act, we will direct Customs and Border Protection (CBP) to suspend liquidation of all entries of citric acid from Canada that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
The weighted-average dumping margins are as follows:
Section 735(c)(5)(A) of the Act provides that the estimated “All Others” rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
We will disclose the calculations performed in our preliminary analysis to parties to this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the Department's final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of citric acid from Canada are materially injuring, or threatening material injury to, the U.S. industry (
Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the last verification report in this proceeding. Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline date for the submission of case briefs. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette. In accordance with section 774 of the Act, the Department will hold a public hearing, if timely requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a timely request for a hearing is made in this investigation, we intend to hold the hearing two days after the rebuttal brief deadline date at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date.
Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. At the hearing, oral presentations will be limited to issues raised in the briefs.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters, who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a request for extension of provisional measures from a four-month period to not more than six months.
On October 22, 2008, JBLT requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, JBLT requested that the Department extend the application of the provisional measures prescribed under section 733(d) of the Act and 19 CFR 351.210(e)(2), from a four-month period to a six-month period. In accordance with section 735(a)(2) of the Act and 19 CFR 351.210(b)(2), because (1) our preliminary determination is affirmative, (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and (3) no compelling reasons for denial exist, we are granting this request and are postponing the final determination until no later than 135 days after the publication of this notice in the
This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
November 20, 2008.
We preliminarily determine that citric acid and certain citrate salts (“citric acid”) from the People's Republic of China (“PRC”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733 of the Tariff Act of 1930, as amended (“the Act”). The estimated margins of sales at LTFV are
Marin Weaver or Andrea Staebler Berton, 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) 482-2336 or 482-4037, respectively.
On April 14, 2008, the Department of Commerce (“the Department”) received a petition concerning imports of citric acid and certain citrate salts from the People's Republic of China (“PRC Petition”) filed in proper form by Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Americas, Inc. (collectively, “Petitioners”). The Department of Commerce (“the Department”) initiated this investigation on May 13, 2008.
On May 13, 2008, the Department requested comments from interested parties regarding the appropriate physical characteristics of citric acid and certain citrate salts to be reported in response to the Department's antidumping questionnaires.
On June 11, 2008, the United States International Trade Commission (“ITC”) published its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of imports of citric acid from the PRC.
On June 23, 2008, the Department issued quantity and value (“Q&V”) questionnaires to over 100 companies, which Petitioners identified in the PRC Petition as potential producers and/or exporters of citric acid from the PRC.
From July 1, 2008 through July 15, 2008,
On July 9, 2008, the Department determined that India, Thailand, Indonesia, the Philippines, and Columbia are countries comparable to the PRC in terms of economic development. See Memorandum entitled “Antidumping Duty Investigation of Citric Acid and Citrate Salts (“Citric Acid”) from the People's Republic of China (PRC): Request for a List of Surrogate Countries,” (July 9, 2008) (“Office of Policy Surrogate Countries Memorandum”).
On August 5, 2008, the Department issued its respondent selection memorandum, selecting TTCA and Yixing Union as mandatory respondents in this investigation.
On August 19, 2008, Petitioners requested that the Department postpone the preliminary determination by 50 days,
On October 6, 2008, Petitioners and TTCA submitted surrogate value data.
The POI is October 1, 2007, through March 31, 2008. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was April 2008.
The scope of this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend. The scope of this investigation also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate. The scope of this investigation does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2%, by weight, of the product. The scope of this investigation includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate, which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively. Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and 3824.90.9290 of the HTSUS, respectively. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.90.9290 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
In accordance with the preamble to the Department's regulations (
On August 6, 2008, the Department issued a memorandum to the file regarding Petitioners' proposed amendments to the scope of the investigations. In response, on August 11, 2008, L. Perrigo Company and Petitioners submitted comments to provide clarification of the term “unrefined” calcium citrate. We have analyzed the comments of the interested parties regarding the scope of this investigation.
When the Department is investigating imports from an NME, section 773(c)(1) of the Act directs it to base normal value, in most circumstances, on the NME producer's factors of production (“FOP”) valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise.
For purposes of the instant investigation, in accordance with section 773(c) of the Act and 19 CFR 351.408, the Department has preliminarily selected Indonesia as the primary surrogate country. See Memorandum to the File: Antidumping Investigation of Citric Acid and Certain Citrate Salts from the People's Republic of China: Selection of a Surrogate Country, dated November 12, 2008.
Section 777A(c)(1) of the Act directs the Department to calculate individual weighted-average dumping margins for each known exporter and producer of the subject merchandise. Section 777A(c)(2) of the Act gives the Department discretion, when faced with a large number of exporters or producers and where it is not practicable to examine all known exporters or producers of subject merchandise, to investigate either (1) a sample of exporters, producers, or types of products that is statistically valid based on the information available to the Department at the time of selection, or (2) exporters accounting for the largest volume of the merchandise under investigation that can reasonably be examined. After consideration of the complexities of this investigation and the resources available to it, the Department determined that it was not practicable in this investigation to examine all known exporters of subject
For purposes of initiation, Petitioners submitted an LTFV analysis for the PRC as an NME.
In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. Exporters can demonstrate this independence through the absence of both
A.H.A, BBCA Biochemical, Changyun Biochemical, High Hope, Laiwu Taihe Biochemical, Penglai Marine, Shuren Scientific, Weifan Ensign, Xinghua Biochemical, JF International, and RZBC Group (collectively, “SR Applicants”) and TTCA and Yixing Union (the mandatory respondents) all stated that they are either joint ventures between Chinese and foreign companies, or are wholly Chinese-owned companies. Therefore, the Department must analyze whether these respondents can demonstrate the absence of both
The Department considers the following
The mandatory respondents and SR Applicants provided evidence demonstrating: (1) an absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) legislative enactments decentralizing control of companies; and (3) other formal measures by the government decentralizing control of companies.
Typically the Department considers four factors in evaluating whether each respondent is subject to
The mandatory respondents and the SR Applicants provided evidence demonstrating: (1) that the export prices are not set by, and are not subject to, the approval of a governmental agency; (2) they have authority to negotiate and sign contracts and other agreements; (3) they have autonomy from the government in making decisions regarding the selection of management; and (4) they retain the proceeds of their export sales and make independent decisions regarding disposition of profits or financing of losses.
Therefore, the evidence placed on the record of this investigation by the mandatory respondents and the SR Applicants demonstrates an absence of
Section 776(a)(2) of the Act provides that, if an interested party (A) withholds information that has been requested by the Department, (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the
Information on the record of this investigation indicates that the PRC-wide entity was non-responsive. Certain companies did not respond to our questionnaire requesting Q&V information.
Section 776(b) of the Act provides that if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may employ adverse inferences.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may 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 selecting a rate for AFA, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
It is the Department's practice to select, as AFA, the higher of a) the highest margin alleged in the petition, or b) the highest calculated rate of any respondent in the investigation.
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 as facts available, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. Secondary information is described in the SAA as “information derived from the petition that gave rise to the investigation or review, the final determination concerning subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
The AFA rate that the Department used is from the petition, as revised by the Department, and is thus secondary information subject to the corroboration requirement.
Consequently, we are applying a single antidumping rate the PRC-wide rate to exporters that failed to respond to the Department's the Q&V questionnaire, or did not apply for a separate rate, as applicable. The PRC-wide rate applies to all entries of the merchandise under investigation except for entries from mandatory respondents TTCA and Yixing Union, and the remaining the separate-rate recipients. These companies and their corresponding antidumping duty cash deposit rates are listed below in the “Preliminary Determination” section of this notice.
We have established a simple-average margin for all separate-rate recipients
To determine whether sales of citric acid to the United States by the mandatory respondents were made at LTFV, we compared export price (“EP”) to NV, as described in the “Export Price” and “Normal Value” sections of this notice.
In accordance with section 772(a) of the Act, EP is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c) of the Act. In accordance with section 772(a) of the Act, we used EP for TTCA's and Yixing Union's U.S. sales because the subject merchandise was sold directly to the unaffiliated customers in the United States prior to importation and because constructed export price (“CEP”) was not otherwise indicated. Neither mandatory respondent reported CEP sales.
We calculated EP based on the packed FOB, CFR, or CIF prices to unaffiliated purchasers in, or for exportation to, the United States. We made deductions, as appropriate, for any movement expenses (
We compared NV to weighted-average EPs in accordance with section 777A(d)(1) of the Act. Further, section 773(c)(1) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under its normal methodologies.
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by mandatory respondents for the POI. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Indonesian surrogate values. For a detailed discussion of the surrogate values used in this investigation,
In accordance with 19 C.F.R. 351.301(c)(3)(i), for the final determination in an antidumping investigation, interested parties may submit within 40 days after the date of publication of the preliminary determination publicly available information to value the factors of production (“FOP”).
For this preliminary determination for direct material inputs, packing material inputs, some by-products, and a utility input, we used Indonesian import values from the World Trade Atlas (“WTA”) online, which were published by Statistics Indonesia. The WTA Indonesian import statistics used to calculate surrogate values for the mandatory respondents' material inputs are reported in U.S. dollars and are contemporaneous with the POI. Where we could not use WTA Indonesian import statistics, we used Indian import statistics from the WTA. In selecting the best available information for valuing FOPs in accordance with section 773(c)(1) of the Act, the Department's practice is to select, to the extent practicable, surrogate values which are non-export average values, most contemporaneous with the POI, product-specific, and tax-exclusive.
Where we could not obtain publicly available information contemporaneous with the POI with which to value FOPs, we adjusted the surrogate values using, where appropriate, the Indonesian or Indian Wholesale Price Index (“WPI”) as published in the
Furthermore, with regard to the Indonesian and Indian import-based surrogate values, we have disregarded import prices that we have reason to believe or suspect may be subsidized. We have reason to believe or suspect that prices of inputs from Indonesia, India, South Korea, and Thailand may have been subsidized.
We calculated freight costs for truck freight or inland boat freight, as appropriate, using an Indian per-unit average rate calculated from data on the following Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this Web site contains inland freight truck rates between many large Indian cities. Since this value is not contemporaneous with the POI, we deflated the rate using WPI. Since the only inland boat value on the record is almost 12 years old, we used the Indian truck freight from 2008 to value inland boat freight consistent with
For labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in May 2008, available at http://ia.ita.doc.gov/wages/index.html. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by the respondents. If the NME wage rates are updated by the Department prior to issuance of the final determination, we will use the updated wage rate in the final determination.
We valued electricity using rates from Energy Information Administration's International Electricity Prices and Fuel Costs “Electricity Price for Industry” table. The listed Indonesian rate for electricity is for 2005, so we applied the appropriate WPI inflator to make the rate contemporaneous with the POI. We valued water using the average water rate charged by the
We valued steam using a January 2006 Indonesian price for natural gas published by the American Chemistry Council following the methodology in
To value factory overhead, selling, general, and administrative expenses, and profit, we used audited financial statements for the year ending December 2007 of PT Budi Acid Jaya TBK, a producer of comparable merchandise from Indonesia. The Department may consider other publicly available financial statements for the final determination, as appropriate.
TTCA claimed five by-product offsets consisting of high protein feed stuff, low protein feedstuff, granular mud, electricity, and steam. TTCA claimed it produced and sold all five types of by-products. However, TTCA did not support the reported production quantities for low protein feedstuff as requested in the Department's September 29, 2008, supplemental questionnaire. Therefore, we have not granted a by-product offset for TTCA's low protein feed stuff. Additionally, granular mud and electricity were not generated directly from the production of citric acid, but rather are generated from processing a by-product of citric acid.
As appropriate, we made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As provided in section 782(i)(1) of the Act, we intend to verify the information submitted by TTCA and Yixing Union upon which we will rely in making our final determination. Additionally, we may also verify the information on the record submitted by selected separate-rate applicants.
In the
The weighted-average dumping margins are as follows:
We will disclose to parties the calculations performed in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 733(d) of the Act, we will instruct CBP to suspend liquidation of all entries of merchandise subject to this investigation, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
For the remaining exporters, the following cash deposit requirements will be effective upon publication of the preliminary determination for all shipments of merchandise under consideration entered or withdrawn from warehouse for consumption on or after publication date: (1) The rate for the exporter/producer combinations listed in the chart above will be the rate we have determined in this preliminary determination, adjusted as noted above where appropriate; (2) for all PRC exporters of merchandise subject to this investigation that have not received their own rate, the cash-deposit rate will be the PRC-wide rate; (3) for all non-PRC exporters of merchandise subject to this investigation that have not received their own rate, the cash-deposit rate will be the rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the NV exceeds U.S. price, as indicated above. The suspension of liquidation will remain in effect until further notice.
In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary affirmative determination of sales at LTFV. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of citric acid, or sales (or the likelihood of sales) for importation, of the subject merchandise within 45 days of our final determination.
Section 735(a)(2)(A) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise. Section 351.210(e)(2) of the Department's regulations requires that exporters requesting postponement of the final determination must also request an extension of the provisional measures referred to in section 733(d) of the Act from a four-month period until not more than six months. We received a request to postpone the final determination from TTCA on November 3, 2008 and from Yixing Union on November 10, 2008. In addition, TTCA consented to the extension of provisional measures from a four-month period to not longer than six months. Because this preliminary determination is affirmative, the request for postponement was made by an exporter who accounts for a significant proportion of exports of the subject merchandise,
Case briefs or other written comments may be submitted to the Assistant Secretary for Import Administration no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs may be submitted no later than five days after the deadline date for case briefs.
In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days after the date of publication of this notice.
We will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC).
Notice and request for applications.
NOAA is extending the deadline for applications for the following seats on the Channel Islands National Marine Sanctuary Advisory Council (Council): Commercial Fishing alternate, Business alternate. Applicants are chosen based upon: Their particular expertise and experience in relation to the seat for which they are applying, community and professional affiliations, views regarding the protection and management of marine resources, and the length of residence in the communities located near the Sanctuary. Applicants who are chosen as members should expect to serve in a volunteer capacity for 2-year terms, pursuant to the Council's Charter.
Applications are due by December 8th, 2008.
Application kits may be obtained at
Michael Murray, Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, CA 93109-2315, 805-966-7107, extension 464,
The Council was originally established in December 1998 and has a broad representation consisting of 21 members, including ten government agency representatives and eleven members from the general public. The Council functions in an advisory capacity to the Sanctuary Superintendent. The Council works in concert with the Sanctuary Superintendent by keeping him or her informed about issues of concern throughout the Sanctuary, offering recommendations on specific issues, and aiding the Superintendent in achieving the goals of the National Marine Sanctuary Program. Specifically, the Council's objectives are to provide advice on: (1) Protecting natural and cultural resources and identifying and evaluating emergent or critical issues involving Sanctuary use or resources; (2) Identifying and realizing the Sanctuary's research objectives; (3) Identifying and realizing educational opportunities to increase the public knowledge and stewardship of the Sanctuary environment; and (4) Assisting to develop an informed constituency to increase awareness and understanding of the purpose and value of the Sanctuary and the National Marine Sanctuary Program.
16 U.S.C. Section 1431,
Coordinating Council on Juvenile Justice and Delinquency Prevention.
Notice of meeting.
The Coordinating Council on Juvenile Justice and Delinquency Prevention (Council) is announcing its December, 2008 meeting.
Friday, December 5, 2008, 9 a.m. to 12:30 p.m.
The meeting will take place in the third floor main conference room at the U.S. Department of Justice, Office of Justice Programs, 810 7th St., NW., Washington, DC 20531.
Visit the Web site for the Coordinating Council at
The Coordinating Council on Juvenile
Although designated agency representatives may attend, the Council membership is composed of the Attorney General (Chair), the Secretary of Health and Human Services, the Secretary of Labor, the Secretary of Education, the Secretary of Housing and Urban Development, the Administrator of the Office of Juvenile Justice and Delinquency Prevention (Vice Chair), the Director of the Office of National Drug Control Policy, the Chief Executive Officer of the Corporation for National and Community Service, and the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement. Up to nine additional members are appointed by the Speaker of the House of Representatives, the Senate Majority Leader, and the President of the United States.
The agenda for this meeting will include: (a) A presentation on the Council sponsored Web-based toolkit to help federal program managers plan, manage and sustain comprehensive community initiatives and a discussion of making effective use of this resource across member agencies; (b) approval of the Council's summative report and member agency youth activity report; (c) a retrospective of Council activities over this Administration; (d) a discussion of future activities and priorities; and (e) applicable legislative and program updates; announcements and other business.
For security purposes, members of the public who wish to attend the meeting must pre-register online at
Photo identification will be required for admission to the meeting.
Interested parties may submit written comments and questions by Monday, December 1, 2008, to Robin Delany-Shabazz, Designated Federal Official for the Coordinating Council on Juvenile Justice and Delinquency Prevention, at
Department of Defense, Assistant Secretary of Defense (Health Affairs).
Notice of meeting.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended) and the Government in the Sunshine Act of 1976 (U.S.C. 552b, as amended), the Department of Defense announces the following Federal Advisory Committee Meeting of the Uniform Formulary Beneficiary Advisory Panel (hereafter referred to as the Panel).
January 8, 2009 from 8 a.m. to 4 p.m.
Naval Heritage Center Theater, 701 Pennsylvania Avenue NW., Washington, DC 20004.
Lt Col Thomas Bacon, Designated Federal Officer, Uniform Formulary Beneficiary Advisory Panel, Skyline 5, Suite 810, 5111 Leesburg Pike, Falls Church, VA 22041-3206; Telephone: (703) 681-2890; Fax: (703) 681-1940; E-mail address:
Written statements that do not pertain to the scheduled meeting of the Panel may be submitted at any time. However, if individual comments pertain to a specific topic being discussed at a planned meeting, then these statements must be submitted no later than 5 business days prior to the meeting in question. The Designated Federal Officer will review all submitted written statements and provide copies to all the committee members.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 22, 2008.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
New Brunswick Power Generation Corporation (NB Power) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before December 5, 2008.
Comments, protests, or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-8008).
Ellen Russell (Program Office), 202-586-9624 or Michael Skinker (Program Attorney), 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C. 824a(e)).
On October 17, 2008, DOE received an application from NB Power for authority to transmit electric energy from the United States to Canada. NB Power, a Canadian corporation, is a generation, transmission, and distribution company in New Brunswick Province, Canada. NB Power proposes to export surplus
NB Power will arrange for the delivery of exports to Canada over the international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Eastern Maine Electric Cooperative, International Transmission Co., Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power, Inc., Minnkota Power Cooperative, Inc., New York Power Authority, Niagara Mohawk Power Corp., Northern States Power Company, Vermont Electric Power Company, and Vermont Electric Transmission Co.
The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by NB Power has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
NB Power has recently been granted market-based rate authority by the Federal Energy Regulatory Commission and is scheduled to become a member of ISO New England on December 1, 2008. Accordingly, NB Power has requested expedited consideration of its export application in order that it may participate in the ISO New England market as soon as its membership in ISO New England becomes effective. In response to NB Power's request, DOE has shortened the public comment period to 15 days.
Comments on the NB Power application to export electric energy to Canada should be clearly marked with Docket No. EA-345. Additional copies are to be filed directly with Bonnie A. Suchman, Troutman Sanders LLP, 401 9th Street, NW., Suite 1000, Washington, DC 20004.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969 and a determination is made by DOE that the proposed action will not adversely impact the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Federal Energy Regulatory Commission, DOE.
Notice.
In compliance with the requirements of section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the information collection are due by January 22, 2009.
An example of this information collection may be obtained from the Commission's Web site (
Documents filed electronically via the Internet must be prepared in an acceptable filing format and in compliance with the Commission's submission guidelines. Complete filing instructions and acceptable filing formats are available at
All comments may be viewed, printed or downloaded remotely via the Internet through the Commission's homepage using the eLibrary link. For user assistance, contact FERC Online Support (e-mail
Michael Miller, Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. He may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC-598 “Self Certification for Entities Seeking Exempt Wholesale Generator or Foreign Utility Company Status” (OMB Control No. 1902-0166) is used by the Commission to implement the statutory provisions of Title XII, subchapter F of the Energy Policy Act of 2005 (EPAct 2005).
EPAct 2005 repealed the Public Utility Holding Company Act of 1935 (PUHCA 1935) in its entirety, including section 32, which provided for the Commission to exempt wholesale generators from PUHCA 1935 on a case-by-case basis, upon application.
An EWG is a “person engaged directly or indirectly through one or more affiliates, and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.”
An exempt EWG or FUCO or its representative may file with the Commission a notice of self certification demonstrating that it satisfies the definition of exempt wholesale generator or foreign utility company. In the case of EWGs, the person filing a notice of self certification must also file a copy of the notice of self certification with the state regulatory authority of the state in which the facility is located and that person must also represent to the Commission in its submission that it has filed a copy of the notice with the appropriate state regulatory authority.
A submission of the information is necessary for the Commission to carry out its responsibilities under EPAct 2005.
The estimated total cost to respondents is $72,549 [1,194 hours ÷ 2080
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) training personnel to respond to an information collection; (4) searching data sources; (5) preparing and reviewing the information collection; and (6) transmitting or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect or overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Take notice that the following hydroelectric application has been filed
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The Carmen-Smith Hydroelectric Project consists of two developments, the Carmen development and the Trail Bridge development. The Carmen development includes: (1) A 25-foot-high, 2,100-foot-long, and 10-foot-wide earthen Carmen diversion dam with a concrete weir spillway, (2) a 11,380-foot-long by 9.5-foot-diameter concrete Carmen diversion tunnel located on the right abutment of the spillway, (3) a 235-foot-high, 1,100-foot-long, and 15-foot-wide earthen Smith diversion dam with a gated Ogee spillway, (4) a 7,275-foot-long by 13.5-foot-diameter concrete-lined Smith power tunnel, (5) a 1,160-foot-long by 13-foot-diameter steel underground Carmen penstock, (6) a 86-foot-long by 79-foot-wide Carmen powerhouse, (7) two Francis turbines each with a generating capacity of 52.25 megawatts (MW) for a total capacity of 104.50 MW, (8) a 19-mile, 115-kilovolt (kV) transmission line that connects the Carmen powerhouse to the Bonneville Power Administration's Cougar-Eugene transmission line; and (9) appurtenant facilities.
The Trail Bridge development includes: (1) A 100-foot-high, 700-foot-long, and 24-foot-wide earthen Trail Bridge dam section with a gated Ogee spillway, (2) a 1,000-foot-long and 20-foot-wide emergency spillway section, (3) a 300-foot-long by 12-foot-diameter concrete penstock at the intake that narrows to a diameter of 7 feet, (4) a 66-foot-long by 61-foot-wide Trail Bridge powerhouse, (5) one Kaplan turbine with a generating capacity of 9.975 MW; (6) a one-mile, 11.5-kV distribution line that connects the Trail Bridge powerhouse to the Carmen powerhouse; and (7) appurtenant facilities.
m. EWEB filed the Relicensing Settlement Agreement on behalf of itself and the National Marine Fisheries Service, U.S. Fish and Wildlife Service, U.S. Department of Agriculture Forest Service, Oregon Department of Environmental Quality, Oregon Department of Fish and Wildlife, Oregon Parks and Recreation Department, Confederated Tribes of the Grand Ronde Community of Oregon, Confederated Tribes of Siletz Indians of Oregon, Confederated Tribes of the Warm Springs Reservation of Oregon, American Whitewater, Cascadia Wildlands Project, Oregon Hunters Association, Oregon Wild, Rocky Mountain Elk Foundation, McKenzie Flyfishers, and Trout Unlimited. The purpose of the agreement is to balance the interests of all the parties and to provide a balance between the resources affected by the project and project operations. The agreement is also designed to satisfy the interests of state and federal agencies with statutory authority, trust responsibility, and obligations associated with resources that may be affected by the project. The agreement includes environmental protection, mitigation, and enhancement measures through a series of proposed license articles and exhibits to the agreement, as well as other provisions related to items such as the duration of the new license, coordination and decision making, commitments of governmental parties under related statutory authorities, dispute resolution and agreement termination, and other general provisions. EWEB requests on behalf of all the parties that the proposed license articles be incorporated into the new license by the Commission without material modification.
n. A copy of the application and the settlement agreement is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
o. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
p. Procedural schedule: At this time we anticipate preparing one environmental assessment (EA). Recipients will have 30 days to provide the Commission with any written comments on the EA. A revised EA may be prepared based on the comments received. The application will be processed according to the following schedule. Revisions to the schedule will be made as appropriate.
On October 6, 2008, Four Dam Pool Power Agency (Transferor) and Southeast Alaska Power Agency (Transferee) filed an application, for transfer of license of the Lake Tyee Project, located on Tyee Creek in Wrangell-Peterson, Alaska.
Applicants seek Commission approval to transfer the license for the Four Dam Pool Power Agency to Southeast Alaska Power Agency.
Deadline for filing comments, motions to intervene: 30 days from the issuance of this notice. Comments, motions to intervene, and notices of intent may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at
On October 6, 2008, Four Dam Pool Power Agency (Transferor) and Cooper Valley Electric Association, Inc. (Transferee) filed an application for transfer of license of the Solomon Gulch Project, located on the Solomon Gulch Creek in Valdez-Cordova Area, Alaska.
Applicants seek Commission approval to transfer the license for the Four Dam Pool Power Agency to Cooper Valley Electric Association, Inc.
On October 6, 2008, Four Dam Pool Power Agency (Transferor) and Southeast Alaska Power Agency (Transferee) filed an application, for transfer of license of the Swan Lake Project, located on Falls Creek in Ketchikan, Alaska.
Applicants seek Commission approval to transfer the license for the Four Dam Pool Power Agency to Southeast Alaska Power Agency.
Deadline for filing comments, motions to intervene: 30 days from the issuance of this notice. Comments, motions to intervene, and notices of intent may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. If unable to be filed electronically, documents may be paper-filed. To paper-file, an original and eight copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For more information on how to submit these types of filings please go to the Commission's Web site located at
On November 5, 2008, Bobcat Gas Storage (Bobcat), pursuant to section 7(c) of the Natural Gas Act, as amended, and parts 157 and 284 of the Federal Energy Regulatory Commission's (Commission) regulations, filed to amend its certificate. The requested amendment would expand the Bobcat Gas Storage Project certificated in CP06-66-000 on April 19, 2007, as amended, to add working gas capacity totaling 24 billion cubic feet (Bcf) in three new salt dome storage caverns. The amendment would expand total storage project working gas capacity to 39.6 Bcf and add additional compression and pipeline interconnection facilities. Compression additions would increase maximum gas deliverability to 3.0 Bcf/d. Bobcat requests a finding that after the amendment the storage project's operation will not exercise market power with respect to the storage and hub services provided and that market-based rates may continue to be charged for these services.
Questions concerning this application should be directed to Paul Bieniawski, Bobcat Gas Storage, 11200 Westheimer, Suite 625, Houston, TX 77042, (713) 800-3535 or Lisa Tonery, Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New York, NY 10103, (212) 318-3009.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
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 the capacity related amendment application for PPL Holtwood LLC's 107.2-megawatt Holtwood Hydroelectric Project (Project No. 1881), located on the Susquehanna River in the counties of Lancaster and York, Pennsylvania. Based upon this review, the Office of Energy Projects has prepared a Final Environmental Impact Statement (final EIS) for the project.
The final EIS contains staff's evaluation of the applicant's proposal and alternatives. The proposal is for the construction of a new powerhouse, installation of turbines, construction of a new skimmer wall, enlargement of the forebay, and reconfiguration of the project facilities to enhance upstream fish passage through modifications of the existing fishway and excavation in the tailrace channel. The installed capacity would increase by approximately 80 MW. Additionally, PPL Holtwood LLC requested a 16-year extension of the current license term until August 31, 2030. The final EIS documents the views of governmental agencies, non-governmental organizations, affected Indian tribes, the public, and Commission staff.
A copy of the final EIS is available for review in the Commission's Public Reference Branch, Room 2A, located at 888 First Street, NE., Washington, DC 20426. The final EIS also may be viewed on the Commission's Web site at
You may also register online at
On December 1, 2008, Office of Energy Projects staff will participate by teleconference in a work group meeting to discuss information needs for an assessment of recreational boating flows in the bypassed reach of the Badger Development for the relicensing of the Badger-Rapide Croche Hydroelectric Project (FERC No. 2677-019). The meeting will begin at 1 p.m. CST.
For parties wishing to participate in the teleconference, the call-in number is 608-443-0390 (PIN# 7608). For further information please contact Arie DeWaal, Project Manager, Mead & Hunt, Inc., at (608) 273-6380, or e-mail at
The Federal Energy Regulatory Commission (Commission) hereby gives notice that on the following dates members of its staff will attend stakeholder meetings of the California Independent System Operator (CAISO). Unless otherwise noted, these meetings will be held at the CAISO, 151 Blue Ravine Road, Folsom, CA or by teleconference. The agenda and other documents for the meetings are available on the CAISO's Web site,
November 19, 2008: Integrated Balancing Authority Area compliance filing.
November 20, 2008: CAISO 2009 Transmission Plan.
Sponsored by the CAISO, these meetings are open to all market participants, and staff's attendance is part of the Commission's ongoing outreach efforts. The meetings may discuss matters at issue in the above captioned dockets.
For further information, contact Saeed Farrokhpay at
On October 7, 2008, the Federal Energy Regulatory Commission (Commission) issued a notice announcing a conference in this proceeding, to be held on November 21, 2008. As mentioned in that notice, the focus of the conference is on natural gas demand and supply issues as they relate to the development of the domestic natural gas industry and the effect upon infrastructure. The Commission has invited industry representatives to provide perspectives and comments. The agenda for the conference is attached.
As noted in the October 7 Notice, the conference will be held at the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 in the Commission Meeting Room (2-C) from 9:30 a.m. until 12:30 p.m. (Eastern Standard Time). All interested parties are invited, and there is no registration required.
This conference will be transcribed. Transcripts of the conference will be immediately available from Ace Reporting Company (202-347-3700 or 1-800-336-6646) for a fee. A free Webcast of this event is available through
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
Questions about the conference should be directed to Raymond James by phone at 202-502-8588 or by e-mail at
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces two public teleconference meetings of the chartered SAB to: (1) Conduct its quality review of several draft SAB reports, and (2) to receive a briefing from EPA on biofuels.
The meeting dates are Tuesday, December 9, 2008, from 1 p.m. to 3 p.m. (Eastern Time) and Tuesday, December 16, 2008, from 11 a.m. to 12 p.m. (Eastern Time).
Any member of the public wishing to obtain general information concerning this public teleconference meeting should contact Mr. Thomas Miller, Designated Federal Officer (DFO), EPA Science Advisory Board (1400F), 1200
The SAB was established by 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal advisory committee chartered under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies. Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the EPA SAB will hold a public teleconference meeting to conduct several quality reviews and to receive a briefing on biofuels by EPA representatives.
(a) SAB Quality Review of the Draft Report from the SAB Committee for the Valuation of Ecological Systems and Services (C-VPESS). The Chartered Science Advisory Board will conduct a quality review of the draft final SAB report from its Committee for Valuing the Protection of Ecological Systems and Services. The report is an original SAB study, initiated in 2003. The committee's charge was to assess EPA valuation needs; assess the state of the art and science of valuing protection of ecological systems and services; and identify key areas for improving knowledge, methodologies, practice, and research. The report takes a multi-disciplinary approach to ecological valuation issues. Additional information on this topic is available on the SAB Web site at
(b)
(a) SAB Quality Review of the Draft SAB Panel Report on the EPA Particulate Matter (PM) Research Centers Program. The chartered Science Advisory Board will conduct a quality review of the draft SAB report from its Particulate Matter Research Centers Program Review Advisory Panel. In 1998, the Congress directed EPA to establish as many as five university-based PM research centers as part of the Agency's PM research program. The first PM Research Centers were funded from 1999 to 2005 with a total program budget of $8 million annually. EPA's PM Research Centers program was initially shaped by recommendations from the National Research Council. In 2002, EPA requested that the Science Advisory Board conduct an interim review of EPA's PM Research Centers program. This review was instrumental in providing additional guidance for the second phase of the program (2005-2010). Five current centers are funded for 2005-2010 with the total program budget at $40 million. EPA's National Center for Environmental Research (NCER), within the Office of Research and Development (ORD), requested that the SAB comment on the Agency's current PM Research Centers program and to advise EPA concerning the possible structures and strategic direction for the program from 2010 to 2015. The SAB formed the PM Research Centers Program Advisory Panel to conduct this review. The Panel met to review and discuss the program on October 1-2, 2008 and has now completed a draft report providing the results of its deliberations. Additional information on this review is available on the SAB Web site at
(b) SAB Quality Review of the Draft SAB Contaminant Candidate List 3 Advisory. The Chartered Science Advisory Board will conduct a second quality review of the draft SAB Drinking Water Committee (DWC) report on EPA's Drinking Water Contaminant Candidate List 3. This report was the subject of a quality review at the SAB's October 28, 2008 meeting. At that meeting, the Chartered SAB asked for some revisions relative to the comments made by SAB members during that meeting (see these comments on the SAB Web site at the following URL
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501-3520. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before January 20, 2009. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, (202) 395-5887, or via fax at 202-395-5167 or via Internet at
For additional information, contact Judith B. Herman at 202-418-0214 or via the Internet at
Section 17.4, Antenna Structure Registration, which became effective July 1, 1996, requires the owner of any proposed or existing that requires notice of proposed construction to the Federal Aviation Administration (FAA) must register the structure with the Commission. This includes those structures used as part of stations licensed by the Commission for the transmission of radio energy, or to be used as part of a cable television head end system. If a Federal Government antenna structure is to be used by a Commission licensee, the structure must be registered with the Commission. Section 17.4 also contains other reporting, recordkeeping and third party notification requirements subject to the Paperwork Reduction Act (PRA) and OMB approval. The information is used by the Commission during investigations related to air safety or radio frequency interference. A registration number is issued to identify antenna structure owners in order to enforce the Congressionally-mandated provisions related to the owners.
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 applications 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 December 15, 2008.
Board of Governors of the Federal Reserve System, November 17, 2008.
Federal Trade Commission (“FTC” or “Commission”).
Notice.
The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act (“PRA”). The FTC is seeking public comments on its proposal to extend through March 31, 2012 the current PRA clearances for information collection requirements contained in four consumer financial regulations promulgated by the Federal Reserve Board and enforced by the Commission. Those clearances expire on March 31, 2009.
Comments must be received on or before January 20, 2009.
Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Regs BEMZ, PRA Comment, FTC File No. P084812” to facilitate the organization of comments. Please note that comments will be placed on the public record of this proceeding—including on the publicly accessible FTC website, at (
Because paper mail addressed to the FTC is subject to delay to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (
A comment filed in paper form should include the “Regs BEMZ, PRA Comment, FTC File No. P084812“ reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue NW, Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.
The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (
Requests for additional information or copies of the proposed information requirements should be addressed to Carole Reynolds or James Chen, Attorneys, Division of Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580, (202) 326-3230 or (202) 326-2659.
The four regulations covered by this notice are:
(1) Regulations promulgated under The Equal Credit Opportunity Act, 15 U.S.C. 1691
(2) Regulations promulgated under The Electronic Fund Transfer Act, 15 U.S.C. 1693
(3) Regulations promulgated under The Consumer Leasing Act, 15 U.S.C. 1667
(4) Regulations promulgated under The Truth-In-Lending Act, 15 U.S.C. 1601
Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3), 5 CFR 1320.3(c). As required by the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the regulations noted herein. 44 U.S.C. 3506(c)(2)(A).
The FTC invites comments on: (1) 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) the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on 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,
Each of these four rules impose certain recordkeeping and disclosure requirements associated with providing credit or with other financial transactions. As detailed below, the FTC staff has calculated the PRA burden for each rule based on the compliance costs of entities over which the FTC has jurisdiction. All of these rules require covered entities to keep certain records. FTC staff believes that these entities would likely retain these records in the normal course of business even absent the recordkeeping requirements in the rules.
Disclosure requirements involve both set-up and monitoring costs as well as certain transaction-specific costs. “Set-up” burden, incurred by new entrants only, includes identifying the applicable disclosure requirements, determining compliance obligations, and designing and developing compliance systems and procedures. “Monitoring” burden, incurred by all covered entities, includes reviewing changes to regulatory requirements, making necessary revisions to compliance systems and procedures, and monitoring the ongoing operation of systems and procedures to ensure continued compliance. “Transaction-related” burden refers to the effort associated with providing the various required disclosures in individual transactions. While this burden varies with the number of transactions, the figures shown for transaction-related burden in the tables that follow are estimated averages.
The actual range of compliance burden experienced by covered entities, and reflected in those averages, varies widely. Depending on the extent to which covered entities have developed computer-based systems and procedures for providing the required disclosures (and/or the extent to which entities utilize electronic transactions, communications, and/or electronic recordkeeping), and the efficacy of those systems and procedures, some entities may have little burden, while others may have a higher burden.
Calculating the burden associated with the four regulations’ disclosure requirements is very difficult because of the highly diverse group of affected entities. The “respondents” included in the following burden calculations consist of credit and lease advertisers, creditors, financial institutions, service providers, certain government agencies and others involved in delivering electronic fund transfers (“EFTs”) of government benefits, and lessors.
The required disclosures do not impose PRA burden on some covered entities because the entities make those disclosures in the ordinary course of business. In addition, as noted above, some entities use computer-based and/or electronic means of providing the required disclosures, while others rely on methods requiring more manual effort.
The cost estimates detailed below relate solely to labor costs and include the time necessary to train employees how to comply with the regulations. The applicable PRA requirements impose minimal capital or other non-labor costs, as affected entities generally have the necessary equipment for other business purposes. Similarly, FTC staff estimates that compliance with these rules entails minimal printing and copying costs beyond that associated with documenting financial transactions in the ordinary course of business.
The ECOA prohibits discrimination in the extension of credit. The Board of Governors of the Federal Reserve System (“FRB”) promulgated Regulation B, 12 CFR 202, to implement the ECOA. Regulation B establishes disclosure requirements to assist customers in understanding their rights under the ECOA and recordkeeping requirements to assist in detecting unlawful discrimination and other violations. The FTC enforces the ECOA as to all creditors except those (such as federally chartered or insured depository institutions) that are subject to the regulatory authority of another federal agency.
Recordkeeping: FTC staff estimates that Regulation B’s general recordkeeping requirements affect 1,000,000 credit firms within the Commission’s jurisdiction, at an average annual burden of one hour per firm, for a total of 1,000,000 hours. Staff also estimates that the requirement that mortgage creditors monitor information about race/national origin, sex, age, and marital status imposes a maximum burden of one minute each
Disclosure: Regulation B requires that creditors (
Regulation B applies to retailers, mortgage lenders, mortgage brokers, finance companies, utilities (for some requirements), and others. Below is FTC staff’s best estimate of burden applicable to the wide spectrum of these entities within the FTC’s jurisdiction.
FTC staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($41 for managerial or professional time, $30 for skilled technical time, and $16 for clerical time) are averages, based on the most currently available Bureau of Labor Statistics cost figures posted online.
Recordkeeping: FTC staff estimates that the general recordkeeping responsibility of one hour per creditor would involve approximately 90 percent clerical time and 10 percent skilled technical time. Keeping records of race/national origin, sex, age, and marital status requires an estimated one minute of skilled technical time. Keeping records of the self-test responsibility and of any corrective actions requires an estimated one hour and four hours, respectively, of skilled technical time. As shown in the table below, the total recordkeeping cost is $22,005,000.
Disclosure: For each notice or information item listed, FTC staff estimates that the burden hours consist of 10 percent managerial time and 90 percent skilled technical time. As
The EFTA requires accurate disclosure of the costs, terms, and rights relating to EFT services provided to consumers. The FRB promulgated Regulation E, 12 CFR 205, to implement the EFTA. Regulation E establishes disclosure requirements to assist consumers and establishes recordkeeping requirements to assist in enforcing the EFTA. The FTC enforces the EFTA as to all entities providing EFT services, except those (such as federally chartered or insured depository institutions) that are subject to the regulatory authority of another federal agency.
Recordkeeping: FTC staff estimates that Regulation E’s recordkeeping requirements affect 600,000 firms within the Commission’s jurisdiction that offer EFT services to consumers, at an average annual burden of one hour per firm, for a total of 600,000 hours.
Disclosure: Regulation E applies to financial institutions (including certain retailers and various electronic commerce entities, such as other payees), service providers, various federal and state agencies offering EFTs, and others. Below is FTC staff’s best estimate of burden applicable to this highly broad spectrum of covered entities.
FTC staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($41 for managerial or professional time, $30 for skilled technical time, and $16 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.
Recordkeeping: For the 600,000 recordkeeping hours, FTC staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown below, the total recordkeeping cost is $10,440,000.
Disclosure: For each notice or information item listed, FTC staff estimates that 10 percent of the burden hours require managerial time and 90 percent require skilled technical time. As shown below, the total disclosure cost is $97,385,124.
The CLA requires accurate disclosure of the costs and terms of leases to consumers. The FRB promulgated Regulation M, 12 CFR 213, to implement the CLA. Regulation M establishes disclosure requirements that assist consumers in comparison shopping and in understanding the terms of leases and recordkeeping requirements that assist enforcement of the CLA. The FTC enforces the CLA as to all lessors and advertisers except those that are subject to the regulatory authority of another federal agency (such as federally chartered or insured depository institutions).
Recordkeeping: FTC staff estimates that Regulation M’s recordkeeping requirements affect approximately 120,000 firms within the Commission’s jurisdiction that lease products to consumers, at an average annual burden of one hour per firm, for a total of 120,000 hours.
Disclosure: Regulation M applies to automobile lessors (such as auto dealers, independent leasing companies, and manufacturers’ captive finance companies), computer lessors (such as computer dealers and other retailers), furniture lessors, various electronic commerce lessors, diverse types of lease advertisers, and others. Below is FTC staff’s best estimate of burden applicable to the wide spectrum of these entities within the FTC’s jurisdiction.
FTC staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($41 for managerial or professional time, $30 for skilled technical time, and $16 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.
Recordkeeping: For the 120,000 recordkeeping hours, FTC staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown in the table below, the total recordkeeping cost is $2,088,000.
Disclosure: For each notice or information item listed, FTC staff estimates that 10 percent of the burden hours require managerial time and 90 percent require skilled technical time. As shown in the table below, the total disclosure cost is $3,261,618.
The TILA was enacted to foster comparison credit shopping and informed credit decision making by requiring creditors and others to provide accurate disclosure of the costs and terms of credit to consumers. The FRB promulgated Regulation Z, 12 CFR 226, to implement the TILA. Regulation Z establishes disclosure requirements to assist consumers and recordkeeping requirements to assist enforcement of the TILA. The FTC enforces the TILA as to all creditors and advertisers except those that are subject to the regulatory authority of another federal agency (such as federally chartered or insured depository institutions).
Recordkeeping: FTC staff estimates that Regulation Z’s recordkeeping requirements affect approximately 1,000,000 firms within the Commission’s jurisdiction that offer credit, at an average annual burden of one hour per firm, for a total of 1,000,000 hours.
Disclosure: Regulation Z disclosure requirements pertain to open-end and closed-end credit. The Regulation applies to various types of entities, including mortgage companies; finance companies; auto dealerships; student loan companies; merchants who extend credit for goods or services, credit advertisers; and others. Below is FTC staff’s best estimate of burden applicable to the wide spectrum of these entities within the FTC’s jurisdiction.
FTC staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($41 for managerial or professional time, $30 for skilled technical time, and $16 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.
Recordkeeping: For the 1,000,000 recordkeeping hours, FTC staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown in the table below, the total recordkeeping cost is $17,400,000.
Disclosure: For each notice or information item listed, FTC staff estimates that 10 percent of the burden hours require managerial time and 90 percent require skilled technical time. As shown in the table below, the total disclosure cost is $355,019,363.
Office of the Secretary.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed information collection request for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to
Written comments and recommendations for the proposed information collections must be directed to the OS Paperwork Clearance Officer at the above e-mail address within 30 days.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
The National Birth Defects Prevention Study (NBDPS)—Revision—National Center on Birth Defects and Developmental Disabilities (NCBDDD), Centers for Disease Control and Prevention (CDC).
Address the following criteria provided in 5 CFR 1320.5(a): CDC has been monitoring the occurrence of serious birth defects and genetic diseases in Atlanta since 1967 through the Metropolitan Atlanta Congenital Defects Program (MACDP). The MACDP is a population-based surveillance system for birth defects in the 5 counties of Metropolitan Atlanta, which is being requested for OMB clearance for three additional years. Its primary purpose is to describe the spatial and temporal patterns of birth defects occurrence and serves as an early warning system for new Teratogens. In 1997, the Birth Defects Risk Factor Surveillance (BDRFS) study, a case-control study of risk factors for selected birth defects, became the National Birth Defects Prevention Study (NBDPS). The major components of the study did not change.
The NBDPS is a case-control study of major birth defects that includes cases identified from existing birth defect surveillance registries in nine states,
Parents are also asked to collect cheek cells from themselves and their infants for DNA testing. The collection of cheek cells by the mother, father, and infant is estimated to take about 10 minutes per person. Each person will be asked to rub 1 brush inside the left cheek and 1 brush inside the right cheek for a total of 2 brushes per person. Collection of the cheek cells takes approximately 1-2 minutes, but the estimate of burden is 10 minutes to account for reading and understanding the consent form and specimen collection instructions and mailing back the completed kits. The anticipated maximum burden for collection of the cheek cells is 1,800 hours.
Information gathered from both the interviews and the DNA specimens will be used to study independent genetic and environmental factors as well as gene-environment interactions for a broad range of carefully classified birth defects.
There are no costs to the respondents other than their time. The total estimated annualized burden is 5,400 hours.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Maryam I. Daneshvar, CDC Acting Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
The Division of Parasitic Diseases is proposing a knowledge, attitudes, and practices (KAP) study to determine the level of physician awareness and understanding of Chagas disease. Chagas disease is a blood-borne parasitic disease, found only in the Americas, and spread through contact with the triatomine bug. Chagas disease can also be contracted through blood transfusion, organ transplantation, and from mother to child congenitally. This disease is not spread through person-to-person contact. Chagas disease can cause serious heart and stomach illness; for some patients, treatment with antiparasitic medications prevents these serious complications and may eliminate the infection. The hypothesis of this research study is that there will be a dramatic Chagas disease knowledge deficit among physicians. In the first 20 months of blood donor screening for Chagas disease, at least 624 positive blood donors were identified. Currently, only about 10% of blood donors with Chagas disease are receiving treatment medication. It is suspected that most physicians are not familiar with this disease and this may negatively impact patient care: (1) When positive blood donors see their healthcare provider, (2) when organs and tissues are transplanted unknowingly from infected donors, and (3) when infected mothers give birth to babies without screening for Chagas disease. This KAP study will survey physicians in areas where there may be more patients with Chagas disease. The survey will be sent to all physician members of several partner organizations. Results will be analyzed in order to develop physician education material. That material will then be sent to all members. Subsequently, a second follow-up survey, very similar to the initial one, will be sent in order to determine levels of knowledge change. The data collected by this study will allow DPD to understand, and consequently develop and appropriately target medical educational material to address, Chagas disease knowledge deficits of physicians.
There is no cost to respondents other than their time.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the meeting of the National Science Advisory Board for Biosecurity (NSABB). Under authority 42 U.S.C. 217a, Section 222 of the Public Health Service Act, as amended, the Department of Health and Human Services established NSABB to provide advice, guidance and leadership regarding federal oversight of dual use research, defined as biological research with legitimate scientific purposes that could be misused to pose a biological threat to public health and/or national security.
The meeting will be open to the public, however pre-registration is strongly recommended due to space limitations. Persons planning to attend should register online at www.biosecurityboard.gov/meetings.asp or by calling Capital Consulting Corporation (Contact: Saundra Bromberg at 301-468-6004, ext. 406). Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should indicate these requirements upon registration.
This meeting will also be webcast. The draft meeting agenda and other information about NSABB, including information about access to the Web cast and pre-registration, will be available at
Any member of the public interested in presenting oral comments at the meeting may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of an organization may submit a letter of intent, a brief description of the organization represented and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee. All written comments must be received by December 1, 2008 and should be sent via e-mail to
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency declaration for the State of California (FEMA-3279-EM), dated October 23, 2007, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this emergency is closed effective March 31, 2008.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Illinois (FEMA-1800-DR), dated October 3, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Illinois is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 3, 2008.
Peoria County for Individual Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Indiana (FEMA-1766-DR), dated June 8, 2008, and related determinations.
November 13, 2008.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Regis Leo Phelan, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
This action terminates my appointment of Stephen M. DeBlasio, Sr. as Federal Coordinating Officer for this disaster.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Indiana (FEMA-1795-DR), dated September 23, 2008, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Regis Leo Phelan, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
This action terminates my appointment of Stephen M. DeBlasio Sr. as Federal Coordinating Officer for this disaster.
(The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.)
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Territory of the U.S. Virgin Islands (FEMA-1807-DR), dated October 29, 2008, and related determinations.
November 10, 2008.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the Territory of the U.S. Virgin Islands is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of October 29, 2008:
The island of St. John, for Public Assistance.
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the new Information Collection Request (ICR) abstracted below to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by December 22, 2008. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, Office of Information Technology, TSA-11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-3651; facsimile (703) 603-0822.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Transportation Security Administration, DHS.
60-Day Notice.
The Transportation Security Administration (TSA) invites public comment on a new information collection requirement abstracted below that we will submit to the Office of Management and Budget (OMB) for approval in compliance with the Paperwork Reduction Act. The collection involves the submission of security training program evaluation forms by hazardous materials (hazmat) motor carriers and shippers after participants have received the training.
Send your comments by January 20, 2009.
Comments may be mailed or delivered to Joanna Johnson, Communications Branch, Business Management Office, Operational Process and Technology, TSA-32, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220.
Joanna Johnson at the above address, or by telephone (571) 227-3651 or facsimile (571) 227-3588.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA's Highway & Motor Carrier Division will be producing a voluntary security-related training course for the hazmat motor carrier and shipper industry. Participants will be able to choose to attend instructor-led training sessions that TSA will conduct at multiple sites in the United States, and TSA will advise the industry of the availability of the training through trade associations, conferences, and stakeholder meetings. Hazmat motor carriers and shippers that are registered with the U.S. Department of Transportation (DOT) will automatically receive the training via CD-ROM and DVD. Companies may also complete the training on-line at the TSA public Web site,
Hazmat motor carriers and shippers that are registered with the DOT are eligible to receive the training; there are approximately seventy-five thousand (75,000) shippers registered.
Currently, DOT requires awareness and in-depth security training for hazmat employees of persons required to have a security plan in accordance with subpart I of 49 CFR part 172 concerning the security plan and its implementation.
As prescribed by the President in Homeland Security Presidential Directive 7 (HSPD-7), the Department of Homeland Security (DHS) is tasked with protecting our nation's critical infrastructure and key resources (CI/KR). Through the National Infrastructure Protection Plan (NIPP), DHS gives guidance and direction as to how the Nation will secure its infrastructure. Furthermore, HSPD-7 and the NIPP assigned the responsibility for infrastructure security in the transportation sector to TSA. To this effect, the NIPP further tasks each sector to build security partnerships, set security goals, and measure their effectiveness. Through its voluntary Corporate Security Review (CSR) Program, TSA's Highway and Motor Carrier Division has conducted security reviews of numerous hazmat motor carriers and shippers in order to analyze various aspects of each company's security program. Through this review process, TSA has determined that improved security awareness and in-depth training for hazmat motor carrier and shipper company employees would enhance security. To increase the security awareness levels across the hazmat motor carrier and shipper industries, TSA plans to develop and distribute a security awareness/in-depth training program and will request voluntary feedback from hazmat motor carrier and shipper companies that elect to receive the training.
Hazmat motor carrier and shipper companies can take the training via CD-ROM and DVD, during classroom training sessions, or via the TSA public Web site. For those taking the classroom training sessions, TSA will hand out an evaluation form to collect feedback regarding the security training program. Participants can also complete the evaluation form on-line after completing the training. TSA will collect the forms and evaluate the results. TSA will use the survey results to guide TSA on future hazmat motor carrier and shipper transportation security initiatives. TSA plans to conduct the data collection over a two- to three-year period in order to allow for maximum distribution and use of the training program throughout the industry, and for participating companies to complete full training cycles.
TSA will ask participating companies that voluntarily complete the Security Awareness Training program via the CD-ROM to log on to a TSA-managed secure Web site to provide feedback on the effectiveness of the training. Participants that complete the training program via the classroom sessions will be asked to complete an evaluation form on-site after the training is completed. TSA's Highway & Motor Carrier Division staff will manually input the data into the Web surveyor tool system.
As part of the evaluation form, TSA will collect information such as employee position, type of company, knowledge of material before and after the training, and overall training satisfaction. TSA will not collect the respondent's personal information as part of the course evaluation form. TSA will use this data to measure the program's effectiveness at achieving its goal of heightened security awareness levels throughout the hazmat motor carrier and shipper industry.
The primary use of this information is to allow TSA to assess the effectiveness of the training program and training CD-ROM within the hazmat motor carrier and shipper industries. The secondary purpose of this information is for TSA to obtain, based on individual company input, an indication of participation levels throughout the hazmat motor carrier and shipper industries. This data will be kept for at least one year or long enough to collect a significant sample size (percentage) of the hazmat motor carrier and shipper industries to be used in identifying additional training needs to enhance the industry's security posture.
Most companies administer their security awareness training curriculum on an annual or bi-annual cycle. Typically, companies will generate quarterly or annual reports on employee training progress. At other companies, employees may receive training periodically as needed and submit feedback via the evaluation form between one and four times per year, which TSA equates to an average frequency for this collection of two times per year. Thus, company employees would provide TSA feedback approximately once every two years.
Out of the approximately 75,000 individual hazmat motor carrier and shipper companies, TSA estimates that approximately 75 percent of the companies that receive the CD-ROM training will incorporate it into their training plans. This number can be assumed due to the current DOT requirement (49 CFR 172.704) for certain hazmat motor carriers and shippers to conduct security awareness and in-depth training for their hazmat employees. TSA assumes that 50 percent of those who take the training will provide feedback on the training program. TSA estimates the average hour burden per response per shipper/carrier company employee will be approximately 20 minutes. TSA estimates the total annual hour burden will be dependent on the number of company employees that participate per motor carrier/shipper company. Therefore, TSA estimates that the maximum total annual hour burden will be approximately 16,667 hours per year for all motor carrier/shipper industry participants [50,000 employees × 20 minutes = 16,667 hours].
60-Day Notice of Information Collection Under Review: Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, and Form G-28I, Notice of Entry of Appearance of Foreign Attorney. OMB Control No. 1615-0105.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until January 20, 2009.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529, telephone number 202-272-8377.
60-Day Notice of Information Collection Under Review: Form N-25, Request for Verification of Naturalization. OMB Control No. 1615-0049.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until January 20, 2009.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
During this 60-day period USCIS will be evaluating whether to revise the Form N-25. Should USCIS decide to revise this form it will advise the public when it publishes the 30-day notice in the
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
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If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit:
We may also be contacted at: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529, telephone number 202-272-8377.
Department of the Interior, Bureau of Land Management, Interior.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is requesting the Office of Management and Budget (OMB) to extend an existing approval to collect information from those person who wish to transfer interest in oil and gas or geothermal leases by assignment or record title or transfer operating rights (sublease) in oil and gas or geothermal leases under the terms of mineral leasing laws. The BLM uses Form 3000-3, Assignment of Record Title Interest in a Lease for Oil and Gas or Geothermal Resources, and Form 3000-3a, Transfer of Operating Rights (sublease) in a Lease for Oil and Gas or Geothermal Resources, to collect this information. This information allows the BLM to transfer interest in oil or gas or geothermal leases by assignment of record title or transfer operating rights (sublease) in oil or gas or geothermal leases under the regulations at 43 CFR subparts 3106, 3135, and 3216.
You must submit your comments to the address below no later than January 20, 2009. Comments received or postmarked after this date may not be considered.
You may submit comments by any of the following methods:
All comments will be available for public review at the L Street address during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except on Federal holidays.
Before including your address, telephone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
You may contact Barbara Gamble, Division of Fluid Minerals, at 202-452-0338 (Commercial or FTS). Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8330, 24 hours a day, seven days a week, to leave a message for Ms. Gamble.
5 CFR 1320.12(a) requires that we provide a 60-day notice in the
(a) Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(b) The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(c) Ways to enhance the quality, utility, and clarity of the information collected; and
(d) Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Mineral Leasing Act of 1920 (MLA) (30 U.S.C. 181
Assignor/transferor submits Form 3000-3, Assignment of Record Title Interest in a Lease for Oil and Gas or Geothermal Resources, and Form 3000-3a, Transfer of Operating Rights (Sublease) in a Lease for Oil and Gas or Geothermal Resources, to transfer interest in oil and gas or geothermal leases by assignment of record title or transfer operating rights (sublease) in oil and gas or geothermal leases under the regulations in 43 CFR subparts 3106, 3135, and 3216. These regulations outline the procedures for assigning record title interest and transferring operating rights in a lease to explore for, develop, and produce oil and gas resources and geothermal resources.
The assignor/transferor provides the required information to comply with the regulations in order to process the assignments of record title interest or transfer of operating rights (sublease) in a lease for oil and gas or geothermal resources. The assignor/transferor submits the required information to BLM for approval under 30 U.S.C. 187a and the regulations at 43 CFR subparts 3106, 3135, and 3216.
BLM uses the information submitted by the assignor/transferor to identify the interest ownership that is assigned or transferred and the qualifications of the assignee-transferee. BLM determines whether the assignee-transferee is qualified to obtain the interest sought and ensures that the assignee/transferee does not exceed statutory acreage limitations.
Based on BLM's experience administering the activities described above, we estimate it takes 30 minutes per response to gather and provide the required information. The respondents include individuals, small businesses, and large corporations. The frequency of response is occasional. We estimate 60,000 responses per year and a total annual burden of 30,000 hours.
BLM will summarize all responses to this notice and include them in the request for OMB approval. All comments will become a matter of public record.
Bureau of Land Management, Interior.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) is requesting the Office of Management and Budget (OMB) to extend existing approvals to collect certain information from lessees, operators, record title holders, operating rights owners, and the general public on oil and gas and operations on Federal lands.
You must submit your comments to BLM at the address below on or before January 20, 2009. BLM will not necessarily consider any comments postmarked or received after the above date.
You may submit comments by any of the following methods:
Comments will be available for public review at the L Street address during regular business hours (7:45 a.m. to 4:15 p.m.) Monday through Friday, except Federal holidays.
You may contact Barbara Gamble, Division of Fluid Minerals, on (202) 452-0338 (Commercial or FTS). Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8330, 24 hours a day, seven days a week, to contact Ms. Gamble.
5 CFR 1320.12(a) requires that we provide a 60-day notice in the
(1) Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(2) The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(3) Ways to enhance the quality, utility, and clarity of the information collected; and
(4) Ways to minimize the information collection burden on those who are required to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Mineral Leasing Act of 1920 (MLA), 30 U.S.C. 191
BLM collects nonform information on oil and gas leasing and exploration activities when the lessee, record title holder, operating rights owner, or operator files any of the following information for BLM to adjudicate:
BLM collects the information in the regulations that address oil and gas drainage and no form is required.
Based upon our experience managing oil and gas activities, we estimate for the information collection 2,880 responses per year with an annual information burden of 6,835 hours.
BLM will summarize all responses to this notice and include them in the request for OMB approval. All comments will become a matter of public record.
Bureau of Land Management, Interior.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Land Management (BLM) requests the Office of Management and Budget (OMB) to extend an existing approval to collect information from individuals submitting nominations for significant caves under the Federal Cave Resources Protection Act of 1988 and to request confidential cave information. BLM needs the information to determine which caves we will list as significant and decide whether to grant access to confidential cave information.
You must submit your comments to BLM at the address below on or before January 20, 2009. BLM will not necessarily consider any comments postmarked or received after the above date.
You may submit comments by any of the following methods:
Comments will be available for public review at the L Street address during regular business hours (7:45 a.m. to 4:15 p.m.) Monday through Friday, except Federal holidays.
You may contact James Goodbar, BLM Field Office, Carlsbad, New Mexico, on (505) 234-5929 (Commercial or FTS). Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) on 1-800-877-8330, 24 hours a day, seven days a week, to contact Mr. Goodbar.
5 CFR 1320.12(a) requires that we provide a 60-day notice in the
(a) Whether the collection of information is necessary for the proper functioning of the agency, including whether the information will have practical utility;
(b) The accuracy of our estimates of the information collection burden, including the validity of the methodology and assumptions we use;
(c) Ways to enhance the quality, utility, and clarity of the information collected; and
(d) Ways to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The Federal Cave Resources Protection Act of 1988, 102 Stat. 4546, 16 U.S.C. 4301, requires the identification, protection, and maintenance of significant caves on public lands the Department of the Interior, BLM manages. The implementing regulations are found at 43 CFR part 37—Cave Management. Federal agencies must consult with “cavers” and other interested parties and develop a list of significant caves. The regulations establish criteria for identifying significant caves and integrate cave management into existing planning and management processes to protect cave resource information. We use this information to prevent
Based on BLM's experience administering this program, we estimate the public reporting burden is 3 hours for each nomination and 30 minutes for each request for confidential cave information. BLM estimates that 50 cave nominations and 10 requests for confidential cave information will be filed annually, with a total annual burden of 155 hours. Respondents are cavers and other interested parties.
BLM will summarize all responses to this notice and include them in the request for OMB approval. All comments will become a matter of public record.
Bureau of Reclamation, Interior.
Notice.
Notice is hereby given of contractual actions that have been proposed to the Bureau of Reclamation and are new, modified, discontinued, or completed since the last publication of this notice on August 12, 2008. This notice is one of a variety of means used to inform the public about proposed contractual actions for capital recovery and management of project resources and facilities consistent with section 9(f) of the Reclamation Project Act of 1939. Additional announcements of individual contract actions may be published in the
The identity of the approving officer and other information pertaining to a specific contract proposal may be obtained by calling or writing the appropriate regional office at the address and telephone number given for each region in the
Michelle Kelly, Water and Environmental Resources Office, Bureau of Reclamation, PO Box 25007, Denver, Colorado 80225-0007; telephone 303-445-2888.
Consistent with section 9(f) of the Reclamation Project Act of 1939 and the rules and regulations published in 52 FR 11954, April 13, 1987 (43 CFR 426.22), Reclamation will publish notice of proposed or amendatory contract actions for any contract for the delivery of project water for authorized uses in newspapers of general circulation in the affected area at least 60 days prior to contract execution. Announcements may be in the form of news releases, legal notices, official letters, memorandums, or other forms of written material. Meetings, workshops, and/or hearings may also be used, as appropriate, to provide local publicity. The public participation procedures do not apply to proposed contracts for the sale of surplus or interim irrigation water for a term of 1 year or less. Either of the contracting parties may invite the public to observe contract proceedings. All public participation procedures will be coordinated with those involved in complying with the National Environmental Policy Act. Pursuant to the “Final Revised Public Participation Procedures” for water resource-related contract negotiations, published in 47 FR 7763, February 22, 1982, a tabulation is provided of all proposed contractual actions in each of the five Reclamation regions. When contract negotiations are completed, and prior to execution, each proposed contract form must be approved by the Secretary of the Interior, or pursuant to delegated or redelegated authority, the Commissioner of Reclamation or one of the regional directors. In some instances, congressional review and approval of a report, water rate, or other terms and conditions of the contract may be involved.
Public participation in and receipt of comments on contract proposals will be facilitated by adherence to the following procedures:
1. Only persons authorized to act on behalf of the contracting entities may negotiate the terms and conditions of a specific contract proposal.
2. Advance notice of meetings or hearings will be furnished to those parties that have made a timely written request for such notice to the appropriate regional or project office of Reclamation.
3. Written correspondence regarding proposed contracts may be made available to the general public pursuant to the terms and procedures of the Freedom of Information Act, as amended.
4. Written comments on a proposed contract or contract action must be submitted to the appropriate regional officials at the locations and within the time limits set forth in the advance public notices.
5. All written comments received and testimony presented at any public hearings will be reviewed and summarized by the appropriate regional office for use by the contract approving authority.
6. Copies of specific proposed contracts may be obtained from the appropriate regional director or his designated public contact as they become available for review and comment.
7. In the event modifications are made in the form of a proposed contract, the appropriate regional director shall determine whether republication of the notice and/or extension of the comment period is necessary.
Factors considered in making such a determination shall include, but are not limited to (i) the significance of the modification, and (ii) the degree of public interest which has been expressed over the course of the negotiations. At a minimum, the regional director shall furnish revised contracts to all parties who requested the contract in response to the initial public notice.
14. Idaho Water Resource Board, Palisades Project, Idaho: Assignment of repayment contract for 5,000 acre-feet of storage space in Palisades Reservoir from the F.M.C. Corporation to provide water to help mitigate the effects of ground water withdrawal and drought on the Eastern Snake River Plain Aquifer.
15. State of Washington, Columbia Basin Project, Washington: Long-term contract for up to 5,000 acre-feet of water for M&I purposes.
36. California State Department of Water Resources: Reclamation is working with the Department to develop a 2009 Drought Water Bank to facilitate water transfers from willing sellers to willing buyers to assist with the anticipated drought in 2009.
35. Cawelo WD, CVP, California: Long-term Warren Act contract for conveying up to 20,000 acre-feet of nonproject water (exchanged banked groundwater) via the Friant-Kern Canal for M&I purposes.
26. Basic Water Company, BCP, Nevada: Approve the assignment and transfer of 400 acre-feet per year of Colorado River water from Basic's contract to the Southern Nevada Water Authority's contract.
27. Basic Water Company, BCP, Nevada: Amend Basic's contract to conform to the assignment and transfer of 400 acre-feet per year of Colorado River water from Basic's contract to the Southern Nevada Water Authority's contract.
28. Southern Nevada Water Authority, BCP, Nevada: Amend contract to conform to the assignment and transfer of 400 acre-feet per year of Colorado River water from Basic Water Company's contract to Southern Nevada Water Authority's contract.
29. Metropolitan WD of Southern California, San Diego County Water Authority, Otay WD; California: Amendment to extend by 5 years to November 9, 2013, an agreement for temporary emergency delivery of a portion of the Mexican Treaty Waters of the Colorado River to the International Boundary in the vicinity of Tijuana, Baja California, Mexico, and for the operation of facilities in the United States.
30. Hillcrest Water Company, BCP, Arizona: Amend contract to exclude lands occupied by Springs del Sol Domestic Water Improvement District.
17. Mohave County Water Authority, Springs del Sol Domestic Water Improvement District, La Paz County; BCP; Arizona: Approval of assignment and transfers of 300 acre-feet of Mohave County's fourth-priority water entitlement from Mohave County to Springs del Sol (50 acre-feet) and La Paz County (250 acre-feet).
19. Hopi Tribe, Springs del Sol Domestic Water Improvement District, La Paz County; BCP; Arizona: Approval of assignment and transfers of 300 acre-feet of fourth-priority water entitlement from the Hopi Tribe to Springs del Sol (50 acre-feet) and La Paz County (250 acre-feet).
23. La Paz County, BCP; Arizona: Enter into a new contract for 100 acre-feet per year of fourth-priority water and Amendment No. 1 to add 400 acre-feet that is being assigned to La Paz County by the Mohave County Water Authority (250 acre-feet) and by the Hopi Tribe (250 acre-feet).
12. Basic Management, Inc., BCP, Nevada: Amend contract to add additional service areas where part of the contractor's entitlement can be used.
21. Ehrenberg Improvement Association on behalf of B&F Investment, BCP, Arizona: Amend contract to increase Ehrenberg's fourth-priority water entitlement by 100 acre-feet per year being assigned to B&F from the Mohave County Water Authority (50 acre-feet) and from the Hopi Tribe (50 acre-feet).
17. Mohave County Water Authority, Springs del Sol Domestic Water Improvement District, La Paz County; BCP; Arizona: Approval of assignment and transfers of 300 acre-feet of Mohave County's fourth-priority water entitlement from Mohave County to Springs del Sol (50 acre-feet) and La Paz County (250 acre-feet). Contracts executed on June 9, 2008, and June 10, 2008.
18. Mohave County Water Authority, BCP, Arizona: Amend contract to decrease the Authority's fourth-priority water entitlement by 300 acre-feet per year (La Paz County Option). Contracts executed on June 9, 2008, and June 10, 2008.
19. Hopi Tribe, Springs del Sol Domestic Water Improvement District, La Paz County; BCP; Arizona: Approval of assignment and transfers of 300 acre-feet of fourth-priority water entitlement from the Hopi Tribe to Springs del Sol (50 acre-feet) and La Paz County (250 acre-feet). Contracts executed on June 9, 2008, and June 10, 2008.
20. Hopi Tribe, BCP, Arizona: Amend contract to decrease the Hopi Tribe's fourth-priority water entitlement by 300 acre-feet per year (La Paz County Option). Contracts executed on June 9, 2008, and June 10, 2008.
22. Springs del Sol Domestic Water Improvement District (Springs del Sol), BCP, Arizona: Enter into a new contract with Springs del Sol for 100 acre-feet per year of fourth-priority water being assigned to Springs del Sol from the Mohave County Water Authority (50 acre-feet) and the Hopi Tribe (50 acre-feet). Contract executed on June 9, 2008.
23. La Paz County, BCP, Arizona: Enter into a new contract for 100 acre-feet per year of fourth-priority water and Amendment No. 1 to add 400 acre-feet that is being assigned to La Paz County by the Mohave County Water Authority (250 acre-feet) and by the Hopi Tribe (250 acre-feet). Contract and amendment executed on June 10, 2008.
24. Cibola Valley IDD, BCP, Arizona: Amend contract to decrease the district's fourth-priority water entitlement by 2,700 acre-feet per year that is being assigned from the district to Arizona Recreational Facilities, LLC. Contract executed on September 4, 2008.
25. Arizona Recreational Facilities, LLC, BCP; Arizona: Enter into a new contract with Arizona Recreational Facilities for 2,700 acre-feet per year of fourth-priority Colorado River water that is being assigned to them from the Cibola Valley IDD. Contract executed on September 4, 2008.
1.(i) Michael R. Pelletier, Aspinall Storage Unit, CRSP: Mr. Pelletier has requested a 40-year water service contract for 1 acre-foot of M&I water out of the Blue Mesa Reservoir which requires Mr. Pelletier to present a Plan
34. Bridger Valley Water Conservancy District, Lyman Project, Wyoming: The district has requested that their Meeks Cabin repayment contract be amended from two 25 year contacts to one 40 year contract.
35. Glen, Michael D., and Tambra Spencer; Mancos Project; Colorado: The parties have requested a new carriage contract to replace existing contract No. 02-WC-40-8290. Existing carriage contract is for 1 cfs of nonproject water to be carried through Mancos Project facilities. The new contract will add 2 cfs to the existing quantity for a total of 3 cfs.
31. Strawberry High Line Canal Company, Strawberry Valley Project, Utah: The company has requested a contract for carriage of nonproject water in project canals.
32. Jordan Valley Water Conservancy District, Metropolitan WD of Salt Lake and Sandy, and others; Provo River Project; Utah: The entities have requested contracts for storage of nonproject water in Deer Creek Reservoir.
18. The Grand Valley Water Users Association, Reclamation, and U.S. Fish and Wildlife Service: Construction and O&M of a fish passage and fish screen facilities at the Grand Valley Diversion Dam and Government Highline Canal Facilities to facilitate recovery of endangered fish species in the Colorado River Basin (October 30, 2000, 114 Stat. 1602, Pub. L. 106-392). Contract was executed June 3, 2008.
22. Warren-Vosburg Ditch Company, Animas-La Plata Project, Colorado and New Mexico: Contract for payment of O&M costs associated with the Warren-Vosburg ditch. Contract was executed March 26, 2008.
43. Helena Sand & Gravel; Helena Valley Unit, P-SMBP; Montana: Request for a long-term water service contract for M&I purposes for up to 1,000 acre-feet of water per year.
44. City of Cheyenne, Kendrick Project, Wyoming: The City of Cheyenne has requested an amendment to its water storage contract to increase the storage entitlement to 15,700 acre-feet of storage space in Seminoe Reservoir.
45. Central Nebraska Public Power and ID; Glendo Unit, P-SMBP; Nebraska: Request to amend current water service contract.
8. Savage ID, P-SMBP, Montana: The district is currently seeking title transfer. The contract is subject to renewal pending outcome of the title transfer process. The existing interim contract expired in May 2008. A 5-year interim contract was offered to district on June 28, 2008.
14. Northern Integrated Supply Project, Colorado-Big Thompson Project, Colorado: Consideration of a new long-term contract with approximately 15 regional water suppliers and the Northern Colorado Water Conservancy District for the Northern Integrated Supply Project.
28. Glendo Unit, P-SMBP, Nebraska: Contract renewal for long-term water service contracts with Bridgeport, Enterprise, and Mitchell IDs.
5. Highland-Hanover ID; Hanover-Bluff Unit, P-SMBP; Wyoming: Execute long-term water service contract. Contract was executed June 13, 2008.
6. Upper Bluff ID; Hanover-Bluff Unit, P-SMBP; Wyoming: Execute long-term water service contract. Contract was executed June 13, 2008.
38. Treeline Springs, LLC., Canyon Ferry Unit, Montana: Request for water service contract for up to 620 acre-feet of water per year for replacement of water for senior water rights. Contract was executed June 19, 2008.
On the basis of the record
The Commission instituted these investigations effective September 19, 2007, following receipt of a petition filed with the Commission and Commerce by Appleton Papers, Inc., Appleton, WI. The final phase of these investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of certain lightweight thermal paper from China and Germany were being sold at LTFV within the meaning of section 733(b) of the Act (19 U.S.C. 1673b(b)) and that imports of certain lightweight thermal paper from China were being subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)). Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on November 17, 2008. The views of the Commission are contained in USITC
By order of the Commission.
United States International Trade Commission.
Notice of Commission determinations to conduct full five-year reviews concerning the antidumping duty order on cut-to-length carbon steel plate from China and the suspended investigations on cut-to-length carbon steel plate from Russia and Ukraine.
The Commission hereby gives notice that it will proceed with full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) to determine whether revocation of the antidumping duty order on cut-to-length carbon steel plate from China and/or the termination of the suspended investigations on cut-to-length carbon steel plate from Russia and Ukraine would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the reviews will be established and announced at a later date. For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On November 4, 2008, the Commission determined that it should proceed to full reviews in the subject five-year reviews pursuant to section 751(c)(5) of the Act. The Commission found that the domestic interested party group response to its notice of institution (73 FR 45071, August 1, 2008) was adequate and that the respondent interested party group responses with respect to Russia and Ukraine were adequate and decided to conduct full reviews with respect to the suspended investigations concerning cut-to-length carbon steel plate from Russia and Ukraine. The Commission found that the respondent interested party group response with respect to China was inadequate. However, the Commission determined to conduct a full review concerning the antidumping duty order on cut-to-length carbon steel plate from China to promote administrative efficiency in light of its decision to conduct full reviews with respect to the suspended investigations concerning cut-to-length carbon steel plate from Russia and Ukraine. A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements will be available from the Office of the Secretary and at the Commission's Web site.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
30-Day Notice of Information Collection Under Review: Application for Registration (DEA Form 225); Application for Registration Renewal (DEA Form 225a); Affidavit for Chain Renewal (DEA Form 225b)
The Department of Justice (DOJ), Drug Enforcement Administration (DEA) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 22, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• 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 agencies 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 submission of responses.
(1)
(2)
Application for Registration (DEA Form 225);
Application for Registration Renewal (DEA Form 225a);
Affidavit for Chain Renewal (DEA Form 225B).
(3)
Form Number: DEA Form 225, 225a, and 225B;
Office of Diversion Control, Drug Enforcement Administration, Department of Justice.
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review: Application for Registration (DEA Form 224); Application for Registration Renewal (DEA Form 224a); Affidavit for Chain Renewal (DEA Form 224B).
The Department of Justice (DOJ), Drug Enforcement Administration (DEA) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 22, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• 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 agencies 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 submission of responses.
Overview of Information Collection 1117-0014:
(1)
(2)
Application for Registration (DEA Form 224);
Application for Registration Renewal (DEA Form 224a);
Affidavit for Chain Renewal (DEA Form 224B).
(3)
Office of Diversion Control, Drug Enforcement Administration, Department of Justice.
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review, Application for Registration (DEA Form 363) and Application for Registration Renewal (DEA Form 363a).
The Department of Justice (DOJ), Drug Enforcement Administration (DEA) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 22, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• 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 agencies 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 submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
30-Day Notice of Information Collection Under Review: Notice of Appeal from a Decision of an Immigration Judge.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 22, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments may also be submitted to OMB via facsimile to (202) 395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review: Extension of a currently approved collection; Victims of Crime Act, Crime Victim Assistance Grant Program Performance Report.
The Department of Justice (DOJ), Office of Justice Programs (OJP), Office for Victims of Crime (OVC) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until December 22, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
The estimated time to enter a record via the Grants Management System is three minutes (.05 hour). Therefore, the estimated clerical time can range from 36 minutes to 22 hours, based on the number of records that are entered. It would take 295 hours to enter 5,900 responses electronically [5,900 × .05 hour].
(6)
If additional information is required contact: Lynn Bryant, Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
The Department of Labor (DOL) hereby announces the submission of the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35). A copy of this ICR, with applicable supporting documentation; including among other things a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site at
Interested parties are encouraged to send comments to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for Departmental Management (DM), Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202-395-7316/Fax: 202-395-6974 (these are not toll-free numbers), e-mail:
The OMB 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 submission of responses.
Employee Benefits Security Administration, Labor.
Notice of Proposed Exemptions.
This document contains notices of pendency before the Department of Labor (the Department) of proposed exemptions from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
All interested persons are invited to submit written comments or requests for a hearing on the pending exemptions, unless otherwise stated in the Notice of Proposed Exemption, within 45 days from the date of publication of this
All written comments and requests for a hearing (at least three copies) should be sent to the Employee
Notice of the proposed exemptions will be provided to all interested persons in the manner agreed upon by the applicant and the Department within 15 days of the date of publication in the
The proposed exemptions were requested in applications filed pursuant to section 408(a) of the Act and/or section 4975(c)(2) of the Code, and in accordance with procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). Effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type requested to the Secretary of Labor. Therefore, these notices of proposed exemption are issued solely by the Department.
The applications contain representations with regard to the proposed exemptions which are summarized below. Interested persons are referred to the applications on file with the Department for a complete statement of the facts and representations.
Heico Holding Inc. Pension Plan (the Plan), Located in Downers Grove, Illinois [Exemption Application Number: D-11428]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR Part 2570 Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of section 406(a)(1)(A) and (D), and section 406(b)(1) and (b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), (D), and (E) of the Code, shall not apply to the proposed sale by the Plan of a non-marketable limited partnership interest (the Interest) in Trident Equity Fund, II, L.P. (the Partnership) to Heico Holding Inc. (the Applicant), a party in interest with respect to the Plan, provided that the following conditions are satisfied:
(a) The sale is a one-time transaction for cash;
(b) The Plan pays no commissions, fees or other expenses in connection with the sale;
(c) The terms and conditions of the sale are at least as favorable as those obtainable in an arm's length transaction with an unrelated third party;
(d) As a result of the sale, the Plan receives the greater of: (i) $1,050,000; (ii) The value of the Interest as determined by the General Partner of the Partnership and reported on the most recent quarterly account statements of the Partnership available at the time of the sale; (iii) The fair market value of the Interest as determined on the date of the sale by a qualified, independent appraiser; or (iv) The total amount of the Plan's contributions to the Partnership made on or after January 21, 2005 (i.e., the Plan's investment cost basis in the Interest); and
(e) Upon Plan termination, it is determined that the Plan is overfunded.
1. The Plan is a defined benefit pension plan sponsored by Heico Holding Inc. (the Applicant), which is headquartered at 2626 Warrenville Road, Downers Grove, Illinois. The Applicant is a company that specializes in purchasing interests in distressed and under-performing businesses from a variety of industries (including heavy equipment, telecommunications, plastics, food production, and commercial construction) with the purpose of improving their financial condition. As of December 31, 2006, the Plan had a combined total of approximately 2,848 participants and beneficiaries, and total net assets of approximately $84,664,677. The Applicant represents that the Plan was overfunded by approximately $2,000,000 as of June 1, 2007. The administrator of the Plan is Daniel M. Schramm (Schramm), and an Investment Committee (the Committee) comprised of five members (Mr. Schramm, Michael E. Heisley, E.A. Roskovensky, Stanley H. Meadows, and Larry G. Wolski) possesses discretionary authority under the Plan to select and manage the Plan's investments.
2. The Applicant represents that one of the current assets of the Plan is a partnership interest (the Interest), which was acquired on January 21, 2005 in accordance with the terms of both a subscription agreement (Deed of Adherence) and a partnership agreement (Partnership Agreement) between the Plan and Trident Equity Fund, II, L.P. (the Partnership). The Applicant states that the Partnership is domiciled in the Cayman Islands. The Applicant further represents that the limited partnership interests offered to investors by the Partnership are not publicly traded. According to the Applicant, the investment objective of the Partnership is to generate high absolute returns by investing the limited partners' capital in a portfolio consisting primarily of private and listed investments in small and medium sized companies in the United Kingdom and to distribute realized gains to the limited partners. Specifically, the intended underlying investments of the Partnership are concentrated on leveraged buyouts, expansion capital, consolidation, public-to-private and pre-IPO investments in a range of non-technology sectors in the United Kingdom. The Applicant further represents that the General Partner of the Partnership, North Atlantic Value, Ltd., of Hamilton, Bermuda, does not provide investment advice to the Plan or otherwise act as a fiduciary with respect to the Plan, and that the General Partner and the Partnership itself are independent of both the Plan and the Applicant.
3. The Applicant represents that pension plan assets from the United States do not comprise 20% or more of the assets of the Partnership, and that the underlying assets of the Partnership do not constitute plan assets within the meaning of 29 CFR 2510.3-101. The Applicant states that, pursuant to Section 1.5 of the Partnership Agreement, the ordinary term of the Plan's investment as a limited partner in the Partnership is ten (10) years from January 21, 2005. The Applicant also
4. The Applicant represents that the Plan became a limited partner of the Partnership as of January 21, 2005, the effective date of the Partnership Agreement. The Applicant states that the terms and conditions of the Plan's entry into the Partnership were the same as those required of other limited partners.
The Applicant represents that, pursuant to the terms of the Partnership Agreement, the Plan made three separate installments of capital contributions totaling $447,427.51 to the Partnership after January 21, 2005: (1) On May 16, 2005, the Plan contributed $185,530 to the Partnership; (2) On November 5, 2005, the Plan contributed $173,915.01 to the Partnership; and (3) On December 21, 2005, the Plan contributed $87,982.50 to the Partnership. The Applicant states that no further capital contributions were made by the Plan to the Partnership after December 21, 2005, and that no distributions were made by the Partnership to the Plan.
5. The Applicant represents that, prior to June 1, 2007, the benefits under the plan were “frozen”, with different freeze dates applying to different groups of employees. According to the Applicant, the effective date of the termination of the Plan is June 1, 2007. In connection with the termination, the Applicant represents that the Company has submitted information relating to the termination to the Pension Benefit Guaranty Corporation (PBGC), and has also sought a favorable determination letter from the Internal Revenue Service (IRS). After the IRS and PBGC approvals are received and all assets of the Plan have been liquidated, the Applicant states, final distribution of pension benefits to participants and beneficiaries will ensue.
The Applicant has contracted to purchase a group annuity contract with Transamerica Life Insurance Company (Transamerica) of Los Angeles, California to assume the liability for benefit payments to participants; The effective date of this contract was May 2, 2007. To fund the purchase of the group annuity contract, to pay associated administrative expenses, and to allow the winding up of the Plan and trust, the Applicant represents that all of the remaining assets of the Plan (including the Interest) must be converted to cash; such a liquidation would necessarily entail a transfer of the Interest from the Plan.
6. The Applicant represents that, pursuant to Section 14.2.1 of the Partnership Agreement, a limited partner cannot assign or transfer its Interest in the Partnership without the prior written consent of the General Partner of the Partnership.
The Applicant states that, pursuant to section 14.2.1 of the Partnership Agreement, the General Partner possesses sole and absolute discretion regarding transfers of Interests by limited partners. The Applicant represents that this same provision of the Partnership Agreement allows a transfer of a limited partner's interest in the Partnership only to the General Partner or to an associate of the transferring limited partner. The Applicant represents that the General Partner considers Heico Holding Inc., the sponsor of the Plan, as an associate to whom a transfer of the Plan's Interest in the Partnership may be made under the foregoing provision of the Partnership Agreement. The Applicant also maintains that a sale of the Interest to the General Partner, rather than to Heico Holding Inc., could only occur at a price that would represent a significant discount. The Applicant represents that Mr. Schramm has been informed by the General Partner that it will only permit the Plan to sell its Interest in the Partnership to Heico Holding Inc.
7. The Applicant represents that the General Partner has stated that there is no requirement that the transfer from one limited partner to another be at fair market value.
8. In July of 2008, the Committee retained Comstock Valuation Advisors, Inc. (Comstock Advisors) of Wheaton, Illinois, to determine the fair market value of the Interest. On August 15, 2008, Comstock Advisors, on behalf of the Plan, prepared an appraisal report concerning the value of the Interest for the Committee. Comstock Advisors represents that it is a national valuation firm that specializes in customized business appraisals, including the valuation of limited partnership interests for which no readily-ascertainable price is available. In the July 26, 2008 engagement letter accompanying its appraisal report, Comstock Advisors represents that it is independent of, and unrelated to, the Applicant, and acknowledges that the appraisal report was prepared as part of the Applicant's exemption application. Comstock Advisors also represents in the engagement letter that it derives less than 1% of its annual income from the Applicant. The administrator of the Plan, Mr. Dan Schramm, represents that all of the fees and costs associated with appraising the value of the Interest shall be borne by the Applicant rather than the Plan.
A supplement to the appraisal report further states that the Comstock Advisors managing director who personally conducted the appraisal of the Interest, Mr. James E. Ahern, has been employed full-time as a valuation professional since 1986. The supplement states that Mr. Ahern has prior experience in valuing the securities of investment vehicles such as limited liability companies and limited partnerships, as well as experience in valuing certain investment interests
9. In its engagement letter, Comstock Advisors advised that the fair market measurement utilized in the appraisal would assume an exit price in an orderly, hypothetical transaction by market participants in the Interest's principal or most advantageous market. In this connection, Comstock Advisors stated that, because the Partnership's equity interests are not publicly traded, it would utilize the applicable fair value measurement described in Statement No. 157 issued by the Financial Accounting Standards Board (FASB) concerning the valuation of an asset for which (i) there is little, if any, market activity as of the valuation date, (ii) there are no independent, observable pricing data inputs available, and (iii) there are restrictions placed by management on its sale or use.
In an appraisal report issued on August 15, 2008, Comstock Advisors determined that the Interest had a fair market value of $1,050,000 as of December 31, 2007, representing approximately 1.42% of the outstanding partnership interests of the Partnership. In arriving at this valuation, Comstock Advisors did not use the income valuation approach because the future income of the Partnership could not be reasonably estimated. The market approach to valuation (which examines actual sales of similar assets to estimate value) also was not used because, according to the appraiser, there are no publicly traded companies comparable to the Partnership. Comstock Advisors determined that the net asset valuation of the Interest (which was discounted for the lack of marketability and lack of investor control associated with the Interest) was the appropriate valuation methodology, given the Partnership's character as an investment holding company. A net asset valuation reflects the amount that can be realized if the company's assets are sold at their individual fair market values. Because Comstock Advisors noted that the Partnership has generated very high returns, it applied a 10% discount factor to the adjusted net asset value of the Interest, which produced a higher value for the Interest than the value reported as of December 31, 2007 by Northern Trust.
10. The Applicant requests an administrative exemption from the Department to purchase the Interest from the Plan. The Applicant states that the proposed sale of the Interest by the Plan to the Applicant would be a one-time transaction for cash, and that no commissions or other expenses would be charged to the Plan in connection with the sale. The Applicant represents that the proposed transaction is administratively feasible because, under the Partnership Agreement, the sale of the Interest from the Plan to the Applicant is the only permissible transfer that can be accomplished without a significant discounting of the value of the Interest. The Applicant also represents that the proposed transaction is in the interests of the Plan and its participants and beneficiaries because, in the absence of the proposed sale, the necessary liquidation of the Plan's remaining assets incident to the termination of the Plan will be delayed. The Applicant further represents that the proposed transaction is protective of the interests of the Plan's participants and beneficiaries because the Plan will receive an amount greater than the Plan's cumulative capital contributions to the Partnership. If the Department grants the proposed exemption, an updated appraisal of the Interest will be performed as of the date of the sale by a qualified, independent appraiser.
11. In summary, it is represented that the proposed transaction will satisfy the statutory requirements for an exemption under section 408(a) of the Act because: (a) The sale is a one-time transaction for cash; (b) The Plan pays no commissions, fees or other expenses in connection with the sale; (c) The terms and conditions of the sale are at least as favorable as those obtainable in an arm's length transaction with an unrelated third party; (d) As a result of the sale, the Plan receives the greater of: (i) $1,050,000; (ii) The value of the Interest as determined by the General Partner of the Partnership and reported on the most recent quarterly account statements of the Partnership available at the time of the sale; (iii) The fair market value of the Interest as determined on the date of the sale by a qualified, independent appraiser; or (iv) The total amount of the Plan's contributions to the Partnership made on or after January 21, 2005 (i.e., the Plan's investment cost basis in the Interest); and (e) Upon Plan termination, it is determined that the Plan is overfunded.
Mr. Mark Judge of the Department, telephone (202) 693-8339. (This is not a toll-free number).
Brewster Dairy, Inc. 401(k) Profit Sharing Plan (the Plan)
Located in Brewster, Ohio
[Application No. D-11450]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of sections 406(a)(1)(A) and (D), 406(b)(1) and (b)(2) of the Act, and the sanctions resulting from the application of section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A), (D) and (E) of the Code, shall not apply to the sale (the Sale) by the Plan of 2.5 limited partnership units (the Units) in the Heartland California Clayton Limited Partnership (the Partnership) to Brewster Dairy, Inc. (Brewster), the Plan's sponsor and a party in interest with respect to the Plan, for the greater of: (1) $57,000; (2) the net proceeds for the Units in the event the Partnership sells its real estate (the Property) to a third party; or (3) the net proceeds from foreclosure for the Units in the event the Property is foreclosed to pay back real estate taxes, provided the following conditions are satisfied:
(a) The Sale of the Units is a one-time transaction for cash;
(b) The Plan pays no commissions, fees or other expenses in connection with the Sale;
(c) The terms of the transaction are at least as favorable to the Plan as those the Plan could obtain in a similar transaction with an unrelated party;
(d) The fair market value of the Units on the date of the Sale is determined by a qualified independent appraiser;
(e) The Plan fiduciaries will determine whether it is in the best interest of the Plan to go forward with the Sale, will review and approve the methodology used in the appraisal that is being relied upon, and will ensure that the methodology is applied by a qualified, independent appraiser in determining the fair market value of the Units as of the date of the Sale; and
(f) The proceeds from the Sale of the Units to Brewster will be allocated only to the participants who are defined in the Consent Order and Judgment (the COJ, File No. 5:98CV744, July 1, 1999)
1. The Brewster Dairy, Inc. 401(k) Profit Sharing Plan (the Plan) is an individual account plan established by Brewster Dairy, Inc. (Brewster) on April 1, 1965. As of June 30, 2007, the Plan had 259 participants, and had total assets of $15,013,748. Brewster, headquartered in Brewster, Ohio, is the largest manufacturer of all natural Swiss cheese in the United States.
2. In December 1990, the Plan purchased 2.5 limited partnership units (the Units) in the Heartland California Clayton Limited Partnership (the Partnership), a predevelopment real estate limited partnership originally consisting of 139 acres of land (the Property). The Plan made an initial capital contribution of $243,952 to the Partnership in 1990, and made additional contributions during the years through 1996. In all, the Plan made payments to the Partnership totaling approximately $749,000, which would represent less than 5% of the Plan's current assets. The applicant represents that the Plan has not paid any of the costs related to the Units since they were acquired. The costs of appraisals, reports, etc. have all been paid by Brewster.
3. In 1997, the Department, in a routine audit of the Plan, determined that the purchase of the 2.5 Units of the Partnership was a violation of the fiduciary responsibility provisions of the Act. The Department filed suit in this matter on May 29, 1998. The parties agreed to settle the case, and a Consent Order and Judgment (the COJ) was entered by the Court on July 1, 1999. On December 4, 1999, Brewster complied with the COJ and allocated the agreed amount, $333,333, to the individual accounts of such persons (other than defendants Fritz Leeman, Walter Leeman and Tom Riegler)
4. The applicant represents that due to zoning restrictions and the discovery of landslides on the Property, the value of the Units has dropped significantly since the Plan purchase date.
5. By letter dated August 25, 2008, the Partnership notified the fiduciaries of the Plan that due to delinquent real estate taxes, the Partnership anticipated receiving a foreclosure notice in December 2008. The Partnership further notified the Plan that an unrelated adjacent property owner, Clayton Estates, LLC has contacted the Partnership and offered to purchase the Property for $65,000. In its August 25, 2008 letter, the Partnership sought approval from the Plan to negotiate and close on a sale of the Property at a price not less than $65,000.
6. The applicant has requested a prohibited transaction exemption for the Sale of the Units by the Plan to Brewster, in a cash Sale, for a price not less than $57,000, the appraised value of the Units as determined by Mr. McDaniel. The applicant represents that in the event the Partnership sells its real estate to a third party, if the net proceeds for the Units exceeds $57,000, that will be the Sale price for the subject transaction. Similarly, the applicant represents that in the event the Property is foreclosed to pay back real estate taxes, if the net proceeds from that foreclosure for the Units exceeds $57,000, that will be the Sale price for the subject transaction. In the calculation of net proceeds, the Plan will be treated the same as all other limited partners in the Partnership.
7. The applicant represents that when Brewster complied with the COJ in 1999 and allocated the agreed amount, $333,333, to the individual accounts of such persons (other than defendants Fritz Leeman, Walter Leeman and Tom Riegler) who were Plan participants on March 31, 1999 and held a portion of the Plan's investment in the Units as an asset in their individual accounts, Brewster also filed with the Court a schedule showing how the allocation was calculated. A separate trust was established to hold the Units and the trustees have kept track of those participants who received an allocation. In fact, a majority of those participants are still employed by Brewster. The applicant represents that if the exemption proposed herein is granted, the proceeds of the Sale will be allocated on a pro rata basis in accordance with the terms of the COJ, to the same participants and in the same manner as was the 1999 payment. The three Plan fiduciaries will not receive any allocation. If for some reason Brewster is unable to locate a participant or a deceased participant's beneficiary, Brewster would use one of the Federal Government Locator services. If, after a reasonable amount of time, Brewster is still unable to locate a participant or beneficiaries, Brewster would then reallocate the missing participant's allocation to the other participants set forth above, using each participant's percentage ownership calculated excluding the missing participant's percentage.
8. The applicant represents that the transaction would be in the best interests of the Plan because the Plan would be relieved of an illiquid asset that is difficult and expensive to value. After the Sale, the annual valuation would no longer be required, and the cash proceeds resulting from the Sale will be added to the appropriate participant accounts per the COJ. After the Sale, the Plan would be relieved of keeping track of such participants, which is both time-consuming and expensive. The fiduciary responsibility of monitoring the Units and the Partnership would also be removed.
9. In summary, the applicant represents that the subject transaction satisfies the criteria contained in section 408(a) of the Act because: (a) The Sale of the Units is a one-time transaction for cash; (b) The Plan will pay no commissions, fees or other expenses in connection with the Sale; (c) The terms of the transaction will be at least as favorable to the Plan as those the Plan could obtain in a similar transaction with an unrelated party; (d) The fair market value of the Units on the date of the Sale will be determined by a qualified independent appraiser who is unrelated to Brewster and the Plan's current fiduciaries; (e) The Plan fiduciaries will determine whether it is in the best interest of the Plan to go forward with the Sale, will review and approve the methodology used in the appraisal that is being relied upon, and will ensure that the methodology is applied by a qualified, independent
Gary H. Lefkowitz of the Department, telephone (202) 693-8546. (This is not a toll-free number.)
Starrett Corporation Pension Plan (the Plan), Located in New York, NY [Exemption Application Number: D-11473]
The Department is considering granting an exemption under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR Part 2570 Subpart B (55 FR 32836, 32847, August 10, 1990). If the exemption is granted, the restrictions of sections 406(a), 406(b)(1) and (b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code, by reason of section 4975(c)(1)(A), through (E) of the Code, shall not apply to the proposed cash sale (the Sale) by the Plan to the Starrett Corporation (the Applicant), a party in interest with respect to the Plan, of a $25,000 face amount 7.797% secured senior note (the Security) issued by the Osprey Trust (the Trust), an Enron related entity, provided that the following conditions are satisfied:
(a) The Sale is a one-time transaction for cash;
(b) The Plan pays no commissions, fees or other expenses in connection with the Sale;
(c) The terms and conditions of the Sale are at least as favorable as those obtainable in an arm's length transaction with an unrelated third party;
(d) The value of the Security is determined by Interactive Data Systems, a qualified, unrelated entity; and
(e) The Plan is a defined benefit plan which has been terminated and all benefits have been paid out to Plan participants and beneficiaries.
1. The Plan is a defined benefit pension plan sponsored by the Applicant, which is headquartered at 70 East 55th Street New York, NY 10022-3222. The Applicant represents that the Plan was terminated in 2006, and that all benefits have been paid to participants and beneficiaries; therefore the Plan currently has no remaining participants or beneficiaries. The Plan holds residual assets totaling $17,348.25. These residual assets are comprised of two components: (1) Cash equivalents totaling $12,098.25; and (2) the Security, whose value as of April 11, 2008, was stated as $5,250.00 by the Plan's broker-dealer, UBS Financial Services, Inc., (UBS).
2. The Applicant is a construction manager or general contractor of buildings, mainly in the metropolitan New York City area. Its services also include initial planning and development; property acquisition, financing, and management; consulting; and related services. Through its subsidiary, Levitt Corporation, the company constructs single-family homes and garden apartments in the United States and Puerto Rico. Through its HRH subsidiary, the company supplies construction services and acts as a manager for major construction projects.
3. The Plan acquired the Security on September 28, 2000, for $25,000 pursuant to an Eligible Rule 144A Offering.
(i) The securities are offered or sold in transactions exempt from registration under section 4(2) of the Securities Act of 1933 [15 U.S.C. 77d(d)], rule 144A thereunder [§ 230.144A of this chapter], or rules 501-508 thereunder [§§ 230.501-230-508 of this chapter];
(ii) The securities are sold to persons that the seller and any person acting on behalf of the seller reasonably believe to include qualified institutional buyers, as defined in § 230.144A(a)(1) of this chapter; and
(iii) The seller and any person acting on behalf of the seller reasonably believe that the securities are eligible for resale to other qualified institutional buyers pursuant to § 230.144A of this chapter.
4. The Applicant represents that UBS has stated that the Security is not traded, and the Applicant further represents that efforts to sell the Security to an unrelated third party have been unsuccessful. The Applicant represents that none of the Plan's residual assets will revert to the Applicant, and that subsequent to the Sale these assets will be used to pay the Plan's unrelated service providers amounts due in connection with the winding down and termination of the Plan.
In summary, it is represented that the proposed transaction will satisfy the statutory requirements for an exemption under section 408(a) of the Act because: (a) The Sale is a one-time transaction for cash; (b) The Plan pays no commissions, fees or other expenses in connection with the Sale; (c) The terms and conditions of the Sale are at least as favorable as those obtainable in an arm's length transaction with an unrelated third party; (d) The value of the Security was determined by Interactive Data Systems, a qualified and unrelated party; and (e) The Plan is a defined benefit plan which has been terminated and all benefits have been paid out to Plan participants and beneficiaries.
Mr. Brian Buyniski of the Department, telephone (202) 693-8545. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of the Act; nor does
(2) Before an exemption may be granted under section 408(a) of the Act and/or section 4975(c)(2) of the Code, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemptions, if granted, will be supplemental to, and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemptions, if granted, will be subject to the express condition that the material facts and representations contained in each application are true and complete, and that each application accurately describes all material terms of the transaction which is the subject of the exemption.
Employee Benefits Security Administration, Labor.
Grant of individual exemptions.
This document contains exemptions issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code).
A notice was published in the
The notice of proposed exemption was issued and the exemption is being granted solely by the Department because, effective December 31, 1978, section 102 of Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 1 (1996), transferred the authority of the Secretary of the Treasury to issue exemptions of the type proposed to the Secretary of Labor.
In accordance with section 408(a) of the Act and/or section 4975(c)(2) of the Code and the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990) and based upon the entire record, the Department makes the following findings:
(a) The exemption is administratively feasible;
(b) The exemption is in the interests of the plan and its participants and beneficiaries; and
(c) The exemption is protective of the rights of the participants and beneficiaries of the plan.
Banc One Investment Advisors Corporation (BOIA) and J.P. Morgan Investment Management Inc. (JPMIM) and their Affiliates (collectively, JPMorgan). Located in New York, New York. [Prohibited Transaction Exemption 2008-13; Application No. D-11263]
The restrictions of sections 406(a)(1)(D), 406(b)(1) and 406(b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code by reason of section 4975(c)(1)(D) and (E) of the Code, shall not apply, as of January 14, 2004, until November 20, 2008, to the acquisition, holding, and disposition of the common stock of JPMorgan Chase & Co. (the JPM Stock) by Index and Model-Driven Funds managed by JPMorgan, provided that the following conditions and the general conditions in Section III are satisfied:
(a) The acquisition or disposition of the JPM Stock is for the sole purpose of maintaining strict quantitative conformity with the relevant index upon which the Index or Model-Driven Fund is based.
(b) The acquisition or disposition of the JPM Stock does not involve any agreement, arrangement, or understanding regarding the design or operation of the Fund acquiring the JPM Stock which is intended to benefit JPMorgan or any party in which JPMorgan may have an interest.
(c) All aggregate daily purchases of JPM Stock by the Funds do not exceed, on any particular day, the greater of:
(1) Fifteen (15) percent of the aggregate average daily trading volume for the JPM Stock occurring on the applicable exchange and automated trading system (as described in paragraph (d) below) for the previous five business days, or
(2) Fifteen (15) percent of the trading volume for the JPM Stock occurring on the applicable exchange and automated trading system on the date of the transaction, both as determined by the best available information for the trades occurring on that date or dates.
(d) All purchases and sales of JPM Stock are either (i) Entered into on a principal basis in a direct, arm's length transaction with a broker-dealer, in the ordinary course of its business, where such broker-dealer is independent of JPMorgan and is either registered under the Securities Exchange Act of 1934 (the 1934 Act), and thereby subject to regulation by the Securities and Exchange Commission (SEC), (ii) effected on an automated trading system (as defined in Section IV(i) below) operated by a broker-dealer independent of JPMorgan that is subject to regulation by the SEC, or an automated trading system operated by a recognized U.S.
(e) No transactions by a Fund involve purchases from, or sales to, JPMorgan (including officers, directors, or employees thereof), or any party in interest that is a fiduciary with discretion to invest plan assets into the Fund (unless the transaction by the Fund with such party in interest would otherwise be subject to an exemption); however, this condition would not apply to purchases or sales on an exchange or through an automated trading system (described in paragraph (d) of this Section) on a blind basis where the identity of the counterparty is not known.
(f) No more than five (5) percent of the total amount of JPM Stock that is issued and outstanding at any time is held in the aggregate by Index and Model-Driven Funds managed by JPMorgan.
(g) JPM Stock constitutes no more than three (3) percent of any independent third party index on which the investments of an Index or Model-Driven Fund are based.
(h) A plan fiduciary which is independent of JPMorgan authorizes the investment of such plan's assets in an Index or Model-Driven Fund which purchases and/or holds JPM Stock, pursuant to the procedures described herein.
(i) A fiduciary independent of JPMorgan directs the voting of the JPM Stock held by an Index or Model-Driven Fund on any matter in which shareholders of JPM Stock are required or permitted to vote.
The restrictions of sections 406(a)(1)(D), 406(b)(1) and 406(b)(2) of the Act, and the sanctions resulting from the application of section 4975 of the Code by reason of section 4975(c)(1)(D) and (E) of the Code, shall not apply, as of November 20, 2008 to the acquisition, holding, and disposition of JPM Stock by Index and Model-Driven Funds managed by JPMorgan, provided that the following conditions and the general conditions in Section III are satisfied:
(a) The acquisition or disposition of JPM Stock is for the sole purpose of maintaining strict quantitative conformity with the relevant index upon which the Index or Model-Driven Fund is based.
(b) The acquisition or disposition of JPM Stock does not involve any agreement, arrangement or understanding regarding the design or operation of the Fund acquiring the JPM Stock which is intended to benefit JPMorgan or any party in which JPMorgan may have an interest.
(c) All purchases of JPM Stock pursuant to a Buy-up (as defined in Section IV(d)) occur in the following manner:
(1) Purchases on a single trading day are from, or through, only one broker or dealer;
(2) Based on the best available information, purchases are not the opening transaction for the trading day;
(3) Purchases are not effected in the last half hour before the scheduled close of the trading day;
(4) Purchases are at a price that is not higher than the lowest current independent offer quotation, determined on the basis of reasonable inquiry from brokers that are not affiliates of JPMorgan (as defined in section IV(g));
(5) Aggregate daily purchases of JPM Stock by the Funds do not exceed, on any particular day, the greater of: (i) Fifteen (15) percent of the aggregate average daily trading volume for the security occurring on the applicable exchange and automated trading system for the previous five business days, or (ii) fifteen (15) percent of the trading volume for the security occurring on the applicable exchange and automated trading system on the date of the transaction, as determined by the best available information for the trades occurring on that date;
(6) All purchases and sales of JPM Stock occur either (i) On a recognized securities exchange (as defined in Section IV(j) below), (ii) through an automated trading system (as defined in Section IV(i) below) operated by a broker-dealer independent of JPMorgan that is registered under the 1934 Act, and thereby subject to regulation by the SEC, which provides a mechanism for customer orders to be matched on an anonymous basis without the participation of a broker-dealer, or (iii) through an automated trading system (as defined in Section IV(i) below) that is operated by a recognized securities exchange (as defined in Section IV(j) below), pursuant to the applicable securities laws, and provides a mechanism for customer orders to be matched on an anonymous basis without the participation of a broker-dealer; and
(7) If the necessary number of shares of JPM Stock cannot be acquired within 10 business days from the date of the event that causes the particular Fund to require JPM Stock, JPMorgan appoints a fiduciary that is independent of JPMorgan to design acquisition procedures and monitor JPMorgan's compliance with such procedures, in accordance with Representation 7 in the Summary of Facts and Representations in the Notice of Proposed Exemption (the Notice).
(d) For transactions subsequent to a Buy-up, all aggregate daily purchases of JPM Stock by the Funds do not exceed, on any particular day, the greater of:
(1) Fifteen (15) percent of the aggregate average daily trading volume for the JPM Stock occurring on the applicable exchange and automated trading system for the previous five (5) business days, or
(2) Fifteen (15) percent of the trading volume for JPM Stock occurring on the applicable exchange and automated trading system on the date of the transaction, as determined by the best available information for the trades that occurred on such date.
(e) All transactions in JPM Stock not otherwise described in paragraph (c) above are either: (i) Entered into on a principal basis in a direct, arms-length transaction with a broker-dealer, in the ordinary course of its business, where such broker-dealer is independent of JPMorgan and is registered under the 1934 Act, and thereby subject to regulation by the SEC, (ii) effected on an automated trading system (as defined in Section IV(i) below) operated by a broker-dealer independent of JPMorgan that is subject to regulation by the SEC, or an automated trading system operated by a recognized securities exchange (as defined in Section IV(j) below), which, in either case, provides a mechanism for customer orders to be matched on an anonymous basis without the participation of a broker-dealer, or (iii) effected through a recognized securities exchange (as defined in Section IV(j) below), so long as the broker is acting on an agency basis.
(f) No transactions by a Fund involve purchases from, or sales to, JPMorgan (including officers, directors, or employees thereof), or any party in interest that is a fiduciary with discretion to invest plan assets in the Fund (unless the transaction by the Fund with such party in interest would otherwise be subject to an exemption);
(g) No more than five (5) percent of the total amount of JPM Stock that is issued and outstanding at any time is held in the aggregate by Index and Model-Driven Funds managed by JPMorgan.
(h) JPM Stock constitutes no more than five (5) percent of any independent third party index on which the investments of an Index or Model-Driven Fund are based.
(i) A plan fiduciary independent of JPMorgan authorizes the investment of such plan's assets in an Index or Model-Driven Fund which purchases and/or holds JPM Stock, pursuant to the procedures described herein.
(j) A fiduciary independent of JPMorgan directs the voting of the JPM Stock held by an Index or Model-Driven Fund on any matter in which shareholders of JPM Stock are required or permitted to vote.
(a) JPMorgan maintains or causes to be maintained, for a period of six years from the date of the transaction, the records necessary to enable the persons described in paragraph (b) of this Section to determine whether the conditions of this exemption have been met, except that (1) a prohibited transaction will not be considered to have occurred if, solely due to circumstances beyond the control of JPMorgan, the records are lost or destroyed prior to the end of the six-year period, and (2) no party in interest other than JPMorgan shall be subject to the civil penalty that may be assessed under section 502(i) of the Act or to the taxes imposed by section 4975(a) and (b) of the Code if the records are not maintained or are not available for examination as required by paragraph (b) below.
(b)(1) Except as provided in paragraph (b)(2) and notwithstanding any provisions of section 504(a)(2) and (b) of the Act, the records referred to in paragraph (a) of this Section are unconditionally available at their customary location for examination during normal business hours by—
(A) Any duly authorized employee or representative of the Department, the Internal Revenue Service or the Securities and Exchange Commission,
(B) Any fiduciary of a plan participating in an Index or Model-Driven Fund who has authority to acquire or dispose of the interests of the plan, or any duly authorized employee or representative of such fiduciary,
(C) Any contributing employer to any plan participating in an Index or Model-Driven Fund or any duly authorized employee or representative of such employer, and
(D) Any participant or beneficiary of any plan participating in an Index or Model-Driven Fund, or a representative of such participant or beneficiary.
(2) None of the persons described in subparagraphs (B) through (D) of this paragraph (b) shall be authorized to examine trade secrets of JPMorgan or commercial or financial information that is considered confidential.
(a) The term “Index Fund” means any investment fund, account, or portfolio sponsored, maintained, trusteed, or managed by JPMorgan, in which one or more investors invest, and—
(1) That is designed to track the rate of return, risk profile, and other characteristics of an independently maintained securities Index, as described in Section IV(c) below, by either (i) replicating the same combination of securities that comprise such Index, or (ii) sampling the securities that comprise such Index based on objective criteria and data;
(2) For which JPMorgan does not use its discretion, or data within its control, to affect the identity or amount of securities to be purchased or sold;
(3) That contains “plan assets” subject to the Act; and,
(4) That involves no agreement, arrangement, or understanding regarding the design or operation of the Fund which is intended to benefit JPMorgan or any party in which JPMorgan may have an interest.
(b) The term “Model-Driven Fund” means any investment fund, account, or portfolio sponsored, maintained, trusteed, or managed by JPMorgan, in which one or more investors invest, and—
(1) That is composed of securities, the identity of which and the amount of which are selected by a computer model that is based on prescribed objective criteria using independent third party data, not within the control of JPMorgan, to transform an independently maintained Index, as described in Section IV(c) below;
(2) That contains “plan assets” subject to the Act; and
(3) That involves no agreement, arrangement, or understanding regarding the design or operation of the Fund or the utilization of any specific objective criteria that is intended to benefit JPMorgan or any party in which JPMorgan may have an interest.
(c) The term “Index” means a securities index that represents the investment performance of a specific segment of the public market for equity or debt securities in the United States and/or foreign countries, but only if—
(1) The organization creating and maintaining the index is—
(A) Engaged in the business of providing financial information, evaluation, advice or securities brokerage services to institutional clients,
(B) A publisher of financial news or information, or
(C) A public stock exchange or association of securities dealers; and,
(2) The index is created and maintained by an organization independent of JPMorgan; and,
(3) The index is a generally accepted standardized index of securities that is not specifically tailored for the use of JPMorgan.
(d) The term “Buy-up” means an initial acquisition of JPM Stock by an Index or Model-Driven Fund which is necessary to bring the Fund's holdings of such stock either to its capitalization-weighted or other specified composition in the relevant index, as determined by the independent organization maintaining such index, or to its correct weighting as determined by the model which has been used to transform the index.
(e) The term “JPMorgan” refers to Bank One Investment Advisors Corporation (BOIA) and J.P. Morgan Investment Management Inc. (JPMIM), and their respective Affiliates, as defined in paragraph (f) below.
(f) The term “Affiliate” means, with respect to BOIA or JPMIM, an entity which, directly or indirectly, through one or more intermediaries, is controlling, controlled by, or under common control with BOIA or JPMIM;
(g) An “affiliate” of a person includes:
(1) Any person, directly or indirectly, through one or more intermediaries, controlling, controlled by or under common control with the person;
(2) Any officer, director, employee or relative of such person, or partner of any such person; and
(3) Any corporation or partnership of which such person is an officer, director, partner, or employee.
(h) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(i) The term “automated trading system” means an electronic trading system that functions in a manner
(j) The term “recognized securities exchange” means a U.S. securities exchange that is registered as a “national securities exchange” under Section 6 of the 1934 Act (15 U.S.C. 78f), as such definition may be amended from time to time, which performs with respect to securities the functions commonly performed by a stock exchange within the meaning of definitions under the applicable securities laws (e.g., 17 CFR 240.3b-16).
(k) The term “Fund” means an Index Fund (as described in Section IV(a)) or a Model-Driven Fund (as described in IV(b)).
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the Notice, published on July 8, 2008, at 73 FR 39168.
The Department received no written comments with respect to the Notice. The Department notes that the Notice incorrectly stated that, as of December 31, 2005, JPMIM managed $1.19 trillion in assets for defined benefit and defined contribution plans, endowments and foundations, and other institutional clients, mutual funds, and high net worth individuals. In fact, the applicable date for that information was December 31, 2007.
Ms. Karen Lloyd of the Department, telephone (202) 693-8554. (This is not a toll-free number.)
Fidelity Brokerage Services, LLC (FBS) and its affiliates (together with FBS, Fidelity); Located Boston, Massachusetts.
[Prohibited Transaction Exemption No. 2008-14; Application No. D-11424]
Effective November 20, 2008, the restrictions of sections 406(a)(1)(D) and 406(b) of ERISA, and the sanctions resulting from the application of section 4975 of the Code, including the loss of exemption of an individual retirement account or annuity pursuant to section 408(e)(2)(A) of the Code, of a Coverdell education savings account pursuant to section 530(d) of the Code, of an Archer medical savings account pursuant to section 220(e)(2) of the Code, or of a health savings account pursuant to section 223(e)(2) of the Code, by reason of section 4975(c)(1)(D), (E), and (F) of the Code, shall not apply to the receipt of an Applicable Benefit by an individual for whose benefit a Covered Plan is established or maintained, or by his or her Family Members, with respect to a Tiered Product, pursuant to an arrangement offered by Fidelity under which the Account Value of the Covered Plan is taken into account for purposes of determining eligibility to receive such Applicable Benefit, provided that each condition of Section II of this exemption is satisfied.
(a) The Covered Plan whose Account Value is taken into account for purposes of determining eligibility to receive the Applicable Benefit under the arrangement is established and maintained for the exclusive benefit of the participant covered under the Covered Plan, his or her spouse, or their beneficiaries.
(b) The Applicable Benefit with respect to the Tiered Product must be of the type that Fidelity itself could offer consistent with all applicable federal and state banking laws and all applicable federal and state laws regulating broker-dealers.
(c) The Applicable Benefit with respect to the Tiered Product must be provided by Fidelity or its affiliate in the ordinary course of its business as a bank or broker-dealer to customers of Fidelity who qualify for such arrangement, but who do not maintain Covered Plans with Fidelity or its affiliate.
(d) For purposes of determining eligibility to receive the Applicable Benefit, the Account Value required by Fidelity for the Covered Plan is as favorable as any such requirement based on the value of any type of account and other financial relationships an individual and his or her Family Members have with Fidelity that is used by Fidelity to determine eligibility to receive the Applicable Benefit.
(e) The rate of interest paid with respect to any assets of the Covered Plan invested in a Tiered Interest Product is reasonable.
(f) The combined total of all fees for the provision of services to the Covered Plan is not in excess of reasonable compensation within the meaning of section 4975(d)(2) of the Code and section 408(b)(2) of ERISA.
(g) The investment performance of the Covered Plan's investment(s) is no less favorable than the investment performance of an identical investment(s) that could have been made at the same time by a customer of Fidelity who is not eligible for (or who does not receive) any Applicable Benefit.
(h) The Applicable Benefits offered with respect to any Tiered Product under the arrangement to a Covered Plan customer must be the same as is offered by Fidelity with respect to such Tiered Product to non-Covered Plan customers of Fidelity having the same aggregate Account Value.
(i) If the Covered Plan is established at a broker-dealer or bank that is unrelated to Fidelity, the assets of the Covered Plan must be custodied with Fidelity and at the time the Covered Plan is established, disclosures must be made to the owner of the Covered Plan specifying that under the arrangement, services are being provided by Fidelity to the Covered Plan.
(a) The term “Fidelity” means Fidelity Brokerage Services LLC (FBS) or any of its affiliates. An “affiliate” of Fidelity Brokerage Services LLC includes any person directly or indirectly controlling, controlled by, or under common control with FBS. The term control means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(b) The term “Covered Plan” means a plan sponsored by Fidelity or a plan with respect to which Fidelity maintains custody of its assets, and is an Individual Retirement Plan or other savings account described in section III(c), or a Keogh Plan described in section III(d).
(c) The term “Individual Retirement Plan” means an individual retirement account (“IRA”) described in Code section 408(a), an individual retirement annuity described in Code section 408(b), a Coverdell education savings account described in section 530 of the Code, an Archer MSA described in section 220(d) of the Code, or a health savings account described in section 223(d) of the Code. For purposes of this exemption, the term Individual Retirement Plan shall not include an Individual Retirement Plan which is an employee benefit plan covered by Title I of ERISA, except for a Simplified Employee Pension (SEP) described in section 408(k) of the Code or a Simple Retirement Account described in section 408(p) of the Code which provides participants with the unrestricted authority to transfer their balances to IRAs or Simple Retirement Accounts sponsored by different financial institutions.
(d) The term “Keogh Plan” means a pension, profit-sharing or stock bonus plan qualified under Code section 401(a) and exempt from taxation under Code section 501(a) under which some or all of the participants are employees described in section 401(c) of the Code. For purposes of this exemption, the term Keogh Plan shall not include a Keogh Plan which is an employee benefit plan covered by Title I of ERISA.
(e) The term “Account Value” means the dollar value of investments in cash or securities held in the account for which market quotations are readily available. For purposes of this exemption, the term “cash” shall include (without limitation) savings accounts that are federally-insured and deposits as that term is defined in section 29 CFR 2550.408b-4(c)(3). The term “Account Value” shall not include investments in securities that are offered by Fidelity exclusively to Covered Plans.
(f) The term “Tiered Product” means an arrangement that is a “Tiered Interest Product” or a “Tiered Loan Product.”
(g) The term “Tiered Interest Product” means a bank deposit, an arrangement for payment of interest on free cash held in a brokerage account, or any other arrangement under which assets in an individual's account that is eligible for the arrangement (including Covered Plans) are invested, and with respect to which interest is paid at a specified rate based on the aggregate amount of the accounts and other financial relationships an individual and his or her Family Member have with Fidelity that are eligible to be taken into account for purposes of the arrangement, including the Account Value of the Covered Plans.
(h) The term “Tiered Loan Product” means any arrangement for the extension of credit to an individual, with respect to which the interest and/or Loan Expenses required to be paid are reduced to a specified rate or an amount based on the aggregate amount of the accounts and other financial relationships that an individual and his or her Family Member have with Fidelity that are eligible to be taken into account for purposes of the arrangement, including the Account Value of the Covered Plans.
(i) The term “Loan Expenses” means application fees, points, attorneys” fees, appraisal fees, title insurance, and any other fees or costs that an individual is required to pay in connection with the origination or maintenance of an extension of credit pursuant to a Tiered Loan Product.
(j) The term “Applicable Benefit” means: (i) In the case of a Tiered Interest Product, an increase in the interest paid on an account established or maintained by an individual or any of his or her Family Members (including, in either case, through a Covered Plan); and (ii) in the case of a Tiered Loan Product, a reduction in the interest and/or Loan Expenses that an individual or any of his or her Family Members is required to pay.
(k) The term “Family Members” means beneficiaries of an individual for whose benefit the Covered Plan is established or maintained who would be members of the family as that term is defined in Code Section 4975(e)(6), or a brother, a sister, or spouse of a brother or sister.
The proposed exemption gave interested persons an opportunity to comment and to request a hearing. In this regard, all interested persons were invited to submit written comments and/or requests for a hearing on the pending exemption on or before October 20, 2008. During the comment period, the Department received one written comment letter and no requests for a public hearing. The comment was submitted by the applicant, and a discussion of the comment is provided below.
The applicant requested the Department change the heading of the exemption to read “Fidelity Brokerage Services LLC (FBS) and its affiliates (together with FBS, Fidelity.) The Department has made the requested change.
In its application, Fidelity discussed that an individual's eligibility to receive Tiered Products would be calculated based on the aggregate amount of accounts and other financial relationships that the individual and his or her Family Members have with Fidelity. In this regard, Sections II(d), III(g) and III(h) of the proposal relate to eligibility requirements and definitions of the products offered under Fidelity's program. Section II(d) of the proposal states:
“For purposes of determining eligibility to receive the Applicable Benefit, the Account Value required by Fidelity for the Covered Plan is as favorable as any such requirement based on the value of any type of account used by Fidelity to determine eligibility to receive the Applicable Benefit.”
Section III(g) of the proposal states:
“The term “Tiered Interest Product” means a bank deposit, an arrangement for payment of interest on free cash held in a brokerage account, or any other arrangement under which assets in an individual's account that is eligible for the arrangement (including Covered Plans) are invested, and with respect to which interest is paid at a specified rate based on the aggregate amount of the accounts maintained with Fidelity by an individual and by his or her Family Members that are eligible to be taken into account for purposes of the arrangement, including the Account Value of the Covered Plans.”
Lastly, Section III(h) of the proposal states:
“The term “Tiered Loan Product” means any arrangement for the extension of credit to an individual, with respect to which the interest and/or Loan Expenses required to be paid are reduced to a specified rate or amount based on the aggregate amount of the accounts and other financial relationships of the individual (and his or her Family Members) eligible to be taken into account for purposes of the arrangement, including the Account Value of the Covered Plans.”
The applicant asks the Department to insert the words “and other financial relationships” in Section II(d) and Section III(g). The Department has made the requested change making all three sections consistent.
The Department makes the following clarifications in response to the applicant's comments: (1) Fidelity has approximately $1.7 trillion assets under administration, and (2) the word “as” should be inserted immediately after the word “favorable” in the fifth line of subparagraph 10(d) of the Summary of Facts and Representations of the notice of proposed exemption.
For a complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the notice of proposed exemption that was published in the
Allison Padams-Lavigne, U.S. Department of Labor, telephone (202) 693-8564. (This is not a toll-free number.)
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and/or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404
(2) This exemption is supplemental to and not in derogation of, any other provisions of the Act and/or the Code, including statutory or administrative exemptions and transactional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(3) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describes all material terms of the transaction which is the subject of the exemption.
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency has submitted to OMB for approval the information collection described in this notice. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.
Written comments must be submitted to OMB at the address below on or before December 22, 2008 to be assured of consideration.
Send comments to Mr. Nicholas A. Fraser, Desk Officer for NARA, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5167; or electronically mailed to
Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301-837-1694 or fax number 301-713-7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for this information collection on September 11, 2008 (73 FR 52890). No comments were received. NARA has submitted the described information collection to OMB for approval.
In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collection is necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. In this notice, NARA is soliciting comments concerning the following information collection:
National Archives and Records Administration (NARA).
Notice.
NARA is giving public notice that the agency proposes to renew the information collections described in this notice, which are used in the National Historical Publications and Records Commission (NHPRC) grant program. The public is invited to comment on the proposed information collections pursuant to the Paperwork Reduction Act of 1995.
Written comments must be received on or before January 20, 2009 to be assured of consideration.
Comments should be sent to: Paperwork Reduction Act Comments (NHP), Room 4400, National Archives and Records Administration, 8601 Adelphi Rd, College Park, MD 20740-6001; or faxed to 301-713-7409; or electronically mailed to
Requests for additional information or copies of the proposed information collections and supporting statements should be directed to Tamee Fechhelm at telephone number 301-837-1694, or fax number 301-713-7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. The comments and suggestions should address one or more of the following points: (a) Whether the proposed information collections are necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collections; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by this collection. The comments that are
1.
You can also use NARA's Web site at
2.
You can also use NARA's Web site at
Nuclear Regulatory Commission.
Notice of a proposed Agreement with the Commonwealth of Virginia.
By letter dated June 12, 2008, Governor Timothy M. Kaine of Virginia requested that the U.S. Nuclear Regulatory Commission (NRC or Commission) enter into an Agreement with the Commonwealth of Virginia (Commonwealth or Virginia) as authorized by Section 274 of the Atomic Energy Act of 1954, as amended (Act).
Under the proposed Agreement, the Commission would relinquish, and the Commonwealth would assume, portions of the Commission's regulatory authority exercised within the Commonwealth. As required by the Act, the NRC is publishing the proposed Agreement for public comment. The NRC is also publishing the summary of an assessment by the NRC staff of the Commonwealth's regulatory program. Comments are requested on the proposed Agreement, especially its effect on public health and safety. Comments are also requested on the NRC staff assessment, the adequacy of the Commonwealth's program, and the Commonwealth's program staff, as discussed in this notice.
The proposed Agreement would release (exempt) persons who possess or use certain radioactive materials in the Commonwealth from portions of the Commission's regulatory authority. The Act requires that the NRC publish those exemptions. Notice is hereby given that the pertinent exemptions have been previously published in the
The comment period expires December 22, 2008. Comments received after this date will be considered if it is practical to do so, but the Commission cannot assure consideration of comments received after the expiration date.
Written comments may be submitted to Mr. Michael T. Lesar, Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, Washington, DC 20555-0001. Members of the public are invited and encouraged to submit comments electronically to
The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Copies of comments received by NRC may be examined at the NRC Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21, Rockville, Maryland. Copies of the request for an Agreement by the Governor of Virginia including all information and
Ms. Monica L. Orendi, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone (301) 415-3938 or e-mail to
Since Section 274 of the Act was added in 1959, the Commission has entered into Agreements with 35 States. The Agreement States currently regulate approximately 18,000 Agreement material licenses, while the NRC regulates approximately 4,000 licenses. Under the proposed Agreement, approximately 400 NRC licenses will transfer to the Commonwealth. The NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of Section 274.
Section 274e requires that the terms of the proposed Agreement be published in the
(a) Section 274b of the Act provides the mechanism for a State to assume regulatory authority, from the NRC, over certain radioactive materials
In a letter dated June 12, 2008, Governor Kaine certified that the Commonwealth of Virginia has a program for the control of radiation hazards that is adequate to protect public health and safety within Virginia for the materials and activities specified in the proposed Agreement, and that the Commonwealth desires to assume regulatory responsibility for these materials and activities. Included with the letter was the text of the proposed Agreement, which is shown in Appendix A to this notice.
The radioactive materials and activities (which together are usually referred to as the “categories of materials”) that the Commonwealth requests authority over are:
(1) The possession and use of byproduct materials as defined in section 11e.(1) of the Act;
(2) The possession and use of byproduct materials as defined in section 11e.(3) of the Act;
(3) The possession and use of byproduct materials as defined in section 11e.(4) of the Act;
(4) The possession and use of source materials; and
(5) The possession and use of special nuclear materials in quantities not sufficient to form a critical mass.
The materials and activities the Commonwealth is not requesting authority over are:
(1) The regulation of extraction or concentration of source material from source material ore and the management and disposal of the resulting byproduct material;
(2) The regulation of land disposal of byproduct material or special nuclear material waste received from other persons; and
(3) The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear materials and the registration of the sealed sources or devices for distribution.
(b) The proposed Agreement contains articles that:
(1) Specify the materials and activities over which authority is transferred;
(2) Specify the activities over which the Commission will retain regulatory authority;
(3) Continue the authority of the Commission to safeguard nuclear materials and restricted data;
(4) Commit the Commonwealth and NRC to exchange information as necessary to maintain coordinated and compatible programs;
(5) Provide for the reciprocal recognition of licenses;
(6) Provide for the suspension or termination of the Agreement; and
(7) Specify the effective date of the proposed Agreement.
The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes. The final text of the Agreement, with the effective date, will be published after the Agreement is approved by the Commission and signed by the NRC Chairman and the Governor of Virginia.
(c) The regulatory program is authorized by law under the Code of Virginia (32.1-227-32.1-238). Section 32.1-235 provides the Governor with the authority to enter into an Agreement with the Commission. Virginia law contains provisions for the orderly transfer of regulatory authority over affected licensees from the NRC to the Commonwealth. After the effective date of the Agreement, licenses issued by NRC would continue in effect as Commonwealth licenses until the licenses expire or are replaced by Commonwealth issued licenses. NRC licenses transferred to the Commonwealth which contain requirements for decommissioning and express intent to terminate the license when decommissioning has been completed under a Commission approved decommissioning plan will continue as Commonwealth licenses and will be terminated by the Commonwealth when the Commission approved decommissioning plan has been completed.
The Commonwealth currently regulates the users of naturally-occurring and accelerator-produced radioactive materials. The Energy Policy Act of 2005 (EPAct) expanded the Commission's regulatory authority over byproduct materials as defined in Sections 11e.(3) and 11e.(4) of the Act, to include certain naturally-occurring and accelerator-produced radioactive materials. On August 31, 2005, the Commission issued a time-limited waiver (70 FR 51581) of the EPAct requirements. Under the proposed Agreement, the Commonwealth would assume regulatory authority for these radioactive materials. Therefore, if the proposed Agreement is approved, the Commission would terminate the time-limited waiver in the Commonwealth coincident with the effective date of the Agreement. Also, a notification of waiver termination would be provided in the
(d) The NRC draft staff assessment finds that the Commonwealth's Division of Radiological Health, an organizational unit of the Virginia Department of Health (VDH), is adequate to protect public health and safety and is compatible with the NRC program for the regulation of Agreement materials.
The NRC staff has examined the Commonwealth's request for an Agreement with respect to the ability of
(a) Organization and Personnel. The Agreement materials program will be located within the existing Division of Radiological Health (DRH) of the VDH. The DRH will be responsible for all regulatory activities related to the proposed Agreement.
The educational requirements for the DRH staff members are specified in the Commonwealth's personnel position descriptions, and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold at least bachelor's degrees in physical or life sciences, or have a combination of education and experience at least equivalent to a bachelor's degree. All have had additional training and work experience in radiation protection. Supervisory level staff has at least seven years working experience in radiation protection.
The DRH performed and the NRC staff reviewed an analysis of the expected workload under the proposed Agreement. Based on the NRC staff review of the DRH's staff analysis, the DRH has an adequate number of staff to regulate radioactive materials under the terms of the Agreement. The DRH will employ a staff with at least the equivalent of 6.0 full-time professional/technical and administrative employees for the Agreement materials program.
The Commonwealth has indicated that the DRH has an adequate number of trained and qualified staff in place. The Commonwealth has developed qualification procedures for license reviewers and inspectors which are similar to the NRC's procedures. The technical staff are working with NRC license reviewers in the NRC Region I Office and accompanying NRC staff on inspections of NRC licensees in Virginia. DRH staff is also actively supplementing their experience through direct meetings, discussions, and facility walk-downs with NRC licensees in the Commonwealth, and through self-study, in-house training, and formal training.
Overall, the NRC staff believes that the DRH technical staff identified by the Commonwealth to participate in the Agreement materials program has sufficient knowledge and experience in radiation protection, the use of radioactive materials, the standards for the evaluation of applications for licensing, and the techniques of inspecting licensed users of agreement materials.
(b) Legislation and Regulations. In conjunction with the rulemaking authority vested in the Virginia Board of Health by Section 32.1-229 of the Code of Virginia, the DRH has the requisite authority to promulgate regulations for protection against radiation. The law provides DRH the authority to issue licenses and orders, conduct inspections, and to enforce compliance with regulations, license conditions, and orders. Licensees are required to provide access to inspectors.
The NRC staff verified that the Commonwealth adopted the relevant NRC regulations in 10 CFR Parts 19, 20, 30, 31, 32, 33, 34, 35, 36, 39, 40, 61, 70, 71, and 150 into Virginia Administrative Code Title 12, Section 5-481. The NRC staff also approved two license conditions to implement Increased Controls and Fingerprinting and Criminal History Records Check requirements for risk-significant radioactive materials for certain Commonwealth licensees under the proposed Agreement. These license conditions will replace the Orders that NRC issued (EA-05-090 and EA-07-305) to these licensees that will transfer to the Commonwealth. As a result of the restructuring of Virginia Regulations, the Commonwealth deleted financial assurance requirements equivalent to 10 CFR 40.36. The Commonwealth is proceeding with the necessary revisions to their regulations to ensure compatibility, and these revisions will be effective by January 1, 2009. Therefore, on the proposed effective date of the Agreement, the Commonwealth will have adopted an adequate and compatible set of radiation protection regulations that apply to byproduct, source, and special nuclear materials in quantities not sufficient to form a critical mass. The NRC staff also verified that the Commonwealth will not attempt to enforce regulatory matters reserved to the Commission.
(c) Storage and Disposal. The Commonwealth has adopted NRC compatible requirements for the handling and storage of radioactive material. The Commonwealth will not seek authority to regulate the land disposal of radioactive material as waste. The Commonwealth waste disposal requirements cover the preparation, classification, and manifesting of radioactive waste generated by Commonwealth licensees for transfer for disposal to an authorized waste disposal site or broker.
(d) Transportation of Radioactive Material. Virginia has adopted compatible regulations to the NRC regulations in 10 CFR Part 71. Part 71 contains the requirements licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials. Virginia will not attempt to enforce portions of the regulations related to activities, such as approving packaging designs, which are reserved to NRC.
(e) Recordkeeping and Incident Reporting. The Commonwealth has adopted compatible regulations to the sections of the NRC regulations which specify requirements for licensees to keep records, and to report incidents or accidents involving materials.
(f) Evaluation of License Applications. The Commonwealth has adopted compatible regulations to the NRC regulations that specify the requirements a person must meet to get a license to possess or use radioactive materials. The Commonwealth has also developed a licensing procedures manual, along with the accompanying regulatory guides, which are adapted from similar NRC documents and contain guidance for the program staff when evaluating license applications.
(g) Inspections and Enforcement. The Commonwealth has adopted a schedule providing for the inspection of licensees as frequently as, or more frequently than, the inspection schedule used by the NRC. The program has adopted procedures for the conduct of inspections, reporting of inspection findings, and reporting inspection results to the licensees. The Commonwealth has also adopted procedures for the enforcement of regulatory requirements.
(h) Regulatory Administration. The Commonwealth is bound by requirements specified in Commonwealth law for rulemaking, issuing licenses, and taking enforcement actions. The program has also adopted administrative procedures to assure fair and impartial treatment of license applicants. Commonwealth law prescribes standards of ethical conduct for Commonwealth employees.
(i) Cooperation with Other Agencies. Commonwealth law deems the holder of an NRC license on the effective date of the proposed Agreement to possess a
The Commonwealth also provides for “timely renewal.” This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision. The Code of Virginia provides exemptions from the Commonwealth's requirements for licensing of sources of radiation for NRC and U.S. Department of Energy contractors or subcontractors. The proposed Agreement commits the Commonwealth to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation, and to assure that the Commonwealth's program will continue to be compatible with the Commission's program for the regulation of Agreement materials. The proposed Agreement stipulates the desirability of reciprocal recognition of licenses, and commits the Commission and the Commonwealth to use their best efforts to accord such reciprocity.
Section 274d of the Act provides that the Commission shall enter into an agreement under Section 274b with any State if:
(a) The Governor of the State certifies that the State has a program for the control of radiation hazards adequate to protect public health and safety with respect to the agreement materials within the State, and that the State desires to assume regulatory responsibility for the agreement materials; and
(b) The Commission finds that the State program is in accordance with the requirements of section 274o, and in all other respects compatible with the Commission's program for the regulation of materials, and that the State program is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.
The NRC staff has reviewed the proposed Agreement, the certification by the Commonwealth of Virginia in the application for an Agreement submitted by Governor Kaine on June 12, 2008, and the supporting information provided by the staff of the DRH of the Virginia Department of Health, and concludes that the Commonwealth of Virginia satisfies the criteria in the Commission's policy statement “Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement,” and therefore, meets the requirements of Section 274 of the Act. The proposed Commonwealth of Virginia program to regulate Agreement materials, as comprised of statutes, regulations, and procedures, is compatible with the program of the Commission and is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.
For the Nuclear Regulatory Commission.
Whereas, The United States Nuclear Regulatory Commission (the Commission) is authorized under Section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011
WHEREAS, The Governor of the Commonwealth of Virginia is authorized under the Code of Virginia Section 32.1-235, to enter into this Agreement with the Commission; and,
WHEREAS, The Governor of the Commonwealth of Virginia certified on June 12, 2008, that the Commonwealth of Virginia (the Commonwealth) has a program for the control of radiation hazards adequate to protect public health and safety with respect to the materials within the Commonwealth covered by this Agreement, and that the Commonwealth desires to assume regulatory responsibility for such materials; and,
WHEREAS, The Commission found on [date] that the program of the Commonwealth for the regulation of the materials covered by this Agreement is compatible with the Commission's program for the regulation of such materials and is adequate to protect public health and safety; and,
WHEREAS, The Commonwealth and the Commission recognize the desirability and importance of cooperation between the Commission and the Commonwealth in the formulation of standards for protection against hazards of radiation and in assuring that Commonwealth and Commission programs for protection against hazards of radiation will be coordinated and compatible; and,
WHEREAS, The Commission and the Commonwealth recognize the desirability of the reciprocal recognition of licenses, and of the granting of limited exemptions from licensing of those materials subject to this Agreement; and,
WHEREAS, This Agreement is entered into pursuant to the provisions of the Act;
NOW, THEREFORE, It is hereby agreed between the Commission and the Governor of the Commonwealth acting on behalf of the Commonwealth as follows:
Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the Commonwealth under Chapters 6, 7, and 8, and Section 161 of the Act with respect to the following materials:
1. Byproduct materials as defined in Section 11e.(1) of the Act;
2. Byproduct materials as defined in Section 11e.(3) of the Act;
3. Byproduct materials as defined in Section 11e.(4) of the Act;
4. Source materials; and
5. Special nuclear materials in quantities not sufficient to form a critical mass.
This Agreement does not provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to:
1. The regulation of the construction and operation of any production or utilization facility or any uranium enrichment facility;
2. The regulation of the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility;
3. The regulation of the disposal into the ocean or sea of byproduct, source, or special
4. The regulation of the disposal of such other byproduct, source, or special nuclear materials waste as the Commission from time to time determines by regulation or order should, because of the hazards or potential hazards thereof, not be disposed without a license from the Commission;
5. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear materials and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission;
6. The regulation of byproduct material as defined in Section 11e.(2) of the Act;
7. The regulation of the land disposal of byproduct, source, or special nuclear material waste received from other persons.
With the exception of those activities identified in Article II.1 through 4, this Agreement may be amended, upon application by the Commonwealth and approval by the Commission, to include one or more of the additional activities specified in Article II, whereby the Commonwealth may then exert regulatory authority and responsibility with respect to those activities.
Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear material shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission.
This Agreement shall not affect the authority of the Commission under Subsection 161b or 161i of the Act to issue rules, regulations, or orders to protect the common defense and security, to protect restricted data, or to guard against the loss or diversion of special nuclear material.
The Commission will cooperate with the Commonwealth and other Agreement States in the formulation of standards and regulatory programs of the Commonwealth and the Commission for protection against hazards of radiation and to assure that Commission and Commonwealth programs for protection against hazards of radiation will be coordinated and compatible.
The Commonwealth agrees to cooperate with the Commission and other Agreement States in the formulation of standards and regulatory programs of the Commonwealth and the Commission for protection against hazards of radiation and to assure that the Commonwealth's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.
The Commonwealth and the Commission agree to keep each other informed of proposed changes in their respective rules and regulations, and to provide each other the opportunity for early and substantive contribution to the proposed changes.
The Commonwealth and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or otherwise be of regulatory interest.
The Commission and the Commonwealth agree that it is desirable to provide reciprocal recognition of licenses for the materials listed in Article I licensed by the other party or by any other Agreement State.
Accordingly, the Commission and the Commonwealth agree to develop appropriate rules, regulations, and procedures by which such reciprocity will be accorded.
The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the Commonwealth, or upon request of the Governor of the Commonwealth, may terminate or suspend all or part of this agreement and reassert the licensing and regulatory authority vested in it under the Act if the Commission finds that (1) such termination or suspension is required to protect public health and safety, or (2) the Commonwealth has not complied with one or more of the requirements of Section 274 of the Act.
The Commission may also, pursuant to Section 274j of the Act, temporarily suspend all or part of this agreement if, in the judgment of the Commission, an emergency situation exists requiring immediate action to protect public health and safety and the Commonwealth has failed to take necessary steps. The Commission shall periodically review actions taken by the Commonwealth under this Agreement to ensure compliance with Section 274 of the Act which requires a Commonwealth program to be adequate to protect public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program.
This Agreement shall become effective on [date], and shall remain in effect unless and until such time as it is terminated pursuant to Article VIII.
Office of the United States Trade Representative.
Notice of a partially opened meeting.
The Industry Trade Advisory Committee on Small and Minority Business (ITAC-11) will hold a meeting on Monday, December 8, 2008, from 9 a.m. to 3 p.m. The meeting will be closed to the public from 9 a.m. to 12:30 p.m. and opened to the public from 1 p.m. to 3 p.m.
The meeting is scheduled for December 8, 2008, unless otherwise notified.
The meeting will be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC.
Laura Hellstern, DFO for ITAC-11 at (202) 482-3222, Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
During the opened portion of the meeting the following agenda items will be considered.
• Process for adding or deleting products from GSP eligibility from a country.
• U.S. Customs and Border Protection: Technical Corrections Relating to the Rules of Origin for Goods Imported Under the NAFTA and for Textile and Apparel Products: NPRM.
• Small Business Administration Update.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before December 23, 2008 to be assured of timely consideration by USTR.
Comments should be submitted (i) electronically to
Priti Seksaria Agrawal, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395-9439.
USTR is providing notice that consultations have been requested pursuant to the WTO
On October 24, 2008, Mexico requested consultations regarding U.S. limitations on the use of a dolphin-safe label for tuna and tuna products. Mexico challenges three U.S. measures: (1) The Dolphin Protection Consumer Information Act (19 U.S.C. 1385); (2) certain dolphin-safe labeling regulations (50 CFR 216.91-92); and (3) the Ninth Circuit decision in
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit their comments either (i) electronically to
To submit comments via
The
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be accompanied by a non-confidential summary of the confidential information. The non-confidential summary will be placed in the docket and open to public inspection.
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice. The non-confidential summary will be placed in the docket and open to public inspection.
USTR will maintain a docket on this dispute settlement proceeding, accessible to the public. The public file will include non-confidential comments received by USTR from the public with respect to the dispute; if a dispute settlement panel is convened or in the event of an appeal from such a panel, the U.S. submissions, any non-confidential submissions, or non-confidential summaries of submissions, received from other participants in the dispute; the report of the panel; and, if applicable, the report of the Appellate Body.
Comments will be placed in the docket and open to public inspection pursuant to 15 CFR 2006.13, except confidential business information exempt from public inspection in accordance with 15 CFR 2006.15 or information determined by USTR to be confidential in accordance with 19 U.S.C. 2155(g)(2). Comments may be viewed on the
Office of Personnel Management.
Notice.
Notice is hereby given of the appointment of members of the OPM Performance Review Board.
Janet Smith, Center for Human Capital Management Services, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, (202) 606-4473.
Section 4314(c)(1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES performance review boards. The board reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and considers recommendations to the appointing authority regarding the performance of the senior executive.
The following have been designated as members of the Performance Review Board of the U.S. Office of Personnel Management:
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently filed Postal Service notice of changes to rates of general applicability for competitive products and related classification changes. The price changes are scheduled to become effective January 18, 2009.
Comments are due December 1, 2008.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, 202-789-6820 and
On November 13, 2008, the Postal Service filed notice with the Commission concerning changes in rates of general applicability for competitive products.
Attached to the Filing is the Governors' Decision evaluating the new prices and classification changes in accordance with 39 U.S.C. 3632-33 and 39 CFR 3015.2.
The Governors' Decision includes two Attachments. Attachment A provides an analysis of the competitive products' price and classification changes intended to demonstrate that the changes comply with section 3633(a) of title 39 and the Commission's rules.
Attachment B to the Governors' Decision sets forth the price changes and related product description changes to be incorporated into the draft Mail Classification Schedule. Selected highlights of the price and classification changes follow.
Details of these changes may be found in Attachment B to the Filing.
The establishment of rates of general applicability for competitive products and the associated mail classification changes effects a change in the Mail Classification Schedule. As such, pursuant to subpart E of part 3020 of its rules, 39 CFR 3020.90
Pursuant to 39 U.S.C. 505, Emmett Rand Costich is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in the above-captioned docket.
1. The Commission establishes Docket No. CP2009-8 to provide interested persons an opportunity to express views and offer comments on whether the planned changes are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR part 3020 subpart B.
2. Comments on the Filing are due no later than December 1, 2008.
3. The Commission appoints Emmett Rand Costich as Public Representative to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this Order in the
By the Commission.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form N-54C (17 CFR 274.54) under the Investment Company Act of 1940 (15 U.S.C. 80a) is a notification to the Commission that a company withdraws its election to be regulated as a business development company. Such a company only has to file a Form N-54C once.
It is estimated that approximately 12 respondents per year file with the Commission a Form N-54C. Form N-54C requires approximately 1 burden hour per response resulting from creating and filing the information required by the Form. The total burden hours for Form N-54C would be 12 hours per year in the aggregate. The estimated annual burden of 12 hours represents a decrease of 6 hours over the prior estimate of 18 hours. The decrease in burden hours is attributable to a decrease in the number of respondents from 18 to 12.
The estimate of average burden hours for Form N-54C is made solely for the purposes of the Act and is not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Lewis W. Walker, Acting Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Form N-6F (17 CFR 274.15), Notice of Intent to be Subject to Sections 55 through 65 of the Investment Company Act of 1940.” The purpose of Form N-6F is to allow business development companies to
Certain companies may have to make a filing with the Commission before they are ready to elect to be regulated as a business development company.
It is estimated that 6 respondents per year file with the Commission a Form N-6F. Form N-6F requires approximately 0.5 burden hours per response resulting from creating and filing the information required by the Form. The total burden hours for Form N-6F would be 3 hours per year in the aggregate. The estimated annual burden of 3 hours represents an increase from the prior estimate of 1 hour. This increase in burden hours is attributable to an increase in the total number of respondents from 2 to 6.
The estimate of average burden hours for Form N-6F is made solely for the purposes of the Paperwork Reduction Act and is not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms.
Written comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collections 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 in writing within 60 days of this publication.
Please direct your written comments to Lewis W. Walker, Acting Director/CIO, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Boston Stock Exchange, Inc. (the “Exchange” or “BSE”) proposes to amend Section 3 (Criteria for Underlying Securities) and Section 4 (Withdrawal of Approval of Underlying Securities) of Chapter IV of the Rules of the Boston Options Exchange Group, LLC (“BOX”) to enable the listing and trading on BOX of options on index-linked securities. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room, and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. BSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
This proposed rule change is based on proposals by NYSE Arca, Inc. (“NYSE Arca”) and the Chicago Board Options Exchange, Incorporated (“CBOE”).
The purpose of the proposed rule change is to revise Sections 3 and 4 of Chapter IV of the BOX Rules to enable the listing and trading of options on: Equity index-linked securities (“Equity Index-Linked Securities”); commodity-linked securities (“Commodity-Linked Securities”); currency-linked securities (“Currency-Linked Securities”); fixed income index-linked securities (“Fixed Income Index-Linked Securities”); futures-linked securities (“Futures-Linked Securities”); and multifactor index-linked securities (“Multifactor Index-Linked Securities”); collectively known as “Index-Linked Securities” that are principally traded on a national securities exchange and are defined as an “NMS stock” (as defined in Rule 600 of Regulation NMS under the Securities Exchange Act of 1934 (the “Act”)).
Index-Linked Securities are designed for investors who desire to participate in a specific market segment by providing exposure to one or more identifiable underlying securities, commodities, currencies, derivative instruments or market indexes of the foregoing (“Underlying Index” or “Underlying Indexes”). Index-Linked Securities are the non-convertible debt of an issuer
The Exchange will consider listing and trading options on Index-Linked Securities provided that the Index-Linked Securities meet the criteria for underlying securities set forth in Section 3 of Chapter IV of the BOX Rules.
The Exchange proposes that Index-Linked Securities deemed appropriate for options trading represent ownership of a security that provides for the payment at maturity, as described below:
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For the purposes of proposed Section 3(k) of Chapter IV of the BOX Rules, Equity Reference Assets, Commodity Reference Assets, Currency Reference Assets, Fixed Income Reference Assets, Futures Reference Assets and Multifactor Reference Assets, will be collectively referred to as “Reference Assets.”
Index-Linked Securities must meet the criteria and guidelines for underlying securities set forth in Section 3(b) of Chapter IV of the BOX Rules, or the Index-Linked Securities must be redeemable at the option of the holder at least on a weekly basis through the issuer at a price related to the applicable underlying Reference Asset. In addition, the issuing company is obligated to issue or repurchase the securities in aggregation units for cash or cash equivalents satisfactory to the issuer of Index-Linked Securities which underlie the option as described in the Index-Linked Securities prospectus.
Options on Index-Linked Securities will be subject to all Exchange rules governing the trading of equity options. The current continuing or maintenance listing standards for options traded on BOX will continue to apply.
The Exchange proposes to establish Section 4(k) of Chapter IV of the BOX Rules which will include criteria related to the continued listing of options on Index-Linked Securities.
Under the applicable continued listing criteria in proposed Section 4(k) of Chapter IV of the BOX Rules, options on Index-Linked Securities initially approved for trading pursuant to proposed Section 3(k) of Chapter IV of the BOX Rules may be subject to the suspension of opening transactions as follows: (1) Non-compliance with the terms of Section 3(k) of Chapter IV of the BOX Rules; (2) non-compliance with the terms of Section 4(b) of Chapter IV of the BOX Rules, except in the case of options covering Index-Linked Securities approved pursuant to Section 3(k)(iii)(2) of Chapter IV of the BOX Rules that are redeemable at the option of the holder at least on a weekly basis, then option contracts of the class covering such securities may only continue to be open for trading as long as the securities are listed on a national securities exchange and are an “NMS stock” as defined in Rule 600 of Regulation NMS; (3) in the case of any Index-Linked Security trading pursuant to Section 3(k) of Chapter IV of the BOX Rules, the value of the Reference Asset is no longer calculated or available; or (4) such other event shall occur or condition exist that in the opinion of the Exchange makes further dealing in such options on BOX inadvisable.
The Exchange represents that the listing and trading of options on Index-Linked Securities under Section 3(k) of Chapter IV of the BOX Rules will not have any effect on the rules pertaining to position and exercise limits
The Exchange will implement surveillance procedures for options on Index-Linked Securities, including adequate comprehensive surveillance sharing agreements with markets trading in non-U.S. components, as applicable. The Exchange represents that these procedures will be adequate to properly monitor Exchange trading of options on these securities and to deter and detect violations of Exchange rules.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of filing (or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest), the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay and designate the proposed rule change as operative upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest. The proposed rule change is substantially similar to those of other options exchanges that have been previously approved by the Commission
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in the furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Supplementary Material to Section 18 (The Price Improvement Period “PIP”) of Chapter V of the Rules of the Boston Options Exchange Group, LLC (“BOX”) to extend a pilot program that permits BOX to have no minimum size requirement for orders entered into the PIP and under certain circumstances permits the premature termination of the PIP process (“PIP Pilot Program”). The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to extend the PIP Pilot Program under the BOX Rules for eight (8) additional months. The PIP Pilot Program allows BOX to have no minimum size requirement for orders entered into the PIP process and under certain circumstances permits the premature termination of the PIP process.
The Exchange notes that the PIP Pilot Program provides small customer orders with benefits not available under the rules of some other exchanges. One of the important factors of the PIP Pilot Program is that it guarantees Participants the right to trade with their customer orders that are less than 50 contracts. In particular, any order entered into the PIP is guaranteed an execution at the end of the auction at a price at least one penny better than the national best bid or offer.
In further support of this proposed rule change, and as required by the Original PIP Pilot Program Approval Order, BOX has represented to both BSE and to the Commission that it has been submitting to BSE and to the Commission a PIP Pilot Program Report, offering detailed data from, and analysis of, the PIP Pilot Program.
To aid the Commission in its evaluation of the PIP Pilot Program, BOX has represented to BSE that BOX will provide the following additional information each month: (1) The number of orders of 50 contracts or greater entered into the PIP auction; (2) The percentage of all orders of 50 contracts or greater sent to BOX that are entered into BOX's PIP auction; (3) The spread in the option, at the time an order of 50 contracts or greater is submitted to the PIP auction; (4) Of PIP trades for orders of fewer than 50 contracts, the percentage done at the National Best Bid or Offer (“NBBO”) plus $.01, plus $.02, plus $.03, etc.; (5) Of PIP trades for orders of 50 contracts or greater, the percentage done at the NBBO plus $.01, plus $.02, plus $.03, etc.; (6) The number of orders submitted by Order Flow Providers (“OFPs”) when the spread was $.05, $.10, $.15, etc. For each spread, BOX will specify the percentage of contracts in orders of fewer than 50 contracts submitted to BOX's PIP that were traded by: (a) the OFP that submitted the order to the PIP; (b) BOX Market Makers assigned to the class; (c) other BOX Participants; (d) Public Customer Orders (including Customer PIP Orders (“CPOs”)); and (e) unrelated orders (orders in standard increments entered during PIP). For each spread, BOX will also specify the percentage of contracts in orders of 50 contracts or greater submitted to BOX's PIP that were traded by: (a) The OFP that submitted the order to the PIP; (b) BOX Market Makers assigned to the class; (c) other BOX Participants; (d) Public Customer Orders (including CPOs); and (e) unrelated orders (orders in standard increments entered during PIP); (7) For the first Wednesday of each month: (a) The total number of PIP auctions on that date; (b) the number of PIP auctions where the order submitted to the PIP was fewer than 50 contracts; (c) the number of PIP auctions where the order submitted to the PIP was 50 contracts or greater; (d) the number of PIP auctions (for orders of fewer than 50 contracts) with 0 participants (excluding the initiating participant), 1 participant (excluding the initiating participant), 2 participants (excluding the initiating participant), 3 participants (excluding the initiating participant), 4 participants (excluding the initiating participant), etc., and (e) the number of PIP auctions (for orders of 50 contracts or greater) with 0 participants (excluding the initiating participant), 1 participant (excluding the initiating participant), 2 participants (excluding the initiating participant), 3 participants (excluding the initiating participant), 4 participants (excluding the initiating participant), etc.; and (8) For the third Wednesday of each month: (a) The total number of PIP auctions on that date; (b) the number of PIP auctions where the order submitted to the PIP was fewer than 50 contracts; (c) the number of PIP auctions where the order submitted to the PIP was 50 contracts or greater; (d) the number of PIP auctions (for orders of fewer than 50 contracts) with 0 participants (excluding the initiating participant), 1 participant (excluding the initiating participant), 2 participants (excluding the initiating participant), 3 participants (excluding the initiating participant), 4 participants (excluding the initiating participant), etc., and (e) the number of PIP auctions (for orders of 50 contracts or greater) with 0 participants (excluding the initiating participant), 1 participant (excluding the initiating participant), 2 participants (excluding the initiating participant), 3 participants (excluding the initiating participant), 4 participants (excluding the initiating participant), etc.
The Exchange believes that the proposal is consistent with the
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay, which would make the rule change operative upon filing. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because such waiver will allow the PIP pilot program to continue without interruption.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify its Rule 2213, Market Maker Trading Licenses, related to listing and trading of Foreign Currency Options on the Exchange. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to modify its Rule 2213, Market Maker Trading Licenses, related to listing and trading of Foreign Currency Options (“FX Options”) on the Exchange. ISE currently lists for trading FX Options on six of the most active currency pairs.
The Exchange now proposes to amend its FXPMM trading license rule for trading licenses sold on or after January 1, 2009.
Under both the current rule and the proposal, a FXPMM cannot terminate its trading license. The Exchange notes, however, that there may be instances when a Member is unable to fulfill its market making obligations. For example, a Member may experience connectivity issues that prevent the Member from being in the market, e.g., the Member is unable to quote and trade in the currency pair in which it makes a market. For those instances, the Exchange will rely on the back-up FXPMM, who is selected at the time of the initial auction, to serve as a FXPMM on a temporary basis until the FXPMM is fully back in the market. Further, there may also be instances where a FXPMM determines that it is unable to fulfill its obligations as a market maker and can no longer serve as a FXPMM. For those instances, ISE will relieve that FXPMM of its obligation once all open interest in the product to which that Member was appointed has been closed out or the Exchange is able to conduct a successful auction and reallocate the product, whichever occurs first.
All of the currency pairs that are currently trading on the Exchange already have a market maker. Specifically, the four currency pairs listed for trading on April 17, 2007, e.g., USD/EUR, USD/GBP, USD/JPY, and USD/CAD, were allocated to the market maker that currently serves as a FXPMM for a three (3) year term, ending in December 2010. On February 21, 2008, the Exchange launched 2 additional currency pairs, e.g., USD/CHF and USD/AUD, which were allocated to the market maker that currently serves as a FXPMM for a three (3) year term also, ending in December 2011. ISE will allocate USD/GBP, USD/CAD, USD/EUR, and USD/JPY in December 2010 and USD/CHF and USD/AUD in December 2011
The Exchange believes giving market makers a trading license on a permanent basis, or as long as a firm wishes to remain a market maker in a currency product, will result in a more competitive market at ISE. A permanent allocation will allow FXPMMs to create and execute a long-term strategy to promote growth and trading in the foreign currency product that has been allocated to it.
The Exchange also proposes to make minor amendments to Rule 2213(g) to include references to foreign currency index options. Specifically, the Exchange proposes to add rule text to
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) that an exchange have rules that are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism for a free and open market and a national market system, and, in general, to protect investors and the public interest. In particular, the proposed rule change will strengthen the Exchange's foreign currency products by providing them with permanent market making support. A permanent allocation of foreign currency products will also allow FXPMMs to create and execute a long-term strategy to promote growth and trading in the foreign currency product that has been allocated to it.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
This proposed rule change does not significantly affect the protection of investors or the public interest, does not impose any significant burden on competition, and, by its terms, does not become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. The Exchange provided the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing the proposed rule change as required by Rule 19b-4(f)(6).
The proposed rule change does not make any substantive changes to the current rule other than to make allocations of FX Options to market makers permanent. In doing so, the proposed rule change will strengthen the Exchange's foreign currency products to the benefit of all market participants. For the foregoing reason, the Exchange believes the proposed rule change is non-controversial, does not raise any new, unique or substantive issues, and is beneficial for competitive purposes and to promote a free and open market for the benefit of investors.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange, pursuant to Section 19(b)(1) of the Act
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
This proposed rule change is based on a recent Chicago Board Options Exchange, Incorporated (“CBOE”) filing.
The purpose of this proposed rule change is to temporarily increase the number of additional QOS in ETF options from sixty (60) to one hundred (100) that may be added by the Exchange. To effect this change, the Exchange is proposing to add new subparagraph (h) to Commentary .08 of its Rule 1012.
Because of the current, unprecedented market conditions, the Exchange has received requests from market participants to add lower priced strikes for QOS in the Energy Select Sector SPDR (“XLE”), the DIAMONDS Trust, Series 1 (“DIA”) and the Standard and Poor's Depositary Receipts/SPDRs (“SPY”). For example, for December 2008 expiration, there is demand for strikes (a) ranging from $20 up through and including $40 for XLE, (b) ranging from $60 up through and including $75 for DIA, and (c) ranging from $74 up through and including $85 for SPY. These strikes are much lower than those currently listed for which there is open interest.
However, under current Commentary .08 to Phlx Rule 1012, the Exchange cannot honor these requests because the maximum number of additional series, sixty (60), has already been listed. The Exchange is therefore seeking to temporarily increase to one hundred (100) the number of additional QOS that may be added. The increase of additional series would be permitted immediately for expiration months currently listed and for expiration months added throughout the last quarter of 2008, including the new expiration month added after December 2008 expiration. The Exchange believes that this proposal is reasonable and will allow for more efficient risk management. The Exchange believes this proposal will facilitate the functioning of the Exchange's market and will not harm investors or the public interest.
The Exchange believes that user demand and the recent downward price movements in the underlying ETFs warrant a temporary increase in the number of strikes for all QOS in ETF options. Currently, the Exchange list QOS in five ETF options: (1) iShares Russell 2000Index Fund (“IWM”); (2) Nasdaq-100 Index Tracking Stock (“QQQQ”); (3) SPY; (4) DIA; and (5)
The additional series will enable the Exchange to list in-demand, lower priced strikes.
It is expected that other options exchanges that have adopted the QOS Pilot Program will submit similar proposals.
The Exchange represents that it has the necessary systems capacity to support the new options series that will result from this proposal. Further, as proposed, the Exchange notes that these series would temporarily become part of the pilot program and will be considered by the Commission when the Exchange seeks to renew or make permanent the Pilot Program in the future. In addition, the Exchange states that in the event that current market volatility continues, it may seek to continue (through a rule filing) the time period during which the additional series proposed by this filing may be added.
Because the rule proposal is responsive to the current, unprecedented market conditions, is limited in scope as to QOS in ETF options and as to time, and because the additional new series can be added without presenting capacity problems, the Exchange believes the rule proposal is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange and, in
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing rule does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; or (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
The Exchange has asked the Commission to waive the operative delay to permit the proposed rule change to become operative prior to the 30th day after filing. The Commission has determined that waiving the 30-day operative delay of the Exchange's proposal is consistent with the protection of investors and the public interest because such waiver will enable the Exchange to better meet customer demand in light of recent increased volatility in the marketplace.
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(3)(A) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend NSX Rule 11.23(a), which defines the phrase “riskless principal transaction,” to make clear that the definition includes transactions where an ETP Holder receives orders that may be executed in whole or in part in other market venues. As explained in further detail below, this amendment will clarify the scope of the exception to NSX's Customer Priority rule contained in Rule 12.6(d), and will more closely align NSX's rules with those used by other self-regulatory organizations (“SROs”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NSX Rule 12.6 prohibits an ETP Holder from placing an order for its own account (or an account in which it or one of its associated persons is interested) while it holds an unexecuted, marketable customer order for the same security, unless an exception applies. Specifically, Rule 12.6 provides:
(a) No ETP Holder shall (i) personally buy or initiate the purchase of any security traded on the Exchange for its own account or for any account in which it or any associated person of the ETP Holder is directly or indirectly interested while such an ETP Holder holds or has knowledge that any person associated with it holds an unexecuted market order to buy such security in the unit of trading for a customer, or (ii) sell or initiate the sale of any such security for any such account while it personally holds or has knowledge that any person associated with it holds an unexecuted market order to sell such security in the unit of trading for a customer.
(b) No ETP Holder shall (i) buy or initiate the purchase of any such security for any account in which it or any associated person of the ETP Holder is directly or indirectly interested at or below the price at which it personally holds or has knowledge that any person associated with it holds an unexecuted limited price order to buy such security in the unit of trading for a customer or (ii) sell or initiate the sale of any such security for any such account at or above the price at which it personally holds or has knowledge that any person associated with it holds an unexecuted limited price order to sell such security in the unit of trading for a customer.
Rule 12.6(d) provides an exception to provisions (a) and (b) where “an ETP Holder engages in trading activity to facilitate the execution, on a riskless principal basis, of another order from its customer * * *
Two offsetting principal transaction legs in which an ETP Holder, (i) after having received an order to buy a security
Therefore, if an ETP Holder receives an order to buy or sell a security, but does not hold that order for execution
In addition, it is unclear whether an order submitted to a ETP Holder without a designated marketplace for execution could be “[held] for execution on the Exchange,” particularly where the ETP Holder executes the first leg of what generally would be considered a riskless principal transaction on a market other than the Exchange and completes the transaction with its customer on the Exchange. Because the customer has not designated where the order should be executed, and because the first leg of the order was in fact executed off the Exchange, such an order might not be viewed as being “[held] for execution on the Exchange.” Accordingly, the transaction might not be a “riskless principal transaction” within the meaning of Rule 11.23(a) and, therefore, might not satisfy the exception contained in Rule 12.6(d), even if the transaction was done to facilitate a customer order.
NSX proposes to remove the requirement that an order be “[held] for execution on the Exchange” from the definition of a “riskless principal transaction” in Rule 11.23(a) to permit the type of transaction described above to qualify as a “riskless principal transaction” and, where the other requirements are met, to meet the exception in Rule 12.6(d). The exception in Rule 12.6(d) is designed to allow ETP Holders to place proprietary trades ahead of customer orders only where such proprietary trades are for the benefit of a customer. This exception recognizes that, in some instances, an ETP Holder's nominal trading ahead may nevertheless benefit, rather than harm, a customer. It makes no difference to this analysis whether the customer specified that its order was to be executed on the Exchange, or whether the order can be characterized as being “[held] for execution on the Exchange.”
Amended Rule 11.23(a) also would be consistent with other SRO rules. For example, Financial Industry Regulatory Authority (“FINRA”) NASD Rule 2111 and IM-2110-2 both allow a firm to trade ahead of a customer order if, among other things, the member's proprietary trade is a riskless principal transaction, as defined in various NASD rules, that is used to facilitate a customer order. The definition of a riskless principal transaction in NASD rules is substantially similar to the definition in NSX Rule 11.23(a) except, of course, that it is not limited to orders held for execution on any particular securities exchange or in any particular venue.
The Exchange believes that the proposed rule change is consistent with
The Exchange does not believe that the proposed rule change will impose any inappropriate burden on competition.
The Exchange has neither solicited nor received written comments on the proposed rule change.
The proposed rule change will take effect 30 days from the date of filing (or such shorter time as the Commission may designate) pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Indiana (FEMA-1795-DR), dated 09/23/2008.
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 Indiana, dated 09/23/2008, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Kansas (FEMA-1808-DR), dated 10/31/2008.
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 10/31/2008, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage and for economic injury is 11524.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA-1809-DR), dated 11/13/2008.
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 11/13/2008, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 11525B and for economic injury is 115260.
U.S. 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 U.S. Virgin Islands (FEMA-1807-DR), dated 10/29/2008.
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
All other information in the original declaration remains unchanged.
Federal Aviation Administration.
Notice of Slot Auction Bidder Seminar.
This notice announces a Bidder Seminar for the 2009 New York Slot Auctions, pursuant to the Federal Aviation Administration's congestion management rules for John F. Kennedy International Airport, Newark Liberty International Airport, and LaGuardia Airport (Final Congestion Rules). [Docket No. FAA-2008-0517, Notice No. 08-05
The Slot Auction Bidder Seminar is scheduled for Friday, December 5, 2008, from 8:30 a.m. to 1 p.m., Eastern Time.
The Slot Auction Bidder Seminar will be held at the Marriott Crystal Gateway, 1700 Jefferson Davis Highway, Arlington, VA 22202 (in Crystal City, 5-10 minutes from Washington Reagan National Airport).
Jeffrey Wharff, Office of Aviation Policy & Plans, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591;
The purpose of the Slot Auction Bidder Seminar is to provide information to all interested parties concerning the congestion management rules for LaGuardia, Kennedy and Newark Airports, what is being auctioned, how an applicant can participate in the auctions, and the associated schedule of events. It will also give attendees the opportunity to ask questions. Key individuals from the Federal Aviation Administration (FAA) and from Power Auctions LLC and Market Design Inc. (PA/MDI), the auction manager, will speak at the seminar.
The Bidder Seminar is open to carriers that currently have slots at the three airports, other carriers that are interested in bidding, the Port Authority of New York and New Jersey, and other government agencies. Each organization should limit its participation to no more than five individuals.
A limited number of hotel rooms at the Marriott Crystal Gateway at $189 per night (singles or doubles) have been reserved for the night of December 4 for Bidder Seminar participants. Individuals should call the hotel at (703) 920-3230 and indicate that they are part of the “FAA Bidder Seminar” group. The block of hotel rooms will be held only until November 28 (or until the rooms are all reserved) and participants are advised to book early to avoid disappointment.
RSVPs for the Bidder Seminar are requested by November 28, 2008. Space at the Bidder Seminar is limited so seats are only guaranteed to those persons who RSVP.
Persons with a disability requiring special accommodations, such as an interpreter for the hearing impaired, should contact the FAA contact noted above at least ten (10) calendar days prior to the meeting.
A preliminary agenda is provided below. Information is also available at
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 215, Aeronautical Mobile Satellite (Route) Services, Next Generation Satellite Services and Equipment.
The FAA is issuing this notice to advise the public of a second meeting of RTCA Special Committee 215, Aeronautical Mobile Satellite (Route) Services, Next Generation Satellite Services and Equipment.
The meeting will be held December 10, 2008, 9 a.m. to 5 p.m. December 11, 2008, 9 a.m. to 12 noon.
RTCA Headquarters, 1828 L Street, NW, Washington, DC 20036; USA, Tel: + 1 202 833-9339, Fax: + 1 202 833-9434,
RTCA Secretariat, 1828 L Street, NW, Suite 805, Washington, DC 20036; telephone (202) 833-9339; fax (202) 833-9434; Web site
Dress is Business Casual
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 215 meeting. The agenda will include:
• Greetings, Introductions, Administrative Remarks
• Review and Approval of Agenda for 11th Plenary
• Terms of Reference and PMC Chairman's Report—Status Review
• Review and Approval of 10th Meeting Summary
• Status Update of Final Draft
• PMC Approval of Final Draft
• Report from Drafting Group
• Approval of DO-270 Normative Appendix for Final Review and Comment (FRAC)
• Sub network Operational Approval—FAA Requirements for DO-270
• Any Other Business
• Review of Next Plenary Meeting Dates
• Adjourn
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
CSX Transportation, Inc. (CSXT), has filed a verified notice of exemption under 49 CFR 1152 Subpart F—
As a condition to this exemption, any employee 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 December 20, 2008, 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 CSXT's representative: Kathryn R. Barney, CSX Transportation, Inc., 500 Water Street, J-150, Jacksonville, FL 32202.
If the verified notice contains false or misleading information, the exemption is void
CSXT has filed environmental and historic reports that address the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by November 25, 2008. 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), CSXT 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 CSXT's filing of a notice of consummation by November 20, 2009, 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, David M. Konschnik, Director, Office of Proceedings.
The Department of Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. 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, and 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before December 22, 2008 to be assured of consideration.
The Department of the Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the publication date of this notice. 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.
Written comments should be received on or before December 22, 2008 to be assured of consideration.
The Department of Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. 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, and 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before December 22, 2008 to be assured of consideration.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one newly-designated entity whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
The designation by the Director of OFAC of the one entity identified in this notice, pursuant to Executive Order 13224, is effective on November 12, 2008.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701-1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c. In the Order, the President declared a national emergency to address grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11, 2001, terrorist attacks in New York, Pennsylvania, and at the Pentagon. The Order imposes economic sanctions on persons who have committed, pose a significant risk of committing, or support acts of terrorism. The President identified in the Annex to the Order, as amended by Executive Order 13268 of July 2, 2002, 13 individuals and 16 entities as subject to the economic sanctions. The Order was further amended by Executive Order 13284 of January 23, 2003, to reflect the creation of the Department of Homeland Security.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in or hereafter come within the United States or the possession or control of United States persons, of: (1) Foreign persons listed in the Annex to the Order; (2) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, to have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States; (3) persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to be owned or controlled by, or to act for or on behalf of those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order; and (4) except as provided in section 5 of the Order and after such consultation, if any, with foreign authorities as the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, deems appropriate in the exercise of his discretion, persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism or those persons listed in the Annex to the Order or determined to be subject to the Order or to be otherwise associated with those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order.
On November 12, 2008, the Director of OFAC, in consultation with the Departments of State, Homeland Security, Justice and other relevant agencies, designated, pursuant to one or more of the criteria set forth in subsections 1(b), 1(c) or 1(d) of the Order, one entity whose property and interests in property are blocked pursuant to Executive Order 13224.
The designee is as follows:
1. UNION OF GOOD (a.k.a. 101 DAYS CAMPAIGN; a.k.a. CHARITY COALITION; a.k.a. COALITION OF GOOD; a.k.a. ETELAF AL-KHAIR; a.k.a. ETILAFU EL-KHAIR; a.k.a. I'TILAF AL-KHAIR; a.k.a. I'TILAF AL-KHAYR), P.O. Box 136301, Jeddah 21313, Saudi Arabia [SDGT].
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the names of 21 individuals whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995,
The unblocking and removal from the list of Specially Designated Narcotics Traffickers of 21 individuals identified in this notice whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on November 13, 2008.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622-2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and Secretary of State: (a) To play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to this order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to this Order.
On November 13, 2008, the Director of OFAC removed from the list of Specially Designated Narcotics Traffickers 21 individuals listed below, whose property and interests in property were blocked pursuant to the Order.
The listing of the unblocked individuals follows:
Internal Revenue Service (IRS), Treasury.
Correction to notice and request for comments.
This document contains a correction to a notice and request for comments, that was published in the
Requests for additional information or copies of the forms and instructions should be directed to Carolyn N. Brown, (202) 622-6688, or at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The notice and request for comments that is the subject of the correction is required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
As published, the notice and request for comments for Proposed Collection; Comment Request for Regulation Project contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of the notice and request for comments for Proposed Collection; Comment Request for Regulation Project, which were the subjects of FR Doc. E8-25853, is corrected as follows:
On page 64663, column 3, under the caption
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and continuing information collections, as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). This notice requests comments on all forms used by individual taxpayers: Form 1040, U.S. Individual Income Tax Return, and Schedules A, B, C, C-EZ, D, D-1, E, EIC, F, H, J, R, and SE; Form 1040A and Schedules 1, 2, and 3; Form 1040EZ; and all attachments to these forms (see the Appendix to this notice).
Written comments should be received on or before January 20, 2009 to be assured of consideration.
Direct all written comments to The OMB Unit, SE:W:CAR:MP:T:T:SP, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information should be directed to Chief, RAS:R:FSA, NCA 7th Floor, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20224.
Under the PRA, OMB assigns a control number to each “collection of information” that it reviews and approves for use by an agency. The PRA also requires agencies to estimate the burden for each collection of information. The burden estimates for each control number are displayed in (1) the PRA notices that accompany collections of information, (2)
The Individual Taxpayer Burden Model (ITBM) estimates burden experienced by individual taxpayers when complying with the Federal tax laws. The ITBM's approach to measuring burden focuses on the characteristics and activities of individual taxpayers in meeting their tax return filing compliance obligation. Key determinants of taxpayer burden in the model are the way the taxpayer prepares the return, e.g. with software or paid preparer, and the taxpayer's activities, e.g., recordkeeping and tax planning.
Burden is defined as the time and out-of-pocket costs incurred by taxpayers in complying with the Federal tax system. Time expended and out-of-pocket costs incurred are estimated separately. The methodology distinguishes among preparation methods, taxpayer activities, types of individual taxpayer, filing methods, and income levels. Indicators of tax law and administrative complexity as reflected in tax forms and instructions are incorporated in the model. The preparation methods reflected in the model are:
• Self-prepared without software
• Self-prepared with software
• Used a paid preparer
The types of taxpayer activities reflected in the model are:
• Recordkeeping
• Form completion
• Form submission (electronic and paper)
• Tax planning
• Use of services (IRS and paid professional)
• Gathering tax materials
The methodology incorporates results from a burden survey of 14,932 taxpayers conducted in 2000 and 2001, and estimates taxpayer burden based on those survey results. Summary level results using this methodology are presented in the table below.
Time spent and out-of-pocket costs are estimated separately. Out-of-pocket costs include any expenses incurred by taxpayers to prepare and submit their tax returns. Examples of out-of-pocket costs include tax return preparation and submission fees, postage, tax preparation software costs, photocopying costs, and phone calls (if not toll-free).
Both time and cost burdens are national averages and do not necessarily reflect a “typical” case. For instance, the average time burden for all taxpayers filing a 1040, 1040A, or 1040EZ is estimated at 26.4 hours, with an average cost of $209 per return. This average includes all associated forms and schedules, across all preparation methods and all taxpayer activities. Taxpayers filing Form 1040 have an expected average burden of about 33 hours, and taxpayers filing Form 1040A and Form 1040EZ are expected to average about 11 hours. However, within each of these estimates, there is significant variation in taxpayer activity. Similarly, tax preparation fees vary extensively depending on the taxpayer's tax situation and issues, the type of professional preparer, and the geographic area.
The data shown are the best forward-looking estimates available as of November 4, 2008, for income tax returns filed for 2008. The estimates are subject to change as new data become available. The estimates include burden for activities up through and including filing a return but do not include burden associated with post-filing activities. However, operational IRS data indicate that electronically prepared and e-filed returns have fewer arithmetic errors, implying a lower associated post-filing burden.
The table below shows burden estimates by form type and type of taxpayer. Time burden is further broken out by taxpayer activity. The largest component of time burden for all taxpayers is recordkeeping, as opposed to form completion and submission. In addition, the time burden associated with form completion and submission activities is closely tied to preparation method (self-prepared without software, self-prepared with software, and prepared by paid preparer).
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB Control Number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (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 the burden of the collection of information; (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 respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Currently, the IRS is soliciting comments concerning Notice 2006-96, Guidance Regarding Appraisal and Reporting Requirements for Noncash Charitable Contributions/REG-140029-07, Substantiation and Reporting Requirements for Cash and Noncash Charitable Contribution Deductions.
Written comments should be received on or before January 20, 2009 to be assured of consideration.
Direct all written comments to R. Joseph Durbala, Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Carolyn N. Brown at Internal Revenue Service, room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-6688, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of Veterans Affairs gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on Disability Compensation will meet on December 8, 2008. The meeting will be held at the St. Regis Washington DC, 923 16th and K Streets, NW., in the Carlton Room, from 8:30 a.m. to 5:30 p.m. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on establishing and supervising a schedule to conduct periodic reviews of the VA Schedule for Rating Disabilities.
The Committee will receive briefings about studies on compensation for veterans with service-connected disabilities and other veteran benefits programs. An open forum for verbal statements from the public will be available in the afternoon. People wishing to make verbal statements before the Committee will be accommodated on a first-come, first-served basis and will be provided three minutes per statement.
Interested persons may submit written statements to the Committee before the meeting, or within 10 days after the meeting, by sending them to Ms. Ersie Farber, Designated Federal Officer, Department of Veterans Affairs, Veterans Benefits Administration (211A), 810 Vermont Avenue, NW., Washington, DC 20420. Any member of the public wishing to attend the meeting should contact Ms. Farber at (202) 461-9728.
By Direction of the Secretary.
(a) in paragraph 1 by:
(b) by striking “Bureau of the Budget” in paragraph 5 and inserting in lieu thereof “Office of Management and Budget”;
(c) by renumbering paragraph 6 as paragraph 8;
(d) by inserting immediately following paragraph 5 the following new paragraphs:
(e) by striking “Board” each place it appears and inserting in lieu thereof in each such place “Administration”.
(a) take such action within the authority of the Secretary, and recommend as appropriate to the President such action as is within the authority of the President, to implement the policy set forth in section 1 of this order and in particular to implement the NextGen in a safe, secure, timely, environmentally sound, efficient, and effective manner;
(b) convene quarterly, unless the Secretary determines that meeting less often is consistent with effective implementation of the policy set forth in section 1 of this order, the Senior Policy Committee established pursuant to section 710 of the Act (Committee);
(c) not later than 60 days after the date of this order, establish within the Department of Transportation a support staff (Staff), including employees from departments and agencies assigned pursuant to subsection 4(e) of this order, to support, as directed by the Secretary, the Secretary and the Committee in the performance of their duties relating to the policy set forth in section 1 of this order; and
(d) not later than 180 days after the date of this order, establish an advisory committee to provide advice to the Secretary and, through the Secretary, the Committee concerning the implementation of the policy set forth in section 1 of this order, including aviation-related subjects and any related performance measures specified by the Secretary, pursuant to section 710 of the Act.
(a) the Secretary of Defense shall assist the Secretary of Transportation by:
(b) the Secretary of Commerce shall:
(c) the Secretary of Homeland Security shall assist the Secretary of Transportation by ensuring that:
(d) the Administrator of the National Aeronautics and Space Administration shall carry out the Administrator's duties under Executive Order 13419 of December 20, 2006, in a manner consistent with that order and the policy set forth in section 1 of this order;
(e) the heads of executive departments and agencies shall provide to the Secretary of Transportation such information and assistance, including personnel and other resources for the Staff to which subsection 3(c) of this order refers, as may be necessary and appropriate to implement this order as agreed to by the heads of the departments and agencies involved; and
(f) the Director of the Office of Management and Budget may issue such instructions as may be necessary to implement subsection 5(b) of this order.
(a) report not less often than every 2 years to the President, through the Secretary of Transportation, on progress made and projected to implement the policy set forth in section 1 of this order, together with such recommendations including performance measures for administrative or other action as the Committee determines appropriate;
(b) review the proposals by the heads of executive departments and agencies to the Director of the Office of Management and Budget with respect to programs affecting the policy set forth in section 1 of this order, and make recommendations including performance measures thereon, through the Secretary of Transportation, to the Director; and
(c) advise the Secretary of Transportation and, through the Secretary of Transportation, the Secretaries of Defense, Commerce, and Homeland Security, and the Administrator of the National Aeronautics and Space Administration, with respect to the activities of their departments and agencies in the implementation of the policy set forth in section 1 of this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers, employees, or agents, or any other person.
Environmental Protection Agency (EPA).
Final rule.
Under the Federal Water Pollution Control Act (Clean Water Act or CWA), EPA is revising the National Pollutant Discharge Elimination System (NPDES) permitting requirements and Effluent Limitations Guidelines and Standards (ELGs) for concentrated animal feeding operations (CAFOs) in response to the order issued by the U.S. Court of Appeals for the Second Circuit in
This final rule revises several aspects of EPA's current regulations governing discharges from CAFOs. EPA is modifying the requirement to apply for a permit by specifying that an owner or operator of a CAFO that discharges or proposes to discharge must apply for an NPDES permit. The final rule also includes an option for an unpermitted CAFO to certify to the permitting authority that the CAFO does not discharge or propose to discharge. In addition, EPA is clarifying how the agricultural stormwater discharge exemption criteria are interpreted for unpermitted Large CAFOs. EPA is also requiring CAFOs seeking permit coverage to submit their nutrient management plans (NMPs) with their applications for individual permits or notices of intent to be authorized under general permits. Permitting authorities are required to review the NMPs and provide the public with an opportunity for meaningful public review and comment. Permitting authorities are also required to incorporate terms of NMPs as NPDES permit conditions. Additionally, this action removes the provision that allowed CAFOs to use a 100-year, 24-hour containment structure to fulfill the no discharge requirement for new source swine, poultry, and veal calf operations. Instead, this action authorizes permit writers, upon request by swine, poultry, and veal calf CAFOs that are new sources, to establish best management practice no discharge effluent limitations when the facility demonstrates that it has designed an open containment system that will comply with the no discharge requirements.
This final rule also responds to the court's remand orders regarding water quality-based effluent limitations (WQBELs) and pathogens. EPA is clarifying that WQBELs may be required in permits with respect to production area discharges and discharges from land application areas that are not exempt as agricultural stormwater. Finally, EPA is making the finding that the best conventional technology (BCT) limitations established in 2003 also apply to fecal coliform.
These final regulations are effective December 22, 2008. For judicial review purposes, this final rule is promulgated as of 1 p.m. Eastern Daylight Time, on December 4, 2008, as provided in 40 CFR 23.2.
The record for this rulemaking is available for inspection and copying at the Water Docket, located at the EPA Docket Center (EPA/DC), EPA West 1301 Constitution Ave., NW., Washington, DC 20004. The record is also available via EPA Dockets at
For additional information contact Rebecca Roose, Water Permits Division, Office of Wastewater Management (4203M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, telephone number: (202) 564-0758, e-mail address:
This action applies to concentrated animal feeding operations (CAFOs) as specified in section 502(14) of the Clean Water Act (CWA), 33 U.S.C. 1362(14) and defined in the NPDES regulations at 40 CFR 122.23. Table 1.1 provides a list of standard industrial codes for operations potentially regulated under this revised rule. The rule also applies to States and Tribes with authorized NPDES Programs.
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 the 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 under this rulemaking, you should carefully examine the applicability criteria in § 122.23. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
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This final rule is issued under the authority of sections 101, 301, 304, 306, 308, 402, and 501 of the CWA. 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
EPA received a large number of comments on the 2006 proposed rule (71 FR 37,744-87; June 20, 2006) and the 2008 supplemental proposal (73 FR 12,321-40; March 7, 2008). EPA evaluated all of the comments submitted and prepared a Comment Response Document containing both the comments received and the Agency's responses to those comments. The Comment Response Document complements and supplements this preamble by providing more detailed explanations of EPA's final action. The Comment Response Document is available in the Docket.
Congress enacted the Federal Water Pollution Control Act (1972), also known as the Clean Water Act (CWA), to “restore and maintain the chemical, physical, and biological integrity of the nation's waters” (CWA section 101(a)). Among the core provisions, the CWA establishes the NPDES permit program to authorize and regulate the discharge of pollutants from point sources to waters of the U.S. (CWA section 402). Section 502(14) of the CWA specifically includes CAFOs in the definition of the term “point source.” Section 502(12) defines the term “discharge of a pollutant” to mean “
EPA began regulating discharges of wastewater and manure from CAFOs in the 1970s. EPA initially issued national effluent limitations guidelines and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES CAFO regulations on March 18, 1976 (41 FR 11,458).
In February 2003, EPA issued revisions to these regulations that focused on the 5% of the nation's animal feeding operations (AFOs) that presented the highest risk of impairing water quality and public health (68 FR 7176-7274; February 12, 2003) (“the 2003 CAFO rule”). The 2003 CAFO rule required the owners or operators of all CAFOs
The revisions to the 2003 CAFO rule being published today relate directly to the changes required by the court's decision and continue to maintain the focus on regulating discharges from the universe of high-risk AFOs.
The Second Circuit's decision in
This section discusses provisions of the 2003 CAFO rule that were challenged by either industry or environmental petitioners, but were upheld by the
The
The
The court rejected the environmental organizations' claim that EPA, in developing best available technology effluent limitations guidelines, had failed to consider the single best performing CAFO and adopt limitations that reflected its performance. The court found that EPA had collected extensive data on the waste management systems at CAFOs and had considered approximately 11,000 public comments on the proposed CAFO rule. The court determined that EPA had either adopted as the basis for its limitations the best performing technology or declined to do so for permissible reasons. 399 F.3d at 513.
The court upheld EPA's decision in the 2003 rule relating to groundwater controls. In the 2003 rule, EPA stated that the Agency believed that requirements limiting the discharge of pollutants to surface water via groundwater that has a direct hydrologic connection to surface water should be addressed on a site-specific basis. The Agency also stated that nothing in the 2003 rule was to be construed to expand, diminish, or otherwise affect the jurisdiction of the CWA over discharges to surface water via groundwater that has a direct hydrologic connection to surface water. 399 F.3d at 514-15.
The court upheld the analytic methodologies that EPA used for determining whether the technology-based permit requirements for CAFOs set in the 2003 rule would be economically achievable by the industry as a whole. 399 F.3d at 515-18.
The following are the elements of the 2003 rule that the
The CAFO industry organizations argued that EPA exceeded its statutory authority by requiring all CAFOs to either apply for NPDES permits or demonstrate that they have no potential to discharge. The court agreed with the CAFO industry petitioners on this issue and therefore vacated the “duty to apply” provision of the 2003 CAFO rule.
The court found that the duty to apply, based on the potential to discharge, was invalid because the CWA subjects only actual discharges to permitting requirements rather than potential discharges. The court acknowledged EPA's policy considerations for seeking to impose a duty to apply based on the potential to discharge but found that the Agency lacked statutory authority to do so. 399 F.3d at 505.
The court concluded that the 2003 CAFO rule impermissibly: (1) Empowered permitting authorities to issue permits without any meaningful review of a CAFO's NMP, (2) failed to require that the terms of the nutrient management plan be included as effluent limitations in the NPDES permit, and (3) violated the CWA's public participation requirements. The court agreed with the environmental petitioners on these three issues.
The court relied on provisions of the Act that authorize point source discharges only where NPDES permits “ensure that every discharge of pollutants will comply with all applicable effluent limitations and standards,” citing CWA sections 402(a)(1), (a)(2), and (b). Because the 2003 CAFO rule did not provide for permitting authority review of a CAFO's nutrient management plan before the permit was issued, the court found that the rule did not ensure that each CAFO's discharges comply with these CWA provisions. The court also found that the terms of the NMP themselves are “effluent limitations” as that term is defined in the Act and therefore must be made part of the permit and be enforceable as required under CWA sections 301 and 402. The court also held that as effluent limitations, those terms must be made available for public review. 399 F.3d at 499-502.
The
The court agreed with EPA that agricultural stormwater is excluded from the meaning of the term “point source” and therefore is not subject to water quality-based effluent limitations in permits. However, the court directed EPA to “clarify the statutory and evidentiary basis for failing to promulgate water quality-based effluent limitations for discharges other than agricultural stormwater discharges as that term is defined in 40 CFR 122.23(e),” and to “clarify whether States may develop water quality-based effluent limitations on their own.” 399 F.3d at 524.
The 2003 CAFO rule set new source performance standards (NSPS) for swine, poultry, and veal calf CAFOs at no discharge. A CAFO in these categories could fulfill this requirement by showing that either (1) its production area was designed to contain all manure, litter, or process wastewater, and precipitation from a 100-year, 24-hour storm, or (2) it would comply with “voluntary superior environmental performance standards” based on innovative technologies, under which a discharge from the production area would be allowed if it was accompanied by an equivalent or greater reduction in the quantity of pollutants released to other media (
The court held that the 2003 CAFO rule violated the CWA because EPA had not made an affirmative finding that the BCT-based Effluent Limitations Guidelines (ELGs),
The
The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule remain in effect and are unchanged. First, an operation must be defined as an animal feeding operation (AFO) before it can be defined as a concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term “animal feeding operation” is defined by EPA regulation as a “lot or facility” where animals “have been, are or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period and crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over any portion of the lot or facility.”
Whether an AFO is a CAFO depends primarily on the number of animals confined, which is also unchanged. Large CAFOs are AFOs that confine more than the threshold number of animals detailed in 40 CFR 122.23(b)(4). Medium CAFOs confine fewer animals than Large CAFOs and also: (1) Discharge pollutants into waters of the U.S. through a man-made ditch, flushing system, or other similar man-made device; or (2) discharge pollutants into waters of the U.S. which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the confined animals. 40 CFR 122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-by-case basis, designate any medium or small AFO, as a CAFO after conducting an on-site inspection and finding that the facility “is a significant contributor of pollutants to waters of the United States.” 40 CFR 122.23(c). The permitting authority may not exercise its authority to designate a small AFO as a CAFO unless pollutants are discharged into waters of the U.S. through a man-made ditch, flushing system, or other similar man-made device, or are discharged into waters of the U.S. which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation. 40 CFR 122.23(c)(3).
As previously described, the court upheld EPA's definition of “agricultural stormwater discharge” in relation to discharges from land application areas under the control of a CAFO in 40 CFR 122.23(e). Discharges of manure, litter, or process wastewater from land application areas under the control of a CAFO are discharges from the CAFO (i.e., point source discharges) unless they are agricultural stormwater discharges, which are exempt from permit requirements. Section 122.23(e) provides that precipitation-related discharges of manure, litter, or process wastewater from a CAFO's land application areas are agricultural stormwater discharges, provided that “the manure, litter, or process wastewater has been applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in § 122.42(e)(1)(vi)-(ix).”
The court ruling also did not affect the nutrient management planning requirements for permitted CAFOs established in the 2003 CAFO rule. All CAFOs that apply for permits must develop and implement an NMP that meets the requirements of 40 CFR 122.42(e) and, for Large CAFOs subject to 40 CFR part 412, subpart C or D, 40 CFR 412.4. The NMP identifies the necessary actions to ensure that runoff is eliminated or minimized through proper and effective manure, litter, or process wastewater management, including compliance with the ELGs as applicable. Permitted CAFOs must comply with all applicable recordkeeping and reporting requirements, including those specified in § 122.42(e).
The court ruling also did not affect the ELG requirements for Large CAFOs, with the exception of new source performance standards (NSPS) for swine, poultry, and veal calf operations. ELG requirements ensure the appropriate storage of manure, litter, and process wastewater and proper land application practices. They vary depending upon the type of animals confined: Subpart A for horses and sheep; subpart B for ducks; subpart C for dairy cattle, heifers, steers, and bulls; and subpart D for swine, poultry, and veal calves. 40 CFR part 412. Additionally, NSPS for beef and dairy operations were not affected by the decision and remain unchanged (40 CFR 412.35).
Permitted small and medium CAFOs are not subject to the ELGs specified in part 412. Rather, they must comply with technology-based requirements developed by the permitting authority on a case-by-case basis (
On June 30, 2006, EPA published a proposed rule to revise the Agency's regulations governing discharges from
A March 7, 2008,
In addition to the changes made through this rulemaking, EPA extended certain deadlines in the NPDES permitting requirements and ELGs in two separate rulemakings in order to allow the Agency adequate time to complete this rulemaking in response to the
As a result of the extensive array of public comments on the issues raised by the
This final rule responds to the Second Circuit Court's vacature and remand orders.
The 2003 CAFO rule required all CAFOs to seek authorization to discharge under an NPDES permit unless the Director,
The 2003 CAFO rule included a process for CAFOs to seek a “no potential to discharge” determination by the Director. Where the Director determined, based on information supplied by the CAFO operator, that a CAFO had no potential to discharge manure, litter, or process wastewater to waters of the U.S., the CAFO operator had no duty to apply for a permit, unless circumstances at the facility changed such that the facility would have the potential to discharge. Examples of facilities that possibly would have qualified for this exemption included facilities in very arid areas, facilities that are down slope from waters of the U.S., and facilities with completely enclosed operations.
The Second Circuit Court of Appeals vacated the provision that required all CAFO owners or operators with a potential to discharge to apply for an NPDES permit. The court held that the Clean Water Act (CWA) authorizes EPA to require permits for the actual discharge of pollutants, but not for mere potential discharges. Because the 2003 CAFO rule imposed an obligation on all CAFOs to either apply for an NPDES permit or affirmatively demonstrate that they have no potential to discharge, the court ruled that it exceeded EPA's authority under the CWA.
To address the court's decision on the duty to apply, EPA is revising the 2003 CAFO rule in three ways:
• Deleting the requirement that all CAFOs apply for an NPDES permit to provide instead that all CAFOs that “discharge or propose to discharge” have a duty to apply when they propose to discharge;
• Eliminating the procedures for a no potential to discharge determination; and
• Establishing a voluntary option for unpermitted CAFOs to certify that they
EPA proposed to replace the “duty to apply” requirement adopted in the 2003 rule, which states that all CAFO owners or operators must seek coverage under an NPDES permit unless they demonstrate “no potential to discharge” (40 CFR 122.21(a)(1) and 40 CFR 122.23(a) and 40 CFR 122.23(d)(1)) with a modified “duty to apply” provision. The 2006 proposed rule would have required that all CAFOs that “discharge or propose to discharge” seek coverage under an NPDES permit, which is the same language that applies generally to point sources under longstanding NPDES regulations at § 122.21(a)(1).
This rule adopts the approach in the 2006 proposed rule by replacing the “duty to apply” requirement of the 2003 rule with a requirement that a CAFO that “discharges or proposes to discharge” must seek authorization to discharge under an NPDES permit. Because a number of commenters misunderstood, or were confused by, the term “propose to discharge,” EPA is providing additional clarification in this rule and preamble on how operators should evaluate whether they discharge or propose to discharge. While commenters generally agreed that the changes proposed by EPA were consistent with the Second Circuit decision, some commenters thought that “propose to discharge” and “potential to discharge” were not sufficiently distinguishable, and that “proposed” discharges could be understood as contrary to the
EPA disagrees with these commenters. Including a duty to apply for CAFOs that “propose to discharge” is not the same as requiring a permit for CAFOs with only a “potential to discharge.” Unlike the 2003 rule, which categorically required a permit for any CAFO with a “potential to discharge,” this final rule calls for a case-by-case evaluation by the CAFO owner or operator as to whether the CAFO discharges or proposes to discharge from its production area or land application area based on actual design, construction, operation, and maintenance. “Potential” connotes the possibility that there might—as opposed to will—be a discharge, which, as the
Under section 301(a) of the CWA, only those CAFO discharges authorized by an NPDES permit (or otherwise authorized by the statute), regardless of the volume or duration of the discharge, are allowed. Any discharge from a CAFO, even one that is unplanned or accidental, is illegal unless it is authorized by the terms of a permit or is agricultural stormwater. While EPA recognizes that not every discharge indicates that the CAFO will discharge in the future, an operator should certainly consider any unplanned or accidental discharge that may have occurred in the past in deciding whether to seek permit coverage. CAFO operators must objectively assess whether a discharge from the CAFO, including from the production area or land application areas under the control of the CAFO, is occurring or will occur for purposes of determining whether to obtain permit coverage.
It is well established that “discharge” is not limited to continuous discharges of pollutants from a point source to waters of the U.S., but also includes intermittent and sporadic discharges. “Intermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.”
EPA received a number of comments concerning past discharges. Some commenters asserted that a prior discharge is not, by itself, a sufficient basis for requiring a permit and observed that it is quite possible that a CAFO may have eliminated the cause of the discharge. EPA agrees that not every past discharge from a CAFO necessarily triggers a duty to apply for a permit; however, a past discharge may indicate that the CAFO discharges or proposes to discharge if the conditions that gave rise to the discharge have not changed or been corrected. See,
An uncorrected past discharge is not the only indicator that operators should consider in assessing whether the CAFO discharges or proposes to discharge. Other key factors the operator should consider include the proximity of the production area to waters of the U.S., whether the CAFO is upslope from waters of the U.S., and climatic conditions. Similarly, the type of waste storage system, storage capacity, quality
As a result of the revisions to 40 CFR 122.23(d) and (f), only CAFOs that discharge or propose to discharge are required to seek permit coverage, and a CAFO that proposes to discharge must seek coverage as soon as it proposes to discharge in order to avoid having unpermitted discharges. In the event of a discharge from an unpermitted CAFO, the CAFO operator would be in violation of the CWA prohibition against discharging without a permit. Under this final rule, if the CAFO proposed to discharge prior to the discharge, the CAFO would also be in violation of the requirement in § 122.23(d)(1) and (f), implementing sections 308 and 402 of the CWA, that CAFOs seek permit coverage when they propose to discharge.
In revised § 122.23(d)(1), EPA is clarifying that “a CAFO proposes to discharge if it is designed, constructed, operated, or maintained such that a discharge will occur.” EPA intends that the CAFO operator should make an objective assessment of the operation to determine whether the CAFO will discharge. Such an objective assessment would take into account not only the characteristics of the manmade aspects of the CAFO itself, but climatic, hydrological, topographical, and other characteristics beyond the operator's control that impact whether the CAFO will discharge, given the design, construction, operation and maintenance of the CAFO.
To assist CAFO operators in making this objective assessment and to provide assurance for CAFOs deciding not to seek permit coverage that they are not required to obtain permit coverage, EPA is finalizing a voluntary certification option, proposed in the 2008 supplemental proposal. This option provides a means for a CAFO to certify that it does not discharge or propose to discharge. The voluntary certification provisions are discussed below in section III.A.3(c) of this preamble.
This rule is consistent with the
Section 301(a) prohibits the discharge of pollutants, except in compliance with specific provisions in the CWA. Particularly relevant to CAFOs, section 301(b) provides that “there shall be achieved” effluent limitations controlling pollutants discharged from point sources. Section 308(a) provides EPA broad authority to require the owner or operator of any point source (including CAFOs) to provide information necessary to develop effluent limitations, to “carry out” section 402, and to “carry out” the objectives of the Act, which are set forth in CWA section 101(a). Under section 501(a) EPA is authorized to prescribe “such regulations as are necessary to carry out” its functions under the CWA. Any permit program established to carry out section 402 must, of necessity, require point sources that discharge or propose to discharge to submit information to allow the permitting authority to determine prior to issuance of a permit what effluent limitations should apply to a discharger and be included in its permit (including providing the public and any other affected State notice and opportunity for public comment, as required by section 402(b)(3)). It is therefore reasonable for EPA to require those CAFOs that discharge or propose to discharge to apply for NPDES permit coverage.
Some commenters on the 2006 proposed rule opposed regulating entities that “propose” to discharge, or alternatively, suggested that EPA should clarify that “propose” means “intend” or “plan.” While EPA acknowledges that “propose” to discharge could be understood to mean “intend” or “plan” to discharge, under this final rule “propose to discharge” means that the CAFO is designed, constructed, operated, or maintained such that it will discharge. This is consistent with the
Some commenters on the 2006 proposed rule requested that EPA specifically state in the regulation that facilities designed to the 25-year, 24-hour design standard have not “proposed” to discharge. One commenter questioned whether existing operations should be required to obtain permit coverage if they have installed structures and production area BMPs using Natural Resources Conservation Service (NRCS) standards and if they have been operating without discharging. The commenter indicated that “since EPA is requiring that a zero discharge standard be met only for certain new CAFOs and not existing CAFOs, it is unreasonable to expect all existing animal operations that do not otherwise come under a permit to meet a zero discharge standard.”
EPA disagrees that CAFOs designed for the 25-year, 24-hour storm should be categorically excluded from the requirement to apply for a permit simply based on their design standard. EPA also believes that it is reasonable to expect unpermitted CAFOs to meet a zero discharge standard. The CWA is very clear that point source discharges from CAFOs are illegal unless the operator has applied for and obtained an NPDES permit. Thus, “zero discharge” is the only standard to which EPA can
EPA notes that design is only one aspect for a CAFO to consider when assessing whether or not to apply for a permit. Construction, operation, and maintenance are equally important components of a CAFO's operation and can make the difference between a CAFO that discharges and one that does not. With regard to the commenter's question about the applicability of NRCS standards, a CAFO's decision as to whether to seek permit coverage should be based on an objective assessment of conditions at the operation, including, but not limited to, the manure storage design standard. EPA notes that whether or not a CAFO is designed according to NRCS standards may be an important component of the objective evaluation it undertakes to assess whether it is designed, constructed, operated, or maintained such that a discharge will occur. A CAFO that does not discharge or propose to discharge is not required to seek permit coverage under § 122.23(d)(1) and may be eligible for no discharge certification under 40 CFR 122.23(i).
CAFO NPDES permit requirements include, but are not limited to, best management practices (BMPs) to eliminate discharges from the production area under most circumstances and to ensure appropriate agricultural utilization of nutrients in manure, litter, and process wastewater that is applied to land under the CAFO's control. EPA expects that an unpermitted CAFO would also need to implement BMPs in order to ensure that it does not discharge or propose to discharge. However, in many, if not most, cases the BMPs called for will be more rigorous than those required for permitted CAFOs, because the operator of an unpermitted CAFO is never authorized to discharge under CWA section 301(a). Permitted CAFOs have greater flexibility because, in addition to being authorized to discharge under the circumstances prescribed by the permit, other discharges can be excused when the conditions contained in EPA's upset and/or bypass regulations are met.
In contrast to commenters who believe that some non-discharging CAFOs will needlessly go through the permitting process, other commenters expressed concern that some CAFOs that should have permits will not seek needed permit coverage. They contended that many CAFOs are currently discharging without a permit and objected to having CAFOs make the determination themselves as to whether or not they discharge or propose to discharge, as such an approach would, in their view, establish a self-permitting scheme. These commenters further contended that the administrative record from the 2003 rule supports the presumption that all Large CAFOs actually discharge and, therefore, such CAFOs should be required to obtain a permit.
EPA does not agree that the rule establishes a self-permitting scheme. As is the case with all point sources, it is up to the operator to determine whether or not to apply for a permit in the first instance, by assessing whether the point source (CAFO) discharges or proposes to discharge. Point sources that do not discharge or propose to discharge are not subject to CWA permitting requirements.
Finally, this rule revises the regulatory provisions for when a CAFO must seek permit coverage and the duty to maintain permit coverage for CAFOs. The final rule clarifies that those CAFOs that are required under § 122.23(d)(1) to seek permit coverage must do so “when the CAFO proposes to discharge,” unless a later deadline, such as February 27, 2009, is specified for the specific category of operation. EPA is recodifying 40 CFR 122.23(g) as § 122.23(f) because the paragraph codified as § 122.23(f) in the 2003 rule is being removed. See section III.A.3(b) of this preamble. Revised § 122.23(f) is consistent with the revised duty to apply requirement in § 122.23(d)(1) and EPA's authority under sections 301, 308 and 402 of the CWA to require CAFOs that actually discharge to seek permit coverage. None of the specific timeframes for the various categories of CAFOs in paragraphs (1)-(5) of § 122.23(f), as amended by the 2007 date change rule (72 FR 40,245), is affected by this rule. The revised language in the introductory paragraph of § 122.23(f) simply conforms to the requirements of § 122.23(d)(1).
EPA is making corresponding revisions to the regulatory text requiring CAFOs to maintain permit coverage. Due to the fact that § 122.23(f) as codified in 2003 is being removed, EPA is recodifying 40 CFR 122.23(h), “Duty to Maintain Permit Coverage,” as § 122.23(g). See section III.A.3(b) of this preamble. Also, in the 2006 proposed rule, EPA proposed to revise this provision to address the
In this final rule, EPA is deleting the regulatory provisions adopted in the 2003 CAFO rule allowing CAFOs to demonstrate that they have no potential to discharge and authorizing the Director to make such a determination. 40 CFR 122.23(d)(2) and 122.23(f). Because EPA is not requiring CAFOs to seek permit coverage based merely on potential to discharge, this provision is no longer relevant to determining whether or not a facility needs to seek permit coverage. This final rule is
Overall, most commenters supported eliminating the “no potential to discharge” provisions in the CAFO regulations, noting that it is no longer necessary because only CAFOs that discharge or propose to discharge must apply for permits. One State observed that the “no potential to discharge” criteria could still be useful to CAFOs in determining whether they need to apply for a permit. While these criteria may continue to be useful to CAFO owners and operators for that purpose, EPA is eliminating these provisions from 40 CFR 122.23 of the regulations.
In this final rule, the Agency is adopting a new provision that allows CAFOs to voluntarily certify that the CAFO does not discharge or propose to discharge. As discussed above, EPA received several hundred comments on the 2006 proposed rule related to how a CAFO operator would decide whether to seek permit coverage under a revised rule that requires CAFOs that discharge or propose to discharge to apply for a permit or submit a Notice of Intent for coverage under a general permit. Several commenters were particularly concerned with the consequences for an unpermitted CAFO that has an “accidental discharge” because they understood EPA's proposal to mean that a CAFO that does not apply for a permit and subsequently has a discharge of pollutants to waters of the U.S. would be liable for two violations, one associated with the discharge itself and another violation for failing to apply for a permit for authority to discharge. In response to these comments, in the 2008 supplemental proposal, EPA requested public comment on an option that would allow a CAFO that determines, based on an objective assessment, that it does not discharge or propose to discharge to certify to the permitting authority that it is designed, constructed, operated, and maintained not to discharge. In the unlikely event that a properly certified CAFO discharges (which would constitute a violation of section 301(a) of the CWA), the CAFO would not be liable for failing to apply for a permit prior to the discharge in accordance with the permit application requirements of 40 CFR 122.23(d)(1) and (f).
EPA received many comments on the proposed voluntary certification option. Commenters were divided, with some generally supportive and others generally opposed to the concept of a voluntary certification option for unpermitted CAFOs. Those in favor stated that certification would assist CAFOs that do not discharge or propose to discharge by providing a structured process for CAFOs to notify the permitting authority that they are not required to seek permit coverage. Some commenters opposed to certification believe the Agency's record supports a regulatory presumption that all CAFOs discharge, and, therefore, the no discharge certification process is a further departure from the decision of the
In this final rule, EPA has addressed both the decision from the
Under this final rule, and as proposed in the 2008 supplemental proposal, a CAFO operator may certify that the CAFO does not discharge or propose to discharge by signing and submitting a certification statement to the Director. The objective assessment necessary for the CAFO to qualify for certification takes into account the CAFO's production area design and construction and its operating and maintenance procedures and practices as described in its nutrient management plan (NMP) in accordance with the eligibility criteria, described in detail below. The certification option established by this rule does not change the requirement that CAFOs that propose to discharge must seek permit coverage when they propose to discharge pursuant to § 122.23(f). It does, however, provide a structured process for CAFOs that wish to certify to establish by objective means that they do not discharge or propose to discharge. EPA believes that such a structured process is helpful to CAFOs as they decide whether to seek permit coverage. A CAFO's no discharge certification is not subject to review by the permitting authority in order for it to become effective and the permitting authority is not required to make the certification available to the public for comment because the certification is not a permit application for which review is required under section 402 of the CWA. EPA wishes to emphasize that submission of a no discharge certification is voluntary and the process for obtaining a certification has been developed with that underlying principle in mind.
As explained in detail above, under § 122.23(d)(1) a CAFO that does not discharge or propose to discharge is not required to apply for an NPDES permit. A certification in accordance with this final rule documents the CAFO operator's basis for making an informed decision not to seek permit coverage because the CAFO does not discharge or propose to discharge. A CAFO that certifies in accordance with the requirements of this final rule, discussed in detail below, is properly certified so long as the CAFO maintains its eligibility. EPA believes that providing a properly certified CAFO assurance that it is not required by § 122.23(d)(1) to seek permit coverage is reasonable and justified. The threshold question regarding which CAFOs are required to seek permit coverage—whether the CAFO discharges or proposes to discharge—is the same for all CAFOs. A CAFO that does not discharge or propose to discharge can choose to certify or not. Certification in accordance with the requirements of 40 CFR 122.23(i) requires a CAFO owner or operator to undertake and document a rigorous analysis of the operation's structure and design, and to be committed to operation and maintenance protocols designed to ensure no discharge, discussed in detail below.
EPA is adding subsection (j) 40 CFR 122.23 to clarify the effect of certification. As provided in new paragraph (j)(1), a CAFO certified in accordance with § 122.23(i) is presumed not to propose to discharge. A CAFO that is “certified in accordance with
To further clarify the effect of voluntary certification, EPA is also including in the final rule a provision specifically related to uncertified CAFOs. As provided in 40 CFR 122.23(j)(2) of this final rule, in any enforcement proceeding for failure to seek permit coverage under § 122.23(d)(1) or (f) that is associated with a discharge from an unpermitted CAFO that has not submitted certification documentation as provided in 40 CFR 122.23(i)(3) or 40 CFR 122.23(i)(6)(iv), the CAFO would have the burden to establish that it did not propose to discharge prior to the discharge. Also, a CAFO that had submitted a certification more than five years prior to the discharge (and not recertified within the past five years) or that had withdrawn its certification pursuant to 40 CFR 122.23(i)(5) prior to the discharge would also have the burden to establish that it did not propose to discharge. EPA's intent is to clarify that when an unpermitted CAFO discharges and the permitting authority does not have a current, signed certification from that CAFO, it is the CAFO's responsibility to show that it was not required to have applied for permit coverage (
Unlike the 2003 rule that required all CAFOs to seek permit coverage in order to operate unless they obtained a determination of “no potential to discharge,” the certification provision is entirely voluntary. The requirement for a CAFO to apply for a permit is triggered if a CAFO discharges or proposes to discharge, regardless of whether it has certified or not. Any CAFO operator's decision as to whether to seek permit coverage should be made based on an objective assessment of the CAFO's design, construction, operation, and maintenance, in contrast to the 2003 rule, which required the operator either to seek permit coverage or prove to the satisfaction of the Director that the CAFO had no potential to discharge. Therefore, under § 122.23(d)(1) and (i), the operator must evaluate based on such an objective assessment whether it discharges or proposes to discharge. If it does it must seek and obtain permit coverage; if it does not it may operate without a permit and decide either (1) to certify under the provisions at § 122.23(i); or (2) to operate without a permit and without certifying. The purpose of certification is to provide a voluntary mechanism for the CAFO to establish in advance that it does not discharge or propose to discharge. As previously discussed, a CAFO that operates without a permit must be designed, constructed, operated, and maintained such that no discharge will occur, because any discharge (other than agricultural stormwater) is prohibited from unpermitted CAFOs pursuant to CWA section 301(a), while permitted CAFOs are allowed to discharge under specified conditions and may also have defenses for upset and bypass. NPDES permit coverage reduces CAFO operator risk and provides certainty to CAFO operators regarding activities and actions that are necessary to comply with the CWA. In contrast, certified CAFOs are not allowed to discharge under any conditions (other than discharges of agricultural stormwater), and are liable for any unpermitted discharge pursuant to CWA 301(a), but they will not additionally be held liable for a violation of the duty to apply, provided their certification is valid and still in effect at the time of discharge. EPA strongly recommends that all CAFOs that have any doubt about their ability to operate under all circumstances without discharging seek to obtain NPDES permit coverage, and believes it is in their interest to do so. However, in accordance with the
The final rule provisions for certification eligibility and submission, and conditions for a valid certification are discussed in detail below.
EPA is establishing specific eligibility criteria for CAFO certification at 40 CFR 122.23(i)(2). Meeting these criteria establishes that the CAFO does not “discharge or propose to discharge” for purposes of 40 CFR 122.23(d)(1), for as long as the certification is valid. Eligibility for certification means meeting the criteria described below at the time certification is established and continuing to meet the eligibility criteria throughout the period of certification as new information or situations arise. The three criteria are as follows: (1) An objective evaluation which shows that the CAFO's production area is designed, constructed, operated, and maintained so as not to discharge, (2) development and implementation of an NMP to ensure no discharge (other than agricultural stormwater discharges) that, at a minimum, addresses the elements set forth in 40 CFR 122.42(e)(1) and 40 CFR 412.37(c), including operation and maintenance practices for the production area and land application areas under the control of the CAFO, and (3) maintenance of the documentation required for certification either on site, at a nearby office, or where it can be made readily available to the permitting authority upon request. A statement that describes the basis for the CAFO's certification that it satisfies these eligibility criteria must be submitted to the Director, but there is no requirement for permitting authority review in order for the certification to be valid.
The first two criteria concern the existing physical and operational conditions at the CAFO. In addition, meeting these criteria includes making proper accommodations during the certification period to address changes to the operation. For example, if an increase in animals will cause the CAFO to exceed the existing storage capacity for precipitation, manure and process
Commenters offered numerous perspectives on the proposed eligibility criteria. Some commenters asserted that the proposed criteria were too extensive, stringent, and complex, and therefore would make it unlikely that self-certifying CAFOs could accurately demonstrate their eligibility. These commenters indicated that, as proposed, the eligibility criteria would be expensive to implement and, thus, would serve as a disincentive for a CAFO to choose to certify. In response to these comments, EPA emphasizes that certification is voluntary, and CAFOs may choose not to certify. As noted above, EPA believes that it is generally in an operator's best interest to obtain permit coverage. However, EPA has provided the certification option for CAFOs that choose not to seek permit coverage but would like to establish up front that they do not discharge or propose to discharge. The final rule contains stringent eligibility criteria because in light of the CWA prohibition against unpermitted discharges, the eligibility criteria for certification must establish that the CAFO does not discharge or propose to discharge. Only CAFOs that establish eligibility and meet all of the certification provisions in 40 CFR 122.23(i)(2)-(3) will receive the benefit of certification, which is that a validly certified CAFO that discharges will not be in violation of the requirement to apply for a permit pursuant to § 122.23(d)(1) and 40 CFR 122.23(f). As EPA is clarifying in 40 CFR 122.23(j), without a certification, an unpermitted CAFO that discharges has the burden of establishing that it did not propose to discharge in an enforcement action arising from a discharge from the CAFO.
In contrast, other commenters indicated that the proposed criteria do not ensure that a certified CAFO will not discharge and, therefore, additional requirements and procedures should be imposed for certification eligibility. In response to these comments, the certification eligibility criteria in this final rule have been modified from the 2008 supplemental proposal in order to clarify what EPA expects of a certified CAFO. The final rule clarifies that the CAFO's NMP must include any operation and maintenance practices that are established by the technical evaluation of production area open storage structures as necessary to ensure no discharge. Also, EPA reminds unpermitted CAFOs considering certification that many site-specific factors, such as location and the facility's discharge history, must be taken into account when demonstrating certification eligibility in accordance with this final rule. A CAFO in close proximity to waters of the U.S. or a conduit to waters of the U.S. may need to take additional protective measures for design, construction, operation and maintenance in order to be able to demonstrate that it will not discharge. A CAFO operator who intends to establish eligibility for certification should be mindful that, as stated above in the discussion of revised § 122.23(d)(1), a CAFO that has discharged in the past would generally be expected to discharge in the future, and therefore be expected to obtain a permit, unless it has modified the design, construction, operation or maintenance in such a way as to prevent any discharges from occurring.
The first eligibility criterion for valid certification covers the design, construction, operation, and maintenance of the CAFO's production area. As proposed, 40 CFR 122.23(i)(2)(i) of this final rule requires the CAFO to demonstrate that the CAFO's production area is designed, constructed, operated, and maintained so as not to discharge. Due to the variations in production area design based on the type of containment system used at the operation, EPA proposed and is finalizing today a rule with two parts for the first eligibility criterion: the first for open manure storage structures and the second for any part of the production area not considered to be open containment.
Consistent with the 2008 supplemental proposal, under the final rule, any CAFO with an open manure storage structure seeking to certify that it does not discharge or propose to discharge is required to perform a technical evaluation under 40 CFR 122.23(i)(2)(i)(A). To demonstrate that the CAFO meets the production area requirement for certification, this evaluation must be conducted in accordance with the elements of the technical evaluation required for open storage new source swine, poultry and veal calf operations seeking to demonstrate no discharge under 40 CFR 412.46(a)(1)(i)-(viii), as revised by this action. EPA clarifies that, although this provision references the new source performance standard (NSPS) for swine, poultry and veal calf operations, this eligibility criterion applies to any unpermitted CAFO with open manure storage seeking to certify that it does not discharge or propose to discharge, not just new sources in the swine, poultry and veal calf sectors with open storage.
Elsewhere in this final rule, EPA is revising the provisions at 40 CFR 412.46(a)(1) to allow such new sources with open containment to meet the no discharge requirement for their NPDES permit using best management practices based in part on a rigorous site-specific technical evaluation that includes use of the most recent versions of the Animal Waste Management (AWM) software, or equivalent software, and the Soil Plant Air Water (SPAW) Hydrology Tool, or an equivalent model. For a discussion of the technical evaluation and the AWM and SPAW modeling tools, see section III.F of this preamble.
Several commenters expressed the need for evaluation criteria specific to beef cattle feedlots, based on their belief that reliance on swine, poultry, and veal calf new source provisions is inappropriate for all animal sectors. As described in more detail in Section III.F of this preamble, AWM software is a planning and design tool for animal feeding operations that can be used to estimate the production of manure, bedding, and process water and determine the size of storage facilities necessary to meet no discharge. AWM (CCE version 2.3.0) currently provides manure characteristics for eight animal types with the ability to modify these characteristics and add animal types as necessary. The field and pond hydrologic analyses conducted with the SPAW model are not specific to any animal species. Therefore beef and dairy
EPA also received comments seeking clarification regarding how the technical evaluation for new source swine, poultry and veal calf operations can apply to existing facilities given that EPA stated in the preamble to the 2003 CAFO rule that the no discharge performance standard was not economically achievable for existing facilities. While EPA has determined that the no discharge performance standard was not appropriate to require for existing facilities on a national basis (
In order to meet the second part of the first eligibility criterion, the final rule requires, in 40 CFR 122.23(i)(2)(i)(B), that any certifying CAFO must demonstrate that all of its production area, as defined at 40 CFR 122.23(b)(8), not just open containment structures, is designed, constructed, operated, and maintained such that there will be no discharge of manure, litter, process wastewater, or raw materials, such as feed, to surface waters. For a CAFO without open containment, this provision requires a demonstration of no discharge from the entire production area. For a CAFO that has an open containment structure, this provision requires a demonstration that the remainder of the production area (other than the open containment structure subject to the demonstration in § 122.23(i)(2)(i)(A)), also will not discharge. Because of the special risk of discharge from open manure storage structures, greater specificity is provided regarding the elements of the demonstration in § 122.23(i)(2)(i)(A); however, the demonstration in § 122.23(i)(2)(i)(B) must be technically sound and must be adequate to demonstrate that the production area is designed, constructed, operated, and maintained for no discharge. This demonstration must be based on an evaluation of site-specific characteristics, including, among others, the amount of manure generated during the storage period, the size of the storage structure, control measures to ensure diversion of clean water, and seasonal restrictions on land application. The preamble to the 2003 rule provides additional information regarding production area design for total containment and closed manure storage systems, such as lagoon covers, underhouse pit storage systems, and stockpile storage sheds.
In addition, as proposed under 40 CFR 122.23(i)(2)(i)(C), this final rule requires any certified unpermitted CAFO to implement the measures set forth in 40 CFR 412.37(a) and (b) for the production area. These additional measures pertain to operation and maintenance and include provisions for visual inspections, depth markers for all open surface liquid impoundments, corrective action, mortality handling and recordkeeping. This final rule also requires these measures for permitted new swine, poultry and veal calf operations to meet a no discharge standard. Since both these permitted new source operations and unpermitted certified CAFOs need to ensure no discharge from the production area under the permit and certification requirements, respectively, it is appropriate to rely, in part, on those provisions to establish eligibility criteria for no discharge certification. The documents that are necessary to satisfy the first eligibility criterion, which addresses the CAFO's design, construction, operation, and maintenance of the entire production area, include design documentation and all recordkeeping and operation and maintenance planning necessary to address the elements of § 122.23(i)(2)(i), which includes the measures set forth in § 412.37(a) and (b).
In the preamble to the 2008 supplemental proposal, EPA requested comment on whether a recordkeeping checklist for use by certified CAFOs would be a useful tool. EPA suggested the possibility of making such a checklist available to all CAFO operators. Commenters generally supported the concept of a recordkeeping checklist that could be used by certified CAFOs, since the checklist could be used to document “expectations for risk management.” Commenters added that the checklist should be developed in concert with the States. EPA plans to work with States to develop a checklist and consider whether State-specific checklists would also be appropriate.
The second eligibility criterion requires the CAFO to have developed and be implementing an NMP that addresses, at a minimum, the elements set forth in § 122.42(e)(1) and 40 CFR 412.37(c), and all site-specific operation and maintenance practices necessary to ensure that the CAFO will not discharge. The NMP must include provisions regarding nutrient management in the production area as well as in all land application areas under the control of the CAFO where the CAFO will land-apply manure. Because operation and maintenance practices and procedures are critical to discharge prevention, implementation of an NMP is an essential component of any CAFO's efforts to ensure that it will not discharge from its production or land application areas. Furthermore, in order for any certified CAFO that land applies to ensure that the only discharges from the land application areas are non-point source agricultural stormwater discharges, the CAFO would, at a minimum, need to land apply in accordance with practices that ensure appropriate agricultural utilization of nutrients, including conservation practices and agronomic rates of application. For detailed discussion of unpermitted CAFOs and the agricultural stormwater exemption, see section III.B of this preamble.
EPA received comments indicating that the final rule should establish a link between a facility's open storage structure design and the land application practices outlined in a CAFO's NMP. In the 2008 supplemental proposal, EPA intended that the CAFO's NMP would reflect any operation and maintenance practices related to and assumed in the technical evaluation performed for open containment structures. To clarify this intent, 40 CFR 122.23(i)(2)(ii)(B) of this final rule states that the operation and maintenance practices required to be part of the NMP must include “any practices or conditions established by a technical evaluation pursuant to paragraph (i)(2)(i)(A),” the provision applicable to CAFOs with open containment. For example, an existing facility may develop an NMP and then use AWM and the SPAW model to evaluate the adequacy of the designed storage facility and overall water budgets for the operation, respectively, which will rely upon inputs from the CAFO's NMP such as the number and type of animals, soil profiles and planned crop rotations. In such a scenario, the CAFO may learn from the technical evaluation that more frequent lagoon drawdowns are necessary in order to achieve no discharge. To be eligible for certification under the final rule, the CAFO's NMP
Commenters requested that EPA define what criteria can be used to meet the NMP eligibility requirement (
As discussed below, 40 CFR 122.23(i)(4) requires the certified CAFO to at all times be designed, constructed, operated, and maintained such that it meets the eligibility criteria to establish that the operation does not discharge or propose to discharge. Thus, to maintain a valid certification, a certified CAFO must update its NMP if any of the design specifications, practices, or other NMP provisions change over time. For example, if a certified CAFO operator decides to land-apply manure on a field that is not included in the NMP, the CAFO will need to calculate rates of application in accordance with the protocols for land application consistent with 40 CFR 122.42(e)(1)(viii) and revise the NMP to include the new field and the corresponding application rates and any other land application practices for the field in accordance with the protocols. Furthermore, since the eligibility criteria require the certified CAFO to implement the “up-to-date” NMP, the CAFO would then need to land apply in accordance with the application rates and other practices incorporated into the NMP for that field.
In the 2008 supplemental proposal, EPA stated that it would encourage CAFOs seeking certification to consult with qualified third-party professionals, but did not propose to require such consultation. Some commenters supported EPA's position, while others believe that a third-party validation of the certification by an NRCS-certified technical service provider and professional engineer should be a required element of the eligibility criteria. Commenters expressed concerns that many CAFOs do not have the requisite knowledge to make technically sound determinations regarding how to meet the eligibility criteria for certification. EPA continues to believe that it is appropriate that the third-party consultation be recommended but not required because certification is voluntary and it is the CAFO owner or operator who must certify to the operation's eligibility. Because a CAFO's certification will not be approved by the permitting authority, it is up to the CAFO operator to be certain that the certification is valid in order to benefit from the presumption that it does not propose to discharge. Therefore, EPA recommends consultation with a qualified third-party. As stated in the preamble to the 2008 supplemental proposal, any professional consulted by the CAFO should have the requisite training, experience and expertise to conduct and/or substantively review the required analyses, and to advise the owner or operator as to whether the CAFO is, in fact, designed, constructed, operated, and maintained such that it will not discharge.
The third eligibility criterion for certification established by this final rule, 40 CFR 122.23(i)(2)(iii), requires that the CAFO maintain the documentation required by the first two criteria “either on site or at a nearby office, or otherwise make such documentation readily available to the Director or Regional Administrator upon request.” The 2008 supplemental proposal included a regulatory requirement that the NMP and other documentation of eligibility be maintained by the CAFO “on site.” Many commenters expressed the need for the final rule to include regulatory language allowing all documentation of the certification eligibility criteria to be held on-site or made readily available upon request. These commenters were primarily concerned that a requirement to maintain the documentation on site would be unreasonably burdensome on facilities that have multiple production sites with one central office. EPA agrees that the documentation necessary to demonstrate certification eligibility, including the CAFO's site-specific NMP, should be maintained either on site or at a nearby office, or otherwise made readily available to the permitting authority upon request. The final rule established today includes this revision to the proposed language, which is also consistent with the provision established today applicable to the agricultural stormwater discharge exemption for unpermitted CAFOs, discussed in section III.B of this preamble. EPA recommends that operators maintain the necessary documentation on-site to ensure proper implementation of all operation and maintenance procedures.
Under the certification option promulgated by this action, a CAFO seeking to certify that it does not discharge or propose to discharge is required to submit the certification to the permitting authority. Under 40 CFR 122.23(i)(3), the submission to the Director must include: (1) The CAFO owner or operator's name, address and phone number; (2) information regarding the CAFO's location, including latitude and longitude; (3) a description of the basis for the CAFO's certification that it satisfies the eligibility requirements of 40 CFR 122.23(i)(2); (4) the certification statement set forth in 40 CFR 122.23(i)(3)(iv); and (5) an official signature that meets the signatory requirements of 40 CFR 122.22.
The signed certification makes the CAFO legally responsible for its representations to the Director regarding the design, construction, operation, and maintenance of the CAFO. As EPA noted in the preamble to the 2008 supplemental proposal, the language regarding legal liability for making a false statement under the certification option is consistent with language in 40 CFR 122.26(g) which applies to facilities seeking to obtain a “no exposure” exclusion from the requirement for an industrial stormwater discharge permit. EPA clarifies that under the applicable signatory requirements in § 122.22, signing the certification signifies that the signer is certifying that the certification was prepared under his/her direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted and that based on the responsible official's inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the
This final rule makes no changes to the existing regulations concerning how CAFOs may make Confidential Business Information (CBI) claims with respect to information they must submit to the permitting authority and how those claims will be evaluated. A facility may make a claim of confidentiality under the existing regulations at 40 CFR part 2, subpart B.
The third item the Agency is requiring for submission to the Director, as listed above, is a statement describing the basis for the CAFO's certification that it is designed, constructed, operated, and maintained in accordance with the certification eligibility criteria. EPA's expectation for what this description should include is unchanged from the 2008 supplemental proposal. In the preamble to the 2008 supplemental proposal, EPA requested public comment on whether the scope and type of information included in the description of eligibility submitted to the Director should include: (1) The type and number of animals; (2) the type and capacity of manure and wastewater storage and/or containment; (3) storm size used as the basis for containment design; (4) whether the CAFO consulted with a professional engineer or technical service provider (TSP); (5) identification of the documents maintained on site in accordance with the eligibility criteria; and (6) any technical standards, tools (
Commenters expressed differing viewpoints as to what documentation must be provided to the Director for the no discharge certification. Some commenters felt that the 2008 supplemental proposal would have required the submission of too much information, and that CAFOs should only be required to submit a list of the documents created to establish a facility's eligibility. Some of these stated that submission of any facility design or operation specifics is superfluous given that there is no review by the permitting authority. In contrast, other commenters believed that the extent of documentation to be submitted to the Director was insufficient to establish that a facility is designed, operated, and maintained in a way to ensure that it is not discharging. Specifically, these commenters desired that submissions include all documents associated with meeting the eligibility criteria for certification.
After consideration of these comments, EPA believes that the list of information presented in the preamble to the supplemental proposal balances the need of the Director to be informed of critical aspects of the certified CAFO's operation with the fact that the certification is not subject to review by the Director in order to become effective. It is reasonable that the description of the CAFO's basis for certification be submitted as part of the certification, including the type of information listed above, as proposed in the supplemental proposal. EPA also recognizes that depending on site-specific conditions at a particular facility, certain information may not be necessary (
The authority given to the permitting authority under section 308 of the CWA to conduct inspections at operations is not affected by this rule. Section 308 authorizes, among other things, EPA to require owners or operators of point sources to establish records, conduct monitoring activities and inspections, and make reports, to enable the permitting authority to determine whether there is any violation of any prohibition, or any requirement established under section 308, 402, or 504 of the CWA. Therefore, any CAFO, whether it is certified, permitted, or neither, may be subject to an information gathering request or inspection, at the Director's discretion and for any of the reasons provided by section 308 of the CWA. 33 U.S.C. 1318.
Under this final rule, 40 CFR 122.23(i)(4), a “certification that meets the requirements of paragraphs (i)(2) and (i)(3) * * * shall become effective on the date it is submitted, unless the Director establishes an effective date of up to 30 days after the date of submission.” A certification is effective if the CAFO meets the eligibility criteria in § 122.23(i)(2) and submits the signed certification statement and other required information in accordance with § 122.23(i)(3). This rule also requires the use of certified mail or an equivalent method of documentation for identifying the date of submission, consistent with the supplemental proposal, in order to notify the Director that the CAFO has chosen to self-certify.
EPA notes that under the final provision, the Director may, but is not required to, establish that certifications will become effective after a specified number of days, not to exceed 30 days, following submission of the certification if the Director deems such action appropriate, as discussed below. Regardless of whether the permitting authority chooses to establish an effective date in accordance with § 122.23(i)(4), a certification becomes effective (either on the date it is submitted or on the date established by the Director) without acceptance or approval by the permitting authority. A decision by the permitting authority to delay the effective date would allow the permitting authority to become aware of the CAFO's certification prior to it going into effect. A delayed effective date of up to 30 days could provide the opportunity for the permitting authority and the CAFO to have a focused exchange of information before the certification becomes effective. For example, as a result of such an exchange the CAFO may choose to consider making revisions to its certification to be assured it has submitted a certification that meets all the requirements of § 122.23(i)(2) and (3). Also, such an exchange could provide an opportunity for the CAFO to obtain additional information about maintaining a valid certification after it goes into effect. The permitting authority can also request information from an unpermitted CAFO, as provided in section 308 of the CWA, and provide feedback to the CAFO operator if the Director believes that the CAFO has not met the certification requirements.
EPA emphasizes that the final rule does not require Director review of the certification. Therefore, if, for example, the permitting authority establishes that certifications in that State will become effective 30 days after submission, a certification from a CAFO that has met the eligibility and submission requirements in § 122.23(i)(2)-(3) will go into effect on day 30 regardless of any activities that take place during the 30-day period, so long as the CAFO maintains eligibility throughout that period. Similarly, because the certification is not subject to permitting authority review and approval, inaction on the part of the permitting authority at any time during or after the 30 days does not indicate that the CAFO either has or has not met the eligibility and submission requirements. An effective date that is no more than 30 days after submission provides sufficient time for the permitting authority to receive the certification and have an exchange with
EPA received comments concerning the submission process for no discharge certifications. Numerous commenters expressed concerns with the lack of any explicit requirement for Director review and approval of certifications. Some commenters asserted that the lack of review and public participation under the 2008 supplemental proposal violates the CWA and the
EPA does not agree that the lack of a requirement for Director review is contrary to the CWA or the
This rule includes several limitations on certification related to the term of a certification, withdrawal of certification, and recertification after a certification becomes invalid.
Consistent with the 2008 supplemental proposal, under this final rule, a no discharge certification will expire five years after the effective date, unless the CAFO voluntarily withdraws the certification or the certification becomes invalid (
After considering the comments regarding the appropriate term for certification, EPA has concluded that the proposed five-year term is appropriate. At the end of this term the certification can be renewed, if desired by the CAFO. Since CAFOs commonly alter their operations over time, it is reasonable for the CAFO to periodically reevaluate and update its certification submission. In addition, renewal every five years does not create an undue burden on the CAFO or the permitting authority because CAFOs that have not had major changes in operations may be able to use much of the same documentation as prepared previously, and permitting authorities are not required to review and approve the certification. A shorter term for certification, such as one or three years, is not necessary because a properly certified CAFO needs to evaluate the facility at regular intervals as part of the inspection and recordkeeping requirements. Thus, a five-year term is reasonable.
Under 40 CFR 122.23(i)(5) a CAFO may withdraw its certification at any time by notifying the Director, by certified mail or equivalent method of documentation, that it is withdrawing its certification. The certification is effectively withdrawn on the date the notification is submitted to the Director. If a CAFO's certification becomes invalid as provided in § 122.23(i)(4), discussed below, § 122.23(i)(5) requires the CAFO operator to withdraw its certification within three days of the date on which the CAFO becomes aware that the no discharge certification is invalid. As proposed, this final rule does not require the CAFO operator to notify the Director of the reason for withdrawing the certification because certification is voluntary.
EPA received a number of comments concerning the withdrawal of certification. These comments generally focused on the need for a certified CAFO to provide more information regarding its actions leading to the withdrawal. Some commenters observed that in order to withdraw certification, CAFOs should have to submit the reasons for such withdrawal to the Director. EPA believes it is reasonable for a CAFO to be able to withdrawal its voluntary certification at any time without additional explanation. The decision to certify is voluntary, and thus, it is appropriate to allow a CAFO to decide to withdraw its certification for any reason with no further explanation. However, certain situations require the CAFO to withdraw its certification. This final rule requires that a CAFO withdraw its certification by notifying the Director in the event that the certification is no longer valid, either because of a discharge or because the CAFO ceases to meet the eligibility criteria.
This final rule describes in § 122.23(i)(4) the situations that cause a certification to become invalid. First, in the unlikely event of a discharge from a properly certified CAFO, the
As explained in the 2008 supplemental proposal, once a certification ceases to be valid, the operator cannot rely on it if a subsequent enforcement action is brought for a violation of the duty to apply for a permit that is triggered after the certification becomes invalid. In other words, once a CAFO's certification becomes invalid, the CAFO is in the same position as any other unpermitted and uncertified CAFO. After withdrawing the invalid certification, the operator may be interested in seeking to recertify that the CAFO does not discharge or propose to discharge or, if the CAFO does discharge or propose to discharge, the CAFO is required to seek permit coverage, as stated in 40 CFR 122.23(i)(5)(ii).
In the 2008 supplemental proposal, EPA proposed to allow a previously certified CAFO to recertify by revising its operations to address the deficiency that led to the invalid certification and submitting a new certification statement. Under the proposal, if the certification was rendered invalid by a discharge, in order to recertify a CAFO would have to submit to the Director the information required under 40 CFR 122.23(i)(3) and additional information describing the discharge and the steps taken by the CAFO to permanently address the cause of the discharge. As proposed, such a recertification submission, like the initial submission, would not be subject to review.
Under this final rule, if a CAFO's certification becomes invalid due to a failure to meet the eligibility criteria, as opposed to because of a discharge, and the CAFO wishes to recertify, the owner or operator would need to make the changes necessary to establish eligibility under § 122.23(i)(2). The provisions applicable to the recertification submission and effective date would be the same as for any certification.
Commenters expressed several viewpoints with regard to the proposed provisions for recertification after a discharge. Some commenters supported the recertification process as proposed. These commenters generally recognized that CAFOs may encounter unusual circumstances that result in a discharge and that it is appropriate to allow for recertification once the conditions that resulted in the discharge are addressed. Certain other commenters argued that subsequent to a discharge any recertification should be reviewed by the permitting authority and open to public comment to ensure a rigorous assessment of whether recertification is appropriate. Some commenters asserted that recertification after a discharge should not be allowed at all under the CAFO regulations. Furthermore, some commenters believe it would be inequitable for unpermitted CAFOs to discharge and recertify if other discharging operators are required to seek permit coverage. Several of these commenters asserted that any CAFO that discharges should be required to obtain an NPDES permit.
EPA emphasizes that it will be highly unlikely for a CAFO that is designed, constructed, operated, and maintained in accordance with the eligibility criteria in § 122.23(i)(2) to discharge. Furthermore, EPA maintains its position, stated in the preamble to the 2008 supplemental proposal, that the Agency generally considers a recurring discharge as evidence that a CAFO is not eligible for certification or recertification and needs to seek permit coverage. However, given the possibility of a discharge from a properly certified CAFO, albeit remote, EPA believes it is necessary for the final rule to include provisions specifically for a CAFO seeking to recertify after a discharge.
In response to comments, EPA has established specific criteria in this final rule that limit a CAFO's ability to recertify after a discharge to those situations where (1) the certification was valid at the time of the discharge, meaning the CAFO continued to be designed, constructed, operated, and maintained for no discharge in accordance with all provisions of the NMP and any operation and maintenance plans included in the certification; (2) the operator has made any necessary changes to the CAFO's design, construction, operation and maintenance to permanently address the cause of the discharge and ensure that no discharge from this cause occurs in the future; and (3) the CAFO has not previously recertified after a discharge from the same cause. The first criterion limits the availability of recertification after a discharge by excluding CAFOs that discharge after allowing the certification to lapse. EPA believes that a CAFO that certifies under penalty of law that it is and will continue to be designed, constructed, operated, and maintained so as not to discharge, that then fails to satisfy this criterion and subsequently discharges, should not be given the opportunity to once again obtain the benefits of a no discharge certification. The second criterion ensures that a CAFO will only recertify after it has carefully evaluated the cause of the discharge and taken whatever action is necessary to ensure that a discharge from the same cause will not occur again. Finally, the third criterion constrains a CAFO from engaging in a cycle of recertifying after multiple discharges from the same cause. The voluntary certification option established in this rule is not intended to be a mechanism for discharging CAFOs to avoid obtaining permit coverage, a concern cited by several commenters who opposed the certification option. On the contrary, EPA is providing the certification option to allow CAFOs that meet the eligibility criteria to establish up front that they do not discharge or propose to discharge.
The final rule provides that the CAFO's recertification will not become effective until 30 days from the date of submission. The operator is also required to submit the following information for review by the Director: A description of the discharge, including the date, time, cause, duration and approximate volume of the discharge, and a detailed explanation of the steps taken by the CAFO to permanently address the cause of the discharge. This 30-day review period provides an opportunity for the Director to consider the circumstances leading to the discharge, any actions taken by the CAFO to permanently address the cause of the discharge, and any other relevant
Overall, the limited conditions under which a CAFO can recertify following a discharge, the description of the discharge submitted to the permitting authority, and the required 30-day review period prior to the recertification becoming effective, provide an opportunity for the Director to determine whether the CAFO discharges or proposes to discharge and must seek coverage under an NPDES permit. For example, as provided in 40 CFR 122.28(b)(2)(vi), the Director has the authority to direct that the CAFO be covered under a general permit if one is available.
EPA believes the final rule provisions covering recertification after a discharge provide an appropriate balance of the flexibility offered by voluntary certification and the need for scrutiny of previously certified CAFOs that have discharged. Additionally, under the final rule, any previously certified CAFO that discharges or proposes to discharge is subject to the permit application requirements of 40 CFR 122.23(d)(1) and (f), and therefore must apply when the CAFO proposes to discharge. A CAFO that has permanently addressed the cause of the discharge such that the CAFO does not “discharge or propose to discharge” is not required to seek permit coverage regardless of whether it recertifies. For further discussion of the effects of a past discharge on a CAFO's permit application requirements, see the duty to apply discussion at section III.A.3(a) of this preamble.
The discharge of manure, litter, or process wastewater from a land application area under the control of a CAFO is a discharge subject to NPDES permitting requirements, unless the discharge is an “agricultural stormwater discharge,” which is excluded from the meaning of the term “point source” under 33 U.S.C. 1362(14). In the 2003 CAFO rule, EPA differentiated between discharges from land application areas under the control of the CAFO that are point source discharges and those that are “agricultural stormwater discharges” exempt from NPDES permit requirements.
In the 2003 rule, EPA promulgated a definition of agricultural stormwater for CAFO land application areas that referenced 40 CFR 122.42(e)(1)(vi)-(ix). The referenced regulatory text includes requirements for edge-of-field buffers or equivalent measures, testing of manure and soil, land application at site-specific agronomic rates, and recordkeeping. While not explicitly included in the definition of agricultural stormwater, technical standards established by the Director, in accordance with effluent limitations guidelines (ELGs) in 40 CFR 412.4(c) applied to Large CAFOs' nutrient management plans for land application. These more specific limitations implemented the general requirements at § 122.42(e)(1)(vi)-(ix), and because the 2003 rule required all CAFOs with a potential to discharge to obtain permits, virtually all Large CAFOs were required to comply with them.
The Second Circuit upheld EPA's definition of agricultural stormwater established by the 2003 rule. In addition, ELG requirements of 40 CFR 412.4(c) concerning land application for Large CAFOs were not challenged. The court did not, however, specifically address the applicability of these requirements to unpermitted Large CAFOs seeking to claim the agricultural stormwater exemption for land application discharges, in light of its vacature of the duty to apply for all Large CAFOs.
As a result of the regulatory revisions being made by this action in response to the
The 2003 rule at § 122.23(e) specifies how Large CAFOs that have NPDES permits qualify for the agricultural stormwater exemption. Specifically, under the existing regulation, the permit must set forth the site-specific nutrient management practices that ensure appropriate agricultural utilization of nutrients as specified in 40 CFR 122.42(e)(1)(vi)-(ix) in order for precipitation-related discharges from such land application areas to be exempt agricultural stormwater discharges. EPA did not propose to amend the existing agricultural stormwater discharge exemption provision in § 122.23(e), nor has EPA otherwise reopened the provision.
In this rule, however, EPA is adopting a new regulatory provision clarifying what constitutes agricultural stormwater for unpermitted Large CAFOs. The
In the preamble to the 2006 proposed rule, EPA also discussed the reference to the documentation requirement found in 40 CFR 122.42(e)(1)(ix). EPA noted that documentation is a crucial element for determining whether a CAFO is land applying manure, litter, or process wastewater in a manner that ensures the appropriate agricultural utilization of nutrients such that any runoff from land application areas under a CAFO's control consists only of exempt agricultural stormwater discharges. 71 FR 37,750.
The provision established in this rule at § 122.23(e)(1) clarifies that in order for unpermitted Large CAFOs to have their precipitation-related discharges qualify as agricultural stormwater discharges, they must land apply manure, litter, or process wastewater “in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in § 122.42(e)(1)(vi)-(ix).” This interpretation of the statutory agricultural stormwater exemption was upheld by the Second Circuit in the
EPA is modifying the interpretation articulated by EPA in the 2006 proposal of how technical standards apply to unpermitted CAFOs seeking to have their precipitation-related discharges from land application areas qualify for the agricultural stormwater exemption. Under this final rule, a precipitation-related discharge from land application areas under the control of an unpermitted Large CAFO constitutes an agricultural stormwater discharge where the CAFO has land applied manure, litter, or process wastewater in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in § 122.42(e)(1)(vi)-(ix). Nutrient management practices and rates of application satisfy the requirements of 40 CFR122.42(e)(1)(viii) when they are in accordance with technical standards established by the Director. The form, source, amount, timing, and method of application of nutrients are essential components of the protocols for land application of manure, litter, or process wastewater specified in § 122.42(e)(1)(viii). As explained below, CAFOs that land apply using nutrient management practices based on standards other than the technical standards established by the Director would have to demonstrate that such practices ensure the appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater as specified in § 122.42(e)(1)(viii).
Technical standards established by the Director provide an objective basis for determining when precipitation-related discharges from land application areas are exempt from NPDES permit requirements. Such technical standards are reviewed and determined by the permitting authority to provide a technically sound framework for establishing rates of application that generally would satisfy the requirements of § 122.42(e)(1)(viii). Such technical standards specify the method or methods for determining whether land application rates are to be based on nitrogen or phosphorus, or whether existing nutrient loads in the soil preclude land application, and also address the form, source, amount, timing, and method of application on each field to achieve realistic production goals while minimizing movement of nitrogen and phosphorus to surface waters. Thus, technical standards provide an objective and reliable framework for developing rates of application and other practices for each field, taking into account a range of critical factors. For purposes of § 122.42(e)(1)(viii), rates of application developed using technical standards must encompass and include all of the factors discussed above.
Because the technical standards established by the Director represent the permitting authority's judgment as to practices that ensure appropriate agricultural utilization of nutrients, as discussed above, they provide a sound basis for determining and documenting that a precipitation-related discharge from land application areas will meet the requirements of § 122.42(e)(1)(viii). If a facility chooses to take a different approach and follow other standards, the facility would need to demonstrate not only that its practices accorded with such alternative standards, but also that the standards provided a reliable, technically valid basis for meeting the terms of § 122.42(e)(1)(viii). While technical standards established by the Director would have undergone careful review by the Director to determine their validity for purposes of applying the agricultural stormwater exemption, there may not have been a comparable review in place for alternative standards. Thus, the CAFO may have to demonstrate both the appropriateness of alternative standards and that its practices conformed to them in order for its discharges to qualify for the agricultural stormwater exemption.
EPA recognizes that there may be other standards that are developed besides those established by the Director that may also provide guidance to producers regarding appropriate agronomic nutrient management practices and the development of rates of application. Under this rule, owners and operators of unpermitted CAFOs are not precluded from relying on such other standards. However, while other
In determining whether a CAFO's site-specific nutrient management practices do “ensure appropriate utilization of the nutrients” in the land applied manure, litter, or process wastewater, EPA will evaluate an unpermitted CAFO's nutrient management practices using the technical standards established by the Director as a baseline and expects the same of authorized States. As discussed, EPA considers the technical standards established by the Director to be a sound measure for determining whether the form, source, amount, timing, and method of application meet the requirements of § 122.42(e)(1)(viii).
As noted above, in order for an unpermitted Large CAFO without an NPDES permit to establish that the only precipitation-related discharges from its land application areas are agricultural stormwater discharges, it must have documentation showing that its nutrient management practices are in accordance with § 122.23(e)(1). This is not a new concept, as one of the requirements specified in § 122.23(e) promulgated in the 2003 rule is to maintain documentation as required by 40 CFR 122.42(e)(1)(ix). Section 122.42(e)(1)(ix) requires specific records to be maintained to document the implementation of the elements of § 122.42(e)(1)(vi)-(viii). As stated in the preamble to the 2006 proposed rule, the necessary documentation includes both the nutrient management planning documents and the additional recordkeeping that demonstrates the actual nutrient management practices that have been implemented.
It is reasonable and appropriate that unpermitted CAFOs be required to demonstrate that their nutrient management practices, including rates of application, meet the regulatory definition of agricultural stormwater promulgated in 2003, and to do so means maintaining documentation of their nutrient management practices. Without adequate documentation, it would be difficult, if not impossible, to know whether such precipitation-related discharges are unpermitted point source discharges or are exempt agricultural stormwater discharges.
Because unpermitted CAFOs are not subject to the place and time recordkeeping requirements of § 122.42(e)(2), EPA is in this rule requiring that unpermitted CAFOs that land apply manure, litter, or process wastewater maintain on site or at a nearby office, or otherwise make available upon request documentation showing that precipitation-related discharges from their land application areas are agricultural stormwater discharges. The requirement for documentation is referenced in § 122.42(e)(1)(ix), and is authorized by section 308(a) of the CWA. Section 308(a) gives EPA authority to require any point source to establish and maintain records for determining whether “any person is in violation” of a prohibition, including the section 301(a) prohibition against point source discharges unless authorized under an NPDES permit. Section 308(a)(4) authorizes EPA to require records, reports, and other information when required to carry out provisions of the CWA, including sections 301 and 402. The inclusion of this requirement for unpermitted CAFOs to keep the documentation on site or to make it readily available upon request is for the purpose of giving States and EPA a basis for determining whether the CAFO's land application discharges are within the statutory exemption for agricultural stormwater. EPA expects that, in general, CAFOs will maintain their nutrient management plans for land application on site because they set out the protocols that must be followed in practice. Documentation of the site-specific nutrient management practices that is not produceable to an inspector at the time of a permitting authority's inspection would not be considered to be made “readily available” and, further, would raise questions as to whether it is actually being properly used by the CAFO.
EPA received comments in support of its position that a facility need not have an NPDES permit in order for precipitation-related discharges from land application areas to be deemed agricultural stormwater discharges. Other commenters disagreed for a variety of reasons. First, commenters asserted that the proposal was inconsistent with the approach EPA established in the 2003 rule. Second, some commenters argued that allowing the CAFO owner or operator to determine whether its nutrient management practices meet the requirements of the rule creates a similar “impermissible self-regulatory permitting scheme” as that struck down by the Second Circuit Court of Appeals in the
EPA does not agree that only CAFOs with NPDES permits should be allowed to claim that discharges from their land application areas are agricultural stormwater discharges. The question is whether a precipitation-related discharge from a CAFO's land application area is exempt from permitting requirements as an “agricultural stormwater discharge” or whether it is a point source discharge that requires a permit. As the Court of Appeals for the Second Circuit reiterated in the
For the same reason, EPA does not agree that a self-regulatory regime is created by allowing unpermitted CAFOs to claim that precipitation-related discharges from their land application areas are exempt if they land apply manure, litter, or process wastewater in accordance with appropriate nutrient management practices as required by § 122.23(e). In the context of the agricultural stormwater discharge exemption, nutrient management practices are not effluent limitations, which can only be established and enforced through NPDES permits. NPDES permits are authorized by section 402 of the CWA for the “discharge of any pollutant” under the terms of that section, including compliance with effluent limitations. Section 502(12) defines “discharge of a pollutant” and “discharge of pollutants” as “the addition of any pollutant * * * from any point source.” The definition of “point source” in section 502(14) expressly excludes “agricultural stormwater discharges and return flows from irrigated agriculture.” Therefore, NPDES permits are necessary for point source discharges, but not for agricultural stormwater discharges. Consequently, the site-specific nutrient
The
Under the 2003 CAFO rule, an NPDES permit issued to a CAFO must include a requirement for the permittee to develop and implement a nutrient management plan (NMP). At a minimum, the NMP is required to include best management practices (BMPs) and procedures necessary to achieve effluent limitations and standards, to the extent applicable, including the minimum requirements of 40 CFR 122.42(e)(1)(i)-(ix). Effluent limitations for Large CAFOs are set forth in the effluent limitations guidelines (ELG) in 40 CFR part 412, which contain specific NMP requirements applicable to both the production area and the land application areas under the control of Large CAFOs in the cattle, swine, poultry, and veal calf subcategories. For small and medium CAFOs, and other operations not subject to 40 CFR part 412 requirements, effluent limitations, including those applicable to land application areas, are established on the basis of the best professional judgment (BPJ) of the permitting authority pursuant to CWA section 402(a)(1)(B) and defined in 40 CFR 125.3(c)(2).
The U.S. Court of Appeals for the Second Circuit found that the terms of an NMP are effluent limitations and vacated the 2003 CAFO rule insofar as the rule allowed permitting authorities to issue NPDES permits to CAFOs without (1) reviewing the terms of the NMPs; (2) providing for adequate public participation in the development, revision, and enforcement of the nutrient management plans; and (3) including the terms of the NMP in the permit.
To address the court's decision, EPA is revising the 2003 CAFO rule and other provisions of the NPDES regulations to provide for:
• Receipt and review of the NMP by the permitting authority prior to issuing an individual permit or granting coverage under a general permit;
• Adequate public participation prior to issuing an individual permit or granting coverage under a general permit;
• Incorporation of the terms of the NMP into the NPDES permit; and
• The process to address changes to the NMP once permit coverage is granted, for both individual and general permits.
The individual permitting process already allows for review of NMPs by the permitting authority and the public, and incorporation of the terms of the NMP into the individual permit consistent with the CWA. This is not the case, however, for general permits. Given that fact, in promulgating these revisions, EPA is devoting particular attention to the process for issuance of general permits. Furthermore, EPA expects most CAFOs to be covered by general permits.
To effectuate these changes, EPA is revising 40 CFR 122.21, 122.23, 122.28, 122.42, 122.62, and 122.63. As mentioned above, EPA extended the deadlines set in the 2003 CAFO rule for NMP development and implementation, as well as for newly defined CAFOs to seek permit coverage in separate rulemakings. 71 FR 6978 (February 10, 2006); 72 FR 40,245 (July 24, 2007).
The preamble discussion that follows is divided into eight sections to separately address each of the following issues:
• CAFO permit application or notice of intent requirements;
• Procedures for permitting authority review and public participation prior to permit coverage;
• Identification of terms of the NMP;
• Process for incorporating terms of the NMP into a general permit;
• Changes to a permitted CAFO's NMP;
• Process for review of changes to an NMP and for modifying terms of the NMP incorporated into the permit;
• Annual reporting requirements; and
• EPA nutrient management plan template.
EPA is revising 40 CFR 122.21(i)(1)(x) to require the applicant to submit, as part of its permit application or notice of intent (NOI) to be covered by a general permit, an NMP developed in accordance with the provisions of 40 CFR 122.42(e) and, for Large CAFOs subject to subparts C or D of 40 CFR part 412, the requirements of 40 CFR 412.4(c), as applicable. Although this change is codified in the section of the regulations applicable to individual permit applications (40 CFR 122.21(i)(1)), it also applies to NOIs, because the regulation governing NOIs (40 CFR 122.28(b)(2)(ii)) cross-references the requirements of § 122.21(i)(1). EPA revised Application Form 2B to reflect these changes, and the revised form is provided as Appendix A of this notice.
The final rule adopts the approach that EPA proposed. This approach is consistent with the
In the 2006 proposed rule, EPA proposed requiring an applicant to submit, as part of its permit application or NOI, an NMP developed in accordance with the provisions of 40 CFR 122.42(e)(1) and if applicable, 40
Many commenters supported the proposed requirements to submit NMPs with the initial permit application or NOI. One State commented that a CAFO should be allowed to submit the NOI information in batches so that the permitting authority could begin processing the NOI before a facility has completed its NMP to prevent delays in the review and approval process. The commenter added that authorization to discharge under the permit could not be granted until the permitting authority had received, processed, and reviewed all required NOI and NMP information according to the regulations.
Nothing in this rule prohibits permitting authorities from accepting permit application information in batches, provided that the application information and submission process satisfies all applicable requirements. For example, existing NPDES regulations address, in relevant part, the effective date of an application and the processing of a permit.
EPA received some comments suggesting that the Director issue a general permit that defines the terms of the NMP and details BMP options for a range of possible conditions combined with a requirement for the CAFO to submit a summarized NMP. The summarized NMP would include site-specific facility information needed to apply the management approach prescribed by the general permit. One State recommended that, for general permits, CAFOs submit a “universal NMP” with their NOI that contains decision-making tools used by producers to determine application rates, dates, and methods rather than including site-specific information in the permit. This would allow for the public to comment on a generic “universal NMP” and would reduce the number of comments that the State regulatory agencies would need to review and consider if comments were provided for each individual NMP submitted for a general permit.
EPA weighed these comments in deciding what information needed to be submitted to the Director for review to comport with the CWA requirements cited by the
EPA also received a comment that production and land application areas should have separate permitting requirements such that a facility that does not land apply would not need to submit an NMP that addresses its land application area. EPA is not revising the NMP requirements established in the 2003 CAFO rule that added land application requirements for permitted CAFOs. Under the NPDES regulations established in the 2003 rule, permits issued to CAFOs apply to the entire facility, including land application areas. Furthermore, the NMP provisions address discharges that can originate either from production areas or from land application areas. Thus, NMPs have been designed to be comprehensive documents required of all permitted CAFOs. The NMP provisions at § 122.42(e)(1) must be included in a CAFO's NMP “to the extent applicable.” Thus, if a facility does not land apply manure, litter, or process wastewater, the land application provisions of the regulation would not be applicable. CAFOs should note, however, that even facilities that do not land apply manure, litter, or process wastewater, but transfer all manure, litter, or process wastewater to other persons, are required by 40 CFR 122.42(e)(3) to provide the “most current nutrient analysis” to the recipient.
Although EPA is not revising the substantive requirements of paragraph (e)(1) in this rule, EPA is modifying the introductory paragraph to conform to the procedural requirements promulgated in this rule. Because this rule requires an NMP to be submitted as part of the CAFO's permit application or NOI, EPA is removing, from paragraph (e)(1), the permit condition for development of an NMP once permit coverage is granted. EPA is thus revising § 122.42(e)(1) simply to require that any individual or general NPDES permit issued to a CAFO require the implementation of an NMP that contains best management practices (BMPs) as specified in 40 CFR 122.42(e)(1)(i)-(ix) and the applicable effluent limitations and standards. Applicable effluent limitations include, for Large CAFOs, the requirements of 40 CFR part 412, and for other CAFOs BAT requirements set on a best professional judgment (BPJ) basis.
EPA notes that the definition of “BMPs” in the NPDES regulations (40 CFR 122.2) is very broad and includes both practices and procedures to be implemented by a permittee. For this reason, EPA is also changing the phrase in the introductory paragraph of § 122.42(e)(1) concerning the contents of an NMP from “best management practices and procedures” to simply reference “best management practices” without intending any change in the actual scope of what must be included in an NMP.
This rule promulgates 40 CFR 122.23(h), which provides new general permit procedures for CAFO general permits. The provisions of § 122.23(h) supplement the general permitting requirements of 40 CFR 122.28 with specific provisions for review and incorporation of CAFO NMPs into general permits for CAFOs. These provisions implement the decision of the
After the permitting authority receives an application or an NOI from a CAFO, it is the permitting authority's responsibility to review the application or NOI to ensure that it meets the requirements of the regulations, and for general permits, the requirements of the general permit. This includes determining whether the nutrient management plan meets the requirements of 40 CFR 122.42(e)(1) and, for Large CAFOs subject to 40 CFR 412 subpart C or D, the applicable requirements of 40 CFR 412.4(c). As part of that process, the Director must review the NMP for both completeness and sufficiency, as required by the
The general permit issuance process and the individual permitting process
For individual permits, the NMP will be submitted and reviewed as part of the permit application. The decision-making procedures in 40 CFR part 124 apply to the Director's review of the application, which includes the NMP. Part 124 requires review of the completeness and sufficiency of the permit application, includes an opportunity for the CAFO to modify the plan or provide additional information to the permitting authority, and requires a final decision by the Director after an opportunity for the public to comment and request a hearing.
Although a review process for data submitted by applicants, including NMPs, is already provided for in existing NPDES regulations that address issuance of individual permits, such a process has not previously been expressly available in the regulations for CAFO general permits. Following the
As discussed above, the
In the 2006 proposed rule, EPA proposed a new regulatory provision to establish permitting authority review of NMPs for general permits. This provision would require the Director to review the NMP submitted with the NOI and to take appropriate steps to ensure that the NMP meets the applicable requirements of 40 CFR 122.42(e)(1) and, for Large CAFOs, 40 CFR 412.4(c). Upon review of the NMP, the permitting authority would request from the CAFO owner or operator any additional information needed to complete the NOI or clarify, modify, or supplement the submitted material. The permitting authority would then notify the public of its receipt of a complete NOI and of the terms of the NMP proposed to be incorporated into the general permit. After allowing time for public comment and a public hearing, if needed, the permitting authority would decide whether to authorize coverage under the general permit.
Many commenters disagreed with the proposed modified general permit process that would add permitting authority review of the NMP. The primary concern was that the permitting authorities may have insufficient resources to review all NMPs, which could limit the usefulness of general permits. To address this concern, a number of commenters suggested variations on the proposed process. These suggestions are addressed in more detail below under the corresponding discussion for the respective stage of the general permitting process.
The
The procedure for review and notice of CAFO NOIs and NMPs will impose some increased burden on permitting authorities and will add steps to the process of administering a general permit. However, EPA has worked to adapt these new requirements to a two-stage review process that comports with the
Commenters stated that EPA should establish a correlation between the timing of the application process and permit coverage. These commenters wanted the regulation to automatically authorize discharges within 60 days from the date of application/NOI submission unless the permitting authority denied permit coverage within that period, even if the public review process was incomplete. They took the view that CAFOs should not be penalized by a review process that could vary in length based on factors out of the control of the CAFO. Similarly, some commenters stated that EPA's final regulation should provide a clearly defined process with a limited length of time for permitting authority review. Suggestions for a time limit ranged from 30 to 60 days.
To provide permitting authorities flexibility to review NMPs of varying complexity, this action does not require a specific timeframe for completion of the permitting authority review process. This approach is consistent with the existing NPDES regulations in part 124 for other industries, which similarly do
Commenters expressed concern over the additional workload that reviewing individual NMPs would create, and suggested alternatives to reduce permitting authority workload, including: Submission of a “universal NMP” with permit applications for use in determining application rates, timing, and methods rather than including site-specific information in the permit; and combining a detailed, clear general permit with the submission of a summarized NMP for review.
In developing the 2006 proposed rule EPA evaluated alternative approaches for reducing operator and permitting authority workload. For example, EPA considered the use of an NMP template as a voluntary tool to facilitate completion and review of the NMP by CAFO applicants and permitting authorities, respectively. 71 FR 37,752. Such a template could serve as one of many tools available to support CAFO permitting and reduce permitting authority workloads. See preamble section III.C.3(h) for a discussion of the template. EPA also plans to develop additional tools and guidance to reduce the burden on both the CAFO operator and the permitting authority to meet the requirements of the NPDES regulations. For example, EPA is developing a training course that focuses on development and review of NMPs to comport with this final rule. EPA plans to first make the course available to State and federal permitting authorities in 2009.
Another possible approach for minimizing permitting authority resource expenditures is utilizing a third-party for NMP review. A few commenters noted that having permitting authority staff review NMPs that have already been prepared by a State-certified planner is duplicative and unnecessary. Commenters believe that, due to their extensive training, certified planners are in the best position to review and certify NMPs coupled with appropriate public agency oversight. This is one State commenter's established NMP review process. Commenters noted that, in some States, another State agency (typically the State agricultural agency) reviews and approves NMPs. A State commenter asserted that the final rule would meet the intent of the
The permitting authority is responsible for reviewing NMPs and for ensuring that the terms of the NMP meet the applicable requirements of the NPDES process. There is no reason, however, why a State cannot obtain assistance and advice from technical experts, or tailor its review based on the development or certification of NMPs by State-certified nutrient management planners. However, it is the permitting authorities' responsibility to ensure that comments are properly addressed and the final permit terms are incorporated.
Regarding the increased workload permitting authorities may experience due to review of NMPs, EPA notes that 30 out of the 44 States that regulate CAFOs currently require NMPs to be submitted with a CAFO's request for NPDES permit application coverage. Further, 28 of these States allow for public review of these NMPs. Thus, even though EPA did not specifically require this in the 2003 CAFO rule, such a review process already exists for many State regulatory authorities.
In the
As previously discussed, procedures for public participation in the issuance of individual permits are already established in the NPDES regulations.
To preserve the option of general permits for CAFOs and to conform to the
In § 122.23(h), the rule establishes new general permitting procedures for CAFOs that require permitting authorities to incorporate the terms of site-specific NMPs, which must be submitted with the NOI, into CAFO general permits when authorizing coverage under a general permit. These procedures require the Director to notify the public that the permitting authority is proposing to grant coverage for a facility under the general permit and make available for public review and comment the CAFO's NOI (including its NMP) and the draft terms of the NMP to be incorporated into the permit. The public will also have an opportunity to request a hearing on this information before the CAFO is authorized to discharge under the general permit.
After making a preliminary determination that the NOI meets the requirements of 40 CFR 122.21(i)(1) and 122.42(e), the Director has discretion as to how best to provide the requisite public notification in the general permit context. For example, public notification may be provided on the permitting authority's Web page or through other electronic means. Another alternative is to use the notice or fact sheet for the general permit to establish a procedure allowing any person to request notice by mail or electronically of the receipt of an NOI, the permitting authority's proposed action, and the terms of the NMP proposed to be incorporated into the permit. These are appropriate ways to balance the competing concerns of providing adequate notification to the public, providing flexibility to the permitting authority, and ensuring the practicality of general permits.
Under this rule, the Director also has discretion to establish an appropriate period of time for public review of the NOI and draft terms of the NMP proposed to be incorporated into the permit. Under 40 CFR 122.23(h)(1), the Director may establish by regulation or in the general permit an appropriate period of time for the public to comment and request a hearing. This differs from the specifications in 40 CFR 124.10, which sets a 30-day public notice period for proposed coverage under individual permits. Having the
As mentioned above, the Director must also provide an opportunity for the public to request a hearing. The procedures for requesting and holding a hearing on the terms of the NMP to be incorporated into the general permit are the same as those for draft individual permits, which are provided in 40 CFR 124.11 through 40 CFR 124.13. When granting permit coverage, the Director must respond to all significant comments received during the comment period as provided in 40 CFR 124.17, and if necessary, require the CAFO owner or operator to revise their NMP.
Additionally, under the procedures promulgated in § 122.23(h)(1) of this rule, if after the public notice period and the conclusion of any hearings, the Director decides to authorize discharge under the permit, the permitting authority must notify the CAFO and inform the public. Such notification is necessary to ensure that the applicant and interested individuals are aware of the Director's final decision on granting authorization to discharge under the general permit and incorporating site-specific NMP terms into the general permit. Furthermore, the provision provides notification equivalent to that required when CAFOs are issued coverage under individual permits consistent with this rule revision.
EPA is promulgating 40 CFR 122.23(h)(2), which establishes additional procedures for EPA-issued permits. Paragraph (h)(2) requires the EPA Regional Administrator to notify each person who has submitted written comments on the proposal to grant permit coverage and the draft terms of the NMP of the final permit decision. A person affected by the general permit can either challenge the general permit in court, or apply for an individual permit as authorized in 40 CFR 122.28.
The public notice process described above also includes providing notice to other affected States, as required by the CWA. Section 402(b)(3) of the CWA provides that the Administrator, in approving a State program, shall make sure the State has adequate authority to ensure notice to “any other State the waters of which may be affected.” Section 402(b)(5) provides that the Administrator must ensure that any State “whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State,” and that if those recommendations are rejected, the permitting State must notify the affected State in writing of the reasons for the rejection. The public notice provisions in this rule provide notification to affected States as well as to the public in general. Additionally, the permitting authority's response to all significant comments will include responses to comments from affected States.
This rule balances several competing concerns regarding public participation procedures for general permitting of CAFOs. First, the final rule maintains the utility of a general permit program as a resource-efficient method by which to authorize multiple CAFOs under an NPDES permit while meeting the Second Circuit's directive to “provide for adequate public participation” in the development of site-specific effluent limitations.
The 2006 proposed rule included procedures for public review of NOIs and draft terms of the NMP substantially the same as the procedures promulgated today in § 122.23(h). EPA solicited comment on the proposal to give the Director discretion regarding the means of public notification and the length of the public notice period, and also on the possibility of fixed minimum time frames for public review. The Agency also specifically sought comment on whether the proposed public participation process achieved an appropriate balance between the competing interests of maintaining the utility of general permits for CAFOs and providing adequate public review of permit terms.
Several commenters expressed concern that public review of the NMP would eliminate the use of general permits, noting that States have limited resources for accommodating a public review process. Several commenters stated that the proposed process provided inadequate opportunity for public input. Some believed that the proposed public participation process is inconsistent with the general permitting approach and that only individual permits are appropriate for CAFOs since the terms of the NMP constitute site-specific effluent guidelines. Others felt that the public participation process needed to begin before the development of the NMP to provide an opportunity for comment on the specific best management practices (BMPs) to be included in the plan.
The procedures for public participation in this final rule preserve the availability of general permits for CAFOs. As discussed above, the changes to the CAFO general permit process made in this rule are necessary to meet the requirements of the
One commenter stated that public access to the entire NMP will strongly compel operators to risk noncompliance by operating without authorization under a permit. Some commenters were concerned that sensitive information will be made available to the public.
EPA understands the sensitivity of some information that may be contained in a CAFO's NMP. However, public availability and permitting authority review of a CAFO's NMP is not a new practice; rather, it is one that is currently employed in many State NPDES CAFO programs. As stated above, 30 of the 44 States that permit CAFOs request that NMPs be submitted as part of their permit application process. In most of those States the permitting authority conducts a comprehensive technical review of the NMPs prior to granting authorization to discharge under the permit. These NMPs have already been publicly available in these States for some time. Moreover, most of these States provide notice to the public of the availability of these plans and seek public review, with some conducting public meetings as well. Any information submitted to the permitting authority as part of a permit application or NOI must be made available for public review and comment, unless it is confidential business information (CBI).
EPA disagrees with commenters who believe that the permitting process provides inadequate opportunity for public input or that such opportunity should arise earlier in the process. The final rule provides ample opportunity for the public to comment on the terms and conditions of the general permit, including for each permitted CAFO, the opportunity to comment on permit coverage and the terms of the NMP. This rule requires that the public have access to the NOI and the NMP when reviewing and commenting on BMPs and other terms of the NMP to be incorporated as enforceable conditions of the permit.
Several commenters supported permitting authority discretion on the method of providing public notice of the opportunity to comment on an NMP or request a hearing. One commenter stated that EPA should allow applications to be processed jointly so that the permitting authority could provide notice to the public of multiple NMPs at the same time. Another commenter supported web-based or other electronic notice. One commenter suggested that the general permit fact sheet be utilized to establish a procedure allowing any person to request notice by mail or electronically of the receipt of an NOI, the permitting authority's proposed action, and the terms of the NMP proposed to be incorporated into the permit. Such an approach would provide flexibility to the permitting authority and reduce the number of notices that must be published.
As stated above, this rule allows the permitting authority discretion as to how best to provide such public notification in the general permit context. For example, public notification may be provided on the permitting authority's Web page or through other electronic means. The final rule does not restrict the ability of a permitting authority to provide notice of multiple NMPs at one time provided the all applicable procedural and substantive permitting requirements are satisfied. However, notice must be adequate, and the opportunity to comment must be meaningful.
Some commenters expressed that EPA should require a minimum of 30 days for public review and that the 2006 proposed rule provided permitting authorities too much discretion. Others stated that the public participation process should be limited, with many suggesting no more than 30 days for an initial submission. In addition, commenters requested that EPA limit the circumstances under which the comment period could be extended. EPA believes that the decision as to how much time should be allowed for public participation is best decided by the Director for reasons discussed above, including that the public will have an opportunity to comment on the length of the public notice period when reviewing either the draft regulations or draft general permit.
EPA also received comments suggesting that EPA specify that each facility would be subject to only one public hearing on a draft permit; that the decision to hold a public hearing on a draft permit and NMP should be based on a finding of a significant degree of public interest and limited to issues germane to permitting; and that public review of a general permit be limited to the terms of the NMP that are incorporated into the permit. Several commenters were concerned that without some limitations, the public review process could be misused. This rule specifies that permitting authorities follow the procedures set forth in § 124.11-124.13. These protocols are well established for NPDES permits and allow the Director to weigh the relevant circumstances in addressing each of the issues raised by commenters.
State commenters were generally supportive of EPA's proposed approach and the flexibility it allows for permitting authorities in the general permit process. In particular, these commenters said that establishing timeframes for public review should be left to the permitting authority.
One State suggested that the public participation aspects of the 2006 proposed rule be limited to only new Large CAFOs and that NMP terms for previously authorized Large CAFOs be made available as part of a modified annual reporting requirement. The public participation requirements in this final rule are applicable to all CAFO NPDES permits. The
EPA regulations applicable to State NPDES programs specify that where notice and opportunity for comment must be provided, a permitting authority must respond to significant public comments (§ 124.17). Several commenters said EPA should specifically narrow what constitutes a significant comment warranting a response by the permitting authority. Their general position was that comments must have a technical or scientific basis, or address errors, omissions, or misrepresentations in order to be considered significant. Some said that comments should be limited only to issues under the purview of the CWA, and generalized grievances about the operation or location should be identified as insignificant and not warrant any response by the permitting authority. Other commenters, namely State agencies, identified the need to provide the permitting authority with flexibility for determining which comments are significant and warrant a response. They also indicated that the permitting authority will have limited resources for responding to all comments on a draft permit and NMP.
EPA intends that this final rule be consistent with existing regulatory provisions addressing public participation in the NPDES program and believes that it provides a reasonable amount of discretion and flexibility for permitting authorities to determine and respond to those comments deemed to be significant.
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In the 2006 proposed rule and 2008 supplemental proposal, EPA discussed how the “terms” of a CAFO's NMP could be identified so as to address the nine minimum required elements in 40 CFR 122.42(e)(1)(i)-(ix)) and 412.4(c) (for Large CAFOs, as applicable).
The 2006 proposed rule preamble identified a number of factors that are necessary to the development of an NMP and discussed the need to allow a CAFO some flexibility in managing its operation. 71 FR 37,753-55. With respect to portions of the NMP that would be incorporated as permit terms, the Agency also proposed regulatory language for accommodating changes to the NMP that involve changes to the terms during the permit period. 71 FR 37,756.
EPA received many comments on the NMP issues highlighted in the 2006 proposed rule preamble concerning the complexity associated with nutrient management planning, particularly with respect to land application, and seeking clarification of what constitutes the terms of the NMP. In particular, commenters sought clarification for terms regarding rates of application, given the complexity of factors used to determine rates of application and the dynamics associated with such factors.
In light of these concerns, EPA in March 2008, issued a supplemental proposal that proposed what elements of the NMP would be terms of the NMP that would be required to be included as enforceable terms of a CAFO's NPDES permit. EPA received many comments on the supplemental proposal that identified the need for some further revisions to EPA's proposed approach concerning the terms of the NMP.
In this final rule, EPA is promulgating 40 CFR 122.42(e)(5) to identify the minimum terms of an NMP to be included in a CAFO's NPDES permit as enforceable requirements of the permit. Paragraph (e)(5) establishes that any permit issued to a CAFO must require the CAFO to comply with the terms of the CAFO's site-specific nutrient management plan.
Paragraph (e)(5) states that the terms of the NMP “are the information, protocols, best management practices, and other conditions” identified in a CAFO's nutrient management plan and determined by the permitting authority to be necessary to meet the requirements of 40 CFR 122.42(e)(1). For Large CAFOs subject to the land application requirements of the effluent limitations guideline, the terms would include the best management practices necessary to meet the requirements of 40 CFR 412.4(c) in addition to the requirements of 40 CFR part 122. This requirement is thus broadly applicable to all of the measures required to be included in a CAFO's NMP. EPA believes that this clarification should address the concerns of some commenters that the proposed terms of the NMP were limited to land application requirements only.
The “information, protocols, best management practices, and other conditions” that constitute the terms of a CAFO's NMP include what the CAFO operator would be required to do to properly implement its NMP and determinative conditions upon which such actions are based. For example, both the structural design capacity necessary to satisfy the storage requirement of 40 CFR 122.42(e)(1)(i) and the associated operational and maintenance conditions necessary to ensure adequate storage, would be considered terms of the NMP. Likewise, the terms of the NMP would need to ensure, for example, proper management of mortalities and diversion of clean water. However, the number of animals confined would not necessarily need to be a term of the NMP because a CAFO operator would be required to properly operate and maintain the CAFO's storage facilities regardless of the number of animals or the volume of manure, litter, or process wastewater generated.
Some commenters asserted that the entire NMP should be included in or expressly referenced by the permit and that all the elements of a CAFO's NMP must be included in a CAFO's NPDES permit so as to ensure that the permit requires the CAFO to comply with every discharge reduction or prevention measure in its NMP. These commenters disagreed with EPA's interpretation of
The Agency agrees that the enforceable terms of the NMP must be clear so as to provide notice, both to the operator and to the public, about what is enforceable and to ensure compliance with the discharge reduction and prevention measures in the NMP. However, EPA does not agree that the all of the information in the NMP constitutes enforceable terms. By establishing the information, protocols, best management practices, and other conditions or activities necessary to meet the requirements of 40 CFR part 122 and part 412, this rule ensures that effluent limitations in the permit will be fully implemented, consistent with the NPDES regulations, the effluent guidelines, and the
Moreover, whether the NMP has been properly developed, whether the information in the NMP is accurate, and whether calculations are correct and consistent with applicable requirements are issues which are properly addressed when the NMP is reviewed by the Director and by the public. This is analogous to the types of calculations and data submitted in a permit application and found in the fact sheet that accompanies a draft NPDES permit for other types of permitted point sources.
Other commenters observed that NMPs do not fit well in this regulatory context due to their design and the way in which they have been used by CAFO operators. Rather, they asserted that NMPs are developed to guide management decisions regarding nutrients and, by necessity, must remain flexible to address the many conditions that affect nutrient generation and management.
The final rule allows for the incorporation of the key NMP terms in a regulatory context without overburdening the permitting process or completely recasting the NMP itself. As discussed above, the terms of the NMP include whatever is contained in the NMP that is necessary to ensure compliance with § 122.42(e)(1) and, for Large CAFOs, 40 CFR 412.4. Additional content of the NMP that is beyond the scope of compliance with those regulatory requirements would not be a term of the NMP.
Some commenters on the 2006 proposed rule urged EPA to provide greater clarity, guidance, and certainty in the final rule on the meaning and significance of the distinction between the NMP and the “terms” of the NMP. As proposed in the 2008 supplemental proposal, the final rule establishes more specific requirements for terms of the NMP applicable to CAFOs that land apply manure, litter, and process wastewater than were included in the proposed rule. For such CAFOs, paragraph (e)(5) includes as terms the fields available for land application, field-specific rates of application, and timing limitations for land application.
As stated above, with respect to land application, the terms of every NMP must include the fields the CAFO plans to use for land application. The site-specific elements of the NMP can only be properly represented in the NMP by the inclusion of field-specific information that must be made available for review by the Director and for public review in determining, for example, the appropriate conservation practices and rates of application to be included in the plan and, ultimately, in the permit. Compliance with the permit during the period of coverage would require any new fields (
Finally, the terms of the NMP must include any timing limitations in the NMP that would make fields unavailable for land application at certain times or under certain conditions.
40 CFR 122.42(e)(1)(viii) requires the nutrient management plan to include “protocols to land apply manure, litter, or process wastewater in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater.” As EPA noted in the 2006 proposed rule, the
This rule promulgates two alternative approaches for expressing the terms of the nutrient management plan with respect to rates of application. 40 CFR 122.42(2)(5)(i)-(ii). Each approach provides a means by which a CAFO may articulate in its NMP annual maximum rates of application of manure, litter, and process wastewater by field and crop for each year of permit coverage and identify the minimum required terms of the NMP specific to that approach. One approach expresses field-specific maximum rates of application in terms of the amount of nitrogen and phosphorus from manure, litter, and process wastewater allowed to be applied. This is called the “linear approach.” The other approach expresses the field-specific rate of application as a narrative rate prescribing how to calculate the amount of manure, litter, and process wastewater allowed to be applied. This is called the “narrative rate approach.”
Each of the approaches requires the CAFO operator to develop an NMP that projects for each field and for each year of permit coverage the crops to be planted, crop rotation, crop nutrient needs, expected yield, amount of nitrogen and phosphorus to be land applied, and projected amounts of manure, litter, and process wastewater to be applied. However, each approach is different in identifying which of these projections would be required to be “terms of the NMP.” In neither approach is the projected amount of manure, litter, and process wastewater to be land applied a term of the permit because these projected amounts must be adjusted at least once a year.
Several commenters suggested that the NMP and permitting authority review of the NMP should focus on how agronomic rates are developed in the NMP rather than the specific rate determined in the NMP, based on the difficulty of developing accurate application rates for a five-year term and because agency review of specific application rates for each field would be too burdensome. As discussed above and in the 2006 proposed rule, the
Rates of application are field-specific and are designed to ensure that crops receive sufficient nutrients to meet yield goals, while minimizing the amounts of nutrients that could be transported from the field. The discussion that follows summarizes the basic process for establishing rates of application in an NMP, in light of the comments received in the 2008 supplemental proposal, as an introduction to the specific discussion of the two approaches promulgated in this final rule.
To develop appropriate land application rates for each field where land application will occur, CAFOs must identify the crops to be planted and the planned crop rotations, or other uses, and the nitrogen and phosphorus needs of these crops or other uses. The NMP also must identify the realistic yield expected from the crop or crops planted in the field, in order to calculate the proper amount of nutrients to apply. A crop's nutrient needs are generally determined in accordance with the nutrient recommendations for a given crop (or other planting, such as forage or pasture) and the per acre realistic yield goal for that crop. The State land grant university typically provides these values or the formulas for calculating these values. The realistic yield goal can also be based on historic field-specific yield data.
Because a CAFO operator could plant more than one crop on a field in a given year, the plant available amount of nitrogen and phosphorus needs to be calculated with reference to the nutrient needs of all the crops to be planted on such field in a given year in order to be accurate. This includes accounting for other field uses, such as pasture and cover crops.
A properly developed NMP must also evaluate the condition of the fields to be used for land application. A field-specific assessment based on soil test nutrient levels and other factors required by the technical standards established by the Director provides information needed to determine whether land application of manure is appropriate for a site. The capacity of the field for manure, litter, or process wastewater application generally depends on the capacity of the soil to retain phosphorus. The phrase “outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field,” as used in this rule, reflects the terminology typically associated with the use of the phosphorus index, which is one of three field-specific risk assessment methods discussed in NRCS conservation practice standard 590. However, in this final rule, EPA is using this phrase to reflect the results of whichever method is required by the technical standards established by the Director, including the soil test phosphorus method and the phosphorus threshold method.
One commenter suggested that, for some States, it may be appropriate to require that the field-specific assessment of the potential for nitrogen and phosphorus transport be conducted on an annual basis. EPA recognizes that some States require, for example, use of a phosphorus index that factors into the calculated risk rating the amount of manure applied to the field in the previous year. EPA agrees that, for these States, it would be appropriate to require recalculation of the phosphorus index on an annual basis and anticipates that such States would include the appropriate requirements in technical standards, permits, or other requirements applicable to CAFOs. Furthermore, EPA encourages CAFO operators to reevaluate field-specific assessments of the potential for nitrogen and phosphorus transport as frequently as necessary to ensure minimization of nutrient transport from each field.
Ultimately, the purpose of the field-specific assessment of the potential for nitrogen and phosphorus transport is to determine the appropriate limiting nutrient for developing land application rates,
In determining rates of application where phosphorus is the limiting nutrient, the amount of phosphorus that may be land applied is based on the annual phosphorus removal rate for each crop or other field use. In deciding how much manure may be land applied, the amount of plant available phosphorus already in the field is not deducted because State technical standards identify the rate of application based on the crop removal rate. Because soil levels tend to change incrementally, depending on the buffering capacity of the soil, and because a phosphorus-based application rate doesn't reduce the amount of phosphorus already in soil, phosphorus-based rates of application may remain relatively constant for a period of several years or longer, so long as the outcome of the assessment of phosphorus transport does not change during that time. However, any multi-year phosphorus application must be done in accordance with State technical standards.
In determining rates of application where nitrogen is the limiting nutrient, the NMP must consider the total amount of plant available nitrogen for each crop from residual nitrogen already in the field and the nitrogen added for a particular field. Residual nitrogen is the nitrogen that remains from prior applications of manure, litter, process wastewater, or chemical fertilizer, or from other sources such as crop residues and nitrogen fixing legumes. The addition of nitrogen to a field includes application of chemical fertilizer as well as application of manure, litter, or process wastewater and other materials such as biosolids.
Crediting for all residual nitrogen in the field that will be plant available, as a result of prior additions (
EPA expects a complete NMP also to account for any other additions of plant available nutrients during the crop year,
The forms of nitrogen and phosphorus to be factored into calculations for rates of application are generally identified in the technical standards established by the Director or in other documentation referenced in the State's technical standards. Typically, the amount of plant available phosphorus is determined based on the amount of various forms of phosphate added to or present in the soil and the amount of organic phosphorus that will mineralize during the growing season. The amount of plant available nitrogen is based on the amount of inorganic nitrogen (
As discussed above, the NMP must include calculations projecting for the length of the permit term the amount of manure, litter, or process wastewater, in tons or gallons, to be land applied in order to meet, but not exceed, crop nutrient needs (after considering residual nutrients and other additions of nutrients and results of the most recent manure test) based on the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport,
Whereas one CAFO operator may wish to follow the planned sequence of steps for planting crops and applying manure, litter, and process wastewater described in the NMP submitted to the Director, another operator may want or need to vary from that linear sequence of events, due to choices made in the course of normal operations, or in response to events or circumstances beyond the CAFO's control, such as weather, crop failure, or market conditions. EPA has addressed this concern in this final rule by including two alternative approaches for determining the terms of an NMP, as discussed below.
As indicated above, EPA is promulgating two approaches for defining the terms of an NMP for rates of application, rather than the three approaches that were proposed in the 2008 supplemental notice. While a number of commenters encouraged EPA to include all three proposed approaches in the final rule to allow operators the greatest number of alternative options, many commenters were critical of the matrix approach. Some commenters suggested EPA should finalize only the narrative rate approach because they felt that the linear and matrix approaches were too inflexible to be useful. Others suggested that the inclusion of three approaches would create a program that is too complicated for permittees, permitting authorities, and the public. One commenter stated that the matrix approach fails to fully address the complexity of the decision-making process facing the CAFO operator. Several industry commenters found the matrix approach to be less flexible than necessary and overly burdensome. Environmental group commenters found the matrix approach to be too rigid to ensure protection of water quality and not inclusive of critical information. In reviewing the comments, EPA agrees that the matrix approach does not adequately address the complexity of the nutrient management decisions to be made by the CAFO operator and that it could result in over-application of manure, litter, or process wastewater. In addition, EPA agrees that having three approaches to identifying terms of the NMP with respect to application rates is unduly complicated and would be unnecessarily burdensome. Moreover, EPA believes that the improvements and clarifications to the linear and narrative rate approaches promulgated in this final rule make inclusion of the matrix approach unnecessary. In considering comments that criticized the inability of the matrix approach, as proposed, to more directly address the complex dynamics relating application rates to crop needs, EPA would have needed to make adjustments that would have made the matrix approach either more like the linear approach or more like the narrative rate approach. As a result, and in consideration of comments stating that including three approaches is unnecessary and burdensome, EPA has decided to eliminate the matrix approach as an option for identifying the terms of the NMP for rates of application.
Some industry commenters indicated that CAFOs should be allowed to choose from either approach as long as they maintain the same approach for the five-year permit term while another industry commenter stated that CAFOs should be allowed to switch approaches during the permit term. This final rule does not address the possibility of switching approaches during a permit term. It is up to the discretion of the Director whether such a change would be allowed. However, because each approach differs in what are the terms of the permit, switching approaches during the permit term would require a permit modification to include the terms of the NMP associated with the selected approach into the permit.
Under both of the approaches, the terms of the NMP are required to include specific factors used for the development of rates of application. These include:
• The outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field;
• The crop or crops to be planted in each field or any other uses such as pasture or fallow fields;
• The realistic yield goal for each crop or use identified for each field; and
• The nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field.
Both of the approaches account for other information necessary for determining the amount of manure, litter, and process wastewater to be land applied. This information relates to: (1)
The first approach (
• The outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field;
• The crop or crops to be planted in each field or any other uses such as pasture or fallow fields;
• The realistic yield goal for each crop or use identified for each field;
• The nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field;
• Credits for all nitrogen in the field that will be plant available;
• Consideration of multi-year phosphorus application;
• Accounting for all other additions of plant available nitrogen and phosphorus to the field;
• The form and source of manure, litter, and process wastewater to be land applied; and
• The timing and method of land application.
The terms also include the methodology by which the NMP accounts for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.
This approach is considered a “linear” approach because it is based on the use of only those crops included in the planned crop rotations in the NMP; the amounts of nitrogen and phosphorus from manure, litter, and process wastewater to be land applied according to the planned schedule for land application (including source and method and timing of application); and the projected values for plant available nitrogen and phosphorus from other sources. Under this approach, a single set of field-specific rates of application would be established, based on the predicted sequence of activities the CAFO plans to follow in implementing its NMP, and a CAFO would be required to follow the sequence identified in the NMP for each field-specific crop rotation and each planned step for land application of manure, litter, or process wastewater.
Under this linear approach, a CAFO must land apply manure, litter, and process wastewater in amounts that will result in application of no more than the amounts of nitrogen and phosphorus from manure, litter, and process wastewater specified for each field in the NMP, following the schedule and the methods of application described in the NMP. When applying manure, litter, and process wastewater, CAFOs will need to take into account manure test results, including for Large CAFOs the annual manure test results required by the 2003 final rule, so as to not exceed the nutrient needs of the crops. Medium and small CAFOs must apply manure, litter, and process wastewater consistent with Best Professional Judgment (BPJ)-based requirements established in the permit for accounting for the nutrient content of the manure. Large CAFOs using the linear approach must calculate the maximum amount of manure, litter, and process wastewater to be land applied at least once each year using the results of the most recent representative manure, litter, and process wastewater tests for nitrogen and phosphorus taken within 12 months of the date of land application.
The methodology used for translating the amounts of nutrients in pounds into the amount of manure, litter, and process wastewater to be land applied, in tons or gallons, is a term in the linear approach. This includes incorporation of manure test results in determining such rates.
The final rule differs from the proposed linear approach with respect to the expression of the rates of application. EPA proposed that application rates in the linear approach be expressed in terms of tons or gallons of manure, litter, and process wastewater. Several commenters stated that the application rate under the linear approach should be expressed in terms of pounds of nitrogen and phosphorus rather than tons and gallons of manure and wastewater. The commenters felt that this approach would more accurately account for the actual nutrient content of the manure and wastewater being applied. EPA agrees with the commenters and has changed the linear approach accordingly to address this concern. The key advantage of this change is that it ensures that the results of manure testing, which for Large CAFOs is required to be done annually, are used in determining the actual amount of manure, litter, and process wastewater to be applied. EPA believes that expressing the rate in terms of pounds of nitrogen and phosphorus from manure, litter, and process wastewater provides greater environmental protection by requiring operators to adjust the actual amount of manure, litter, and process wastewater applied based on the most current manure nutrient test results.
The utility of this approach, nevertheless, hinges on the CAFO making accurate predictions in the NMP that are not disrupted by changes to the CAFO's operation or by circumstances beyond the control of the CAFO operator. Any changes to the terms of the NMP would constitute a change to the terms of the permit, which would require a permit modification. See discussion in section III.C.3(e) of this preamble, “Changes to a Permitted CAFO's Nutrient Management Plan.” For example, any change to the planned crop sequence, such as the addition of a second crop to a field, requires a permit modification.
On the other hand, the advantage of this approach is its relative simplicity for CAFOs with predictable crops and land application. The linear approach would be particularly suitable for operations that consistently plant one crop or two crops in rotation on the same fields, using the same source and form of manure, litter, or process wastewater, and that land apply on a regular annual schedule using the same application method(s).
EPA notes that even under the linear approach, operators may provide themselves some flexibility by specifying more than one field-specific crop rotation plan in the NMP, with application rates of nitrogen or phosphorus specified for each alternative plan for inclusion in the permit. This might be practical for operators who are reasonably confident
This final rule includes a second approach that would allow rates of application to be expressed as a narrative rate that includes the total amount of plant available nutrients from all sources combined with a specific, quantitative method for calculating the amount, in tons or gallons, of manure, litter, and process wastewater allowed to be land applied. (
As required at 40 CFR 122.42(e)(5)(ii)(A), the narrative rate approach also includes as terms the following four factors:
• The outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field;
• The crop or crops to be planted in each field or any other uses such as pasture or fallow fields;
• The realistic yield goal for each crop or use identified for each field; and
• The nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field.
In addition, this narrative rate approach includes as a term of the NMP the methodology by which the NMP accounts for certain factors when calculating the amounts of manure, litter, and process wastewater to be land applied. A CAFO using the narrative rate approach is required to apply in accordance with the resulting calculations. This final rule requires the methodology in NMPs developed using this approach to account for the following factors:
• Results of soil tests conducted in accordance with protocols identified in the nutrient management plan, as required by 40 CFR 122.42 (e)(1)(vii);
• Credits for all nitrogen in the field that will be plant available;
• The amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied;
• Consideration of multi-year phosphorus application;
• All other additions of plant available nitrogen and phosphorus to the field;
• The form and source of manure, litter, and process wastewater;
• The timing and method of land application; and
• Volatilization of nitrogen and mineralization of organic nitrogen.
The factors listed above are not themselves required to be terms in the narrative rate approach, but the methodology used to account for them in the CAFO's permit is a term. Thus, the CAFO operator will be bound by the methodology and the way in which these factors must be accounted for in calculating the actual amount of manure, litter, or process wastewater allowed to be applied to the field. The terms of the NMP under this approach do not include the amount of nitrogen and phosphorus in the manure, litter, or process wastewater allowed to be land-applied as set forth in the NMP, but they do include the methodology prescribed in the NMP for calculating these amounts. And while the terms of the NMP do not include the predicted source, form, timing, and method of application of manure, litter, or process wastewater set forth in the NMP, they include the methodology that accounts for these factors in determining the amount of manure, litter, or process wastewater allowed to be applied. This allows the actual inputs and results for these factors to be something other than what was projected in the NMP during the period of permit coverage, using the methodology, while ensuring that the CAFO meets the requirements of 40 CFR 122.42(e)(1) and, for Large CAFOs, 40 CFR 412.4, by applying in accordance with the methodology and other terms of the NMP.
This approach requires that the CAFO apply manure, litter, or process wastewater according to the results of this calculated amount. For example, if the NMP projected an amount of manure to be applied based on incorporation of solid manure, the operator could apply process wastewater from the lagoon by spraying the field instead. In this example, the methodology must account for factors of form, source, and method of application such that these inputs and results can be other than what was projected in the NMP and the amount of manure allowed to be applied will be predictably and accurately calculated. In other words, the methodology and requirement that application be in accordance with the rate calculated using that methodology are enforceable term that must be complied with at the time of determining how much, from which source, in what form is allowed to be applied to the field using which method of application.
40 CFR 122.42(e)(5)(ii)(C) clarifies that the amount of manure, litter, and process wastewater to be applied as projected in the NMP submitted with the permit application or NOI is not a term of the NMP under the narrative rate approach. As explained above, the amount of manure, litter, and process wastewater is to be calculated using the methodology included in the NMP and based on actual amounts of plant available nitrogen and phosphorus from all sources at the time of land application. Other projections that must be included in the NMP but are not terms are the CAFO's planned crop rotations for each field; credits for all nitrogen in the field that will be plant available; consideration of multi-year phosphorus application; accounting for all other additions of plant available nitrogen and phosphorus to the field; the predicted form, source, and method of application of manure, litter, and process wastewater for each crop; and the timing of application for each field, insofar as it concerns the calculation of rates of application (permitting authorities may establish in permits or technical standards for nutrient management land application timing restrictions, such as prohibitions on land application to frozen or saturated ground, that would be permit terms).
As specified at 40 CFR 122.42(e)(5)(ii)(B), NMPs for which terms are identified using the narrative rate approach may also include alternative crops not included in the planned rotation in the NMP, so long as the NMP includes for each crop realistic yield goals, nitrogen and phosphorus recommendations from sources specified by the Director, and maximum amounts of nitrogen and phosphorus from all sources. The terms and factors associated with alternative crops would be the same as the terms and factors required for the crops included in the planned rotation in the NMP.
EPA received several comments on the proposed terms and factors for the narrative rate approach. Commenters requested that EPA refer only to “plant available” nutrients in the narrative rate approach. Some confusion may have been caused by EPA's reference in the preamble to the 2008 supplemental proposal to the “maximum amount of total nitrogen and phosphorus” with regard to expression of the application rate under the narrative approach. This
One commenter suggested that crop yields be included as a factor under the narrative rate approach and that yield goals should be adjusted for operations that consistently fail to meet them. This final rule includes realistic yield goals as a term under both approaches. Realistic yield goals will be included in the NMP and, therefore, will be subject to review by the permitting authority and the public. In addition, States may establish in their technical standards criteria for deriving realistic yield goals including criteria for adjusting yield goals based on actual crop yields. EPA believes that this is sufficient to ensure that the yield goals used to calculate application rates in NMPs are appropriate. Upon subsequent permit issuance, the public will have the opportunity to review yield goals in light of actual yields reported by the CAFO in its annual reports (see 40 CFR 122.42(e)(4)(viii)).
The narrative rate approach would eliminate certain issues associated with a five-year planning cycle previously discussed in connection with the linear approach presented above. A key difference of the narrative rate approach, is that it would require application rates for manure, litter, and process wastewater to be recalculated at least annually using the methodology specified in the NMP (40 CFR 122.42(e)(5)(ii)(D)). Unlike the linear approach, the narrative rate approach allows CAFOs that may need to adjust their rates of application of manure, litter, and process wastewater due to changes in soil levels of nitrogen and phosphorus to do so without requiring the permit to be modified. Therefore, it is important to ensure that the actual changes in soil levels of plant available nitrogen and phosphorus are taken into account, rather than relying on five-year projections of fluctuations provided in the NMP.
The narrative rate approach requires an annual determination of soil levels of nitrogen and phosphorus. For nitrogen, the annual determination must include a concurrent calculation of nitrogen that will be plant available consistent with the methodology specified in the NMP. As described above, this methodology must account for the factors that would affect soil nitrogen levels on an annual basis such as the form and timing of previous land application(s); the actual amount of nitrogen in the manure, litter, and process wastewater previously applied; and volatilization and mineralization rates for nitrogen. For phosphorus, the annual determination must include the results of the most recent soil test conducted in accordance with sampling requirements approved by the Director. As in the case of other technical determinations to be made by the Director as part of this final rule, the Director's determination concerning sampling requirements may be made in the technical standards established by the Director, in the permit, or by an equivalent determination made elsewhere. Many States require sampling to be done every two or three years, for most conditions. Some require more frequent sampling generally, and others require more frequent sampling at higher concentrations of soil test phosphorus. If sampling is conducted more frequently than required by the Director, then the determination must be based on the results of the most recent test.
EPA proposed that CAFOs using the narrative rate approach would be required to test soils annually for nutrient content and that these data be used in recalculating the amount of manure, litter, and process wastewater to apply annually. Many commenters opposed annual soil testing for phosphorus. These commenters stated that annual testing is inconsistent with State land grant university guidance, is unnecessary because phosphorus levels in the soil do not change significantly from year to year and that such testing would be cost-prohibitive for many operations. A number of commenters suggested alternative testing frequencies ranging from three to five years. Several commenters suggested that annual phosphorus testing be required only where the soil phosphorus level is already high or previous applications have exceeded the crop phosphorus removal rate (such as where manure is applied at a nitrogen-based rate). A few commenters asked EPA to clarify that annual soil testing only applies to fields that will receive manure in the year the testing is performed. One commenter indicated that, under certain circumstances, manure nutrient testing should be required more frequently than annually. Although the supplemental proposal did not specifically propose to require annual soil nitrogen testing, several commenters indicated that such testing should not be required, citing limitations in accuracy and effectiveness of the testing methods currently available. EPA agrees with commenters that, in a number of States, annual soil testing for phosphorus has been determined to be unnecessary. EPA recognizes that soil test requirements vary from State to State, and may include testing for nitrogen as well as phosphorus. Based on these responses from a range of commenters and the various suggested alternatives, EPA has replaced the proposed annual soil testing requirement for the narrative rate approach with the requirement that an annual determination of soil nutrient levels be based on current data and calculations as described above to support “real time” calculation of appropriate application rates. This final rule does not specify a minimum frequency for soil phosphorus testing, but instead requires CAFOs to include the results of the most recent soil tests for phosphorus conducted in accordance with soil testing requirements approved by the Director.
The annual recalculation of the amount of manure, litter, and process wastewater allowed to be applied must also rely on the results of the most recent representative manure, litter, and process wastewater tests taken within 12 months of the date of land application. These data along with the annual determination of soil levels of nitrogen and phosphorus must be used to calculate, in real time, the amount of manure, litter, and process wastewater to be applied to supply the remaining nitrogen and phosphorus needed for the actual crop being planted on the field. Commenters requested that the narrative rate approach express application rates in terms of pounds of nutrients rather than tons of manure to allow appropriate utilization of nutrients in manure whose nutrient content varies over time. In practice, the narrative rate approach requires that amounts of manure, litter, and process wastewater to be land applied be calculated first in pounds of nutrients and then translated into tons or gallons of manure, litter, and process wastewater using current manure nutrient analyses. The information presented to the public in the CAFO's NMP will include the projected amounts for the planned crop rotation, in tons or gallons of manure,
One commenter suggested that EPA specify that manure tests and plant tissue tests also be used in the annual rate recalculation. As described above, this final rule does require consideration of recent manure test results in annual application rate recalculations. Plant tissue testing may be an effective tool for determining nitrogen deficiencies (and the need for supplemental nitrogen application), as well as for determining excess nitrogen. However, plant tissue tests are typically taken after manure applications have been made on a field and thus are unavailable at the time the operator is determining rates of application. A CAFO's NMP may include plant tissue testing as part of the CAFO's methodology so long as it is done consistently with State technical standards.
In addition to accounting for the crop and field information, the methodology for the annual recalculation of the amount of manure, litter, and process wastewater to apply must account for a number of other variables, including the form and source of the manure, litter, and process wastewater and the timing and method of application, as described above. The operator may not apply more than the maximum amount of nitrogen and phosphorus calculated using the methodology.
Under this approach, the NMP will include planned crop rotations for each field and corresponding projected amounts, in tons or gallons, of manure, litter, and process wastewater to be applied, including all of the calculations for determining such projected amounts, for the period of permit coverage. This will give the permitting authority and the public an opportunity to review, prior to permit issuance, the adequacy of the CAFO's methodology and the way the CAFO uses the methodology to calculate the appropriate amount of manure, litter, and process wastewater to be applied, based on the operator's planned crop rotation at the time of permit issuance. Again, these planned crop rotations and projected amounts are not terms, as they will need to be recalculated each year based on updated information; however these projections will allow the public to see how the methodology (which is a term) is applied to a projected set of facts to calculate the amounts to be land applied.
Several commenters expressed concerns about the enforceability of the narrative rate approach, citing the lack of an objective rate and public availability of supporting information used to calculate the rate. The narrative rate approach requires the CAFO to recalculate the amount projected in the NMP of manure, litter, and process wastewater to be land applied, using the methodology in the NMP, at least once a year, throughout the period of permit coverage. In recalculating these amounts, a CAFO will be required to use concurrent calculations of credits for all plant available nitrogen in the field and the results of the most recent soil tests for phosphorus in the field. The CAFO will then calculate the maximum amount of nitrogen and phosphorus from manure, litter, and process wastewater allowed to be applied, as a portion of the total amount of nitrogen and phosphorus from all sources, using the methodology in the NMP. Under the narrative rate approach, the CAFO must use the methodology specified in the NMP (which is a term) to account for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied when calculating the maximum amount of manure, litter, and process wastewater allowed to be applied. To ensure that such recalculations are made available to the Director and the public, the recalculations and the new data from which they are derived are required to be reported in the CAFO's annual report for the previous twelve months. In other words, the rate of application would be an objective, enforceable rate, because the permit will specify the methodology required for calculating the amount of manure, litter, and process wastewater allowed to be applied, certain values or sources of information required to be used in the methodology, and will limit the total amount of nitrogen and phosphorus from all sources for each crop. Failure to comply with the rate established under the permit would be a violation of the permit, and the Director and the public will be able to determine whether the rate was complied with from the annual report.
Most commenters who commented on the narrative rate approach were supportive of the approach in terms of its degree of flexibility. Some commenters suggested that it should be the only approach adopted in the final rule. EPA believes that the flexibility of the narrative rate approach will reduce the burden on permitting authorities and CAFO operators by decreasing the number of substantial changes to the permit which require public notice and comment, arising from changes to the CAFO's crop rotations, while ensuring that all effluent limitations applicable to a permitted CAFO are incorporated as terms of the permit, as required by the Waterkeeper decision.
As many commenters on the 2006 proposed rule pointed out and EPA recognizes, there may be changes in field conditions or practices at a CAFO, including, for example, those that alter the projected levels of plant available nitrogen and phosphorus in the soil or in the manure over the period of permit coverage. Such changes introduce some uncertainty in setting application rates for five years as enforceable terms of the permit. The narrative rate approach is designed to accommodate these concerns by allowing a CAFO to compensate for changes in soil levels of plant available nutrients, in manure nutrient content, or in the timing and method of application, by adjusting the application rates accordingly without the need for a permit modification. However, the operator will be limited to the total crop-specific amount of nitrogen and phosphorus from all sources and will have to adhere to a methodology that establishes the way in which such rates are to be calculated. Thus, in the second and later years of the permit term, this approach will provide an accurate and verifiable means of achieving realistic production goals while minimizing transport of phosphorus and nitrogen from the field. This will help CAFOs avoid the possibility of over-application of nitrogen or phosphorus because of increased levels of nutrients in the soil, compared to what was projected at the time of permit issuance, and, conversely, the possibility of failing to meet crop agronomic needs due to under-application of nitrogen or phosphorus.
The Agency is also promulgating procedural requirements for incorporating the terms of the NMP into an NPDES general permit, in new paragraph 40 CFR 122.23(h)(1).
Once the processes for publicly reviewing the NMP and the terms of the NMP have been completed, the Director must address all significant comments raised and make a final decision whether to grant coverage under a general permit. As necessary, the Director will require a CAFO owner or operator to revise their NMP to address issues raised during the review process. Once the Director determines that the
The preamble to the 2006 proposed rule discussed and requested comment on approaches for the Director to identify the terms of the NMP to be incorporated into the permit. These options ranged from attaching the entire NMP to the permit to identifying specific elements to be included in the permit as terms. Based on comments received on the proposed rule, EPA is specifying certain elements of NMPs with respect to land application as “terms of the NMP” that must be incorporated into the permit. EPA is not, however, requiring a single approach whereby the terms are made part of the permit, leaving to the Director the discretion to decide whether, for example, to attach the entire NMP to the permit and require compliance with the terms of the NMP or to specify the terms of the NMP and specifically identify each of them in the permit. Under this final rule, incorporation of the terms of a particular CAFO's NMP into a general permit is not a permit modification subject to 40 CFR 122.62. Rather, it is an extension of the CAFO general permitting process itself. As discussed above, EPA intends the process proposed in 40 CFR 122.23(h) to generally parallel the procedures in 40 CFR part 124.
Commenters supported an approach allowing a permitting authority to incorporate the entire NMP as a condition of the permit without distinguishing between the NMP and the “terms” of the NMP. Some supported attaching an NMP to the permit or general permit and requiring that the CAFO implement that NMP as a permit condition. As discussed above, this rule requires that a permit include the terms of a site-specific NMP. However, EPA is not prescribing the manner in which this incorporation takes place. The permitting authority may satisfy this requirement by incorporating a CAFO's NMP by reference into the permit or as described in the preamble to the 2006 proposed rule, the permitting authority may extract the terms of the NMP and attach them to the permit. Either way, the terms of the NMP are enforceable terms of the NPDES permit.
Other commenters sought greater State discretion in implementing NMP requirements as permit conditions. These commenters recognized the importance of implementing the NMP provisions but did not want this rule to interfere with effective existing State approaches. In addition, these commenters wanted to preserve the administrative advantages of using general permits.
This rule provides some State discretion by allowing permitting authorities to determine which NMP provisions to include as terms of the permit. The rule specifies what must be included at a minimum in the permit as terms of the NMP. However, States have the authority to adopt additional or more stringent requirements, under CWA section 510.
It is well understood that agricultural operations modify their nutrient management and farming practices during the normal course of their operations. Such alterations may require changes to a permitted CAFO's NMP during the period of permit coverage.
As discussed in the preamble to the 2006 proposed rule, the permit does not need to be modified for all operating changes. Because of the way NMPs are developed and the flexibility provided by the two options for developing the terms of the nutrient management plan at 40 CFR 122.42(e)(5), most routine changes at a facility should not require changes to the NMP itself. For example, a CAFO using the narrative rate approach would not ordinarily need to change its NMP when it makes changes to factors that are not themselves terms but are accounted for in the methodology. To minimize the need for revision, nutrient management plans should anticipate and accommodate routine variations inherent in agricultural operations such as anticipated changes in crop rotation, as well as changes in numbers of animals and volume of manure, litter, or process wastewater resulting from normal fluctuations or a facility's planned expansion. Typically, an NMP is developed to accommodate, for example, normal fluctuations in herd or flock size, capacity for manure, litter, and process wastewater storage, the fields available for land application and their capacity for nutrient applications. Moreover, as discussed in this preamble, EPA would encourage operators to develop an NMP that includes reasonably predictable alternatives that a CAFO may implement during the period of permit coverage. However, unanticipated changes to a nutrient management plan may nevertheless be necessary.
The final rule includes 40 CFR 122.42(e)(6), which requires a CAFO to notify the Director of changes to the CAFO's NMP. Section 122.42(e)(6) excludes the results of calculations made in accordance with 40 CFR 122.42(e)(5)(i)(B) and 122.42(e)(5)(ii)(D) from the requirements of paragraph (e)(6). The results of these calculations, which are required of Large CAFOs using the linear approach and all CAFOs using the narrative rate approach, must be reported in the CAFO's annual report. Thus, there is no need to provide this information pursuant to the requirements of paragraph (e)(6).
In the 2006 proposed rule, EPA proposed a process that CAFOs and the permitting authority would need to follow when a CAFO makes changes to its NMP. The proposal also included criteria for determining when a change to a CAFO's NMP should be considered a substantial change. In the 2008 supplemental notice, the Agency solicited comment on several modifications to the 2006 proposal including a list of changes to the NMP that would constitute a substantial change.
In this final rule, EPA is including a list of changes to the NMP that would constitute a substantial change to the terms of a facility's NMP, thus triggering public notice and permit modification. Substantial changes include: (1) Addition of new land application areas not previously included in the CAFO's NMP; (2) any changes to the maximum field-specific annual rates of application or to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop, as expressed in accordance with, respectively, the linear approach or the narrative rate approach; (3) addition of any crop not included in the terms of the CAFO's NMP and corresponding field-specific rates of application; and (4) changes to field-specific components of the CAFO's NMP, where such changes are likely to increase the risk of nitrogen and phosphorus transport from the field to waters of the U.S.
This final rule also makes one exception to the first type of substantial change (a land application area being
EPA received a number of comments on the list of substantial changes in the 2006 proposed rule and 2008 supplemental proposal. One commenter encouraged EPA to state that substantial changes under the narrative rate approach only occur when the CAFO changes the system used to determine maximum allowable application rates. EPA agrees that changes in the methodology may be substantial changes to the terms of the NMP if they result in changes to the maximum rates of application or maximum amounts of nitrogen and phosphorus derived from all sources for each crop or if they result in changes likely to increase the risk of nutrient transport to waters of the U.S. However, EPA does not agree that there are no other changes that are substantial changes under the narrative rate approach. EPA believes that the four substantial changes identified in this final rule are appropriate for both of the approaches for determining rates of application. For example, proper implementation of the narrative rate approach depends on identification of the fields to be used for land application, so use of a new field for land application that had not been previously covered in the facility's (or another facility's) permit terms would constitute a substantial change. In addition, under the narrative rate approach a change to the field-specific maximum amounts of nitrogen and phosphorus derived from all sources is a substantial change to the NMP, because it defines the upper bounds on nutrient additions.
Some commenters suggested that EPA expand the list of substantial changes to include changes such as the maximum number of animals allowed for the CAFO site; production area changes that alter the volume and composition of waste; using soil, manure, plant tissue test results to refine the NMP; and changes in the status of the receiving waterbodies. With regard to the number of animals confined and the volume of waste generated, EPA has stated that the number of animals confined at a CAFO would not necessarily be a term of the NMP because a CAFO operator is required to properly operate and maintain the CAFO's storage facilities regardless of the number of animals or the volume of manure, litter, or process wastewater generated. For the same reasons, EPA believes that changes to these factors will not necessarily trigger substantial change to a CAFO's permit, although accommodating an increase in the number of animals or volume of manure could lead to changes to the NMP that would constitute substantial changes to terms of the NMP (and the permit). With regard to the use of soil and manure tests, both approaches discussed above for expressing land application rates in NMPs and associated terms allow for consideration of manure testing on an annual basis; and the narrative rate approach also requires consideration of the most recent soil test results. Finally, NPDES permits for all types of dischargers, including CAFOs, typically include reopener provisions under which the Director may revise the permit during the permit term based on factors such as changes to the status of the receiving water body. EPA believes that such standard NPDES provisions are sufficient to allow permit revisions necessary to support the criteria and standards established for receiving waters.
The Agency believes that the list of substantial changes included in this final rule address changes that most directly affect fundamental components of the NMP that relate to the land application of manure, litter, and process wastewater, which was a primary focus of the
Some commenters supported the addition of new land application areas as a substantial change. They also commented that adding or reducing land application areas would require a recalculation of the application rate. Some commenters were concerned that the addition of new land application areas as a substantial change is counterproductive, severely limits flexibility for producers to plan, does not add water quality benefit, discourages producers from adding land to their NMP and will hinder a CAFO's ability to quickly add more fields to the NMP. These commenters suggested the addition of land application areas can be addressed by requiring producers to submit this information with their annual reports. Some commenters also suggested granting States the flexibility to define when and what types of land application area additions would be considered a substantial change. Some commenters suggested that only the loss of land application areas should be treated as a major modification which requires public participation. As discussed above, under
The second substantial change is any change to the field-specific maximum rates of application. The
The third substantial change is the addition to the NMP of crops or other uses not previously included in the CAFO's NMP, together with the corresponding maximum field-specific
Finally, any change to site-specific components of the CAFO's nutrient management plan that is likely to increase the risk of nitrogen and phosphorus transport to waters of the U.S. is a substantial change. The Agency recognizes a number of changes as potentially triggering this requirement, including the following examples: (1) Alternate timing of land application that would diminish the potential for plant nutrient uptake; (2) methods of land application not provided for in the NMP calculation of amount of manure, litter, and process wastewater to be applied; (3) changes to conservation practices; and (4) changes in the CAFO's procedures for handling, storage, or treatment of manure, litter, and process wastewater. The actual crop planted, timing and method of land application, crop uptake, and conservation practices utilized with respect to the land application areas are all key factors that affect nitrogen and phosphorus runoff from the land application area. Changes to any of the planning considerations listed above can directly (and measurably) alter the outcome of the decisions made in an NMP and the efficacy of that plan in ensuring appropriate agricultural utilization of those nutrients that are land applied.
An advantage of the narrative rate approach is that it reduces the likelihood that changes to a CAFO's operation would result in a substantial change to the terms of the CAFO's NMP. For example, a change to the method or timing of application would be a substantial change to the terms of the NMP for CAFOs using the linear approach if the Director determines that it is likely to increase the risk of nutrient transport to surface waters. For a CAFO using the narrative rate approach, a change in the method or timing of application would not be a change to the terms of the NMP, and therefore not a substantial change, so long as the methodology in the NMP (itself a permit term) accounts for the change in method or timing.
Because changes to the NMP could result in a change to a permit term, the 2006 proposed rule provided that whenever a CAFO makes any change to its NMP, the owner or operator would be required to provide the Director with the revised NMP and identify the changes from the previous version submitted. Of course, any change to the CAFO's implementation of its NMP that does not constitute a change to the NMP itself would not be submitted to the Director. For example, for CAFOs following the narrative rate approach, any change in crop rotation or substitution of crops in a given rotation with alternative crops identified in the NMP for a given field would not be a change and thus would not need to be submitted to the Director prior to implementation.
Some commenters felt that substantial changes could be addressed by making those changes part of the annual report. For example, some commenters recommended that CAFOs using the narrative rate approach be required to include information associated with the addition of new crops in their annual reports. The annual report does not provide sufficient public notice for making changes to the terms of the NPDES permit. Those procedures are detailed below.
When a permitted CAFO operator revises its NMP, this rule requires the CAFO operator to submit the revised NMP to the permitting authority for review and for the permitting authority to incorporate any revised terms of the NMP into the permit. This rule includes provisions that enable the Director to determine whether revisions to the CAFO's NMP necessitate revisions to the terms of the NMP incorporated into the permit, and if so, whether such changes are substantial or non-substantial. This rule identifies several specific types of changes that must be considered substantial changes to the NMP, and this preamble provides further guidance for distinguishing between substantial and non-substantial changes. This final rule also establishes a streamlined process for formal public notice and comment that the permitting authority must follow for permit modification when a CAFO is seeking to make substantial changes to the terms of its NMP. Non-substantial changes to the terms of the NMP are not subject to public notice and comment before the permit is revised. Finally, this rule establishes provisions for incorporating both substantial and non-substantial revisions to terms of the NMP into the permit as a minor permit modification. These procedures apply to all permitted CAFOs, regardless of whether they are covered under an individual permit or under a general permit. These procedures are discussed in greater detail, below.
As mentioned above, this final rule requires that whenever a CAFO makes any change to its NMP (see discussion in section III.C.3(e) of this preamble, “Changes to a Permitted CAFO's Nutrient Management Plan”), the owner or operator must provide the Director with the revised NMP and identify the changes from the previous version submitted to the permitting authority.
If, on the other hand, the Director determines that the changes to the NMP do require that the terms of the NMP that were incorporated into the permit be revised, the Director must next decide whether or not the change is substantial. The Director will evaluate the change based on the provisions in § 122.42(e)(6)(iii) discussed above. Pursuant to 40 CFR 122.42(e)(6)(ii)(A), for non-substantial changes, the Director must make the revised nutrient management plan publicly available and include it in the permit record, revise the terms of the nutrient management plan incorporated into the permit, and notify the owner or operator and inform the public of any changes to the terms of the nutrient management plan that are incorporated into the permit. Upon such notification the CAFO may implement the revised nutrient management plan.
If the changes to the terms of the NMP are substantial, the Director will also modify the permit as necessary by incorporating revised terms of the NMP, but only after the public has had the opportunity to review and comment on the NMP changes pursuant to the requirements of 40 CFR 122.24(e)(6)(ii)(B). The process for public comments, hearing requests, and the hearing process if a hearing is
The Director may establish by regulation, or in the general permit for CAFOs authorized under a general permit, an appropriate period of time for the public to comment and request a hearing on the proposed substantial changes to the terms of the nutrient management plan incorporated into the permit that differs from the time period specified in 40 CFR 124.10. EPA is providing this discretion to the Director to allow CAFOs to implement revised nutrient management practices in accordance with growing seasons and other time sensitive circumstances. As is stated above in section III.C.3(b) of this preamble regarding public review of NMPs during the general permit process, the public will have an opportunity to comment on the sufficiency of the time period when the Director proposes it, either in the regulations or general permit.
Because the process in § 122.42(e)(6)(ii) allows for public review of substantial changes to the terms of nutrient management plans and the underlying data and calculations, the incorporation of changes to the permit through this process will be treated as a minor permit modification, under 40 CFR 122.63(h), and not require additional review. EPA considered requiring that any change to the NMP be considered a permit modification subject to procedures under 40 CFR 122.62, but rejected this interpretation as it would significantly limit permitting authorities and CAFO operators' ability to make necessary and timely minor changes to NMPs as discussed above.
Commenters identified several issues associated with the proposed process for making substantial changes to NMPs. Several commenters indicated that the need for the permitting authority to review, provide public notice and comment, and approve substantial changes to NMPs will likely result in significant delays which will impact the operational ability of many CAFOs to make timely nutrient management decisions. Some commenters suggested that the process for making such changes be streamlined or time-limited. Other commenters requested that EPA provide flexibility to accommodate existing State criteria and procedures for determining and addressing substantial changes. Some State commenters indicated that they already have effective procedures in place. Some commenters simply asserted that the State Director should have discretion whether or not to require a permit modification.
The NPDES regulations at § 122.62 specifically require that any change to permit terms and conditions requires permit modification to be subject to public review and comment procedures, unless it falls under a minor modification listed at 40 CFR 122.63. In this rule, EPA has accounted for the frequent operational changes unique to CAFOs which are not typical for other NPDES-regulated industries. This tailoring is an effort to balance environmental protection with the burden to CAFOs and permitting authorities as well as the need to allow other operational changes that would not trigger the substantial modification requirements.
The process in this rule for making changes to NMPs and incorporating such changes in permits is necessary as a result of the
Commenters suggested changes to the process in the 2006 proposed rule. Several commenters requested that EPA approve certain substantial changes as long as the CAFO continues to comply with all applicable technical requirements. Such substantial changes could include adding a new and substantially different field or increasing the animal headcount so as to exceed the previously identified “maximum” amount of manure in the NMP. In addition, one commenter recommended that the permitting authority inspect the CAFO before allowing any substantial changes to the NMP.
The final rule does not expressly provide that a permitting authority can pre-approve certain substantial changes, unless they are specified in an NMP that encompasses normal fluctuations or variations, because the
Many commenters supported the proposal that non-substantial changes would require only that the CAFO submit a revised NMP and that the permitting authority would notify the public of the change without allowing for public comment. Commenters encouraged EPA to clarify that, upon submission, the CAFO may proceed to implement such changes if the CAFO believes they are non-substantial. Many commenters stated that there is a need to ensure that CAFOs can quickly make changes to NMPs. One commenter recommended that EPA allow CAFOs to accumulate minor changes and submit them as a group when renewing their permit. Another commenter suggested that any changes incurred during a given year be reported in an annual NMP update form. EPA decided that, because the terms of the NMP are enforceable terms and conditions of the permit, CAFOs must submit changes to the NMP to the permitting authority and receive approval before a change is made, not annually or at the beginning of each new permit cycle.
Commenters were generally unsupportive of the proposed 180-day temporary approval period for implementation of certain substantial changes. Numerous commenters stated that this would not be helpful to CAFO owners because they would be hesitant to invest significant amounts of money to make substantial changes based only on a temporary approval, since final approval would remain subject to an uncertain regulatory status. Others
Another commenter stated that the temporary approval period is inadequate because 180 days is longer than the crop growing season. This commenter observed that the temporary approval would allow CAFOs to change their entire land application patterns for an entire crop season without having public comment and review by the permitting agency. This commenter suggested that CAFOs plan in advance for any substantial changes and that only if the substantial changes are the result of unforeseen circumstances outside the control of the CAFO, should it be allowed temporary approval.
Based on comments, EPA reevaluated the usefulness of the 180-day temporary approval. In light of the comments, EPA recognizes that such an approach may be problematic for both industry and permitting authorities. Some industry commenters stated that the 180-day grace period would be meaningless because no operator would employ expensive changes without knowing if they would be approved. States commented that any permit modification must be approved before it is implemented. There is no requirement precluding operators from purchasing new land; rather, practices on the land cannot be employed until approved by the permitting authority. Further, EPA encourages operators to take advantage of the exception for substantial changes relating to the addition of new land application areas provided in § 122.42(e)(6)(iii)(A). Thus, EPA has not included the proposed 180-day temporary approval period in the final rule.
Under this final rule, when a CAFO submits changes to an NMP to the permitting authority, the Director must determine whether the changes affect the terms of the NMP incorporated into the permit, and if so, whether such changes are substantial. Depending on this determination, the process and timing of modifying a permit will vary. A CAFO owner or operator must remain in compliance with his or her permit and, thus, should work closely with the permitting authority and should initiate this coordination as early as possible. EPA believes that permitting authorities will be sensitive to the needs of CAFOs to make a range of changes to NMPs from time to time and, as a result, will be diligent in reviewing and making determinations regarding such changes.
In the 2006 proposed rule, EPA discussed the use of annual reports to balance greater flexibility for CAFO operators in making cropping decisions with ensuring appropriate permitting authority and public oversight of permit compliance. The preamble solicited comment as to whether the annual report requirements should be modified to require all permitted CAFOs to submit information in their annual reports indicating how the CAFO achieved substantive compliance with the terms of the NMP as set forth in the permit. In the 2008 supplemental proposal, the Agency proposed additional annual reporting requirements for CAFOs that relate to the proposed provisions regarding the terms of the NMP.
In this action, the Agency is establishing additional annual report requirements, in 40 CFR 122.42(e)(4)(viii), mandating all permitted CAFOs to include in their annual reports the actual crop(s) planted and actual yield(s) for each field, the actual nitrogen and phosphorus content of the manure, litter, and process wastewater, and the amount of manure, litter, or process wastewater applied to each field during the previous 12 months. The Agency believes that it is important for the permitting authority to obtain this information on an annual basis in order to ensure that the CAFO has been operating in compliance with the terms of its permit. The annual report will inform the Director and the public how the CAFO has operated, given the flexibility for the terms of the NMP incorporated into the permit.
The Agency is also requiring CAFOs that follow the second (“narrative rate”) approach for describing rates of application in the NMP to submit as part of their annual report the results of all soil testing and concurrent calculations to account for residual nitrogen and phosphorus in the soil, all recalculations, and the new data from which they are derived. The CAFO is required to report the amounts of manure, litter, process wastewater and the amount of chemical fertilizer applied to each field during the preceding 12 months. Together with the total amount of plant available nitrogen and phosphorus from all sources, the information that is required to be included in the annual report provides the information necessary to determine that the CAFO was adhering to the terms of its permit when calculating amounts of manure, litter, and process wastewater to apply.
Many commenters supported the use of additional annual reporting requirements to address either non-substantial changes or all changes to the NMP. States also generally supported such an approach and sought flexibility regarding the content and use of the process to address other changes to the NMP. Another commenter noted that if CAFOs are allowed to provide alternative management scenarios in the original NMP, the CAFO must be required to submit documentation to the Director to specify which practices it is using from the “menu” of combinations in its NMP. This would allow the permitting authority and the public to know what practices the CAFO is actually implementing at any given time.
Although EPA recognizes that NMPs may change throughout the period of permit coverage, as discussed above in section III.C.3(e), the annual report requirements are only appropriate for use in addressing implementation of existing NMP provisions and changes to the NMP contemplated through flexibilities built into the NMP during the initial planning process or subsequent modifications in accordance with 40 CFR 122.42(e)(6). Because this rule requires the terms of the NMP to be incorporated as enforceable terms and conditions of the permit, an outcome of the
Some commenters expressed concern that CAFOs would be unable to complete more detailed reports and provide the information necessary to document changes to the NMP, and that some of the reporting requirements would be redundant. Some commenters also believed that reporting crop yields would be overly intrusive and would not be representative of the NMP effectiveness. In this rule, EPA has modified the content of the annual report to supplement the existing annual report requirements promulgated in 2003 so as to allow the public and the permitting authority to review whether the CAFO has implemented the NMP in accordance with the terms and conditions of its permit. This approach balances the recognized need to provide additional flexibility and the need for CAFOs to provide information concerning actual rates of application. The additional information required in this final rule is a limited burden on both the CAFO and the permitting authority that will provide public access
As described in the 2006 proposed rule, EPA developed a draft template, made available in the rulemaking public record for public comments, which could be used as a voluntary tool to facilitate completion of the NMP by CAFO permit applicants, as well as to facilitate review by the permitting authority. As discussed in the proposed rule, EPA believed that such a template would help to systematically organize the information necessary to satisfy the NMP requirements in the regulation. Some commenters supported the concept of a voluntary NMP template and considered the draft template an excellent user-friendly model. Other commenters disagreed, stating that the detailed information required in the draft template would be quickly outdated. Other comments received on the NMP template include the following:
• A “one size fits all” template does not lend itself well to the different climates and terrains across the country, and use of the template should not be required by the regulation;
• The draft template lacked specific information to ensure that CAFOs are meeting technical standards and the ELGs;
• The draft template was too long and appeared to be more of an inspection checklist than a basic guideline;
• A concern that some States may actually adopt the template, once completed, as the required NMP format;
• The template could be a valuable tool to clearly differentiate between the terms of the NMP, for purposes of incorporation into the permit, and the background information;
• The template would be more beneficial if it is standardized through the use of a computer program which allows ease and flexibility in making changes to the NMP; and
• The template could be useful to an unpermitted CAFO to identify land application practices needed to qualify for the agricultural stormwater exemption.
States generally agreed with the concept of using a consistent, stable template but wanted assurance that it is strictly a voluntary tool and can be modified to better address specific State requirements. Additionally, commenters stated that the draft template failed to address all of the regulatory requirements and should be modified accordingly by including additional technical portions. Other commenters suggested that a template would unnecessarily micromanage the structure or content of NMPs and that States should have the responsibility to define effective nutrient management strategies. Other commenters mentioned the need to keep the template flexible because NMPs are dynamic documents that change rapidly, and a plan that is too detailed will bind the producer to practices that, if altered, would require costly revisions and reviews. A few commenters also indicated that the format and sequence for providing information within the draft template was disjointed and inconsistent with the nutrient management planning process. Other State commenters did offer, however, that the template may be adequate for most public participation processes.
After considering public comments, EPA, in coordination with USDA, has decided not to utilize the draft template. Instead, the two agencies have worked on the development of a planning tool that would generate a single document that meets the objectives of both agencies. The one document would include the required elements of an NMP as well as the elements of a voluntary comprehensive nutrient management plan (CNMP) developed in accordance with USDA technical guidance. A CNMP is a plan much like the NMP required by EPA's CAFO regulations. There are some minor differences between the scope of the two documents, such as a CNMP option to include feed management plans (which are not required for the NMP) and an NMP requirement to include chemical handling plans (which are not part of a CNMP). However, the EPA and USDA agree that there is no reason why one document could not suffice for both the CNMP and NMP by accommodating both agencies' requirements. To that end, EPA, in partnership with USDA, is in the process of coordinating the information necessary to complete an NMP as well as a CNMP and developing a software program that could integrate both sets of planning requirements, known as Manure Management Planner (MMP). Of course, even though both agencies would promote the use of a single tool, it would remain the CAFO operator's responsibility to provide that information to the Director in order to meet the requirements of this rule, inasmuch as USDA does not make facility-specific information available to other agencies or the public. EPA will encourage the use of the MMP to facilitate the development and review of NMPs under the NPDES permit program.
The MMP software, under development by a grant from EPA and USDA to Purdue University, is a computer program that would provide permitting authorities and producers with a mix of programs, not currently available elsewhere, to assist in CNMP and/or NMP development. The objective of this effort is to accelerate the CNMP and NMP development process by integrating other software programs used to calculate manure application rates. Among these technologies are RUSLE II, the Phosphorus Index (PI), and other State-specific risk assessment tools used in CNMP and NMP development. In the longer term it is planned that additional integration will be achieved with planning, recordkeeping technologies and connectivity to the USDA Customer Service Toolkit. The MMP program incorporates field-specific data tables that allow the producer to list the type of crops planned, crop rotation by planting season, nutrients available for each crop based on previous manure applications, and the rate of application per crop. These data tables could provide permitting authorities with specific information that could be extracted as terms of the NMP that would be inserted into a permit. It also provides producers the flexibility to comply with the optional approach of calculating application rates as pounds of nutrients by developing tables with expanded crop contingency plans and related application rates. See section III.C.3(c) for detailed discussion of nutrient management plan terms.
EPA and USDA anticipate that the MMP software can eventually be tailored to all individual State technical standards, requirements and circumstances. At present, the program has been tailored to approximately 34 States, and is available and ready for use in those States. EPA and USDA plan on updating and improving the MMP software and tailoring it to other States.
When completed, the MMP software will be a user-friendly program available without charge. It is strictly a voluntary tool. There may be some situations at a livestock operation, such as varying terrains and unusual cropping sequences, which the MMP cannot
EPA and USDA are also developing a national nutrient management planning course that will cover how to develop, review, and implement an NMP and how to use the MMP software program.
Following issuance of this rule, authorized States have up to one year to revise, as necessary, their NPDES regulations to adopt the requirements of this rule, or two years if statutory changes are needed, as provided in 40 CFR 123.62. States are not required to adopt the provisions for no discharge certification in this time period.
As discussed above in section II.E, EPA has twice extended certain compliance dates originally established in the 2003 CAFO rule. Following the Second Circuit Court's decision in
The 2006 proposed rule did not anticipate a need to revise the July 31, 2007, compliance dates established by the 2006 date change rule. However, as a result of an array of public comment on the issues raised by the
EPA received comments on the 2006 proposed rule related to the July 31, 2007, compliance dates in place at that time. The comments received generally focused on two issues: (1) That the permit application date did not allow enough time for States to revise their permitting programs, and (2) that the date did not allow CAFO operators sufficient time to develop permit applications and NMPs. Many commenters stated that it would not be possible for CAFOs to seek coverage under an NPDES permit by July 31, 2007, and that the deadline should be extended. A number of extension periods were suggested ranging from several months to up to two years after promulgation of the final rule. Rationales for extending the dates included the need to allow States to revise their programs to fully reflect CAFO regulations (which, in turn, allows CAFOs to know what requirements apply to them), limited technical assistance, and the need for adequate time to develop an NMP in the period between rule promulgation and the deadline for seeking permit coverage. Commenters asserted that CAFO owners and operators cannot know the precise requirements for NMPs, or the associated documentation and public participation requirements, until the rule is final. EPA promulgated the 2007 date change rule with these comments in mind.
In the 2008 supplemental proposal (73 FR 12,336) EPA solicited comments on its intention to not extend the compliance deadlines beyond February 27, 2009. Some commenters stated that the deadline should be extended in order to allow States to adapt their existing programs. Others noted that more time would be needed for CAFO owners and operators to implement such complex rules and come into compliance. A number of extension periods were suggested ranging from several months to up to two years after promulgation of the final rule. Commenters were opposed to an extension of the deadlines; did not want to further delay the environmental benefits; and noted that an extension would provide a comparative advantage to those CAFOs that have not made capital improvements and promote interstate discrepancies that undermine the integrity of State CAFO programs.
In this final rule, EPA is not extending the February 27, 2009, compliance deadlines. EPA believes that the time between publication of this final rule and February 27, 2009, is adequate for unpermitted CAFOs that discharge or propose to discharge to develop an NMP and seek permit coverage. EPA notes that most of the technical provisions of the 2003 CAFO rule (
The CWA does not allow any CAFO to discharge without a permit, regardless of whether a permit application has been submitted. EPA and States have a range of tools to help regulated entities come into compliance with new rules including outreach, compliance assistance, compliance incentives and compliance monitoring. For new rules EPA generally focuses on outreach initially. Where EPA becomes aware of particular instances of noncompliance, EPA may pursue appropriate enforcement. Since 2005, EPA has designated unpermitted CAFOs subject to the 1976 rule as an enforcement priority and continues to focus its efforts on those facilities. With respect to CAFOs subject to permitting as of February 27, 2009, EPA would take into consideration whether a permit application has been submitted and whether the entity is operating in
Water quality-based effluent limitations (WQBELs) are one of two fundamental types of limitations imposed in NPDES permits. The other is technology-based effluent limitations. NPDES permits are required to contain technology-based limitations and, if the technology-based limitations are insufficient to meet applicable water quality standards, more stringent water quality-based effluent limitations (WQBELs). CWA section 301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C); and 40 CFR 122.44(d). While technology-based limitations are calculated taking into account the availability or effectiveness of treatment technologies and/or their associated costs, WQBELs are established without consideration of availability or effectiveness of treatment technologies or the costs that discharges would incur to meet such limits.
The environmental petitioners challenged the 2003 rule as violating both the CWA and the Administrative Procedure Act by failing to promulgate WQBELs for CAFO discharges and by being ambiguous as to whether States may promulgate WQBELs for CAFO discharges. As explained in II.C.3 above, the
As EPA stated in the preamble to the 2006 proposed rule, the only issue that EPA addressed in the 2003 rule with respect to WQBELs was their applicability to agricultural stormwater discharges. EPA had explained in 2003 that, because agricultural stormwater discharges are not point source discharges, agricultural stormwater discharges cannot be subject to NPDES permit requirements, including either technology-based limitations or WQBELs if technology-based limitations are insufficient to meet applicable water quality standards. The Second Circuit Court of Appeals agreed with EPA. However, the court seemed troubled by certain statements in the 2003 preamble that it thought might address how WQBELs apply to other CAFO discharges. The court therefore remanded the question of whether or not, and why, WQBELs are needed to assure attainment or maintenance of water quality standards as provided in section 302(a) of the CWA.
In the preamble to the 2006 proposed rule, EPA responded to the remand by clarifying that discharges from CAFOs that are not exempt from CWA permitting requirements as agricultural stormwater discharges are subject to NPDES requirements, including WQBELs. EPA clarified the applicability of WQBELs both with respect to land application areas under the control of a CAFO and with respect to discharges from a CAFO's production area.
As explained in section III.B. above, under the 2003 rule, the agricultural stormwater discharge exemption applies only to precipitation-related discharges from land application areas under the control of the CAFO where application of manure, litter, or process wastewater is in accordance with appropriate nutrient management practices as specified in 40 CFR 122.42(e)(1)(vi)-(ix). Any other discharge from land application areas under the control of a CAFO is a point source discharge from the CAFO. 40 CFR 122.23(e). These point source discharges from land application areas are subject to NPDES permitting requirements, including WQBELs where necessary to meet applicable water quality standards.
In most instances, a CAFO that meets technology-based permit limits requiring manure to be applied at appropriate agronomic rates will eliminate all or most dry weather discharges. If such discharges remain, the permit writer will determine the need for additional WQBELs to meet applicable water quality standards based on the circumstances of each particular case.
Although EPA, in the 2003 rule preamble, encouraged States to address water quality protection issues in setting technical standards for appropriate land application practices (
EPA also explained in the preamble to the 2006 proposed rule that permit writers may require WQBELs in appropriate cases to further limit discharges from CAFO production areas. As EPA stated in the 2003 rule, the exclusion for agricultural stormwater does not apply to discharges from the CAFO production area. 40 CFR 122.23(e) and 68 FR 7198. Because the ELGs allow occasional overflow discharges from properly designed, operated, and maintained lagoons and storage ponds, the technology-based limitations in the ELGs may not be as stringent as necessary to meet applicable water quality standards. In that case, a WQBEL would be appropriate. 40 CFR 122.44(d). For example, a facility subject to ELGs in 40 CFR part 412, subpart C is allowed to discharge from the production area, provided the production area is designed, constructed, operated, and maintained to contain all process wastewater plus any stormwater runoff resulting from the 25-year, 24-hour
In the preamble to the 2006 proposed rule, EPA indicated that for CAFOs in the swine and poultry sectors subject to New Source Performance Standards (NSPS) in part 412, subpart D, permits could not require WQBELs for production areas, because the NSPS already prohibit all production area discharges from these new sources. 71 FR 37,744, citing 40 CFR 412.46(a). Some commenters, however, urged EPA to reconsider its position given a possibility of a discharge even from CAFOs subject to a no discharge standard. Nothing in this rule limits the Director's authority to include any more stringent limitation than the NSPS in a CAFO's permit when necessary to meet applicable water quality standards pursuant to CWA section 301(b)(1)(C). Nonetheless, EPA continues to believe that WQBELs would not be needed for swine and poultry CAFOs subject to the no discharge NSPS. The provisions for implementing the NSPS BMP-based effluent limitation, based on advanced modeling, are meant to improve implementation of this provision by promoting up-front design, construction, operation, and maintenance to ensure that predictable discharges do not occur. Permitting authorities have full authority and responsibility to determine if the facility's demonstration is adequate. Therefore, as a practical matter, EPA finds it difficult to imagine circumstances in which such a limitation would be necessary for permitted CAFOs subject to this NSPS no discharge standard.
This action responds to the Second Circuit's remand of certain aspects of the 2003 New Source Performance Standards (NSPS). First, EPA has deleted the remanded provisions that authorized two alternatives for compliance with the NSPS requirement for no discharge of manure, litter, or process wastewater into waters of the U.S. from the production area. Second, EPA is promulgating a new provision that would allow a CAFO using an open surface manure storage structure to request the NDPES permitting authority to establish site-specific effluent limitations for its NPDES permit that incorporate the NSPS no discharge requirement. These best management practices effluent limitations include design specifications and operational parameters and must be based on a technical evaluation of the adequacy of the CAFO's storage structure for achieving no discharge of manure, litter, or process wastewater into waters of the U.S. The new provision prescribes in detail the elements of that technical evaluation. A facility designed, constructed, operated, and maintained in accordance with these effluent limitations will meet the NSPS requirement for no discharge.
This provision will have several positive ancillary effects. Some CAFOs may be reluctant to use innovative technologies that incorporate open storage as part of their manure management system in view of the no discharge requirements of Subpart D. This provision creates an incentive for the use of innovative technologies to meet the no discharge requirement by providing an up-front determination that the CAFO will meet the no discharge requirement prior to potentially expensive construction. Second, in the case of new source Subpart D CAFOs that do apply for a permit, this provision provides for an up-front determination subject to public participation as part of the permitting proceeding, that the CAFO will meet the no discharge requirement. Finally, because facilities subject to no discharge of manure, litter, or process wastewater pollutants into waters of the U.S. may choose not to obtain a permit, and therefore are not eligible for upset and bypass defenses, the protection afforded by this provision provides an incentive for CAFOs to obtain a permit.
The 2003 CAFO rule established NSPS for swine, poultry, and veal calf CAFOs as “no discharge of manure, litter, or process wastewater pollutants into waters of the U.S. from the production area.” The rule provided two compliance alternatives that allowed a CAFO in these categories to meet this requirement by showing that either (1) its production area was designed, constructed, operated, and maintained to contain all manure, litter, or process wastewater, and precipitation from the 100-year, 24-hour storm, or (2) it would comply with “voluntary superior environmental performance standards” based on innovative technologies. The “voluntary superior environmental performance standards” provision would allow a discharge from the production area if the discharge was accompanied by an equivalent or greater reduction in the quantity of pollutants released to other media (
The Second Circuit Court of Appeals remanded aspects of the NSPS to the Agency, holding that there was not adequate support in the record for the alternative standards. Specifically, the court directed EPA to clarify the statutory and evidentiary basis for allowing CAFOs to comply with a no discharge NSPS through either a production area containment structure or an alternate performance standard. With respect to the 100-year storm standard, the court noted that while certain studies showed that production area BMPs would have substantially prevented the production area discharges documented in the record, substantially preventing discharges is not the same as no discharge. With respect to the alternative performance standards, the court held that EPA had not justified its decision to allow compliance with the no discharge standard through an alternative standard that permits production area discharges so long as the aggregate pollution to all media is equivalent to or lower than that resulting from the baseline standards. The court further held that EPA did not provide adequate notice for either of these provisions under the CWA's public participation requirements.
This final rule makes the following changes to the 2003 NSPS in subpart D. First, EPA is deleting 40 CFR 412.46(a)(1) that allowed subpart D CAFOs subject to NSPS to meet the no discharge standard through the use of a 100-year, 24-hour rain event containment structure. In a conforming change, EPA is also modifying 40 CFR 412.37(a)(2) to remove the reference to such structures from § 412.37(a)(2). EPA is, however, retaining the requirement in § 412.37(a)(2) that all open surface liquid impoundments have a depth marker. The land application requirements for new sources remain unchanged.
The record for the 2003 NSPS showed that new facilities routinely include systems and employ practices that result in no discharge of manure, litter, or process wastewater pollutants into waters of the U.S. from the production areas. Based on this information, EPA determined that a no discharge standard represented the best available
Second, EPA is deleting 40 CFR 412.46(d) to remove the alternative voluntary superior performance NSPS for new swine, poultry, and veal calf sources in light of the Second Circuit Court of Appeals ruling.
Third, EPA is promulgating a new provision that authorizes the permitting authority to develop a site-specific, no discharge NSPS for new CAFO's using open storage containment structures. Thus, this rule provides that the NPDES Program Director may establish no discharge best management practice effluent limitations based upon a site-specific evaluation for an individual CAFO. CAFOs may request permit writers to establish no discharge best management practice effluent limitations on a case-by-case basis when the facility demonstrates through a rigorous modeling analysis that it has designed a containment system that will comply with the no discharge requirement. After such site-specific standards are established, a facility will be in compliance with the no discharge requirement if its containment system has complied with all of the specified site-specific design, construction, operation, and maintenance components of such a system demonstrated to meet the no discharge requirement.
In its 2006 proposal, EPA proposed an alternative no discharge requirement that would authorize the NPDES Program Director to establish no discharge, BMP effluent limitations based upon a site-specific evaluation for an individual CAFO. A complete discussion of the proposal may be found at 71 FR 37,760-62. Such limitations would provide an alternate approach for CAFOs to meet the no discharge requirement through limitations designed to ensure no discharge of manure, litter, or process wastewater pollutants into waters of the U.S.
Specifically, EPA proposed to authorize permit writers, upon request by a CAFO, to establish no discharge BMP effluent limitations on a case-by-case basis when a facility demonstrated through a rigorous modeling analysis that it could design, construct, operate, and maintain an open containment system that would comply with the no discharge requirement. When a facility complied with all of the site-specific design, construction, operation, and maintenance components of such a system—all of which are conditions of its permit—the CAFO would be deemed to be in compliance with the no discharge requirement even in the event of an unanticipated discharge. EPA is promulgating the provision in essentially the same form as it was proposed.
Commenters raised a number of concerns with this provision. Commenters asserted that the alternative provision creates an exception to the no discharge requirement. Some commenters viewed the modeling exercise as an ineffective substitute for meeting effluent limitations. Commenters also questioned the enforceability of the alternative provision if a new source would have a discharge.
A number of reasons support EPA's decision to promulgate this provision and should allay commenters' concerns. First, the alternative provision requires a CAFO to demonstrate to the satisfaction of the permitting authority, after public notice and comment on the demonstration, that its open storage system is a no discharge system. In order for a new CAFO employing an open storage system to obtain no discharge BMP effluent limitations, the CAFO must demonstrate that the entirety of its operation including its production area, site-specific NMP and other best management practices are designed to ensure no discharge from the entire CAFO. Because this demonstration must be based on the use of a prescribed model and precipitation data for 100 years, any showing of no discharge will necessarily account for a wide range of circumstances. Given the stringency of the required modeling exercise, described more fully below, a successful no discharge demonstration means that the site-specific limitations, in fact, are equivalent to a no discharge requirement. Moreover, because this demonstration will be subject to public participation requirements that apply to any permitting proceeding, commenters are assured that there will be an opportunity for public review of the assumptions used to support the no discharge conclusion. Further, the final determination will also be subject to judicial review as would be the case with any other final permit decision.
Second, the argument that site-specific no discharge limitations are not true no discharge limitations reflects a fundamental misunderstanding on commenters' part. Commenters fail to recognize that the provision allowing site-specific, no discharge effluent limitations essentially places a CAFO with such limitations in the same position as a CAFO without such limitations. Commenters have apparently forgotten that, even in the absence of a provision like that promulgated today, permitted facilities that are subject to no discharge effluent limitations may discharge and not be subject to an enforcement action (or have a defense to any enforcement action) in certain uncontrollable and unforeseeable circumstances. The 2003 CAFO rule specifically provided for the availability of an upset/bypass defense from an enforcement action.
Thus, EPA NPDES regulations currently would provide a defense to an enforcement action, albeit in severely restricted circumstances, for discharges from any permitted new source CAFO. Under the 2003 rule, “no discharge” for those facilities, in fact, means no discharge except in certain narrowly prescribed circumstances. The demonstration required under this rule to support the establishment of alternative site-specific no discharge limitations is designed to show that there will be no discharge from the CAFO except in exactly the circumstances provided in EPA's upset/bypass regulations and described under the 2003 rule.
Under EPA's regulations, an “upset” is defined as “an unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee.” 40 CFR 122.41(n). Under the regulations, the upset defense to an enforcement action would not be available to the extent that the noncompliance with permit conditions was due to operational error, an improperly designed treatment system, inadequate treatment system, improper maintenance or careless and improper operation. 40 CFR 122.41(n)(1).
This rule adopts requirements for an upfront demonstration that parallel the conditions under which an upset/bypass defense would be available in the event of a discharge from a no
This final rule's new NSPS provision allowing site-specific BMP effluent limitations gives the CAFO complying with its permit conditions more certainty that its operations meet its CWA requirements. The permitting process has already established that the discharge is unintentional and beyond the reasonable control of the permittee. Therefore, in the extremely unlikely event of a discharge from a new source that is complying with a permit containing these site-specific no discharge effluent limitations, the CAFO would already have established in the permitting process an affirmative defense with respect to any discharge, and would not need to rely on § 122.41(n).
Establishment of these no discharge, BMP effluent limitations represents a determination by the permit writer that the CAFO will not discharge. The only time a CAFO under this provision could potentially discharge would be in an extreme, rare event not reasonably foreseeable or under the reasonable control of CAFO as demonstrated in the permitting process and explained above.
Fourth, while site-specific BMP effluent limitations provide greater certainty to CAFOs, they also provide the permitting authority and citizens more specific measures of compliance than is the case for CAFOs without such permit conditions. Unlike a CAFO that does not discharge or propose to discharge and therefore chooses not to seek permit coverage, a CAFO relying on site-specific BMP effluent limitations would have a permit and permit terms that include the design, construction, operation, and maintenance measures that formed the basis for the permitting authority's determination that the CAFO will meet no discharge. Because the elements demonstrating no discharge are permit conditions established in a process that provides for public participation and on-going oversight, use of this alternative should further ensure compliance with the no discharge requirements.
So long as the facility complies with its BMP effluent limitations (and other terms of the permit such as monitoring or recordkeeping requirements), the CAFO will not be subject to enforcement action. EPA underscores for the regulated community that the protections afforded by this provision are only available through permits issued to new source CAFOs. EPA further wishes to emphasize that the more general upset and bypass regulations are only available to permitted CAFOs, and are otherwise unaffected by this NSPS provision.
Finally, policy considerations support the Agency's adoption of an alternative no discharge approach. EPA encourages CAFOs to implement anaerobic digesters, multi-cell treatment lagoons, and nitrification/denitrification technologies. In addition, EPA wants to encourage the development of innovative technologies for meeting the no discharge requirement. To do this, CAFOs want certainty that the technologies they develop and implement will comply with the CWA. EPA recognizes that the upset and bypass provisions do not provide certainty to the operator that any discharge will be excused. In particular, CAFOs operating innovative or advanced technologies may be reluctant to rely on the standard upset and bypass provisions. Under the regulation adopted here, an operator must demonstrate to the permitting authority's satisfaction, after public comment, that an innovative approach that includes an open storage system will be designed, constructed, operated, and maintained to achieve no discharge. This demonstration would mean that this CAFO would not discharge, except during an event beyond the CAFO's reasonable control; an event that could be excused under the normal upset provisions. Once this demonstration has been made, it makes sense to provide the CAFO with the certainty that would eliminate the need for the CAFO to go through the upset/bypass process in most circumstances.
In addition, this approach is consistent with CWA section 101(f), requiring EPA to use efficient procedures for decision-making. Because of this provision, in the rare occurrence of a catastrophic event, this provision would relieve permitting authorities and CAFOs from the typical procedures necessary to meet the upset/bypass requirements.
The CAFO NSPS provisions adopted today require an evaluation of the adequacy of the designed storage facility using the AWM (Animal Waste Management) tool and an evaluation of overall water budgets using SPAW (Soil Plant Air Water) Field and Pond Hydrology Tool, or equivalent analytic tools. EPA has concluded that 100 years of climate data is an ample time frame for simulation purposes and will support a reasonable finding that the system will not discharge. However, EPA is aware that 100 years of continuous rainfall data may not be available for all CAFOs. Models can be run using actual rainfall data where available, and then simulated with a confidence interval analysis over a period of 100 years.
AWM is a planning and design tool for animal feeding operations that can be used to estimate the production of manure, bedding, and process water, and thus determine the size of needed storage facilities. AWM accounts for wastewater, flush water, precipitation, runoff, and other additions to the waste stream. AWM can estimate storage facility sizes using either a defined storage period or by drawdown dates specified by the user. A monthly water and waste budget for each storage component is generated, in most cases allowing the CAFO to demonstrate no discharge from the entire production area. The procedures and calculations used in AWM are based on the USDA-NRCS Agricultural Waste Management Field Handbook.
The SPAW model consists of two linked routines. The first routine develops field hydrologic budgets based upon daily climatic data, crop data, and hydraulic characteristics of the soil profile. The second routine utilizes the
AWM tracks gross nutrients, but does not track the mass or concentration of nutrients. Further, the storage period or drawdown schedule is usually determined by the individual CAFO. Therefore, the CAFO's NMP must be used as an input to confirm both a water balance and a nutrient balance has been achieved by the CAFO. The NSPS provisions require that each CAFO use the SPAW tool to assess daily hydrologic budgets for each field. The complete modeling demonstration shows not only that the storage facility does not discharge, but also that there is no runoff of process wastewater from fields during land application activities consistent with the CAFO's NMP, which is necessary to ensure that the open containment system is operated in a way to meet the land application requirements of the rule. In EPA's view, the requirement to use the SPAW model (or an equivalent approved by the permitting authority) ensures CAFOs will rely on appropriate operational measures to achieve no discharge standards.
The CAFO NSPS provisions require certain specified information regarding design, construction, operation, and maintenance of the system to be included in the CAFO's NMP under 40 CFR 122.42(e)(1). This includes the key user-defined inputs and model system parameters. CAFOs must submit a site-specific analysis to the Director. See 40 CFR 412.46(a)(1). These site-specific design, construction, operation, and maintenance measures are enforceable requirements in the CAFO's permit. As long as the CAFO complies with these requirements, the CAFO presumptively meets the no discharge requirement. EPA has determined that the final rule revisions provide a clear and enforceable standard for the CAFO to achieve as well as providing assurance to the public that the proposed system complies with the no discharge requirement.
Under these final amendments to the NSPS, the Director has the discretion to require additional information from a new source subpart D CAFO owner or operator to support site-specific BMP effluent limitations. The burden is on the CAFO to demonstrate that any proposed system it employs, including an open system, meets the new source standard. EPA expects CAFOs will utilize the most current version of AWM and SPAW when submitting their demonstration to the permitting authority. However, EPA is aware that other peer-reviewed models and programs have been or may be developed that could be determined to be equivalent to AWM and SPAW. Therefore the rule gives the Director the discretion to approve design software or procedures equivalent to AWM and SPAW. Once approved by the Director, the public still would have the opportunity to comment on the CAFO's submitted modeling and demonstration as discussed earlier.
The information, design, and evaluation process required of all CAFOs wishing to avail themselves of this alternative is intended to allow CAFOs the flexibility to demonstrate compliance with the no discharge requirements for any type of open storage facility. As a practical consideration, EPA expects most CAFOs selecting this compliance alternative will submit designs for open manure storage structures accompanied by a narrow range of acceptable operation and management practices. However, for a given type of storage facility design (for example, an integrator with several company-owned CAFOs each designed and constructed in an essentially identical manner within the same county), EPA believes it is possible to conduct a series of assessments that together fully encompass the range of operational and management measures that would be used across multiple CAFOs with the specified storage facility design. In this case, SPAW could be run to validate a wide range of NMP and storage pond management scenarios (to continue the above example, the CAFOs all have the same sets of crops, soil types, land application equipment, etc.). This alternative does not change the requirement for a CAFO to develop a site-specific NMP. These final amendments authorize the permitting authority to determine that any CAFO using the specified facility type and submitting an NMP that falls within the pre-approved range of operational and management practices would not need to conduct an individualized assessment step (
The availability and use of such a geographical and categorical approach will require that the permit writer determine that a number of conditions are met. First, the assessment must fully account for all pertinent factors relevant to determination of the potential for discharge from an open storage system. The assessment must also include all parameters necessary to mirror properly the range of soil, plant, climatic, and hydrological conditions within the geographical area for which the assessment is intended to be representative. Second, the permittee must establish that the parameters reflected in the general assessment used to establish no discharge are, in fact, representative of those parameters for each CAFO. Finally, the assessment must reflect the operational and management practices to be employed by each CAFO at each individual site. As with the individual assessment, each CAFO must have a site-specific NMP that includes the operational and management measures utilized in the geographical assessment.
EPA is eliminating the requirement to indicate the capacity for a 100-year, 24-hour storm for new sources. EPA is maintaining the requirement to have a depth marker for all open storage structures. In EPA's view, a marker indicating the storage pond or containment depth can be an excellent means of displaying how much storage a CAFO has, whether it is time to pump down levels in the lagoon, pond, or other storage structure, or whether alternative management steps must be taken to prevent a full storage structure and potential overflow. Existing sources and new sources subject to subpart C continue to have the requirement for a depth marker that indicates the 25-year, 24-hour storm event. New sources subject to subpart D and using an open storage structure must use the depth marker to indicate the maximum volume of manure and process wastewater the structure is designed to contain.
While one component of preventing discharge from an open system is to provide adequate storage of manure and wastewater during critical periods, ensuring adequate physical capacity is not sufficient. Rather, determining whether there is adequate storage is based on a site-specific evaluation of the CAFO's entire waste handling system. Adequate storage has to be based on climate-specific variables that define the appropriate storage volume, but of equal importance are the nutrient management plan and other
In response to the Second Circuit remand, EPA is today affirmatively finding that the best conventional pollutant control technology (BCT) limitations it adopted in 2003 do, in fact, represent the best conventional control technology limitations for fecal coliform. After assessing various conventional pollutant removal technologies, EPA has determined that there are no available and economically achievable technologies that are cost reasonable that would result in greater removal of fecal coliform than the technologies on which EPA based the 2003 best practicable control technology currently available (BPT) and BCT effluent limitations guidelines (ELG).
As EPA has explained, establishing BCT limitations begins by identifying technology options that provide additional conventional pollutant control beyond the level of control provided by BPT effluent limitations. Any such candidate technologies are then evaluated to determine if they meet the threshold CWA requirements of “availability” and “economic achievability.” 51 FR 24,974, 24,976; July 9, 1986. A technology is economically achievable if its costs may be “reasonably borne” by the CAFOs.
EPA evaluated 41 BCT candidate technologies for this rule and determined that all but two of them were either not available (technically feasible for all CAFOs in a subcategory) or not economically achievable. For the remaining two technologies, while their costs are high and EPA believes it likely that they are also not economically achievable, EPA was unable to conduct its traditional tests for economic achievability and thus has not determined in this rule whether or not they are economically achievable. However, EPA has determined that these two technologies, even if economically achievable, would not be cost reasonable, and has therefore rejected them as BCT technologies.
As a result of this assessment, EPA has concluded that there are no available and economically achievable technologies that are cost reasonable that would provide greater fecal coliform removal than the BPT technology. How EPA performed this assessment and the results of that assessment supporting EPA's finding that the 2003 BPT/BCT limitations represent BCT technology for controlling fecal coliform is described in detail below.
As previously noted, the
At that time, EPA concluded that there were no available BCT technologies on which to base limits for conventional pollutants that were more stringent than the BPT limitations, and EPA therefore established BCT requirements equal to BPT limitations. EPA based this determination in part on the combined pollutant reductions (Table 7.2 of 68 FR 7239), and in particular its evaluation of the reductions in discharges of the conventional pollutants (TSS, BOD, and fecal coliform) associated with the various technology options it considered. 71 FR 37,763. EPA noted difficulties in quantifying the loadings and reductions in discharges of these pollutants—in particular, in assessing fecal coliform—and relied primarily on reductions in sediment discharges as a surrogate for reductions in TSS in reaching its BCT determination. EPA concluded that there were no technologically feasible candidate BCT technologies that would achieve greater TSS removals than the BPT requirements for either Subpart C or Subpart D facilities, and no economically achievable technologies for Subpart C facilities that would reduce discharges of BOD. Consequently, EPA found that there were no BCT technologies for establishing limits on conventional pollutants that would achieve greater removal than the BPT technology and established BCT requirements that were equal to BPT. 68 FR 7224.
While EPA's assessment of the effectiveness of various control options did attempt to measure pathogen reductions for the final rule, EPA did not establish any specific BPT or BCT limitations to control fecal coliform, a conventional pollutant and pathogen. The
As EPA proposed, in this final rule EPA is affirmatively concluding that the current BCT limitations for conventional pollutants represent the best conventional control technology for fecal coliform and is establishing BCT limitations for fecal coliform that are equal to the current BPT/BCT limitations. These limitations prohibit the discharge of manure, litter, or process wastewater into waters of the U.S. from the production areas of CAFO except in limited circumstances. A discharge is allowed only if an existing, permitted CAFO has a properly designed, constructed, and operated storage structure with the capacity to contain all manure, litter, and process wastewater associated with the facility as well as the runoff and direct precipitation from a 25-year, 24-hour rainfall event.
The CWA requires point sources to achieve effluent pollutant levels established by EPA that are attainable through progressively more stringent pollutant control technology. The CWA calls for technology-based control in two stages. As originally enacted in 1972, the Act required existing point sources to comply in the first stage with EPA-established limitations that are achievable by application of the “best practicable control technology currently available” or “BPT.” These limitations control conventional, toxic, and nonconventional pollutants. EPA has typically based BPT limitations on the average pollutant removal performance of the best facilities examined by EPA. The 1972 Act also required existing point sources to comply in the second stage with EPA-established limitations that are achievable by the application of “best available technology economically achievable,” or “BAT.” In 1972, these limitations also controlled conventional, toxic and non-conventional pollutants.
The 1977 amendments to the CWA replaced BAT for conventional pollutants with limitations that represent “best conventional pollutant control technology” or “BCT.” Section 304(a)(4) designates the following as conventional pollutants: Biochemical oxygen demand (BOD), total suspended solids (TSS), fecal coliform (FC), pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as an additional conventional pollutant, on July 30, 1979 (44 FR 44,501), but has listed no other pollutants for regulation as conventional pollutants.
The decision to amend section 304(a) of the CWA to require achievement of BCT, rather than BAT, for control of conventional pollutants reflected two factors. The first was Congressional desire not to require “treatment for treatment's sake” and the second, Congress's view that BAT control of conventional pollutants might not be necessary to achieve the water quality goals of the Act. S.Rep. No. 370 at 43, 1st Sess. 43 (1977),
The CWA Amendments of 1977 that require EPA to determine BCT limitations also specify the factors to be taken into account in this determination of BCT. Section 304(b)(4)(B) provides that the factors to be assessed:
[S]hall include consideration of the reasonableness of the relationship between costs of obtaining a reduction in effluents and the effluent reductions benefits derived, and a comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources. * * * 33 U.S.C. 1314(b)(4)(B).
The cost test for conventional pollutants is a new test. It is expected to result in a determination of reasonableness which could be somewhat more than best practicable technology or could be somewhat less than best available technology for other conventional pollutants. The result of the cost test could be a 1984 requirement which is no more than that which would result from best practicable technology but also could result in effluent reductions equal to that required in the application of best available technology. Joint Explanatory Statement of the Committee of Conference, 95th Cong. 1st Sess., H.R. No. 95-830 at 85,
In the words of Senator Muskie, the Senate Floor Manager and leading sponsor of the amendments:
The Administrator must determine whether or not the cost of achieving reductions of conventional effluent bears a reasonable relationship to the amount of effluent reduction achieved. In making this determination, the Administrator is to compare the costs of industrial effluent reduction to the cost of municipal waste treatment. Legislative History at 458.
Accordingly, EPA developed a “BCT Methodology” to answer the question of whether it is “cost-reasonable” for industry to control two conventional pollutants, BOD (or oil and grease in the case of certain metals industries) and TSS, at a level more stringent than already required by BPT effluent limitations. EPA first explained its BCT methodology when it promulgated BCT effluent guidelines for 41 industry subcategories (44 FR 50,732; August 29, 1979).
A number of industries and industry associations challenged the regulation, and, in 1981, the U.S. Court of Appeals for the Fourth Circuit remanded it to the Agency, directing EPA to include an assessment of the cost-effectiveness of industry conventional pollutant removal in addition to the POTW test in its evaluation of cost reasonableness.
As previously explained, EPA established BCT requirements equal to BPT in the 2003 CAFO rule (
EPA also evaluated pathogen reductions associated with the 2003 BPT limitations. The BPT limitations prohibit dry weather discharges from land application areas, and the BPT land application requirements (including technical standards for timing, form, and rate of application, as well as the required vegetated buffer, setback, or equivalent practices) already minimize discharges from land application areas. The BPT production area requirements prohibit discharges, except for overflows from liquid storage structures that meet certain design and operational criteria. EPA used fecal coliform and fecal streptococcus as surrogates to estimate the pathogen reductions achieved by the CAFO rule requirements. EPA concluded that the BPT limitations would reduce these two pathogens by 2.7 x 10
As noted, EPA has determined that there are no technically feasible and economically achievable candidate technologies for fecal coliform removal that are cost reasonable and would achieve greater removals than the 2003 BPT limitations. The following discussion summarizes the basis for this final determination.
As previously explained, the first step to establishing BCT limitations is to identify technology options that provide additional conventional pollutant control beyond the level of control provided by the application of BPT limitations and to evaluate these technologies for “availability” (including technical feasibility) and “economic achievability.”
The next step in determining BCT is to evaluate any candidate technology that is both technically feasible and economically achievable for cost reasonableness. Traditionally, EPA has evaluated candidate BCT technologies for cost-reasonableness using a two-part BCT cost test it developed for two conventional pollutants, BOD and TSS. The test is intended to assess whether there are cost-reasonable technologies that will achieve greater BOD and TSS removals than required by the BPT technology for an industry category by comparing the incremental cost-effectiveness of candidate BCT technologies with the incremental cost-effectiveness of BOD and TSS removals at POTWs through advanced secondary treatment as compared to secondary treatment. This test makes sense for BOD and TSS because advanced secondary treatment is specifically designed to remove additional BOD and TSS. However, it is not designed for additional fecal coliform removal, so the incremental cost-effectiveness of advanced secondary treatment in removing fecal coliform is not a good benchmark for use in evaluating candidate BCT technologies for fecal coliform removal.
The methodology is appropriate for BOD and TSS because advanced secondary treatment is specific to the removal of BOD and TSS. Costs associated with upgrading a POTW from secondary to advanced secondary treatment were based on polymer addition to the activated sludge basin. The purpose of the polymer addition was to enhance removal of BOD and TSS in the secondary clarifier, and achieve final effluent concentrations of 20 mg/L BOD5 and 20 mg/L TSS. Therefore, the cost increment between secondary and advanced secondary treatment represents the incremental cost of removal of additional BOD and TSS at POTWs. 51 FR 24,981.
Unlike BOD and TSS, advanced secondary treatment is not designed to remove additional increments of fecal coliform beyond secondary treatment. When both secondary and advanced secondary treatment systems include disinfection, the total fecal coliform removal is nearly the same, over 99 percent. Secondary treatment by itself (without disinfection) also removes significant amounts of fecal coliform, although almost all POTWs include disinfection at some point in their treatment train. The polymer addition in advanced secondary treatment is not intended for additional fecal coliform removal since both secondary and advanced secondary POTWs use disinfection treatments to prevent fecal coliform releases to surface water. Therefore, because the object of the BCT cost test is to ensure that the costs of additional removals of conventional pollutants associated with BCT limitations do not exceed POTW conventional removal costs, distinguishing fecal coliform removals between advanced secondary treatment and secondary treatment is not relevant. Because advance secondary treatment is not intended to be more effective than secondary treatment at removing fecal coliform (and is not added for this purpose), it is not appropriate to apply
Given these circumstances, EPA recognized that if it were to use a similar numeric BCT cost test to evaluate fecal coliform removal for BCT, EPA would have to modify the traditional BCT cost test to address the issue that advanced secondary treatment at POTWs is not designed to remove fecal coliform. When the Agency promulgated the BCT methodology (including descriptions of how to apply the cost test), EPA envisioned the need for adjustments to the BCT cost test methodology in future rulemakings to account for lack of comparable data or other industry-specific factors. 51 FR 24,974, 24,976. Moreover, section 304(b)(4)(B) authorizes EPA to consider other appropriate factors in establishing BCT.
Accordingly, for the proposal, EPA suggested a modified BCT cost test. However, based on comments, EPA has identified a number of problems with the proposed test. These problems are discussed briefly here and described more fully in the Response to Comments Document prepared for this rule. First, although the revised test used a different cost-effectiveness calculation from the traditional test, it still relied indirectly on a comparison of the cost-effectiveness of BCT candidate technologies to the cost-effectiveness of advanced secondary treatment, even though, as just noted, advanced secondary treatment is not designed to remove fecal coliform. Second, the revised test did not compare the incremental cost-effectiveness of the candidate technologies to the incremental cost-effectiveness of fecal coliform removals at POTWs and therefore did not allow a comparison of “the cost and level of reduction of [fecal coliform] from the discharge from publicly owned treatment works to the cost and level of reduction of [fecal coliform] from * * * industry sources * * *” as required by the statute. As a result, EPA has now determined that it cannot use the revised test to evaluate cost reasonableness.
For this final rule, EPA also considered other possible approaches for evaluating cost reasonableness. One approach would have been to identify a technology that is used at POTWs specifically for fecal coliform removal and develop a test similar to the traditional cost test but based on this technology. EPA considered disinfection as one possible benchmark technology for fecal coliform removal, but determined that there is significant variability in the manner in which disinfection is used in combination with other technologies at different POTWs and it would thus be extremely difficult, both theoretically and logistically, to develop a revised benchmark based on this technology.
Consequently, for the final rule, EPA has applied a simplified cost reasonableness test designed to specifically address fecal coliform. This approach is consistent with section 304(b)(4) of the CWA and is one EPA has used in the past. While the traditional cost test compares reductions from BCT candidate technologies to those of POTWs, EPA has, on occasion, rejected BCT technologies without comparing them to POTW performance, even for BOD and TSS. Thus, for example, where EPA lacked sufficient data to quantitatively evaluate BOD and TSS reductions under the traditional test, EPA rejected more stringent BCT limitations solely on the basis of an evaluation of the incremental costs of further reductions.
Based on its consideration of information submitted by commenters and its own analysis, EPA has determined that there are only two of 41 candidate technologies that are technically feasible and may be economically achievable that provide greater removals of fecal coliform than the technologies selected as the basis for BPT limitations in the 2003 rule. The discussion below provides the basis for this conclusion.
In its evaluation of candidate BCT technologies, EPA reviewed data on different types of CAFO manure management systems. These systems employed treatment technologies, best management practices (BMPs) for pollution prevention, and management practices for the handling, storage, treatment, and land application of wastes. Sources of information included available technical literature, over 11,000 comments submitted by industry and other public commenters, and insights gained from conducting over 116 site visits to CAFOs.
In its search for candidate technologies, EPA initially reexamined the technology options it had considered for the 2003 rule because the Agency concluded that these might provide more fecal coliform reductions than the option selected for BPT limitations. EPA looked at technology Options 3, 5, 6 and 7 described in the proposal at 71 FR 37,763 and the Technical Development Document. Options 3, 5, 6, and 7 represented additional controls beyond the controls (
In addition to the four technologies reviewed for the 2003 final rule, EPA looked at an additional 37 technologies and systems identified either by EPA or commenters as candidate fecal coliform BCT technologies. At the outset of assessment for this rule, EPA rejected all of these technologies as the basis for BCT limitations for fecal coliform for Subpart D CAFOs because they were either not technically feasible for all Subpart D CAFOs, or were not economically achievable. Many of the rejected technologies were costlier than Option 5 which EPA in the 2003 final CAFO rule had earlier determined was not economically achievable for Subpart D (
For Subpart C facilities, EPA did not have a previously identified option that it had already determined to be economically unachievable against which to compare the costs of candidate
EPA explained the basis for its decisions with respect to feasibility of the other candidate technologies (for both Subparts C and D) in the proposed rule, and commenters have not provided any information that would lead the Agency to change its conclusions. 71 FR 37,768-71.
In addition, EPA specifically solicited comment on additional candidate technologies that might prove feasible and less costly than the technologies already evaluated for the proposal. EPA is aware of technologies that may, on a site-specific basis, be used to provide further reductions of conventional pollutants as compared to the technologies on which the 2003 BPT/BCT limitations were based. However, EPA's record shows these other technologies are not available engineering alternatives for most CAFOs, and they are therefore not feasible technology candidates. See Chapter 8 of the “Development Document for the Final Revisions to the NPDES and the Effluent Guidelines for CAFOs” and the docket accompanying this action for descriptions of these additional technologies.
In response to its requests for additional information, EPA received no new data that support evaluation of additional candidate technologies or warrant revision to EPA's conclusions about the costs or performance of the candidate technologies EPA identified. Specifically, while some commenters recommended consideration of additional digester systems, the costs of the various digester systems do not vary sufficiently to warrant a detailed analysis of the costs of these technologies at every type of CAFO. To date, EPA has not identified less expensive, and consequently, economically achievable candidate technologies than those it had previously evaluated. Furthermore, EPA did not further evaluate the systems approach (combinations of one or more candidate technologies) recommended by some commenters because it would not reduce fecal coliform more than the 99 percent assumed by EPA
The above assessment resulted in only two remaining candidate technologies (composting and constructed wetlands) that are potentially
However, instead of evaluating these technologies with respect to economic achievability, EPA evaluated the cost reasonableness of the technologies using the simplified approach described above. In the past, EPA has adopted such an approach when it lacked a full data base to evaluate different BCT technologies. A simplified approach fits the circumstances here for two reasons. First, as noted, EPA has developed no standardized BCT cost test for fecal coliform. Second, EPA lacks the data to provide a comparison of incremental fecal coliform removals that is the basis for the BCT cost test for TSS and BOD.
The annual operating costs for composting would be more than six times as much as the full BPT level of control at Subpart C facilities (see Chapter 4 and Table A-15 of the Final Cost Methodology, EPA-821-R-03-004), while constructed wetlands would cost Subpart C facilities more than an order of magnitude (13) times the cost of the BPT level of control (see chapter 15 in the supplement to the TDD). EPA has determined that these costs are too high relative to the additional removals. EPA thus concludes that the incremental costs of the additional removals alone support a determination that these technologies are not cost reasonable.
To further evaluate this conclusion, EPA conducted a modeling analysis of POTW removal costs for fecal coliform. As discussed above, the available data do not permit an empirical cost comparison between CAFO candidate
Even recognizing the necessary imprecision associated with EPA's calculations, EPA has determined that this limited POTW cost comparison further supports its determination that the costs of these two BCT candidate technologies are not cost reasonable, given the lack of hard data on which to base the determination. This is fully consistent with EPA's findings in the proposed rule that POTWs are very cost effective at fecal coliform removals. 71 FR 37,772. The assessment confirms what logic suggests: Given a POTW's requirement to virtually eliminate the extremely high fecal coliform discharges in its influent (basically raw sewage), POTWs, on a national basis, achieve fecal coliform removal on a cheaper basis than CAFOs.
Finally, EPA notes that Congress intended the BCT level of control to be somewhere between the BPT and the BAT levels of control, as established in the statute. As noted in the conference report to the 1977 amendments establishing BPT:
“The result of the cost test could be a 1984 requirement which is no more than that which would result from best practicable technology but also could result in effluent reductions equal to that required in the application of best available technology.” Joint Explanatory Statement of the Committee of Conference, 95th Cong. 1st Sess., H.R. No. 95-830 at 85,
Thus, candidate technologies with costs between 6 and 13 times the costs of technologies that have already been determined to be BAT would not generally be appropriate as the basis for BCT.
The following discussion summarizes additional significant comments received by EPA on the proposed CAFO BCT determination for pathogens. For a complete response to the issues raised by commenters, see the Response to Comment Document.
In calculating the BPT cost per unit of fecal coliform removal for its cost-reasonableness assessment, one commenter noted the cost was erroneously calculated in units of dollars per billion colony forming units (CFU); the units should have been dollars per trillion CFU in order for the test to be comparable and consistent with the remaining BCT cost calculations. EPA agrees with this comment and has corrected all calculations to dollars per trillion CFU.
Some commenters correctly noted that as part of the BCT cost test for fecal coliform, EPA calculated the POTW and industry cost benchmarks as the difference in average costs of removing fecal coliform between secondary treatment and advanced secondary treatment rather than as the incremental cost for the upgrade. These commenters believed that such an approach was incorrect. As discussed above, EPA agrees and has not used the revised BCT cost test for this final rule. In regards to the BCT options that were selected for further analysis, some commenters believe that numerical limits are feasible for CAFOs and should have been selected for BCT. They would have liked to see EPA take a similar approach to CAFO waste that EPA has taken regarding human sewage sludge (
By contrast, other commenters found no fault or shortcomings in the EPA analysis of the technical feasibility of conventional technologies in determining BCT for pathogen removal. They agree that the candidate technologies examined by EPA present insurmountable challenges to many CAFOs that make them inappropriate as a basis for BCT. They found no fault with the cost data or analytical techniques used by EPA in the BCT cost test. These commenters also presented additional economic analysis of the candidate technologies that has been published in the “Phase 3” report on the “Development of Environmentally Superior Technologies” per agreements between the North Carolina Attorney General and major pork producers in the State. These commenters note that the “Phase 3” economic analysis found that none of the 16 technologies studied were economically feasible for existing swine operations in North Carolina, which is consistent with EPA's findings as discussed in detail above. These commenters also provided State records of CAFO violations and discharge data for the past three years to support their position that EPA has overstated the frequency of production area overflows. These additional data may be found in the record for this final action.
When EPA issued the revised CAFO regulations on February 12, 2003, it estimated annual pollutant reductions
Since there is no change in technical requirements, changes in impacts on respondents are due exclusively to changes in the information collection burden. To determine the administrative burden for the Paperwork Reduction Act (PRA) analysis, the Agency first examined the two key permitting changes resulting from the
The 2003 CAFO rule had a universal duty to apply requirement which required virtually all CAFOs to obtain NPDES permit coverage. The supporting analysis for the 2003 rule estimated that as a result of this requirement, approximately 15,500 CAFOs would ultimately receive NPDES permits. See the Technical Development Document for the 2003 rule, Chapter 9.
This final rule changes the duty to apply requirement so that only CAFOs that discharge or propose to discharge are required to seek NPDES coverage. To derive the number of CAFOs that could ultimately fall into this category, EPA first projected total industry size for 2008 based on both U.S. Department of Agriculture (USDA) Census of Agriculture statistics as well as Agency-based sector expertise. This exercise yielded an estimate of approximately 20,700 total CAFOs for 2008. EPA then combined the 2008 projections for each animal sector with information on standardized operational profiles to anticipate the number of facilities as of 2008 that might discharge. For example, when inclement weather precludes land application or dewatering activities, open lot type facilities such as beef lots and dairy operations are more likely to experience conditions that could result in a discharge due to the use of open on-site lagoons. Additionally, EPA assumed that all dairies generate wastewater from the production area and generally have uncovered on-site lagoons. Thus, for purposes of burden estimates, EPA assumed that all dairies and most beef feedlots would apply for permits.
Even though the industry grew to roughly 20,700 CAFOs from 2002 to 2008, the change in the duty to apply requirement is anticipated to reduce the number of facilities needing permit coverage to approximately 15,300 discharging CAFOs. Based on these updated figures, EPA estimates that approximately 25 percent of the total universe of CAFOs would not discharge and thus would not need NPDES coverage under this final rule. Although these facilities may not need to apply for permits, the administrative burden analysis performed by EPA under the PRA nonetheless accounts for the costs that unpermitted facilities will incur for the nutrient management planning that are necessary for demonstrating that the facility is land applying manure in such a way as to qualify for the agricultural stormwater exemption.
These figures may overstate the numbers of CAFOs needing NPDES permits in that the estimates of the number of discharging facilities in each sector make conservative categorical assumptions about the likelihood of a discharge based on broad operational profiles and do not account for more subtle stratifications within specific operational categories. For instance, although most dairies generate wastewater from the production area and have on-site lagoons, there do, in fact, exist dairies designed to be no discharge operations.
Based on the updated estimates of the CAFO universe, EPA's PRA analysis projects, as shown in Table 4.1, that CAFO operators and permitting authorities will collectively experience an increase in total annual administrative burden of approximately $0.5 million as a result of the EPA regulations to address the court decision. Although the PRA burden to CAFOs and permitting authorities declines as a result of the Waterkeeper court decision to limit permits only to discharging CAFOs, this burden reduction is offset by the new NMP-related requirements for permits and by the assumption, for purposes of this PRA analysis, that all unpermitted CAFOs will certify under the voluntary no discharge certification option. More specifically, CAFO operators will experience a $0.2 million reduction in net annual administrative burden. This net result is based on several offsetting changes. CAFOs that do not seek permit coverage under this final rule because they do not discharge or propose to discharge will save approximately $14 million annually in reduced permitting costs. However, even though fewer CAFOs will need to be covered by NPDES permits, permitted facilities as a group face an increase in annual administrative burden of $1.2 million per year due to the new NMP requirements.
EPA's analysis of burden impacts to CAFOs also accounts for the burden that unpermitted facilities will incur in order to be able to qualify for the agricultural stormwater exemption—a cost category that EPA estimates will result in a burden on unpermitted facilities of $12.2 million annually. In addition, EPA estimates that the voluntary certification option for unpermitted CAFOs could add $0.4 million annually to the PRA burden for CAFOs. Although certification is voluntary, EPA elected to cost the PRA burden associated with this option so as to provide a complete accounting of all rule-related impacts. As noted above, the net result of these impacts is an administrative burden savings across all CAFO operators, permitted and unpermitted, of $0.2 million annually.
Permitting authorities, on the other hand, are projected to experience a $0.7 million increase in annual administrative burden. Although the burden to issue permits declines by $4.2 million annually due to fewer facilities needing permits, this decline is more than offset by the added workload arising from the new NMP-related requirements. EPA estimates that States would face an additional PRA burden of $4.9 million annually specifically as a result of the new NMP-related requirements. In addition, States are projected to face a burden increment of up to $0.04 million annually to process the new certifications.
EPA's estimate of PRA burden impacts changed from a reduction of $14.9 million annually for the 2006 proposed rule to an increase of $0.5
The PRA burden analysis presented in this rule accounts both for growth in the industry and changes in labor rates since the 2003 rule was issued. In addition, the changes are based on annualized impacts and assume a permit term of five years as stipulated in the CWA. EPA submitted draft ICRs with the 2006 proposed rule and 2008 supplemental proposal, and did not receive any comments from the Office of Management and Budget (OMB). The documentation in the public record on the PRA analysis for this rulemaking discusses more fully the assumptions used to estimate the numbers of CAFOs needing permits and to project the associated administrative burden.
The Agency received a variety of comments on the impacts analysis presented for the 2006 proposed rule and the 2008 supplemental proposal. Several commenters indicated that the Agency erred in assuming that the environmental benefits from the 2003 rule would be retained under the approach adopted in this final rule. The Agency stands by its position presented in the 2006 proposed rule, but has revised the burden analysis to reflect more fully that all unpermitted CAFOs do not discharge or propose to discharge and, therefore, must implement nutrient management practices to ensure that any discharge from the CAFO's land application area qualifies for the agricultural stormwater exemption. As a consequence, as indicated above, the annual burden reduction realized by CAFOs under the final revised rule is shown as approximately $0.2 million as opposed to the $15.4 million reduction projected for CAFOs in the 2006 proposed rule. This revised analysis also addresses specific comments suggesting that the Agency should recognize that operators without permits will continue to incur costs under the regulation in order to meet the burden of proof required to qualify for the agricultural stormwater exemption.
Other commenters indicated that the impacts analysis underestimated the costs to CAFO operators of complying with the EPA regulations. Careful review of these statements makes clear that commenters with this viewpoint either did not account for the fact that the impacts analysis presented for this rulemaking is exclusively an assessment of the paperwork burden—not the overall compliance burden—faced by CAFOs, or did not fully consider that the costs shown represent average yearly (annualized) burden rather than total paperwork-related costs for a five-year CAFO NPDES permit.
Other commenters provided specific information on nutrient management plan (NMP) development costs, which the Agency determined corroborated the original NMP cost estimates.
One State commenter claimed that the Agency had underestimated costs to permitting authorities for managing the potential public hearings precipitated by the new requirements for public notice. This commenter projected that every public notice regarding NMPs would result in a public hearing. The Agency re-examined its assumptions regarding the incidence of public hearings, but did not find information to corroborate the commenter's projection either based on past NPDES public hearing patterns or based on expectations from other States regarding the number of hearings likely to be triggered by NMP-related public notices. This assumption that public hearings would not be requested for every NMP is further confirmed by the experiences of States that currently require NMPs to be submitted as part of their permitting process.
Several commenters indicated that they believed that the Agency had also
Since 2003, EPA and CAFO stakeholders have been interested in developing a framework to enable CAFOs to pursue superior environmental performance across all media. Today, some CAFOs voluntarily conduct whole-farm audits to evaluate releases of pollutants to all media through Environmental Management Systems (
The fact that EPA has multiple efforts underway relating to livestock operations under several environmental statutes underscores the need to explore how to leverage existing regulatory authorities most effectively. For example, in addition to the regulations being finalized in this rulemaking, the Agency has recently undertaken a National Air Emissions Monitoring Study. EPA also proposed a rule that would exempt animal feeding operations from certain requirements relating to reporting of air releases under hazardous waste laws.
EPA solicited comment in the 2006 proposed rule on the feasibility (including consideration of legal, technical, and implementation issues) of allowing flexibility in how facilities meet various programmatic requirements, for instance those of the Clean Air Act and the Clean Water Act (CWA), in order to achieve greater cross-media pollutant reductions. EPA received generalized support for this type of approach in the comments submitted in response. EPA will continue to explore cross-media considerations as it works together with CAFOs and stakeholders to build further experience on this issue.
As an example of the Agency's work in this area, in October 2007, EPA awarded $8 million in federal grants for providing technical assistance to livestock operators, including animal feeding operations, for the prevention of water discharges and reduction of air emissions. More recently, EPA's Agricultural Advisor announced the establishment of the Farm, Ranch, and Rural Communities Federal Advisory Committee. One of the issues the committee will focus on will be identification and development of a comprehensive environmental strategy for livestock operations. EPA anticipates that the committee will offer timely observations on the opportunities and challenges of cross-media approaches to programs for addressing environmental concerns at livestock operations as its work progresses.
Although this final rule does not require any new best conventional pollutant control technology (BCT) effluent limitations specifically to control fecal coliform, EPA is continuing to assess environmental and human health concerns associated with the management of manure and wastewater at CAFOs. Pollutants most commonly associated with animal waste include nutrients (including ammonia), organic matter, solids, odorous compounds, and various pathogens. These pollutants, and others, can be released into the environment through discharge or runoff if manure and wastewater are not properly handled and managed. EPA is interested in recently initiated studies to assess potential impacts from pathogens in livestock manure, especially those which may pose unique risks such as Cryptosporidium and Giardia. These pathogens may be of concern if they make their way into drinking water sources (
EPA's Office of Research and Development (ORD) is actively working to identify sources of Cryptosporidium. In collaboration with the Centers for Disease Control (CDC), EPA Region 3, and the Potomac River Drinking Water Source Protection Partnership (DWSPP), ORD has initiated Cryptosporidium source tracking studies of the Potomac River Watershed. The primary objective of this project is to develop and implement a monitoring program for Cryptosporidium source tracking in order to identify the most significant sources of this parasite within the watershed. Once identified, appropriate source protection efforts, where available, may be mobilized and directed to the reduction of these sources' contributions. In addition, in 2005 EPA's Science to Achieve Results (STAR) program held a solicitation for proposals entitled, “Development and Evaluation of Innovative Approaches for the Quantitative Assessment of Pathogens in Drinking Water,” and has funded eleven research grants from this proposal involving the development and evaluation of innovative approaches to quantitatively detect microbial pathogens in drinking water, including Cryptosporidium and Giardia. The goal of the STAR research is to improve the suite of available detection methods for known and emerging microbial drinking water contaminants. EPA expects that this research will result in methods that will, among other things, allow determination of the presence and quantities of waterborne pathogens; present a protocol for preparing and processing water samples for application of the proposed approach; and where possible, allow comparison of the performance of the new detection methods with existing approved EPA methods for specific pathogens.
ORD is also collaborating with the U.S. Department of Agriculture (USDA) in their research programs associated with Cryptosporidium. ORD scientists
EPA's ORD will continue to collaborate and assess the impacts that these and other research efforts may have on any future CAFO management recommendations.
Under Executive Order 12866 (58 FR 51,735; October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in section IV of this preamble above, entitled
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501
The 2003 CAFO rule had a universal duty to apply requirement which required virtually all CAFOs to obtain NPDES permit coverage. This final revised rule changes the duty to apply requirement so that only CAFOs that discharge or propose to discharge must to seek NPDES coverage. EPA projects that CAFO operators and permitting authorities will collectively experience a reduction in total annual administrative burden of 25,500 hours as a result of the regulatory revisions to address the court decision. Labor burden is projected to undergo a net decrease compared to a net increase in administrative costs of $0.5 million annually as discussed in Chapter IV. This difference arises from the fact that the PRA analysis performed for the final rule converts labor hour burden to labor costs using a higher wage rate for State permitting authorities than for CAFO operators.
More specifically, the estimated reduction in total annual administrative burden of 25,500 hours is based on a projected decrease in labor burden to CAFO operators of approximately 54,100 hours annually and a projected increase in labor burden to State permitting authorities of approximately 28,600 hours annually. For CAFOs, much of the labor burden decrease derives from the smaller number of facilities that will need permits, which results in an annual burden decrease of more than 703,000 labor hours. This burden reduction for CAFOs is offset by a concomitant increase of 603,200 labor hours annually at unpermitted facilities for activities necessary to meet the agricultural stormwater exemption, along with an increment of 33,100 hours annually for permitted facilities to undertake the NMP-related activities and 12,600 hours annually for those CAFOs who elect to pursue the voluntary certification option.
The annual labor burden increase for State permitting authorities of 28,600 hours includes an estimated annual reduction in labor burden of 93,000 hours due to the need to process fewer permits. However, for State permitting authorities this burden reduction is more than offset by an increment in annual labor burden of 120,700 hours to address the new NMP-related requirements combined with a relatively minor annual burden increase of 900 hours to handle the voluntary certifications.
Additional details on the assumptions and parameters of the PRA analysis are available in the ICR document referenced above, which is available in the docket supporting this final rulemaking. Burden is defined at 5 CFR 1320.3(b).
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.
This final rule responds to OMB or public comments on the information collection requirements as discussed in the
The Regulatory Flexibility Act (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, small entity is defined as: (1) A small business based on Small Business Administration (SBA) size standards 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 of less than 50,000; and (3) a small organization that is any
After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant adverse economic impact on a substantial number of small entities. This final rule does not change the substantive requirements for CAFO operators or increase the net paperwork burden faced by facilities compared to the burden imposed under the 2003 CAFO rule. Some CAFOs will face increased permitting costs due to the new NMP provisions, while others will face reduced costs due to the changes in the duty to apply. However, these paperwork cost changes are generally small and do not rise to the level of a significant adverse economic impact on a substantial number of operators. Additionally, this rule would not affect small governments as the permitting authorities are State or federal agencies.
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 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 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 notifying 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.
EPA has determined that this rule does not contain a federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The revised administrative burden EPA calculated for the final rule constitutes a reduction of roughly 25,500 labor hours annually compared to the administrative burden estimated for the 2003 CAFO rule. This burden reduction reflects a decrease in annual labor burden of 54,100 hours for CAFO operators and an annual labor burden increase to State permitting authorities of 28,600 hours. In addition, this rulemaking is in response to a federal court decision and is necessary to assure compliance with applicable law. Thus, this 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. There are no local or Tribal governments authorized to implement the NPDES permit program and the Agency is unaware of any local or Tribal governments who are owners or operators of CAFOs. Thus this rule is not subject to the requirements of section 203 of UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43,255; 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. EPA estimates that the average annual impact on all authorized States together is a cost increase of $0.7 million. EPA does not consider an annual impact of this magnitude on States to be a substantial effect. In addition, EPA does not expect this rule to have any impact on local governments. EPA also considered flexibility as an important factor when developing this regulation.
Further, the revised regulations will not alter the basic State-federal scheme established in the CWA under which EPA authorizes States to carry out the NPDES permitting program. EPA expects the revised regulations to have little effect on the relationship between, or the distribution of power and responsibilities among, the federal and State governments. 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. In addition, through a variety of meetings with State associations during the rulemaking process, States have been informed about the issues related to addressing the court's decisions. States provided input during these meetings. State concerns generally focused on the process for incorporating NMPs into permits and the related public review process, and also on guidance related to what constitutes a discharge from a CAFO given that the proposed rule would have required only those operations that discharge or propose to discharge to apply for a permit. These concerns have been addressed in such a way as to provide flexibility and accountability in the new permit application requirements and review processes promulgated in this rule.
Executive Order 13175, entitled, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67,249; 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 rule does not have tribal implications. There are currently no tribal governments authorized for the NPDES program. This rulemaking provides increased opportunity for the public and tribal governments to comment on specific CAFOs' applications for permit coverage. It will not have substantial direct effects on
In the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicited comment on the proposed rule from tribal officials.
Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19,885; 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 considered by the Agency.
This final rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The benefits analysis performed for the 2003 CAFO rule determined that the rule would result in certain significant benefits to children's health. (Please refer to the
This rule 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 28,355; May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA has concluded that this rule is not likely to have any adverse energy effects since CAFOs in general do not figure significantly in the energy market, and the regulatory revisions finalized in this rule are not likely to change existing energy generation or consumption profiles for CAFOs.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 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.
This final rule does not change the technical requirements for land application from those of the 2003 rule. Production area requirements are the same for existing sources and for new sources as in the 2003 rule. The no discharge production area requirements for new sources in this rulemaking, however, now include an option for complying with the requirement through the development of site-specific design, operation and maintenance permit conditions that will ensure no discharge from the site. However, the specific no discharge conditions applicable to a specific operator choosing this option for compliance will be determined by the permitting authority on a site-specific BPJ basis. EPA encourages the use by permitting authorities of voluntary consensus standards, such as those that may be developed by USDA, in establishing the site-specific technical requirements in CAFO permits when the permittee demonstrates that these standards are consistent with the achievement of no discharge from a specific CAFO.
This rule for new source requires that CAFOs complying with the no discharge requirement through the development of site-specific design, maintenance and operation standards must use prescribed technical standards in demonstrating that a specific CAFO's design, operation and maintenance will be consistent with no discharge from its production area. (In certain circumstances, a CAFO may use either equivalent evaluation and simulation procedures or technical standards developed for a class of specific facilities within a specified geographical area if approved by its permitting authority), EPA has not required the use of any particular voluntary consensus standards in this rule. The use, however, of voluntary consensus standards such as those that may be developed by USDA for the required demonstration that site-specific design, maintenance and operational requirements for CAFOs to comply with the no discharge standard is encouraged. The decisions as to what specific best management practices and technologies must be applied at individual animal feeding operations are left to the State or EPA in the exercise of their NPDES authority.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Administrative practice and procedure, confidential business information, hazardous substances, reporting and recordkeeping requirements, water pollution control.
Environmental protection, feedlots, livestock, waste treatment and disposal, water pollution control.
7 U.S.C. 135
The Clean Water Act, 33 U.S.C. 1251
(a) * * *
(1) * * * The requirements for concentrated animal feeding operations are described in § 122.23(d).
(i) * * *
(1) * * *
(x) A nutrient management plan that at a minimum satisfies the requirements specified in § 122.42(e), including, for all CAFOs subject to 40 CFR part 412, subpart C or subpart D, the requirements of 40 CFR 412.4(c), as applicable.
(a)
(d) * * *
(1)
(2)
(e) * * *
(1) For unpermitted Large CAFOs, a precipitation-related discharge of manure, litter, or process wastewater from land areas under the control of a CAFO shall be considered an agricultural stormwater discharge only where the manure, litter, or process wastewater has been land applied in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater, as specified in § 122.42(e)(1)(vi) through (ix).
(2) Unpermitted Large CAFOs must maintain documentation specified in § 122.42(e)(1)(ix) either on site or at a nearby office, or otherwise make such documentation readily available to the Director or Regional Administrator upon request.
(1)
(2)
(3)
(i) For newly constructed operations not subject to effluent limitations guidelines, 180 days prior to the time CAFO commences operation;
(ii) For other operations (
(iii) If an operational change that makes the operation a CAFO would not have made it a CAFO prior to April 14, 2003, the operation has until February 27, 2009, or 90 days after becoming defined as a CAFO, whichever is later.
(4)
(5)
(g)
(h)
(2)
(3) Nothing in this paragraph (h) shall affect the authority of the Director to require an individual permit under § 122.28(b)(3).
(i)
(2) Eligibility Criteria. In order to certify that a CAFO does not discharge or propose to discharge, the owner or operator of a CAFO must document, based on an objective assessment of the conditions at the CAFO, that the CAFO is designed, constructed, operated, and maintained in a manner such that the CAFO will not discharge, as follows:
(i) The CAFO's production area is designed, constructed, operated, and maintained so as not to discharge. The CAFO must maintain documentation that demonstrates that:
(A) Any open manure storage structures are designed, constructed, operated, and maintained to achieve no discharge based on a technical evaluation in accordance with the elements of the technical evaluation set forth in 40 CFR 412.46(a)(1)(i) through (viii);
(B) Any part of the CAFO's production area that is not addressed by paragraph (i)(2)(i)(A) of this section is designed, constructed, operated, and maintained such that there will be no discharge of manure, litter, or process wastewater; and
(C) The CAFO implements the additional measures set forth in 40 CFR 412.37(a) and (b);
(ii) The CAFO has developed and is implementing an up-to-date nutrient management plan to ensure no discharge from the CAFO, including from all land application areas under the control of the CAFO, that addresses, at a minimum, the following:
(A) The elements of § 122.42(e)(1)(i) through (ix) and 40 CFR 412.37(c); and
(B) All site-specific operation and maintenance practices necessary to ensure no discharge, including any practices or conditions established by a technical evaluation pursuant to paragraph (i)(2)(i)(A) of this section; and
(iii) The CAFO must maintain documentation required by this paragraph either on site or at a nearby office, or otherwise make such documentation readily available to the Director or Regional Administrator upon request.
(3) Submission to the Director. In order to certify that a CAFO does not discharge or propose to discharge, the CAFO owner or operator must complete and submit to the Director, by certified mail or equivalent method of documentation, a certification that includes, at a minimum, the following information:
(i) The legal name, address and phone number of the CAFO owner or operator (see § 122.21(b));
(ii) The CAFO name and address, the county name and the latitude and longitude where the CAFO is located;
(iii) A statement that describes the basis for the CAFO's certification that it satisfies the eligibility requirements identified in paragraph (i)(2) of this section; and
(iv) The following certification statement: “I certify under penalty of law that I am the owner or operator of a concentrated animal feeding operation (CAFO), identified as [Name of CAFO], and that said CAFO meets the requirements of 40 CFR 122.23(i). I have read and understand the eligibility requirements of 40 CFR 122.23(i)(2) for certifying that a CAFO does not discharge or propose to discharge and further certify that this CAFO satisfies the eligibility requirements. As part of this certification, I am including the information required by 40 CFR 122.23(i)(3). I also understand the conditions set forth in 40 CFR 122.23(i)(4), (5) and (6) regarding loss and withdrawal of certification. I certify under penalty of law that this document and all other documents required for this certification were prepared under my direction or supervision and that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons directly involved in gathering and evaluating the information, the information submitted is to the best of my knowledge and belief true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.”; and
(v) The certification must be signed in accordance with the signatory requirements of 40 CFR 122.22.
(4) Term of Certification. A certification that meets the requirements of paragraphs (i)(2) and (i)(3) of this section shall become effective on the date it is submitted, unless the Director establishes an effective date of up to 30 days after the date of submission. Certification will remain in effect for five years or until the certification is no longer valid or is withdrawn, whichever occurs first. A certification is no longer valid when a discharge has occurred or when the CAFO ceases to meet the eligibility criteria in paragraph (i)(2) of this section.
(5) Withdrawal of Certification. (i) At any time, a CAFO may withdraw its certification by notifying the Director by certified mail or equivalent method of documentation. A certification is withdrawn on the date the notification is submitted to the Director. The CAFO does not need to specify any reason for the withdrawal in its notification to the Director.
(ii) If a certification becomes invalid in accordance with paragraph (i)(4) of this section, the CAFO must withdraw its certification within three days of the date on which the CAFO becomes aware that the certification is invalid. Once a CAFO's certification is no longer valid, the CAFO is subject to the requirement in paragraph (d)(1) of this section to seek permit coverage if it discharges or proposes to discharge.
(6) Recertification. A previously certified CAFO that does not discharge or propose to discharge may recertify in accordance with paragraph (i) of this section, except that where the CAFO has discharged, the CAFO may only recertify if the following additional conditions are met:
(i) The CAFO had a valid certification at the time of the discharge;
(ii) The owner or operator satisfies the eligibility criteria of paragraph (i)(2) of this section, including any necessary modifications to the CAFO's design, construction, operation, and/or maintenance to permanently address the cause of the discharge and ensure that no discharge from this cause occurs in the future;
(iii) The CAFO has not previously recertified after a discharge from the same cause;
(iv) The owner or operator submits to the Director for review the following documentation: a description of the discharge, including the date, time, cause, duration, and approximate volume of the discharge, and a detailed explanation of the steps taken by the CAFO to permanently address the cause of the discharge in addition to submitting a certification in accordance with paragraph (i)(3) of this section; and
(v) Notwithstanding paragraph (i)(4) of this section, a recertification that meets the requirements of paragraphs (i)(6)(iii) and (i)(6)(iv) of this section shall only become effective 30 days from the date of submission of the recertification documentation.
(j)
(2) In any enforcement proceeding for failure to seek permit coverage under paragraphs (d)(1) or (f) of this section that is related to a discharge from an unpermitted CAFO, the burden is on the CAFO to establish that it did not propose to discharge prior to the discharge when the CAFO either did not submit certification documentation as provided in paragraph (i)(3) or (i)(6)(iv) of this section within at least five years prior to the discharge, or withdrew its certification in accordance with paragraph (i)(5) of this section. Design, construction, operation, and maintenance in accordance with the criteria of paragraph (i)(2) of this section satisfies this burden.
(b) * * *
(2) * * *
(vii) A CAFO owner or operator may be authorized to discharge under a general permit only in accordance with the process described in § 122.23(h).
(e)
(1)
(4) * * *
(viii) The actual crop(s) planted and actual yield(s) for each field, the actual nitrogen and phosphorus content of the manure, litter, and process wastewater, the results of calculations conducted in accordance with paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this section, and the amount of manure, litter, and process wastewater applied to each field during the previous 12 months; and, for any CAFO that implements a nutrient management plan that addresses rates of application in accordance with paragraph (e)(5)(ii) of this section, the results of any soil testing for nitrogen and phosphorus taken during the preceding 12 months, the data used in calculations conducted in accordance with paragraph (e)(5)(ii)(D) of this section, and the amount of any supplemental fertilizer applied during the previous 12 months.
(5)
(i)
(A) The terms include maximum application rates from manure, litter, and process wastewater for each year of permit coverage, for each crop identified in the nutrient management plan, in chemical forms determined to be acceptable to the Director, in pounds per acre, per year, for each field to be used for land application, and certain factors necessary to determine such rates. At a minimum, the factors that are terms must include: The outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses of a field such as pasture or fallow fields; the realistic yield goal for each crop or use identified for each field; the nitrogen and phosphorus recommendations from sources specified by the Director for each crop or use identified for each field; credits for all nitrogen in the field that will be plant available; consideration of multi-year phosphorus application; and accounting for all other additions of plant available nitrogen and phosphorus to the field. In addition, the terms include the form and source of manure, litter, and process wastewater to be land-applied; the timing and method of land application; and the methodology by which the nutrient management plan accounts for the amount of nitrogen and phosphorus in the manure, litter, and process wastewater to be applied.
(B) Large CAFOs that use this approach must calculate the maximum amount of manure, litter, and process wastewater to be land applied at least once each year using the results of the most recent representative manure, litter, and process wastewater tests for nitrogen and phosphorus taken within 12 months of the date of land application; or
(ii)
(A) The terms include maximum amounts of nitrogen and phosphorus derived from all sources of nutrients, for each crop identified in the nutrient management plan, in chemical forms determined to be acceptable to the Director, in pounds per acre, for each field, and certain factors necessary to determine such amounts. At a minimum, the factors that are terms must include: the outcome of the field-specific assessment of the potential for nitrogen and phosphorus transport from each field; the crops to be planted in each field or any other uses such as pasture or fallow fields (including
(B) The terms of the nutrient management plan include alternative crops identified in the CAFO's nutrient management plan that are not in the planned crop rotation. Where a CAFO includes alternative crops in its nutrient management plan, the crops must be listed by field, in addition to the crops identified in the planned crop rotation for that field, and the nutrient management plan must include realistic crop yield goals and the nitrogen and phosphorus recommendations from sources specified by the Director for each crop. Maximum amounts of nitrogen and phosphorus from all sources of nutrients and the amounts of manure, litter, and process wastewater to be applied must be determined in accordance with the methodology described in paragraph (e)(5)(ii)(A) of this section.
(C) For CAFOs using this approach, the following projections must be included in the nutrient management plan submitted to the Director, but are not terms of the nutrient management plan: The CAFO's planned crop rotations for each field for the period of permit coverage; the projected amount of manure, litter, or process wastewater to be applied; projected credits for all nitrogen in the field that will be plant available; consideration of multi-year phosphorus application; accounting for all other additions of plant available nitrogen and phosphorus to the field; and the predicted form, source, and method of application of manure, litter, and process wastewater for each crop. Timing of application for each field, insofar as it concerns the calculation of rates of application, is not a term of the nutrient management plan.
(D) CAFOs that use this approach must calculate maximum amounts of manure, litter, and process wastewater to be land applied at least once each year using the methodology required in paragraph (e)(5)(ii)(A) of this section before land applying manure, litter, and process wastewater and must rely on the following data:
(
(
(6)
(i) The CAFO owner or operator must provide the Director with the most current version of the CAFO's nutrient management plan and identify changes from the previous version, except that the results of calculations made in accordance with the requirements of paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this section are not subject to the requirements of paragraph (e)(6) of this section.
(ii) The Director must review the revised nutrient management plan to ensure that it meets the requirements of this section and applicable effluent limitations and standards, including those specified in 40 CFR part 412, and must determine whether the changes to the nutrient management plan necessitate revision to the terms of the nutrient management plan incorporated into the permit issued to the CAFO. If revision to the terms of the nutrient management plan is not necessary, the Director must notify the CAFO owner or operator and upon such notification the CAFO may implement the revised nutrient management plan. If revision to the terms of the nutrient management plan is necessary, the Director must determine whether such changes are substantial changes as described in paragraph (e)(6)(iii) of this section.
(A) If the Director determines that the changes to the terms of the nutrient management plan are not substantial, the Director must make the revised nutrient management plan publicly available and include it in the permit record, revise the terms of the nutrient management plan incorporated into the permit, and notify the owner or operator and inform the public of any changes to the terms of the nutrient management plan that are incorporated into the permit.
(B) If the Director determines that the changes to the terms of the nutrient management plan are substantial, the Director must notify the public and make the proposed changes and the information submitted by the CAFO owner or operator available for public review and comment. The process for public comments, hearing requests, and the hearing process if a hearing is held must follow the procedures applicable to draft permits set forth in 40 CFR 124.11 through 124.13. The Director may establish, either by regulation or in the CAFO's permit, an appropriate period of time for the public to comment and request a hearing on the proposed changes that differs from the time period specified in 40 CFR 124.10. The Director must respond to all significant comments received during the comment period as provided in 40 CFR 124.17, and require the CAFO owner or operator to further revise the nutrient management plan if necessary, in order to approve the revision to the terms of the nutrient management plan incorporated into the CAFO's permit. Once the Director incorporates the revised terms of the nutrient management plan into the permit, the Director must notify the owner or operator and inform the public of the final decision concerning revisions to the terms and conditions of the permit.
(iii) Substantial changes to the terms of a nutrient management plan incorporated as terms and conditions of a permit include, but are not limited to:
(A) Addition of new land application areas not previously included in the CAFO's nutrient management plan. Except that if the land application area that is being added to the nutrient management plan is covered by terms of a nutrient management plan incorporated into an existing NPDES permit in accordance with the requirements of paragraph (e)(5) of this section, and the CAFO owner or operator applies manure, litter, or
(B) Any changes to the field-specific maximum annual rates for land application, as set forth in paragraphs (e)(5)(i) of this section, and to the maximum amounts of nitrogen and phosphorus derived from all sources for each crop, as set forth in paragraph (e)(5)(ii) of this section;
(C) Addition of any crop or other uses not included in the terms of the CAFO's nutrient management plan and corresponding field-specific rates of application expressed in accordance with paragraph (e)(5) of this section; and
(D) Changes to site-specific components of the CAFO's nutrient management plan, where such changes are likely to increase the risk of nitrogen and phosphorus transport to waters of the U.S.
(iv)
(a) * * *
(17)
(h) Incorporate changes to the terms of a CAFO's nutrient management plan that have been revised in accordance with the requirements of § 122.42(e)(6).
33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
(a) * * *
(2)
(a) * * *
(1) Any CAFO subject to this subpart may request that the Director establish NPDES permit best management practice effluent limitations designed to ensure no discharge of manure, litter, or process wastewater based upon a site-specific evaluation of the CAFO's open surface manure storage structure. The NPDES permit best management practice effluent limitations must address the CAFO's entire production area. In the case of any CAFO using an open surface manure storage structure for which the Director establishes such effluent limitations, “no discharge of manure, litter, or process wastewater pollutants,” as used in this section, means that the storage structure is designed, operated, and maintained in accordance with best management practices established by the Director on a site-specific basis after a technical evaluation of the storage structure. The technical evaluation must address the following elements:
(i) Information to be used in the design of the open manure storage structure including, but not limited to, the following: minimum storage periods for rainy seasons, additional minimum capacity for chronic rainfalls, applicable technical standards that prohibit or otherwise limit land application to frozen, saturated, or snow-covered ground, planned emptying and dewatering schedules consistent with the CAFO's Nutrient Management Plan, additional storage capacity for manure intended to be transferred to another recipient at a later time, and any other factors that would affect the sizing of the open manure storage structure.
(ii) The design of the open manure storage structure as determined by the most recent version of the National Resource Conservation Service's Animal Waste Management (AWM) software. CAFOs may use equivalent design software or procedures as approved by the Director.
(iii) All inputs used in the open manure storage structure design including actual climate data for the previous 30 years consisting of historical average monthly precipitation and evaporation values, the number and types of animals, anticipated animal sizes or weights, any added water and bedding, any other process wastewater, and the size and condition of outside areas exposed to rainfall and contributing runoff to the open manure storage structure.
(iv) The planned minimum period of storage in months including, but not limited to, the factors for designing an open manure storage structure listed in paragraph (a)(1)(i) of this section. Alternatively the CAFO may determine the minimum period of storage by specifying times the storage pond will be emptied consistent with the CAFO's Nutrient Management Plan.
(v) Site-specific predicted design specifications including dimensions of the storage facility, daily manure and wastewater additions, the size and characteristics of the land application areas, and the total calculated storage period in months.
(vi) An evaluation of the adequacy of the designed manure storage structure using the most recent version of the Soil Plant Air Water (SPAW) Hydrology Tool. The evaluation must include all inputs to SPAW including but not limited to daily precipitation, temperature, and evaporation data for the previous 100 years, user-specified soil profiles representative of the CAFO's land application areas, planned crop rotations consistent with the CAFO's Nutrient Management Plan, and the final modeled result of no overflows from the designed open manure storage structure. For those CAFOs where 100 years of local weather data for the CAFO's location is not available, CAFOs
(vii) The Director may waive the requirement of (a)(1)(vi) for a site-specific evaluation of the designed manure storage structure and instead authorize a CAFO to use a technical evaluation developed for a class of specific facilities within a specified geographical area.
(viii) Waste management and storage facilities designed, constructed, operated, and maintained consistent with the analysis conducted in paragraphs (a)(1)(i) through (a)(1)(vii) of this section and operated in accordance with the additional measures and records required by § 412.47(a) and (b), will fulfill the requirements of this section.
(ix) The Director has the discretion to request additional information to support a request for effluent limitations based on a site-specific open surface manure storage structure.
(d) Any source subject to this subpart that commenced discharging after April 14, 1993, and prior to April 14, 2003, which was a new source subject to the standards specified in § 412.15, revised as of July 1, 2002, must continue to achieve those standards for the applicable time period specified in 40 CFR 122.29(d)(1). Thereafter, the source must achieve the standards specified in § 412.43(a) and (b).
(e) Any source subject to this subpart that commenced discharging after April 14, 2003, and prior to January 20, 2009, which was a new source subject to the standards specified in § 412.46(a) through (d) in the July 1, 2008, edition of 40 CFR part 439, must continue to achieve those standards for the applicable time period specified in 40 CFR 122.29(d)(1).
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Final rule.
The National Oceanic and Atmospheric Administration (NOAA) is issuing final revised management plans and revised regulations for the Gulf of the Farallones, Cordell Bank, and Monterey Bay national marine sanctuaries (GFNMS, CBNMS, and MBNMS respectively). This final rule updates the existing regulations for these three sanctuaries and establishes new regulatory prohibitions for them. New prohibitions contained in this final rule include restrictions on: the introduction of introduced species; discharges from cruise ships and other vessels; attracting or approaching white sharks in GFNMS; anchoring vessels in seagrass in Tomales Bay; deserting vessels; motorized personal watercraft use in the MBNMS (definition revision); and, possessing, moving, or injuring historic resources. This final rule also codifies three dredge disposal sites in the MBNMS that existed prior to the MBNMS designation in 1992 and expands the boundaries of the MBNMS to include the Davidson Seamount and surrounding area.
Copies of the final management plans and final environmental impact statement and the record of decision are available upon request to NOAA's Office of National Marine Sanctuaries, 1305 East-West Highway, N/NMS, Silver Spring, MD 20910. Copies are also available on the Web at
John Armor, NOAA Office of National Marine Sanctuaries, 301-713-7234.
Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434
NOAA established the GFNMS in 1981 to protect and preserve a unique and fragile ecological community, including the largest seabird colony in the contiguous United States and diverse and abundant marine mammals. The GFNMS lies off the coast of California, to the west and north of San Francisco. The GFNMS is composed of 1,279 square statute miles (966 square nautical miles) of offshore waters extending out to and around the Farallon Islands and nearshore waters (up to the mean high tide line) from Bodega Head to Rocky Point in Marin. The GFNMS is characterized by the widest continental shelf on the west coast of the contiguous United States. In the Gulf of the Farallones, the shelf reaches a width of 37 statute miles (32 nmi). Shoreward of the Farallon Islands, the continental shelf is a relatively flat sandy/muddy plain, which slopes gently to the west and north from the mainland shoreline. The Farallon Islands lie along the outer edge of the continental shelf, between 15 and 22 statute miles (13 and 19 nmi) southwest of Point Reyes and approximately 30 statute miles (26 nmi) due west of San Francisco. In addition to sandy beaches, rocky cliffs, small coves, and offshore stacks, the GFNMS includes open bays (Bodega Bay, Drakes Bay) and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero Americano, and Estero de San Antonio).
NOAA established the CBNMS in 1989 to protect and preserve the extraordinary ecosystem, including marine birds, mammals, and other natural resources of Cordell Bank and its surrounding waters. The CBNMS protects an area of 529 square statute miles (399 square nautical miles) off the northern California coast. The main feature of the sanctuary is Cordell Bank, an offshore granite bank located on the edge of the continental shelf, about 43 nautical miles (nmi) northwest of the Golden Gate Bridge and 23 statute miles (20 nmi) west of the Point Reyes lighthouse. The CBNMS is entirely offshore and shares its southern and eastern boundary with the GFNMS. The CBNMS eastern boundary is six miles from shore and the western boundary is the 1000 fathom isobath on the edge of the continental slope. The CBNMS is located in one of the world's four major coastal upwelling systems. The combination of oceanic conditions and undersea topography provides for a highly productive environment in a discrete, well-defined area. The vertical relief and hard substrate of the Bank provide benthic habitat with near-shore characteristics in an open ocean environment 23 statute miles (20 nmi) from shore.
NOAA established the MBNMS in 1992 for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. The MBNMS is located offshore of California's central coast, adjacent to and south of the GFNMS. It encompasses a shoreline length of approximately 276 statute miles (240 nmi) between Marin Rocky Pt. in Marin County and Cambria in San Luis Obispo County and, with the inclusion of the Davidson Seamount,
Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that, in designating national marine sanctuaries, NOAA specify the sanctuary's “terms of designation.” The NMSA requires that each sanctuary's terms of designation include:
1. The geographic area proposed to be included within the sanctuary;
2. The characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value; and
3. The types of activities that will be subject to regulation by the Secretary of Commerce to protect those characteristics.
The NMSA further requires that terms of designation be modified only by following the same procedures for designating the sanctuary.
Following the extensive public process for reviewing the management plans for the sanctuaries, NOAA determined that revisions to all three sanctuaries' terms of designation are necessary to ensure they continue to reflect current management priorities. The sections below describe the changes NOAA is making to each sanctuary's terms of designation and provide a printed version of each (as modified) in its entirety.
NOAA is revising the GFNMS terms of designation to:
• Clarify that submerged lands are part of the GFNMS;
• Revise the description of activities that may be regulated to include additional activities; and
• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.
NOAA is clarifying that the submerged lands of GFNMS are legally part of the sanctuary and included in the boundary description. At the time the sanctuary was designated in 1981, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the NMSA) characterized national marine sanctuaries as consisting of coastal and ocean waters but did not expressly mention submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, NOAA is modifying the GFNMS terms of designation and the boundary description to replace the term “seabed” with “submerged lands.” Additionally, boundary coordinates in the revised terms of designation and in the sanctuary regulations are expressed by coordinates based on the North American Datum of 1983 (NAD 83).
NOAA is also revising the GFNMS terms of designation to modify the list of activities that may be regulated. The revised terms of designation now also authorize regulation of: discharging or depositing from beyond the boundary of the sanctuary; activities regarding cultural or historical resources; taking or possessing any marine mammal, sea turtle, or bird within or above the Sanctuary except as authorized by the Marine Mammal Protection Act, Endangered Species Act, and the Migratory Bird Treaty Act; introducing or otherwise releasing from within or into the sanctuary an introduced species; attracting or approaching any animal; and operating a vessel (i.e., watercraft of any description) within the sanctuary, including but not limited to, anchoring or deserting a vessel. These revisions will enable NOAA to more effectively and efficiently address new and emerging resource management issues, and are necessary in order to ensure protection, preservation, and management of the conservation, recreational, ecological, historical, cultural, educational, archeological, scientific, and esthetic resources and qualities of the GFNMS. Finally, a technical correction is being made to Article V to delete the phrase “and in Article IV” from the statement that “fishing” includes mariculture.
NOAA is also modifying the GFNMS terms of designation to provide: an updated and more complete description of characteristics that give the sanctuary particular value; greater clarity on the applicability of sanctuary emergency regulations (and consistency with the National Marine Sanctuary Program regulations of general applicability, 15 CFR Part 922, Subpart E); an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; and various minor revisions to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries. In Article V (Relation to Other Regulatory Programs), the “Fishing and Waterfowl Hunting” section is revised to clarify the original intent that, although the Sanctuary does not have authority to regulate fishing, fishing vessels may be regulated with respect to activities such as discharge/deposit and anchoring in accordance with Article IV. No changes are made to the “Defense Activities” section of the Designation Document.
An additional change to the terms of designation updates Article VI regarding the process to modify the terms of designation. This change deletes the requirement that modifications must be approved by the President of the United States and replaces it with a requirement that changes be approved by the Secretary of Commerce or his or her designee. This change is consistent with amendments to the NMSA enacted after the sanctuary was designated in 1981.
The revised terms of designation printed below replace the current terms of designation first printed in the
Under the authority of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, Public Law 92-532 (the Act), the waters and submerged lands along the Coast of California north and south of Point Reyes Headlands, between Bodega Head and Rocky Point and surrounding the Farallon Islands, are hereby designated a National Marine Sanctuary for the purposes of preserving and protecting this unique and fragile ecological community.
Within the area designated in 1981 as The Point Reyes/Farallon Islands
The Sanctuary consists of an area of the waters and the submerged lands thereunder adjacent to the coast of California of approximately 966 square nautical miles (nmi), extending seaward to a distance of 6 nmi from the mainland from Point Reyes to Bodega Bay and 12 nmi west from the Farallon Islands and Noonday Rock, and including the intervening waters and submerged lands. The precise boundaries are defined by regulation.
The Sanctuary includes a rich and diverse marine ecosystem and a wide variety of marine habitats, including habitat for over 36 species of marine mammals. Rookeries for over half of California's nesting marine bird populations and nesting areas for at least 12 of 16 known U.S. nesting marine bird species are found within the boundaries. Abundant populations of fish and shellfish are also found within the Sanctuary. The Sanctuary also has one of the largest seasonal concentrations of white sharks (
The following activities are subject to regulation, including prohibition, as may be necessary to ensure the management, protection, and preservation of the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of this area:
a. Hydrocarbon operations;
b. Discharging or depositing any substance within or from beyond the boundary of the Sanctuary;
c. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;
d. Activities regarding cultural or historical resources;
e. Introducing or otherwise releasing from within or into the Sanctuary an introduced species;
f. Taking or possessing any marine mammal, marine reptile, or bird within or above the Sanctuary except as permitted by the Marine Mammal Protection Act, Endangered Species Act and Migratory Bird Treaty Act;
g. Attracting or approaching any animal; and
h. Operating a vessel (i.e., watercraft of any description) within the Sanctuary.
The regulations governing the activities listed in section 1 of this Article will apply to foreign flag vessels and persons not citizens of the United States only to the extent consistent with recognized principles of international law, including treaties and international agreements to which the United States is signatory.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition.
The regulation of fishing, including fishing for shellfish and invertebrates, and waterfowl hunting, is not authorized under Article IV. However, fishing vessels may be regulated with respect to vessel operations in accordance with Article IV, section 1, paragraphs (b) and (h), and mariculture activities involving alterations of or construction on the seabed, or release of introduced species by mariculture activities not covered by a valid lease from the State of California and in effect on the effective date of the final regulation, can be regulated in accordance with Article IV, section 1, paragraph (c) and (e). All regulatory programs pertaining to fishing, and to waterfowl hunting, including regulations promulgated under the California Fish and Game Code and Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
The term “fishing” as used in this Article includes mariculture.
The regulation of activities listed in Article IV shall not prohibit any Department of Defense activity that is essential for national defense or because of emergency. Such activities shall be consistent with the regulations to the maximum extent practicable.
All applicable regulatory programs will remain in effect, and all permits, licenses, and other authorizations issued pursuant thereto will be valid within the Sanctuary unless prohibited by regulations implementing Article IV. The Sanctuary regulations will set forth any necessary certification procedures.
The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee.
NOAA is revising the CBNMS terms of designation to:
• Clarify that submerged lands are a part of the CBNMS;
• Revise the description of activities that may be regulated to include additional activities;
• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.
NOAA is clarifying that the submerged lands of the CBNMS are legally part of the sanctuary and are included in the boundary description.
NOAA is revising the CBNMS terms of designation to modify the list of activities that may be regulated. The revised terms of designation now also authorize regulation of: activities regarding cultural or historic resources; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; taking or possessing any marine mammal, sea turtle, or bird; introducing or otherwise releasing an introduced species from within or into the Sanctuary; and drilling into, dredging, altering, or constructing on the submerged lands.
NOAA is also modifying the CBNMS terms of designation to provide: an updated and more complete description of characteristics that give the Sanctuary particular value; an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; and various minor revisions in order to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries.
In Article V (Relation to Other Regulatory Programs), the “Fishing” section is revised to clarify the original intent that, although the Sanctuary does not have authority to regulate fishing, fishing vessels may be regulated with respect to discharge/deposit and anchoring in accordance with Article IV. No changes are being made to the “Defense Activities” section of the Designation Document.
Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431
The Sanctuary was designated on May 24, 1989 (54 FR 22417). Section 308 of the National Marine Sanctuaries Act, 16 U.S.C. 1431
The Sanctuary consists of a 399 square nautical mile area of marine waters and the submerged lands thereunder encompassed by a boundary extending approxi mately 250° from the northernmost boundary of Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of the Bank, then south along this isobath to the GFNMS boundary and back to the northeast along this boundary to the beginning point. The precise boundaries are set forth in the regulations.
Cordell Bank is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive environment in a discrete, well-defined area. In addition, the Bank and its surrounding waters may contain historical resources of national significance. The Bank consists of a series of steep-sided ridges and narrow pinnacles rising from the edge of the continental shelf. It lies on a plateau 300 to 400 feet (91 to 122 meters) deep and ascends to within about 115 feet (35 meters) of the surface at its shallowest point. The seasonal upwelling of nutrient-rich bottom waters and wide depth ranges in the vicinity, have led to a unique association of subtidal and oceanic species. The vigorous biological community flourishing at Cordell Bank includes an exceptional assortment of algae, invertebrates, fishes, marine mammals and seabirds.
The following activities are subject to regulation, including prohibition, as may be necessary to ensure the management, protection, and preservation of the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of this area:
a. Depositing or discharging any material or substance;
b. Removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on the Bank or on or within the line representing the 50 fathom isobath surrounding the Bank;
c. Hydrocarbon (oil and gas) activities within the Sanctuary;
d. Anchoring on the Bank or on or within the line representing the 50 fathom isobath surrounding the Bank;
e. Activities regarding cultural or historical resources;
f. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;
g. Taking or possessing any marine mammal, marine reptile, or bird except as permitted under the Marine Mammal Protection Act, Endangered Species Act or Migratory Bird Treaty Act; and
h. Introducing or otherwise releasing from within or into the Sanctuary an introduced species.
The regulations governing activities listed in Section 1 of this Article shall apply to foreign flag vessels and foreign persons only to the extent consistent with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in Section 1 of this Article, are subject to immediate temporary regulation, including prohibition, within the limits of the Act on an emergency basis for a period not to exceed 120 days.
The regulation of fishing is not authorized under Article IV. All regulatory programs pertaining to fishing, including Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
The regulation of activities listed in Article IV shall not prohibit any Department of Defense (DOD) activities that are necessary for national defense. All such activities being carried out by DOD within the Sanctuary on the effective date of designation shall be exempt from any prohibitions contained in the Sanctuary regulations. Additional DOD activities initiated after the effective date of designation that are necessary for national defense will be exempted after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, shall be subject to all prohibitions contained in the Sanctuary regulations.
All applicable regulatory programs shall remain in effect, and all permits, licenses, approvals, and other authorizations issued pursuant to those programs shall be valid unless prohibited by regulations implementing Article IV.
The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee.
NOAA is revising the MBNMS terms of designation to:
• Add Davidson Seamount Management Zone;
• Revise the description of activities that may be regulated to include additional activities; and
• Make minor updates to ensure the text reflects the current text of the NMSA and to ensure its description of the area is current.
NOAA is amending the MBNMS boundary description to include the Davidson Seamount Management Zone, a 775 square statute mile (585 square nautical mile) area defined by the geodetic lines connecting the coordinates provided in Appendix F to this subpart. The Davidson Seamount is located approximately 80 statute miles (70 nmi) to the southwest of Monterey, due west of San Simeon, and is home to a diverse assemblage of deep water organisms. This highly diverse community includes many endemic species and fragile, long-lived cold-water corals and sponges. NOAA also updates Article III, Characteristics of the Area that Give it Particular Value to include a discussion of the Davidson Seamount Management Zone.
NOAA is revising the MBNMS terms of designation to modify the list of activities that may be regulated. A priority issue identified during the management plan review was addressing the threat posed by introduced species. One of the recommended strategies for addressing this issue was to develop regulations prohibiting such releases. In addition, NOAA modifies the terms of designation to authorize regulation of the possession of a Sanctuary historical resource wherever the resource is found. The existing designation document currently lists as subject to regulation “possessing within the Sanctuary a Sanctuary resource * * * ”. NOAA is making clear that a prohibition against possession of Sanctuary historical resources would apply outside the Sanctuary boundaries (e.g., at a harbor).
With these changes, the revised terms of designation now authorize regulation of: Activities regarding cultural or historic resources; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; taking or possessing any marine mammal, sea turtle, or bird; introducing or otherwise releasing an introduced species from within or into the Sanctuary; and drilling into, dredging, altering, or constructing on the submerged lands.
NOAA is also modifying the MBNMS terms of designation to make minor punctuation improvements and to delete Appendices I and II of the MBNMS Designation Document and refer to the site regulations for sanctuary seaward boundaries and the location of four sites designated for disposal of dredged material. NOAA is also deleting outdated language related to study areas for dredged material disposal sites outside the MBNMS boundaries.
Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (the “Act”), 16 U.S.C. 1431
The Act authorizes the issuance of such regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational, and esthetic resources and qualities of the Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that either are to be regulated on the effective date of designation or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made.
The Sanctuary consists of two separate areas. (a) The first area consists of an area of approximately 4017 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A of the site regulations except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in Appendix A of the site regulations.
(b) The Davidson Seamount Management Zone (DSMZ) is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in Appendix F of the site regulations.
The Monterey Bay area is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive ecosystem and a wide variety of marine habitat. The area is characterized by a narrow continental shelf fringed by a variety of coastal types. The Monterey Submarine Canyon is unique in its size, configuration, and proximity to shore. This canyon system provides habitat for pelagic communities and, along with other distinct bathymetric features, may modify currents and act to enrich local waters through strong seasonal upwelling. Monterey Bay itself is a rare geological feature, as it is one of the few large embayments along the Pacific coast.
The Monterey Bay area has a highly diverse floral and faunal component. Algal diversity is extremely high and the concentrations of pinnipeds, whales, otters and some seabird species are outstanding. The fish populations, particularly in Monterey Bay, are generally abundant and the variety of crustaceans and other invertebrates is high.
In addition there are many direct and indirect human uses of the area. The most important economic activity directly dependent on the resources is commercial fishing, which has played an important role in the history of Monterey Bay and continues to be of great economic value.
The diverse resources of the Monterey Bay area are enjoyed by the residents of this area as well as numerous visitors. The population of Monterey and Santa Cruz counties is rapidly expanding and is based in large part on the attractiveness of the area's natural beauty. The high water quality and the resulting variety of biota and their proximity to shore is one of the prime reasons for the international renown of the area as a prime tourist location. The quality and abundance of the natural resources have attracted human beings from the earliest prehistoric times to the present and as a result the area contains significant historical, e.g., archaeological and paleontological, resources, such as Costanoan Indian midden deposits, aboriginal remains, and sunken ships and aircraft.
The biological and physical characteristics of the Monterey Bay area combine to provide outstanding opportunities for scientific research on many aspects of marine ecosystems. The diverse habitats are readily accessible to researchers. These research institutions are exceptional resources with a long history of research and large databases possessing a considerable amount of baseline information on the Bay and its resources, providing interpretive exhibits of the marine environment, docent programs serving the public and marine related programs for school groups and teachers.
The Davidson Seamount located offshore of California, 70 nmi southwest of Monterey, due west of San Simeon, and is one of the largest known seamounts in U.S. waters. Davidson Seamount is twenty-six statute miles long and eight statute miles wide. From base to crest, Davidson Seamount is 7,480 feet (2,280 meters) tall; yet still 4,101 feet (1,250 meters) below the sea surface. Davidson Seamount has an atypical seamount shape, having northeast-trending ridges created by a type of volcanism only recently described. It last erupted about 12 million years ago. This large geographic feature was the first underwater formation to be characterized as a “seamount” and was named after the Coast and Geodetic Survey (forerunner to the National Ocean Service) scientist George Davidson. Davidson Seamount's geographical importance is due to its location in the California Current, which likely provides a larger flux of carbon (food) to the sessile organisms on the seamount surface relative to a majority of other seamounts in the Pacific and may have unique links to the nearby Partington and Monterey submarine canyons.
The surface water habitat of the Davidson Seamount hosts a variety of seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, shearwaters, sperm whales, killer whales, albacore
Davidson Seamount is home to previously undiscovered species and species assemblages, such as large patches of corals and sponges, where there is an opportunity to discover unique associations between species and other ecological processes. The high biological diversity of these assemblages has not been found on other California seamounts. Davidson Seamount's importance for conservation revolves around the endemism of seamount species, potential future harvest damage to coral and sponge assemblages, and the low resilience of these species. Abundant and large, fragile species (e.g., corals greater than eight feet tall, and at least 200 years old, as well as vast fields of sponges) and a physically undisturbed seafloor appear relatively pristine.
The final environmental impact statements (1992 and 2008) provide more detail on the characteristics of the Monterey Bay and Davidson Seamount area that give it particular value.
The following activities are subject to regulation, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the Sanctuary:
a. Exploring for, developing, or producing oil, gas, or minerals (e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous ores, or any other solid material or other matter of commercial value) within the Sanctuary;
b. Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter, except dredged material deposited at disposal sites authorized prior to the effective date of Sanctuary designation, as described in Appendix C to the regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on the effective date of Sanctuary designation;
c. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except dredged material deposited at the authorized disposal sites described in Appendix D to the site regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval;
d. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying, or causing the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy, or cause the loss of, a marine mammal, sea turtle, seabird, historical resource, or other Sanctuary resource;
e. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary;
f. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected, or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource;
g. Possessing any Sanctuary historical resource;
h. Flying a motorized aircraft above the Sanctuary;
i. Operating a vessel (i.e., water craft of any description) within the Sanctuary;
j. Aquaculture or kelp harvesting within the Sanctuary;
k. Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act; and
l. Introducing or otherwise releasing from within or into the Sanctuary an introduced species.
Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition.
Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or other authorization issued by any Federal, State or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce or designee as a result of this designation or as a result of any Sanctuary regulation if such authorization or right was in existence on the effective date of this designation. The Secretary of Commerce or designee, however, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated.
In no event may the Secretary or designee issue a permit authorizing, or otherwise approve: (1) The exploration for, development of or production of oil, gas, or minerals within the Sanctuary except for limited, small-scale jade collection in the Jade Cove area of the Sanctuary [defined as the area bounded by the 35.92222 N latitude parallel (coastal reference point: beach access stairway at South Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: westernmost tip of Cape San Martin), and the mean high tide line seaward to the 90 foot isobath (depth line)]; (2) the discharge of primary-treated sewage (except for regulation, pursuant to section 304(c)(1) of the Act, of the exercise of valid authorizations in existence on the effective date of Sanctuary designation and issued by other authorities of competent jurisdiction); or (3) the disposal of dredged material within the Sanctuary other than at sites authorized by the U.S. Environmental Protection Agency (in consultation with the U.S. Army Corps of Engineers) prior to the effective date of designation. Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid.
The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the
This section describes the changes NOAA is making to the regulations for the CBNMS, GFNMS, and the MBNMS (hereinafter the “Sanctuaries”) to implement the management plan reviews for the three sanctuaries. Because the rationale behind the amendments to each sanctuary's regulations is similar or the same, the discussion of the changes has been grouped by subject area, except where explicitly noted otherwise. References in this section to “former regulations” are to the state of the regulations as they existed before this final rule becomes effective.
NOAA is modifying the regulatory prohibition on discharging or depositing material or other matter (hereafter “discharge regulations”) into the Sanctuaries. The following regulatory changes are made to all three sanctuaries unless otherwise specified.
1. This rule clarifies the prohibition on discharging or depositing any material or other matter to make it clear that the regulation applies to discharges and deposits “from within or into” the Sanctuaries. Adding the word “into” is intended to clarify that the prohibition applies not only to discharges and deposits originating in the Sanctuaries (e.g., from vessels in the Sanctuaries), but also, for example, from discharges and deposits above the Sanctuaries.
2. This rule clarifies that the exception to the discharge/deposit prohibition for fish, fish parts, or chumming materials (bait) applies only to discharges or deposits made during the conduct of lawful fishing activities within the Sanctuaries.
3. This rule clarifies that the exception to the discharge prohibition for biodegradable effluent discharges/deposits from marine sanitation devices applies only to operable Type I or II marine sanitation devices approved by the United States Coast Guard in accordance with the Federal Water Pollution Control Act, as amended. Although the exception for vessel wastes “generated by marine sanitation devices” was intended to prohibit the discharge of untreated sewage into the Sanctuaries, it was unclear if it allowed discharges from Type III marine sanitation devices. Therefore, NOAA modifies its regulations to clarify that such discharges are only allowed if generated by properly functioning Type I or II marine sanitation devices. Type I and Type II marine sanitation devices treat wastes, but Type III marine sanitation devices store waste until it is removed at designated pump-out stations on shore or discharged at sea. Finally, the revised regulations also require vessel operators to lock all marine sanitation devices in a manner that prevents the discharge of untreated sewage. This requirement would aid in enforcement and compliance with Sanctuary regulations.
Note that in the response to comments “biodegradable” has been replaced with “clean.” See Section IV.
4. This rule eliminates the exception for discharging or depositing food waste resulting from meals onboard vessels into CBNMS and GFNMS. Coast Guard regulations prohibit all discharges of food wastes (garbage) within three nmi of land and require that they be ground to less than one inch when discharged between three and twelve nmi of land. This rule modifies the regulations for CBNMS and GFNMS to mirror the Coast Guard regulations, and to be consistent with the MBNMS regulations. This amendment provides increased protection to sanctuary resources and qualities from such marine debris vis-à-vis the Coast Guard regulations in the area of the two sanctuaries beyond three nmi.
5. This rule prohibits discharges/deposits originating beyond the boundary of the GFNMS that subsequently enters the sanctuary and injures a sanctuary resource or quality. “Sanctuary resource” is defined at 15 CFR 922.3 as “any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources.” “Sanctuary quality” is defined at 15 CFR 922.3 as “any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanctuary, including, but not limited to, water quality, sediment quality and air quality.” This modification will help protect sanctuary resources and qualities from harmful influences originating outside the boundaries of the GFNMS. The coastal waters of the sanctuary, particularly the estuarine habitats of Bolinas Lagoon, Tomales Bay, Estero Americano and Estero de San Antonio, are vulnerable to land-based nonpoint source pollution from outside the sanctuary. Sources of concern include runoff, agriculture, marinas and boating activities, past mining, and aging and undersized septic systems. Water quality in offshore areas of the sanctuary could be threatened or impacted by large or continuous discharges from shore, spills by vessels, illegal dumping activities or residual contaminants from past dumping activities. The threat of an offshore oil spill is a constant reality near the busy shipping lanes in and adjacent to the sanctuary. CBNMS and MBNMS regulations already prohibit this activity. This modification makes the discharge/deposit regulations for the three sanctuaries consistent.
6. This rule eliminates in the GFNMS regulations the exceptions at § 922.84 for the disposal of dredged material at the interim dumpsite and the discharge of municipal sewage because they are no longer necessary. The exception for the disposal of dredged material at the “interim dumpsite” is no longer necessary because this site is no longer being used as a permanent dumpsite. The interim dumpsite, located approximately 10 nmi south of Southeast Farallon Island, is no longer in use. The permanent dumpsite outside the sanctuary has been in use for more than fifteen years, making this exception unnecessary. Similarly, since the designation of the sanctuary in 1981, there have been no applications to discharge municipal sewage into the sanctuary. Thus, this exception is also unnecessary. By removing these two exceptions, the discharge/deposit regulation has been streamlined, focusing on current and necessary exceptions to the prohibition.
7. In addition, this rule clarifies that current exceptions to the prohibition on discharges/deposits from vessels for graywater and deck wash down must be clean, meaning not containing detectable levels of harmful matter as defined. It clarifies that discharges/deposits from clean vessel deck wash down, clean vessel generator cooling water, clean vessel engine cooling water, clean bilge water, and anchor wash are excepted from the discharge/deposit prohibition. The discharge/deposit of oily wastes from bilge pumping has been and continues to be prohibited. However, this rule modifies
The discharge/deposit of ballast water is already prohibited.
This rule amends the discharge regulations for the Sanctuaries to narrow the types of vessels that may discharge certain types of material or other matter.
This rule prohibits vessels 300 GRT or greater with sufficient holding tank capacity from discharging or depositing graywater, and effluent from any type of marine sanitation device. In the GFNMS and CBNMS the discharge/deposit of graywater is already prohibited and that remains unchanged. The former regulations did not make a distinction between sizes of vessels for discharge purposes. The regulations prohibiting discharge/deposit of treated sewage from vessels 300 GRT or more are consistent with existing state law applicable to state waters. The regulations now extend the prohibition to all waters of the national marine sanctuaries including federal waters. The regulation does not restrict vessels without capacity to hold the waste while in a national marine sanctuary.
The revised regulation better addresses NOAA's concerns about the potential impacts of discharges/deposits from large vessels in the Sanctuaries. Blackwater from vessels includes raw or treated sewage. Such discharges are more concentrated than domestic land-based sewage and may introduce disease-causing microorganisms (pathogens), such as bacteria, protozoans, and viruses, into the marine environment (EPA 2007). They may also contain high concentrations of nutrients that can lead to eutrophication (the process that can cause oxygen-depleted “dead zones” in aquatic environments), and may yield unpleasant esthetic impacts to the Sanctuary (diminishing Sanctuary resources and its ecological, conservation, esthetic, recreational and other qualities).
Graywater from vessels includes wastewater from showers, baths, and galleys. Graywater can contain a variety of substances including (but not limited to) detergents, oil and grease, pesticides and food wastes (Eley 2000). Very little research has been done on the impacts of graywater on the marine environment, but many of the chemicals commonly found in graywater are known to be toxic (Casanova
2. This rule revises the discharge/deposit regulations to implement additional restrictions on cruise ships. Under the revised discharge/deposit regulations, cruise ships are allowed to discharge or deposit only clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, and anchor wash into the Sanctuaries. Other discharges or deposits are no longer allowed in the Sanctuaries. Cruise ship discharges and deposits are more stringently regulated than other vessels to reduce the adverse effects on the marine environment from this growing source of pollutants.
The strict prohibition on cruise ships protects sanctuary water quality from the potentially large volume of wastewater that may be discharged by these vessels, while allowing them to continue to transit the Sanctuaries. “Cruise ship” is defined to mean: a vessel with 250 or more passenger berths for hire. Currently 643,000 cruise ship passengers embark annually from California ports in San Francisco Bay, Los Angeles, and San Diego. Ninety cruise ship arrivals and departures (Metropolitan Stevedore Company) were estimated at the San Francisco Passenger Terminal in 2006. Many of these cruise ships enter and exit the Bay through the northbound vessel traffic lanes, which transit through the Sanctuaries. Although partly constrained by the lack of local docking facilities, cruise ship visits are likely to increase as the fleet shifts from international to more domestic cruises, and as they begin to use a new cruise ship docking facility planned for San Francisco Bay.
Due to their sheer size and passenger capacity, cruise ships are able to generate larger volumes of a wide array of pollutants, which can cause serious impacts to the marine environment. The main pollutants generated by a cruise ship are: sewage, also referred to as blackwater; graywater; oily bilge water; hazardous wastes, and solid wastes. The large volumes of discharged effluent associated with cruise ships may not adequately disperse to avoid harm to marine resources. Based on EPA estimates, in one week a 3000-passenger cruise ship generates about 210,000 gallons of sewage, 1,000,000 gallons of graywater, 37,000 gallons of oily bilge water, more than 8 tons of solid waste, millions of gallons of ballast water containing potential invasive species, and toxic wastes from dry cleaning and photo-processing laboratories. Additionally, the volume of material from a cruise ship resulting from deck washdown greatly exceeds the volumes associated with other vessels used in the Sanctuaries. Although several laws and regulations partly address these issues, this regulation is needed to ensure a more comprehensive prohibition on cruise ship discharges/deposits within the Sanctuaries.
To ensure consistency among the regulations for the Sanctuaries, this rule implements a prohibition on drilling into, dredging, or otherwise altering the submerged lands, or constructing, placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuaries. While this prohibition has been in effect for the MBNMS since 1992, this is a new prohibition for the CBNMS, and updates the regulations for the GFNMS. As described below, this rule maintains some differences in the exceptions to the prohibition for the different sanctuaries.
This rule makes a technical change to the regulations by replacing the term “seabed” with “submerged lands” throughout the regulations for the Sanctuaries in order to be consistent with the NMSA, and to ensure that certain estuarine areas within the MBNMS, such as Elkhorn Slough, are described accurately. This change is necessary to eliminate any confusion created by the term “seabed.”
This rule makes additional changes to the regulations for the GFNMS and the CBNMS to implement new prohibitions regarding disturbance to the submerged lands in these two sanctuaries. The revised regulations prohibit abandoning structures, materials, or other matter, for these two sanctuaries. The term “abandoning” means leaving without intent to remove, any structure, material, or other matter on or in the
These prohibitions as they apply to the area within the 50-fathom isobath of the CBNMS, do not apply to use of bottom contact gear used during fishing activities. This activity is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). These prohibitions as they apply to the area outside of the 50-fathom isobath of the CBNMS, do not apply to the anchoring of any vessels, or the lawful use of fishing gear during normal fishing activities. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to the regulations. This regulation ensures the prominent geological features of the Bank, such as the pinnacles and ridges, are protected from permanent destruction from activities such as anchoring or exploratory activity.
For the GFNMS, NOAA revises the exception for the laying of pipelines related to hydrocarbon operations to clarify that the laying of pipelines is specifically limited to hydrocarbon operations that are adjacent to the GFNMS (i.e., bordering) rather than anywhere outside the sanctuary. This revision is made to protect sensitive sanctuary benthic habitats from impacts from disturbance. Additionally, in the GFNMS regulations, NOAA revises the prohibition regarding disturbance to the submerged lands, by removing the exception for ecological maintenance in the GFNMS regulations (formerly at 15 CFR 922.82(a)(3)(iii)). Ecological maintenance is not defined in the regulations or administrative record, which made it difficult to interpret, and thus the definition was removed to streamline the regulatory language. There is no record of the use of the ecological maintenance exception.
There are no exceptions to the prohibition against disturbing the submerged lands within the Davidson Seamount Management Zone of the MBNMS, other than as incidental and necessary to the conduct of lawful fishing activities. Fishing in the Davidson Seamount Management Zone below 3000 feet is prohibited under 50 CFR 660 (Fisheries off West Coast States). Please see the discussion on the Davidson Seamount Management Zone below for more information.
This regulation helps protect the Sanctuaries from, for example, unwanted debris, and adds protection to the shallow sand and mud deposits that make up the surrounding soft bottom of the continental shelf and slope of CBNMS, which are important habitats that provide support for the living resources of the sanctuary.
NOAA modifies the regulations for the GFNMS and MBNMS to prohibit the desertion of a vessel within these two sanctuaries. Leaving vessels unattended increases the likelihood of a calamitous event or the risk of sinking. These events could result in the discharge of harmful toxins, chemicals or oils into the marine environment, reducing water quality and impacting biological resources and habitats. In addition, the vessel itself could cause injury. This revision is not made for the CBNMS because that site is offshore and vessel abandonment is not a pressing resource issue.
To address concerns regarding the threats to the marine environment from deserted vessels, NOAA is prohibiting deserting a vessel aground, at anchor, or adrift in the GFNMS and the MBNMS. The term “deserting” means leaving a vessel aground or adrift: (1) Without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification; (2) after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts; or (3) when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities. Deserting also means leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner.
This rule also prohibits leaving harmful matter aboard a grounded or deserted vessel in the GFNMS and MBNMS. Once a vessel is grounded or deserted, there is a high risk of discharge/deposit of harmful matter into the marine environment. Harmful matter aboard a deserted vessel also poses a threat to water quality. Preemptive removal of harmful matter (
NOAA modifies the regulation for the GFNMS and MBNMS to amend the prohibitions regarding removing or damaging any historical or cultural resource. For the GFNMS, this rule adds “moving” and “possessing” to the existing prohibition; replaces “damage” with “injure,” a term defined at 15 CFR 922.3; and adds the word “attempting” to move, remove, injure, or possess as a prohibition. This modification provides added protection to the fragile, finite, and non-renewable resources so they may be studied, and appropriate information may be made available for the benefit of the public. (The MBNMS regulations already contain these terms.)
For the GFNMS, this rule replaces the phrase “historical or cultural resource” with “Sanctuary historical resource” to be consistent with regulatory language used at more recently designated national marine sanctuaries,
This rule prohibits the possession of a sanctuary historical resource either within or outside the sanctuary. The clarification will increase protection of sanctuary resources by making it illegal to possess historical resources in any geographic location. For example, this rule makes it illegal to have an artifact taken from a shipwreck in MBNMS even if you are no longer in the sanctuary.
NOAA modifies its regulations for the GFNMS and the CBNMS to include a new prohibition on take of marine mammals, birds, and sea turtles, except as authorized by the Marine Mammal Protection Act, as amended (16 U.S.C. 1361
The intent of this regulation is to bring a special focus to the protection of the diverse and vital marine mammal, bird, and sea turtle populations of the Sanctuaries. This area-specific focus is complementary to efforts of other resource protection agencies, especially given that other federal and state authorities spread limited resources over much wider geographic areas.
This prohibition also complements the provisions of the GFNMS regulations prohibiting disturbing birds or marine mammals by flying motorized aircraft at less than 1000 feet over the waters within one nmi of the Farallon Islands, Bolinas Lagoon, or any ASBS. This provision remains unique and important in that it provides special focus on a specific type of activity, operation of motorized aircraft, within particularly sensitive environments of the GFNMS. The MBNMS regulations already contain this take and possession prohibition. There is a minor wording change to conform to the new GFNMS and CBNMS prohibition.
This rule prohibits introducing or otherwise releasing from within or into the Sanctuaries an introduced species, except: (1) striped bass (
The term “introduced species” is defined as: any species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.
During consultations with the State of California, concern was expressed that striped bass would qualify as an introduced species and that an angler who catches and then releases a striped bass would be in violation of the proposed regulation. While prohibiting such activity is not the intent of the regulation, to address this concern, the regulation now exempts striped bass, the only introduced species for which there is an active fishery. Striped bass were intentionally introduced in California in 1879, and in 1980 the California Department of Fish and Game initiated a striped bass hatchery program to support the striped bass sport fishery, which according to the California Department of Fish and Game is an important fishery on the Pacific Coast. The California Department of Fish and Game manages the striped bass fishery through a Striped Bass Management Conservation Plan.
The prohibition also does not apply to species cultivated by mariculture activities in Tomales Bay in the GFNMS, pursuant to a valid lease, permit, license or other authorization issued by the State of California. There are twelve active state water bottom mariculture leases in Tomales Bay managed by the California Department of Fish and Game. Three leases have been recently renewed: M-430-19 (Marin Oyster Company, 2001), M430-05 (Tomales Bay Oyster Company, 2002), and M-430-06 (Cove Mussel Company, 2002).
The other nine leases were issued in the 1980s and have not yet come up for renewal. The exception to the introduced species prohibition grandfathers in the renewals of existing current lease agreements in effect on the effective date of the final regulation that allow for the introduction of introduced species as specified in these original lease agreements. However, new lease agreements executed after the effective date of this rule are subject to this prohibition. Operations conducted under new lease agreements could cultivate native species but not introduced species. NOAA is not aware of any pending lease applications.
The prohibition against introducing species into the Sanctuaries is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to the Sanctuaries' resources and qualities, to protect the biodiversity of sanctuary ecosystems, and to preserve the native functional aspects of sanctuary ecosystems, which are put at risk by introduced species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the Sanctuaries could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra- or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity (e.g., toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Introduced species may also pose threats to endangered species and native species diversity.
For example, a number of non-native species now found in the Gulf of the Farallones and Monterey Bay regions were introduced elsewhere on the west coast but have spread through vessel hull-fouling, ballast water discharge, and accidental introductions. In the MBNMS, the European green crab, now found in Elkhorn Slough, both preys on the young of valuable species (such as Dungeness crab) and competes with them for resources. Introduced species may also cause changes in physical habitat structure. For example, burrows caused by the isopod
Introduced species are also a major economic and environmental threat to the living resources and habitats of the Sanctuaries as well as the commercial and recreational uses that depend on these resources. Once established, introduced species can be extremely difficult, if not impossible, to eradicate. Introduced species have become increasingly common in recent decades, and the rate of invasions continues to accelerate at a rapid pace. Estuaries are particularly vulnerable to invasion; and large ports, such as San Francisco Bay, can support hundreds of introduced species with significant impacts to native ecosystems.
This rule expands the prohibition on attracting white sharks in state waters of the MBNMS to the entire MBNMS and GFNMS. It also prohibits approaching within 50 meters of a white shark within 2 nmi around the Farallon Islands. Attract or attracting means the conduct of any activity that lures or may lure any animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., surfboards or body boards used as decoys), acoustics or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).
Disturbance related to human interaction is increasing as a result of controversial cage shark diving operations, also known as adventure tourism, and other wildlife watching operations. These activities may degrade the natural environment, impacting the species as a whole, and individual sharks may be negatively impacted from repeated encounters with humans and boats. Implementing these regulations will resolve user conflicts (between shark researchers and adventure tourism) and prevent interference with the seasonal feeding behavior of white sharks. Reducing human interaction and chumming would decrease the impacts on natural shark behavior. This regulation is not expected or intended to impact any current lawful fishing activities within the GFNMS and MBNMS. The purpose of this prohibition is to protect white sharks from intrusive activities during their critical feeding life-cycle in the GFNMS and the MBNMS.
With respect to the MBNMS, this rule modifies the regulations to expand the prohibition against shark attraction to the entire sanctuary. White sharks have experienced disturbance from cage diving operations, filming, and other wildlife watching operations. The former regulations prohibited white shark attraction activities within specific areas of the sanctuary, including the area out to the seaward limit of state waters (three miles from the coastline). This rule extends the prohibition to the entire sanctuary.
This rule prohibits anchoring a vessel in a designated no-anchoring seagrass protection zone in Tomales Bay. This prohibition does not apply to vessels anchoring as necessary for mariculture operations that are conducted pursuant to a valid lease, permit, or license. For the purposes of this regulation, anchoring refers to the dropping and placement of an anchor that is attached to a vessel, and which, being cast overboard, retains the vessel in a particular station.
There are a total of seven no-anchoring zones implemented in this regulation, which comprise 22% of the surface area of Tomales Bay. The location and extent of the no-anchoring zones encompass the known seagrass coverage and are based upon seagrass data provided by California Department of Fish and Game from 1992, 2000, 2001 and 2002. The no-anchoring seagrass protection zones include some areas where seagrass coverage is extensive and other areas where coverage is discontinuous and patchy. All zones extend shoreward to the Mean High Water Line (MHWL). Also, the extent of the seagrass beds can change over time. NOAA will review and update periodically the adequacy of these zones, as needed, based on new seagrass monitoring data.
This prohibition protects seagrass beds in Tomales Bay from the destructive effects of anchoring vessels. Seagrass means any species of marine angiosperms (flowering plants) that inhabit portions of the seabed in the Sanctuary. Those species include, but are not limited to:
This rule (1) updates the definition of motorized personal watercraft (MPWC) for MBNMS, and (2) adds a new seasonal MPWC zone to the Pillar Point area. Implementing this modified definition will help fulfill the original intent of the regulation and its zoning restriction, namely to avoid disturbance and other injury of marine wildlife by MPWCs, minimize user conflicts between MPWC operators and other recreationalists, and continue to provide opportunities for MPWC within the MBNMS. The new MPWC zone is restricted to periods of high surf warnings and during winter months. This additional exception accommodates recreational activities in the area without impacting Sanctuary uses or exacerbating user conflicts.
NOAA received comments that the Mavericks surf break at Half Moon Bay was a unique big wave tow-in surfing location in the continental United States, accessible only by MPWC tow-in techniques and should be given special consideration for MPWC access. See discussion in Appendix A of the DEIS at page 18-19 (of Appendix 1). Based upon the evidence that Mavericks was such a special national sporting venue, NOAA investigated whether allowing MPWC operations at that location could be accomplished in a manner compatible with the Sanctuary's primary goal of marine resource protection. As a result of the review this rule establishes a new MPWC zone off Pillar Point Harbor that will allow for recreational access via MPWC to the Mavericks surf break during National Weather Service High Surf Warnings issued for San Mateo County during December, January, and February. High Surf Warning conditions from December through February are not likely to occur at Mavericks more than 3-4 days per year. These are the conditions that create oversized wave face, for which motorized tow-in support is necessary.
MPWC are small, fast, and highly maneuverable craft that possess unconventionally high thrust capability and horsepower relative to their size and weight. Their small size, shallow draft, instant thrust, and “quick reflex” enable them to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Resources such as sea otters and seabirds are either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. Tow-in surfing activity using MPWC has been increasing at many traditional surfing locations in the MBNMS, regardless of surf conditions. The MBNMS has received complaints by surfers, beachgoers, and coastal residents that the use of MPWC in traditional surfing areas has produced conflicts with other ocean users and has caused disturbance of wildlife. During the designation of the MBNMS, the operation of MPWC in nearshore areas was identified as an activity that should be prohibited to avoid such impacts. NOAA's rationale and authority to impose such restrictions were affirmed in
Under the new definition, MPWC means (1) any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel; (2) any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity regulations found at 33 CFR Parts 181 and 183, except submarines; or (3) any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. Part 1 of the definition focuses on operating characteristics and is not constrained by hull design or propulsion unit specifications. Part 2 focuses on high-speed hull designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and is not constrained by propulsion unit specifications or operating characteristics. Part 3 focuses on jet boats that share the same operating capabilities as craft that meet the definition under parts 1 and 2 but where passengers sit inside the craft.
The new definition is intended to effectively identify all craft of concern without inadvertently restricting other watercraft by including them in the definition. The former definition was insufficient to meet NOAA's original goal of restricting the operation of small, highly maneuverable watercraft within the boundaries of the MBNMS. It did not encompass the majority of MPWC operating within the MBNMS because it was based upon outdated MPWC design characteristics of the early 1990s. Since 1992, MPWC manufacturers have built increasingly larger craft with 3+ passenger riding capacity or varied design characteristics that place these craft outside the former MBNMS regulatory definition. These newer craft effectively skirt the definition, yet they retain or exceed the performance capabilities of their predecessors that pose a threat to Sanctuary resources and qualities. The former definition was based solely upon static design characteristics that have rendered it obsolete and ineffective over time. NOAA has therefore developed a more flexible, integrated three-part definition that will continue to be relevant even in light of continuing MPWC design changes. Should a future MPWC design unexpectedly displace any one part of the definition, one or both of the remaining two parts would still apply to sustain the intent of the definition.
Though the vast majority of MPWC operated in the Sanctuary today are similar to Kawasaki Corporation's classic Jet Ski design, a variety of craft are currently marketed that are equally maneuverable at high speeds, with shallow drafts and powerful thrust/weight ratios. One such innovation involves a remotely operated water-jet propulsion pod controlled via a tow line by a skier behind the pod. Water-jet propelled surf boards are also available. Small, highly maneuverable jet boats have also entered the market. These non-conventional watercraft designs demonstrate the creative variations in MPWC that warrant a more resilient regulatory definition.
Part 1 of the definition is similar to current definitions of MPWC used by the Gulf of the Farallones and Florida Keys National Marine Sanctuaries, the National Park Service, and the State of California's Harbor and Navigation Code. However, it differs by omitting reference to particular hull design, length, or propulsion system in order to prevent the definition from becoming obsolete over time due to the rapidly evolving MPWC design. It also no longer includes a reference to a speed threshold. This language was difficult to enforce and did not sufficiently encompass those vessels of concern to the NOAA. The new definition also identifies a wide variety of riding postures common to the unconventional vessel designs that pose a threat to Sanctuary resources and qualities. These threats arise because these design features increase the vessel's maneuverability and allow riders to enter shallow water zones and areas adjacent to small islands and off-shore rocks used by marine mammals and seabirds as breeding, nursing, and resting areas. Although part 1 identifies the operating characteristics of most vessels of concern at the present time, it alone does not reach all craft of concern. For this reason, parts 2 and 3 were included in the definition.
Part 2 utilizes an existing U.S. Coast Guard regulation to identify many existing and future vessel designs that pose a threat to Sanctuary resources and qualities. The Coast Guard requires special testing for most powered vessels under 20 feet in length. This is due to the unique stability and displacement characteristics of these vessels that affect passenger safety (33 CFR part 183). The weight/size ratio of these small craft presents a higher risk of swamping, capsizing, sinking, and passenger dismount. The Coast Guard requires that the results of the vessel stability tests be printed on a capacity plate affixed to each vessel design for which the special testing is required (33 CFR part 181). A key component of the Coast Guard's regulation is a stability
Some high-speed unconventional vessels (e.g., jet bikes, hovercraft, air boats, and race boats) are designed without carrying spaces that hold water. In other words, their hull designs prevent flooding, because they do not have open hulls into which water will flow. Since this design feature makes it impossible to complete the tests required by 33 CFR Part 183, the manufacturers of such craft routinely seek and receive exemptions from these testing and labeling requirements.
With the exception of submarines, the “powered” surface vessel designs that are exempted from the Coast Guard regulations at 33 CFR parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race boats) possess two or more of the following characteristics: Robust buoyancy, are capable of rapid acceleration, are capable of high maneuverability at speed, and have a shallow draft. These and other associated design characteristics afford such vessels unique access and operability within sensitive marine areas (e.g., marine mammal and seabird enclaves). This fact poses a threat to Sanctuary resources and qualities—the same threat that prompted regulatory restrictions on the operation of such hull designs within the MBNMS in 1992. By using the Coast Guard's maximum capacity standard (33 CFR Parts 181 and 183) in part 2 of the definition, NOAA can effectively and precisely identify various vessels of concern while avoiding an excessively complicated and lengthy definition for MPWC. Although part 2 of the definition includes some vessel designs already captured by part 1, it compensates for static aspects of part 1 that could result in a regulatory loophole due to rapidly evolving MPWC designs, as has happened with the former definition.
Parts 1 and 2 largely address problems caused by non-conventional hull designs, which allow the user to enter sensitive and important wildlife habitats. But they do not adequately address the emergence of small, conventional hulls powered by water jet propulsion systems. Jet propulsion systems give vessels many of the same operating characteristics and capabilities of the previously identified vessels of concern (e.g., rapid acceleration, high maneuverability at speed, and shallow draft). They therefore allow these vessels to operate in areas where wildlife is most frequently found. Part 3 was thus developed to include these small craft in the definition. Jet propulsion vessels that are longer than twenty feet do not generally possess these same operational characteristics and capabilities, and are thus excluded from the definition. Further, Coast Guard regulations often categorize small boats as less than 20 feet in length. NOAA has similarly adopted this standard to differentiate between smaller and larger jet-propelled vessels.
This rule defines and incorporates the DSMZ into the MBNMS, and establishes a unique set of prohibitions for that area. The shoreward boundary of the DSMZ is located 75 statue miles (65 nmi) due west of San Simeon, and is one of the largest known seamounts in U.S. waters. It is 26 statute miles long and 8 miles wide. From base to crest, the Davidson Seamount is 7,480 feet (2,280 meters) tall, yet it is still 4,101 feet (1,250 meters) below the sea surface. Threats from fishing are relatively remote; the top of the seamount is too deep for most fish trawling technology. However, future fishing efforts could target the seamount.
NOAA determined the Davidson Seamount requires protection from the take or other injury to benthic organisms or those organisms living near the sea floor because of the seamount's special ecological and fragile qualities and potential future threats that could adversely affect these qualities. For example, the crest of the seamount supports large gorgonian coral forests, vast sponge fields, crabs, deep sea fishes, shrimp and basket stars.
NOAA consulted with the Pacific Fishery Management Council (PFMC) on the most appropriate level of resource protection for the Davidson Seamount and the various means for achieving it. This consultation coincided with the culmination of the PFMC's separate, longer-term efforts to identify and protect Essential Fish Habitat (EFH) on the West Coast. The PFMC unanimously supported the incorporation of the seamount into the MBNMS, but recommended that protection from fishing impacts be achieved by including Davidson Seamount as one of the areas considered for protection as EFH under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (at 50 CFR part 660). NOAA subsequently approved and implemented this recommendation by designating Davidson Seamount as EFH and prohibiting all fishing below 3000 feet in the area proposed to be included in the MBNMS (71 FR 27408, May 11, 2006).
In order to protect its resources and provide opportunities for a better understanding of the seamount, this rule incorporates into the MBNMS a square area of approximately 29 statute miles (25 nmi) per side. The incorporated area includes the water and submerged lands thereunder. This rule prohibits moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any sanctuary resource located more than 3,000 feet below the sea surface within the DSMZ. It also prohibits possessing any sanctuary resource the source of which is more than 3,000 feet below the sea surface within the DSMZ. Although the prohibitions do not apply to commercial and recreational fishing (or possession resulting from such activity) below 3000 feet within the DSMZ, these activities are prohibited under 50 CFR part 660 (Fisheries off West Coast States). The Sanctuary regulations do, however, prohibit resource extraction conducted for research purposes, as research extraction is not within the scope of 50 CFR part 660.
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Although NOAA is not aware of any non-military activities being conducted in the DSMZ, anyone who has a preexisting activity in the DSMZ that
This rule clarifies the location of areas where dredged material may be disposed within MBNMS by codifying and clearly identifying the coordinates of four disposal sites: (1) SF-12 outside Moss Landing at the head of Monterey Canyon; (2) SF-14 offshore of Moss Landing; (3) Twin Lakes Disposal Site outside Santa Cruz Harbor; and (4) Monterey Disposal Site adjacent to Wharf 2 near Monterey Harbor. All four sites were approved by the U.S. Environmental Protection Agency and Army Corps of Engineers and have been in use since before the MBNMS designation in 1992. The former MBNMS regulations did not include the coordinates for these sites. To ensure these sites are used appropriately and accurately, this final rule contains a table in the Appendix that includes the coordinates.
This rule makes a number of changes the former permitting regulations.
1. NOAA amends its regulations to modify the GFNMS permit regulations to add “assist in the managing of the Sanctuary” to the list of the types of activities for which a permit may be issued. This addition provides the Director authority to issue permits for otherwise prohibited activities in order to further Sanctuary management.
2. This rule also modifies the permit regulations for the GFNMS and CBNMS to strengthen and augment the factors that NOAA considers when evaluating applications and issuing permits. Under this rule, NOAA may not issue a permit unless it first considers certain additional factors, including but not limited to, the manner in which the activity will be conducted and whether it is compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects; and the necessity to conduct the activity within the Sanctuary.
3. This rule also modifies the permit application process to require applicants to submit information that addresses the factors that the Director must consider in order to issue a permit.
4. Finally, this rule modifies the regulations to require the permittee to hold the United States harmless against any claims arising out of the permitted activities.
1. Clarify that “submerged lands” are within the Sanctuaries” boundary, (i.e., part of the GFNMS and CBNMS). This updates the boundary regulation to make it consistent with the NMSA and revised terms of designation.
2. Update the calculation for the area of the GFNMS. Since designation the area of GFNMS has been described as approximately 948 square nautical miles. However, adjusting for technical corrections and using updated technologies, the GFNMS area is now calculated to be approximately 966 square nautical miles. The legal description of GFNMS is updated to reflect this change. This update does not constitute a change in the geographic area of the GFNMS but rather represents a more precise measurement of its size.
3. Permanently fix the shoreward boundary of the GFMNS adjacent to Point Reyes National Seashore (PRNS). The 1981 designation of GFNMS linked the boundary to the seaward limit of PRNS. Since then, the National Park Service has made at least two boundary modifications to the PRNS in areas adjacent to the GFNMS, requiring NOAA to redefine the GFNMS boundary, the geographic extent of its authority, and enforcement and implementation of programs. Fixing the shoreward boundary of the GFNMS adjacent to PRNS as it was at the time of GFNMS designation in 1981 by coordinates using the North American Datum of 1983 ensures consistency and continuity for the boundary, sanctuary management and user groups.
4. Technical corrections to the CBNMS boundary and the boundary coordinates are based on the North American Datum of 1983. Since designation, the area of CBNMS has been described as approximately 397 square nautical miles. However, adjusting for technical corrections and using updated technologies, the CBNMS area is now accurately described as approximately 399 square nautical miles. The legal description of CBNMS reflects this change. This update does not constitute a change in the geographic area of the Sanctuary but rather represents a more precise measurement of its size.
5. Additional changes to the Sanctuaries' regulations include grammatical and technical changes to the permitting procedures section to remove extraneous language concerning standard permit conditions and to add clarity to the necessary findings and considerations for issuance of a permit.
6. The changes also include technical changes to the MBNMS boundaries, which are referenced in Appendix A to the MBNMS regulations below. With the exception of adding Davidson Seamount, discussed above, the minor changes are for purposes of clarifying existing MBNMS boundaries.
During the public comment period, NOAA received over 17,250 written comments, some of which were submitted as part of a mass mailing campaign. NOAA conducted 7 information sessions and 7 public hearings to gather additional input. Written and verbal comments were compiled and grouped by general topics into general topics and specific sub-issues. Substantive comments received are summarized below, followed by NOAA's response. Multiple but similar comments have been treated as one comment for purposes of response. Comments beyond the scope of the proposed action are neither summarized nor responded to. NOAA summarized the comments according to the content of the statement or question put forward in written statements or oral testimony regarding the proposed actions. NOAA made appropriate changes to the FEIS and Sanctuary Management Plans in response to the comments including updates to socioeconomic and ecological data where the comments affect the impact analysis or is relevant to the sanctuary action plans. Several technical or editorial comments on the DEIS and Management Plans were also taken under consideration by NOAA and, where appropriate, applied to the FEIS and/or Management Plans. These comments are not however included in the list below.
For the purposes of the responses below, “discharge” is intended also to encompass “deposit.”
Moreover, NOAA believes appropriate fisheries within a national marine sanctuary are an indication of a healthy ecosystem protected by that Sanctuary. The Cordell Bank, Gulf of the Farallones, and Monterey Bay National Marine Sanctuaries Joint Management Plan Cross-cutting Maritime Heritage Action Plan states ocean-based commerce and industries (e.g., fisheries) are important to the maritime history, the modern economy, and the social character of this region. The Action Plan states “there is the potential to cultivate partnerships with local, state, and federal programs and identified communities and that these partnerships could aid in the design and implementation of studies of living maritime heritage and folk life to help educate the public about traditional cultures and practices including fishermen and economic activities reflecting historic human interaction with the ocean.” The MBNMS Management Plan includes the Fishing Related Education and Research Action Plan, whose goal is to involve fishermen in research activities to add to the body of research available for fishery-related decision-making processes. The GFNMS Management Plan includes strategy FA-5: Develop public awareness about the value and importance of the historical and cultural significance of maritime communities and their relationship and reliance on healthy sanctuary waters. The recreational and commercial fishing communities also hold seats on the advisory councils for the sanctuaries and provide input into education, research and resource protection activities.
During NOAA public scoping meetings in 2001, NOAA received comments that the Mavericks surf break at Half Moon Bay was a unique big wave tow-in surfing location in the continental United States, accessible only by MPWC tow-in techniques and should be given special consideration for MPWC access. Based upon the evidence that Mavericks was such a special national sporting venue, NOAA investigated whether allowing MPWC operations at that location could be accomplished in a manner compatible with the Sanctuary's primary goal of marine resource protection. As a result of the review, this final rule establishes a new MPWC zone off Pillar Point Harbor that will allow for recreational access via MPWC to the Mavericks surf break during National Weather Service high surf warnings issued for San Mateo County during December, January, and February. During the course of management plan development, NOAA also received public comment requesting that MPWC access be granted for big wave tow-in surfing at a surf break known as Ghost Trees, located off Pescadero Point in Carmel Bay. NOAA examined this venue, but due to several factors (including sensitive wildlife resources, distant launch sites and lengthy transit corridors, and impacts on marine protected areas), determined that authorization of MPWC activity at this location would not be consistent with the sanctuary's primary goal of resource protection. NOAA also received public comments that broad access to sanctuary waters should be granted to MPWC to support tow-in surfing at virtually any location within the sanctuary and under any surf conditions. Thus, in this final rule, NOAA has made a limited provision for MPWC assisted tow-in surfing at the unique big wave site known as Mavericks, but would continue to prohibit MPWC use outside of the designated riding zones that have been in place since 1993. Many professional and recreational surfers access breaking surf up to 20 feet in height within the sanctuary without the use of MPWC and have done so for decades.
These characteristics enable MPWC to conduct sustained operations in sensitive habitat areas where other vessels cannot routinely operate, thus posing serious disturbance threats to marine wildlife in those areas. In addition, NOAA has received comments that operation of these craft in a manner that optimizes their design characteristics (i.e., normal operation) poses unique threats to other human uses of Sanctuary nearshore areas. Further, see the 1995 U.S. Court of Appeals decision unanimously upholding NOAA's regulation of MPWC in the MBNMS,
In 1994, NOAA commissioned a review of recreational boating activity in the MBNMS. The review provided statistics on MPWC use and operating patterns in the Sanctuary at the time and identified issues of debate from the research community regarding MPWC impacts on wildlife, but it made no
NMFS has a stranding response network of external partners that coordinates with sanctuary staff as appropriate on all marine mammal (with the exception of sea otter) and sea turtle standings. Sea otter standing are investigated by the California Department of Fish and Game through an agreement with the United States Fish and Wildlife Service. Responses and investigations, including postmortem examination and diagnostics when feasible, are conducted whether or not anthropogenic acoustic or blast trauma is suspected.
For additional information, please see:
Furthermore, NOAA has taken extraordinary steps, above and beyond the advisory council, to repeatedly and regularly involve the general public in addressing the priority issues in the Management Plan. The process used by the NMSP is a very inclusive public process. Development of the MBNMS Management Plan included more than 120 public meetings including Advisory Council, Working Group, Scoping and Public Comment meetings. 223 individuals participated in working groups to develop the action plans for the MBNMS and the NMSP received over 30,000 comments during the review of the management plans.
Vessels have been observed through California department of Fish and Game aerial photographs within current and historic eelgrass beds throughout Tomales Bay. The State regulation that states no eel grass, surf grass or sea palm may be cut or disturbed does not specifically prohibit anchoring. The seagrass protection zone regulation is intended to complement existing State regulation. These zones would be more enforceable and facilitate specific types of vessel usage. The seagrass protection zones would prevent the risk of harm to seagrass beds before the damage occurs. The regulation of anchoring in seagrass zones in Tomales Bay is designed to prevent damage from vessel anchors. NOAA will monitor the seagrass protection zones for effectiveness and use a model of adaptive management to make appropriate adjustments to the zones. The use of shallow-draft motor boats will be monitored. A re-evaluation of the zones will include an assessment of all the effects of vessels on seagrass.
While marine mammals, seabirds and endangered and threatened species are protected under other legislation, NOAA believes the higher penalties under the NMSA will provide a stronger deterrent.
The terms of designation for national marine sanctuaries (as defined in the NMSA (16 U.S.C. 1434(a)(4))) list the types of activities that they may be subject to regulation under sanctuary. Listing does not necessarily mean that a type of activity will be regulated. If a type of activity is not listed, it may not be regulated, except on an emergency basis, unless the terms of designation are amended to include the type of activity. NOAA must follow the same procedures by which the original designation was made to modify the terms of designation of any national marine sanctuary. In this case, the authority to regulate attraction or approach of any animal is only being applied with respect to white sharks. No regulations are being considered regarding attracting or approaching other animals at this time. Retaining the authority in the terms of designation to regulate attracting or approaching other animals will maintain flexibility to respond in the future, as necessary, to similar resource issues involving the attraction of other animals. It is important to note that, although it would not be necessary to amend the terms of designation to promulgate such regulations, NOAA would still be required to engage in a rulemaking process before any additional regulations could be issued. This would include, among other things, consultations with other governmental entities, public notice and comment of any proposed action, and compliance with all applicable laws such as the National Environmental Policy Act (NEPA).
Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. Section 304(a)(4) of the National Marine Sanctuaries Act requires the procedures specified in section 304 for designating a national marine sanctuary be followed for modifying any term of designation. Because this action revises the sanctuary designation documents (e.g., scope of regulations and boundaries), NOAA must comply with the requirements of section 304. All necessary requirements have been completed.
NOAA has prepared a Supplemental Draft Environmental Impact Statement (SDEIS) to evaluate the revisions to the discharge/deposit regulations analyzed in the DEIS. Copies are available at the address and Web site listed in the Address section of this rule. Responses to comments received on the proposed rule are also published in the Final Environmental Impact Statement, which is similarly available.
This final rule has been determined to be not significant within the meaning of Executive Order 12866.
For the provisions related to the CBNMS, NOAA has concluded this regulatory action does not have federalism implications, as that term is defined in Executive Order 13132, sufficient to warrant preparation of a federalism assessment. NOAA consulted with a number of entities within the State which participated in development of this final rule, including but not limited to, the California Coastal Commission, California Regional Water Quality Control Board, California Department of Fish and Game, and California Resources Agency.
For the provisions related to the GFNMS and MBNMS, NOAA has
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification appears in the proposed rules and is not repeated here. Comments received on the economic impacts of this rule are summarized and responded to in the Response to Comments section. The comments received did not impact the factual basis for the certification. As a result, a final regulatory flexibility analysis was not required and none was prepared.
This rule involves an existing information collection requirement previously approved by OMB (OMB# 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
The revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received. The modifications to the permit procedures and criteria (15 CFR 922.133) further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The modifications also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648-0141). The revised permit regulations add language about: the qualifications, finances, and proposed methods of the applicant; the compatibility of the proposed method with the value of the Sanctuary and the primary objective of protection of Sanctuary resources and qualities; the necessity of the proposed activity; and the reasonably expected end value of the proposed activity.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Boats and boating safety, Coastal zone, Education, Environmental protection, Fish, Harbors, Marine mammals, Marine pollution, Marine resources, Marine safety, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Research, Water pollution control, Water resources, Wildlife.
16 U.S.C. 1431
The Gulf of the Farallones National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 966 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, surrounding the Farallon Islands (and Noonday Rock) off the northern coast of California. The northernmost extent of the Sanctuary boundary is a geodetic line extending westward from Bodega Head approximately 6 nmi to the northern boundary of the Cordell Bank National Marine Sanctuary (CBNMS). The Sanctuary boundary then turns southward to a point approximately 6 nmi off Point Reyes, California, where it then turns westward again out towards the 1,000-fathom isobath. The Sanctuary boundary then extends in a southerly direction adjacent to the 1,000-fathom isobath until it intersects the northern extent of the Monterey Bay National Marine Sanctuary (MBNMS). The Sanctuary boundary then follows the MBNMS boundary eastward and northward until it intersects the Mean High Water Line at Rocky Point, California. The Sanctuary boundary then follows the MHWL north until it intersects the Point Reyes National Seashore (PRNS) boundary. The Sanctuary boundary then approximates the PRNS boundary, as established at the time of designation of the Sanctuary, to the intersection of the PRNS boundary and the MHWL in Tomales Bay. The Sanctuary boundary then follows the MHWL up Tomales Bay and Lagunitas Creek to the Route 1 Bridge where the Sanctuary boundary crosses the Lagunitas Creek and follows the MHWL until it intersects its northernmost extent near Bodega Head. The Sanctuary boundary includes Bolinas Lagoon, Estero de San Antonio (to the tide gate at Valley Ford Franklin School Road) and Estero Americano (to the bridge at Valley Ford Estero Road), as well as Bodega Bay, but not Bodega Harbor. Where the Sanctuary boundary crosses a waterway, the Sanctuary boundary excludes these waterways shoreward of the Sanctuary boundary line delineated by the coordinates provided. The precise seaward boundary coordinates are listed in Appendix A to this subpart.
In addition to those definitions found at § 922.3, the following definitions apply to this subpart:
(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
(1) Exploring for, developing, or producing oil or gas except that pipelines related to hydrocarbon operations adjacent to the Sanctuary may be placed at a distance greater than 2 nmi from the Farallon Islands, Bolinas Lagoon and Areas of Special Biological Significance (ASBS) where certified to have no significant effect on Sanctuary resources in accordance with § 922.84.
(2) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
(i) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;
(ii) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) that is approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
(iii) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; or
(iv) Vessel engine or generator exhaust.
(3) Discharging or depositing, from within or into the Sanctuary, any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash.
(4) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except for the exclusions listed in paragraphs (a)(2)(i) through (iv) and (a)(3) of this section.
(5) Constructing any structure other than a navigation aid on or in the submerged lands of the Sanctuary; placing or abandoning any structure on or in the submerged lands of the Sanctuary; or drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary in any way, except:
(i) By anchoring vessels (in a manner not otherwise prohibited by this part (see § 922.82(a)(16));
(ii) While conducting lawful fishing activities;
(iii) The laying of pipelines related to hydrocarbon operations in leases adjacent to the Sanctuary in accordance with paragraph (a)(1) of this section;
(iv) Routine maintenance and construction of docks and piers on Tomales Bay; or
(v) Mariculture activities conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California.
(6) Operating any vessel engaged in the trade of carrying cargo within an area extending 2 nmi from the Farallon Islands, Bolinas Lagoon or any ASBS. This includes but is not limited to tankers and other bulk carriers and barges, or any vessel engaged in the trade of servicing offshore installations, except to transport persons or supplies to or from the Islands or mainland areas adjacent to Sanctuary waters or any ASBS. In no event shall this section be construed to limit access for fishing, recreational or research vessels.
(7) Operation of motorized personal watercraft, except for the operation of motorized personal watercraft for emergency search and rescue missions or law enforcement operations (other than routine training activities) carried out by the National Park Service, U.S. Coast Guard, Fire or Police Departments or other Federal, State or local jurisdictions.
(8) Disturbing birds or marine mammals by flying motorized aircraft at less than 1000 feet over the waters within one nmi of the Farallon Islands,
(9) Possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure, a Sanctuary historical resource.
(10) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except:
(i) Striped bass (
(ii) Species cultivated by mariculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California and in effect on the effective date of the final regulation.
(11) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361
(12) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle, or bird taken, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
(13) Attracting a white shark in the Sanctuary; or approaching within 50 meters of any white shark within the line approximating 2 nmi around the Farallon Islands. The coordinates for the line approximating 2 nmi around the Farallon Islands are listed in Appendix B to this subpart.
(14) Deserting a vessel aground, at anchor, or adrift in the Sanctuary.
(15) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.
(16) Anchoring a vessel in a designated seagrass protection zone in Tomales Bay, except as necessary for mariculture operations conducted pursuant to a valid lease, permit or license. The coordinates for the no-anchoring seagrass protection zones are listed in Appendix C to this subpart.
(b) All activities currently carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions in this section. The exemption of additional activities shall be determined in consultation between the Director and the Department of Defense.
(c) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property, or the environment, or except as may be permitted by the Director in accordance with § 922.48 and § 922.83.
(a) A person may conduct an activity prohibited by § 922.82 if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under § 922.48 and this section.
(b) The Director, at his or her discretion, may issue a National Marine Sanctuary permit under this section, subject to terms and conditions as he or she deems appropriate, if the Director finds that the activity will:
(1) Further research or monitoring related to Sanctuary resources and qualities;
(2) Further the educational value of the Sanctuary;
(3) Further salvage or recovery operations; or
(4) Assist in managing the Sanctuary.
(c) In deciding whether to issue a permit, the Director shall consider factors such as:
(1) The applicant is qualified to conduct and complete the proposed activity;
(2) The applicant has adequate financial resources available to conduct and complete the proposed activity;
(3) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
(4) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;
(5) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
(6) It is necessary to conduct the proposed activity within the Sanctuary;
(7) The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and
(8) Any other factors as the Director deems appropriate.
(d) Applications.
(1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Gulf of the Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio, San Francisco, CA 94129.
(2) In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph (b) and (c) of this section.
(e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
A permit, license, or other authorization allowing: the laying of any pipeline related to hydrocarbon operations in leases adjacent to the Sanctuary and placed at a distance greater than 2 nmi from the Farallon Islands, Bolinas Lagoon, and any ASBS must be certified by the Director as consistent with the purpose of the Sanctuary and having no significant effect on Sanctuary resources. Such certification may impose terms and conditions as deemed appropriate to ensure consistency. In considering whether to make the certifications called for in this section, the Director may seek and consider the views of any other person or entity, within or outside the Federal government, and may hold a public hearing as deemed appropriate. Any certification called for in this section shall be presumed unless the Director acts to deny or condition certification within 60 days from the date that the Director receives notice of the proposed permit and the necessary supporting data. The Director may amend, suspend, or revoke any certification made under this section whenever continued operation would violate any terms or conditions of the certification. Any such action shall be forwarded in writing to both the holder of the certified permit and the issuing agency and shall set forth reason(s) for the action taken.
Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.
Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.
Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.
Table C-1: Zone 1:
Zone 1 is an area of approximately 39.9 hectares offshore south of Millerton Point. The eastern boundary is a straight line that connects points 1 and 2 listed in the coordinate table below. The southern boundary is a straight line that connects points 2 and 3, the western boundary is a straight line that connects points 3 and 4 and the northern boundary is a straight line that connects point 4 to point 5. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
ZONE 2: Zone 2 is an area of approximately 50.3 hectares that begins just south of Marconi and extends approximately 3 kilometers south along the eastern shore of Tomales Bay. The eastern boundary is the mean high water (MHW) line from point 1 to point 2 listed in the coordinate table below. The southern boundary is a straight line that connects point 2 to point 3. The western boundary is a series of straight lines that connect points 3 through 6 in sequence and then connects point 6 to point 1. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
ZONE 3: Zone 3 is an area of approximately 4.6 hectares that begins just south of Marshall and extends approximately 1 kilometer south along the eastern shore of Tomales Bay. The eastern boundary is the mean high water (MHW) line from point 1 to point 2 listed in the coordinate table below. The southern boundary is a straight line that connects point 2 to point 3, the western boundary is a straight line that connects point 3 to point 4, and the northern boundary is a straight line that connects point 4 to point 5. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
ZONE 4: Zone 4 is an area of approximately 61.8 hectares that begins just north of Nicks Cove and extends approximately 5 kilometers south along the eastern shore of Tomales Bay to just south of Cypress Grove. The eastern boundary is the mean high water (MHW) line from point 1 to point 2 listed in the coordinate table below. The southern boundary is a straight line that connects point 2 to point 3. The western boundary is a series of straight lines that connect points 3 through 9 in sequence. The northern boundary is a straight line that connects point 9 to point 10. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
ZONE 5: Zone 5 is an area of approximately 461.4 hectares that begins east of Lawsons Landing and extends approximately 5 kilometers east and south along the eastern shore of Tomales Bay but
ZONE 6: Zone 6 is an area of approximately 3.94 hectares in the vicinity of Indian Beach along the western shore of Tomales Bay. The western boundary follows the mean high water (MHW) line from point 1 northward to point 2 listed in the coordinate table below. The northern boundary is a straight line that connects point 2 to point 3. The eastern boundary is a straight line that connects point 3 to point 4. The southern boundary is a straight line that connects point 4 to point 5. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
ZONE 7: Zone 7 is an area of approximately 32.16 hectares that begins just south of Pebble Beach and extends approximately 3 kilometers south along the western shore of Tomales Bay. The western boundary is the mean high water (MHW) line from point 1 to point 2 listed in the coordinate table below. The northern boundary is a straight line that connects point 2 to point 3. The eastern boundary is a series of straight lines that connect points 3 through 7 in sequence. The southern boundary is a straight line that connects point 7 to point 8. All coordinates are in the Geographic Coordinate System relative to the North American Datum of 1983.
The Cordell Bank National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 399 square nautical miles (nmi) of ocean waters, and submerged lands thereunder, off the northern coast of California approximately 50 miles west-northwest of San Francisco, California. The Sanctuary boundary extends westward (approximately 250 degrees) from the northwestern most point of the Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of Cordell Bank. The Sanctuary boundary then generally follows this isobath in a southerly direction to the western-most point of the GFNMS boundary. The Sanctuary boundary then follows the GFNMS boundary again to the northwestern corner of the GFNMS. The exact boundary coordinates are listed in Appendix A to this subpart.
In addition to the definitions found in § 922.3, the following definitions apply to this subpart:
(a) The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary:
(1)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
(A) Fish, fish parts, or chumming materials (bait), used in or resulting from lawful fishing activity within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary;
(B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash; or
(D) Vessel engine or generator exhaust.
(ii) Discharging or depositing, from within or into the Sanctuary, any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash.
(iii) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except as listed in paragraphs (a)(1)(i) and (a)(1)(ii) of this section.
(2) On or within the line representing the 50-fathom isobath surrounding Cordell Bank, removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on Cordell Bank. This prohibition does not apply to use of bottom contact gear used during fishing activities, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart. There is a rebuttable presumption that any such resource found in the possession of a person within the Sanctuary was taken or removed by that person.
(3) Exploring for, or developing or producing, oil, gas, or minerals in any area of the Sanctuary.
(4)(i) On or within the line representing the 50-fathom isobath surrounding Cordell Bank, drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material or other matter on or in the submerged lands. This prohibition does not apply to use of bottom contact gear used during fishing activities, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States). The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart.
(ii) In the Sanctuary beyond the line representing the 50-fathom isobath surrounding Cordell Bank, drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing, or abandoning any structure, material or matter on the submerged lands except as incidental and necessary for anchoring any vessel or lawful use of any fishing gear during normal fishing activities. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart.
(5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361
(6) Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle or bird taken, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
(7) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (
(b) The prohibitions in paragraph (a) of this section do not apply to activities necessary to respond to an emergency threatening life, property or the environment, or except as may be permitted by the Director in accordance with § 922.48 and § 922.113.
(c) All activities being carried out by the Department of Defense (DOD) within the Sanctuary on the effective date of designation that are necessary for national defense are exempt from the prohibitions contained in the regulations in this subpart. Additional DOD activities initiated after the effective date of designation that are necessary for national defense will be exempted by the Director after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, are subject to all prohibitions contained in the regulations in this subpart.
(d) Where necessary to prevent immediate, serious, and irreversible damage to a Sanctuary resource, any activity may be regulated within the limits of the Act on an emergency basis for no more than 120 days.
(a) A person may conduct an activity prohibited by § 922.112 if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under § 922.48 and this section.
(b) The Director, at his or her discretion, may issue a national marine sanctuary permit under this section, subject to terms and conditions, as he or she deems appropriate, if the Director finds that the activity will:
(1) Further research or monitoring related to Sanctuary resources and qualities;
(2) Further the educational value the Sanctuary;
(3) Further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or
(4) Assist in managing the Sanctuary.
(c) In deciding whether to issue a permit, the Director shall consider such factors as:
(1) The applicant is qualified to conduct and complete the proposed activity;
(2) The applicant has adequate financial resources available to conduct and complete the proposed activity;
(3) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
(4) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;
(5) The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
(6) It is necessary to conduct the proposed activity within the Sanctuary;
(7) The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and
(8) Any other factors as the Director deems appropriate.
(d) Applications.
(1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950.
(2) In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph (b) and (c) of this section.
(e) The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
Coordinates listed in this Appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).
Coordinates listed in this Appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83).
The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas. (a) The first area consists of an area of approximately 4016 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in Appendix A to this subpart.
(b) The Davidson Seamount Management Zone is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. The shoreward boundary of this portion of the Sanctuary is located approximately 65 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the Davidson Seamount Management Zone boundary are provided in Appendix F to this subpart.
In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart:
(a) Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals within the Sanctuary, except: Jade may be collected (meaning removed) from the area bounded by the 35.92222 N latitude parallel (coastal reference point: Beach access stairway at south Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: Westernmost tip of Cape San Martin), and from the mean high tide line seaward to the 90-foot isobath (depth line) (the “authorized area”) provided that:
(i) Only jade already loose from the submerged lands of the Sanctuary may be collected;
(ii) No tool may be used to collect jade except:
(A) A hand tool (as defined at 15 CFR 922.131) to maneuver or lift the jade or scratch the surface of a stone as necessary to determine if it is jade;
(B) A lift bag or multiple lift bags with a combined lift capacity of no more than two hundred pounds; or
(C) A vessel (except for motorized personal watercraft) (see paragraph (a)(7) of this section) to provide access to the authorized area;
(iii) Each person may collect only what that person individually carries; and
(iv) For any loose piece of jade that cannot be collected under paragraphs (a)(1) (ii) and (iii) of this section, any person may apply for a permit to collect such a loose piece by following the procedures in 15 CFR 922.133.
(2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used in or resulting from lawful fishing activities within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activities within the Sanctuary;
(B) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding tank capacity to hold sewage while within the Sanctuary, clean effluent generated incidental to vessel use by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
(D) For a vessel less than 300 gross registered tons (GRT), or a vessel 300 GRT or greater without sufficient holding capacity to hold graywater while within the Sanctuary, clean graywater as defined by section 312 of the FWPCA;
(E) Vessel engine or generator exhaust; or
(F) Dredged material deposited at disposal sites authorized by the U.S. Environmental Protection Agency (EPA) (in consultation with the U.S. Army Corps of Engineers (COE)) prior to the effective date of Sanctuary designation (January 1, 1993), provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on January 1, 1993. Authorized disposal sites within the Sanctuary are described in Appendix C to this subpart.
(ii) Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash.
(iii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(2)(i)(A) through (E) and (a)(2)(ii) of this section and dredged material deposited at the authorized disposal sites described in Appendix D to this subpart, provided that the dredged material disposal is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval.
(3) Possessing, moving, removing, or injuring, or attempting to possess, move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to, moving, removing, or injury resulting incidentally from kelp
(4) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental and necessary to:
(i) Conduct lawful fishing activities;
(ii) Anchor a vessel;
(iii) Conduct aquaculture or kelp harvesting;
(iv) Install an authorized navigational aid;
(v) Conduct harbor maintenance in an area necessarily associated with a Federal Project in existence on January 1, 1993, including dredging of entrance channels and repair, replacement, or rehabilitation of breakwaters and jetties;
(vi) Construct, repair, replace, or rehabilitate a dock or pier; or
(vii) Collect jade pursuant to paragraph (a)(1) of this section, provided that there is no constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, other than temporary placement of an authorized hand tool as provided in paragraph (a)(1) of this section. The exceptions listed in paragraphs (a)(4)(ii) through (a)(4)(vii) of this section do not apply within the Davidson Seamount Management Zone.
(5) Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361
(6) Flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart.
(7) Operating motorized personal watercraft within the Sanctuary except within the five designated zones and access routes within the Sanctuary described in Appendix E to this subpart. Zone Five (at Pillar Point) exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County, and only during December, January, and February.
(8) Possessing within the Sanctuary (regardless of where taken, moved, or removed from), any marine mammal, sea turtle, or bird, except as authorized by the MMPA, ESA, MBTA, by any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
(9) Deserting a vessel aground, at anchor, or adrift in the Sanctuary.
(10) Leaving harmful matter aboard a grounded or deserted vessel in the Sanctuary.
(11) (i) Moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more that 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to fishing below 3000 feet within the Davidson Seamount Management Zone, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States).
(ii) Possessing any Sanctuary resource the source of which is more than 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to possession of fish resulting from fishing below 3000 feet within the Davidson Seamount Management Zone, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States).
(12) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (
(13) Attracting any white shark within the Sanctuary.
(14) Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
(b) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment.
(c)(1) All Department of Defense activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2) through (12) of this section do not apply to existing military activities carried out by the Department of Defense, as specifically identified in the Final Environmental Impact Statement and Management Plan for the Proposed Monterey Bay National Marine Sanctuary (NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.) For purposes of the Davidson Seamount Management Zone, these activities are listed in the 2008 Final Environmental Impact Statement. New activities may be exempted from the prohibitions in paragraphs (a)(2) through (12) of this section by the Director after consultation between the Director and the Department of Defense.
(2) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including but not limited to discharges, deposits, and groundings, caused by a Department of Defense activity, the Department of Defense, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director.
(d) The prohibitions in paragraph (a)(1) of this section as it pertains to jade collection in the Sanctuary, and paragraphs (a)(2) through (11) and (a)(13) of this section, do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.133 or a Special Use permit issued pursuant to section 310 of the Act.
(e) The prohibitions in paragraphs (a)(2) through (a)(8) of this section do not apply to any activity authorized by any lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation (January 1, 1993) and issued by any Federal, State, or local authority of competent jurisdiction, provided that the applicant complies with 15 CFR 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date of Sanctuary designation.
(f) Notwithstanding paragraphs (d) and (e) of this section, in no event may the Director issue a National Marine Sanctuary permit under 15 CFR 922.48 and 922.133 or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: the exploration for, development, or production of oil, gas, or minerals within the Sanctuary, except for the collection of jade pursuant to paragraph (a)(1) of this section; the discharge of primary-treated sewage within the Sanctuary (except by certification,
(a) A person may conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under this section and 15 CFR 922.48.
(b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary, § 922.132(a)(2) through (11), and § 922.132(a)(13), if the Director finds that the activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities and:
(1) Is research designed to further understanding of Sanctuary resources and qualities;
(2) Will further the educational, natural, or historical value of the Sanctuary;
(3) Will further salvage or recovery operations within or near the Sanctuary in connection with a recent air or marine casualty;
(4) Will assist in managing the Sanctuary;
(5) Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California; or
(6) Will allow the removal, without the use of pneumatic, mechanical, electrical, hydraulic or explosive tools, of loose jade from the Jade Cove area under § 922.132(a)(1)(iv).
(c) In deciding whether to issue a permit, the Director shall consider such factors as:
(1) Will the activity be conducted by an applicant that is professionally qualified to conduct and complete the activity;
(2) Will the activity be conducted by an applicant with adequate financial resources available to conduct and complete the activity;
(3) Is the activity proposed for no longer than necessary to achieve its stated purpose;
(4) Must the activity be conducted within the Sanctuary;
(5) Will the activity be conducted using methods and procedures that are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
(6) Will the activity be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects;
(7) Will the activity be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects; and
(8) Does the reasonably expected end value of the activity to the furtherance of the Sanctuary goals and objectives outweigh any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity.
(d) For jade collection, preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes.
(e) The Director may consider such other factors as he or she deems appropriate.
(f) Applications.
(1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.
(2) In addition to the information listed in 15 CFR 922.48(b), all applications must include information the Director needs to make the findings in paragraph (b) of this section and information to be considered by the Director pursuant to paragraph (c) of this section.
(g) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities.
(a) [Reserved]
(b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, EPA, and the Association of Monterey Bay Area Governments regarding the Sanctuary regulations relating to water quality within State waters within the Sanctuary.
With regard to permits, the MOA encompasses:
(i) National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code; and
(ii) Waste Discharge Requirements issued by the State of California under section 13263 of the California Water Code.
(2) The MOA specifies how the process of 15 CFR 922.49 will be administered within State waters within the Sanctuary in coordination with the State permit program.
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
The four zones are:
(1) From mean high water out to three nautical miles (NM) between a line extending from Point Santa Cruz on a southwesterly heading bearing of 220° true and a line extending from 2.0 nmi north of Pescadero Point on a southwesterly heading bearing of 240° true;
(2) From mean high water out to three nmi between a line extending from the Carmel River mouth on a westerly heading bearing of 270° true and a line extending due west along latitude 35.55488° off of Cambria;
(3) From mean high water and within a five nmi arc drawn from a center point at the end of Moss Landing Pier as it appeared on the most current NOAA nautical charts as of January 1, 1993; and
(4) Over the waters of Elkhorn Slough east of the Highway One bridge to Elkhorn Road.
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
As of January 1, 1993, the U.S. Army Corps of Engineers operates the following dredged material disposal site adjacent to the Sanctuary off of the Golden Gate:
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
The five zones and access routes are:
(1) The approximately one [1.0] NM2 area off Pillar Point Harbor from harbor launch ramps, through harbor entrance to the northern boundary of Zone One:
(2) The approximately five [5.0] NM2 area off of Santa Cruz Small Craft Harbor from harbor launch ramps, through harbor entrance, and then along a 100 yard wide access route southwest along a true bearing of approximately 196° true (180° magnetic) to the whistle buoy at 36.93833N, 122.01000 W. Zone Two is bounded by:
(3) The approximately six [6.0] NM2 area off of Moss Landing Harbor from harbor launch ramps, through harbor entrance, and then along a 100 yard wide access route west along a bearing of approximately 270° true (255° magnetic) due west to the eastern boundary of Zone Three bounded by:
(4) The approximately five [5.0] NM2 area off of Monterey Harbor from harbor launch ramps to the seaward end of the U.S. Coast Guard Pier, and then along a 100 yard wide access route due north to the southern boundary of Zone Four bounded by:
(5) The approximately one-tenth [0.10] NM2 area near Pillar Point from Pillar Point Harbor entrance along a 100 yard wide access route southeast along a true bearing of approximately 174° true (159° magnetic) to the bell buoy (identified as “Buoy 3”) at 37.48154 N, 122.48156 W and then along a 100 yard wide access route northwest along a true bearing of approximately 284° true (269° magnetic) to the gong buoy (identified as “Buoy 1”) at 37.48625 N, 122.50603 W, the southwest boundary of Zone Five. Zone Five exists only when a High Surf Warning has been issued by the National Weather Service and is in effect for San Mateo County and only during December, January, and February. Zone Five is bounded by:
[Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983]
Rural Business-Cooperative Service, USDA.
Advanced notice of proposed rulemaking.
This Advanced Notice of Proposed Rulemaking (ANPRM) seeks comments for the development of a proposed rule to implement a BioRefinery Assistance guaranteed loan program. In conjunction with this ANPRM, USDA is publishing a separate notice in this
Please submit your comments by January 20, 2009.
You may submit comments by any of the following methods:
•
•
•
All written comments will be available for public inspection during regular work hours at the 300 7th Street, SW., 7th Floor address listed above.
U.S. Department of Agriculture, Rural Development, Energy Branch, Attention: BioRefinery Assistance Program, 1400 Independence Avenue, SW., STOP 3225, Washington, DC, 20250-3225. Telephone: (202) 720-1400.
The purpose of section 9003 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) is to assist in the development of new and emerging technologies for the development of advanced biofuels in order to increase the energy independence of the United States; promote resource conservation, public health, and the environment; diversify markets for agricultural and forestry products and agriculture waste material; and create jobs and enhance the economic development of the rural economy. Thus, the purpose of the program presented in this NOFA is to assist in the development and construction of commercial-scale biorefineries and the retrofitting of existing facilities using eligible technology for the development of advanced biofuels. To that end, the program will promote the development of the first commercial scale biorefineries that do not rely on corn kernel starch as the feedstock. Preference for funding will be given to projects where first-of-a-kind technology will be deployed at the commercial scale.
The Agency will make guarantees available on loans for eligible projects that will provide for the development, construction, and/or retrofitting of commercial biorefineries using eligible technology. Eligible technology is (a) any technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel and (b) any technology not described in (a) above that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.
Over the life of the program, it is likely that guarantees will be awarded to projects that are first-of-a-kind or projects with commercial applications that are expanded to new regions, modified to utilize different feedstocks.
The Agency plans to issue a proposed rule for the BioRefinery Assistance guaranteed loan program, which is expected to be very similar to the requirements laid out in the aforementioned biorefinery assistance program NOFA. Consistent with the Agency's intent to develop a single, unified guaranteed loan regulation to reduce burden and simplify the requirements of the Agency's guaranteed loan programs, the Agency intends to incorporate the BioRefinery Assistance guaranteed loan program into the proposed guaranteed loan program under 7 CFR part 5001 when that program is promulgated.
To assist the Agency in developing a proposed rule for the BioRefinery Assistance guaranteed loan program, the Agency is seeking input from interested parties on the questions detailed in Section III below.
The Agency is seeking comments on how the following two phrases should be defined as used in the definition of “eligible technology” as that term is defined in the 2008 Farm Bill:
• “Viable commercial-scale operation”
• “Technical and economic potential for commercial application”
One of the priorities in the 2008 Farm Bill for scoring guaranteed loan applications is “whether the applicant has
• “Established a market”
• “Byproducts”
• “Co-product” and its relationship to byproduct.
A second priority in the 2008 Farm Bill for scoring guaranteed loan applications is “the level of
• “Local ownership”
A third priority in the 2008 Farm Bill for scoring guaranteed loan applications is “whether the
• “Area”
What information and reports should be required once the project is established and stabilized? How should performance of the project/technology be evaluated and by whom? For example, Should there be a technology-specific protocol that is evaluated by an independent third party?
Given that much of the funding for National Laboratories comes from
Should a separate technical report be required, what information would it contain, who would be qualified to complete it, and who would be qualified to review it? Would the applicant be willing to pay the cost of the environmental impact analysis?
What is the potential value added to the program, in support of the Agency's responsibilities for project credit assessment, in requiring a private sector credit rating on the biorefinery project as if the total debt anticipated in support of the project were not subject to Federal guarantees?
Should specific scoring criteria carry more weight than others?
Should other evaluation criteria be considered?
How should the impacts on resource conservation, public health, and the environment, and the potential for rural development be evaluated?
Should priority consideration be given to technologies that add significant value to low-value feedstock even if it adversely impacts existing low-value added facilities that use similar feedstock?
In consideration of the 100 point scoring protocol depicted in the NOFA, at what level should the Agency set a minimum score in order for an application to receive consideration by the Agency for a potential guarantee?
Rural Business-Cooperative Service, USDA.
Notice.
This notice announces the funds available for the BioRefinery Assistance Program (the “Program”) to provide guaranteed loans for the development and construction of commercial-scale biorefineries or for the retrofitting of existing facilities using eligible technology for the development of advanced biofuels. In conjunction with this notice, USDA is publishing elsewhere in this issue an advanced notice of proposed rulemaking (ANPRM) seeking comments for the development of a proposed rule to implement the BioRefinery Assistance guaranteed loan program.
To be considered for funding in the first half of Fiscal Year 2009, applications must be completed and submitted to the USDA Rural Development National Office by December 31, 2008. To be considered for funding in the second half of Fiscal Year 2009, complete applications must be submitted to the USDA Rural Development National Office between March 1, 2009 and April 30, 2009. Comments regarding the information collection requirements under the Paperwork Reduction Act of 1995 must be submitted on or before January 20, 2009.
Applications and forms may be obtained from:
• U.S. Department of Agriculture, Rural Development, Energy Branch, Attention: BioRefinery Assistance Program, 1400 Independence Avenue, SW., STOP 3225, Washington, DC 20250-3225.
• Agency Web site:
Submit an original completed application with two copies to USDA's Rural Development National Office: Energy Branch, Attention: BioRefinery Assistance Program, 1400 Independence Avenue, SW., STOP 3225, Washington, DC 20250-3225.
Energy Branch, Attention: BioRefinery Assistance Program, 1400 Independence Avenue, SW., Mail Stop 3225, Washington, DC 20250-3225. Telephone: 202-720-1400.
This Program is listed in the Catalog of Federal Domestic Assistance under Number 10.865.
In accordance with the Paperwork Reduction Act of 1995, Rural Development is requesting emergency approval from OMB of the reporting and a recordkeeping requirement contained in this Notice and hereby opens a 60-day public comment period.
Rural Development has established “Instructions for Application for Loan Guarantee in the Application Guide—Section 9003 BioRefinery Assistance Loan Guarantees” that contains Form RD 4279-1 and full details of the application process. Eligible entities are strongly encouraged to consult the instructions guide when preparing applications for submission.
All applicants requesting Federal funding must complete Form RD 4279-1, “Application for Loan Guarantee (Business and Industry and Section 9006 Program)”. Completed applications must include a proposal narrative and written evidence to collect needed information required by the Agency for reporting requirements. This includes but not limited to: Forms RD 1980-41, “Guaranteed Loan Status Report”; RD 1980-44, “Guaranteed Loan Borrower Default Status”; RD 400-1, “Equal Opportunity Agreement”; RD 400-4, “Assurance Agreement”; RD 4279-3, “Conditional Commitment”; RD 449-30, “Loan Note Guarantee Report of Loss”; RD 1980-43, “Lender's Guaranteed Loan Payment to USDA”; RD 4279-4 “Lender's Agreement”; RD 1980-19, “Guaranteed Loan Closing Report”; RD 4279-6, “Assignment Guarantee Agreement”; RD 1940-20 “Request for environmental Information”; RD 1940-Q, “Certification for Contracts, Grants, and Loans” (if loan exceeds $150,000); SF-LLL, “Disclosure of Lobbying Activities” and AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters.”
The following estimates are based on the average over the first three years the program is in place.
Copies of this information collection may be obtained from Cheryl Thompson, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250-0742 or by calling (202) 692-0043.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of Rural Development, including whether the information will have practical utility; (b) the accuracy of the new Rural Development estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Cheryl Thompson, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250.
Section 9003 of the Food, Conservation, and Energy Act of 2008
Rural Development is committed to complying with the E-Government Act, to provide increased opportunities for citizens to access Government information and services electronically.
Section 9003 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) is intended to assist in the development and construction of commercial-scale biorefineries and the retrofitting of existing facilities using eligible technology for the development of advanced biofuels. Consistent with Congressional intent, preference will be given to projects where first-of-a-kind technology will be deployed at the commercial scale. To that end, the program will promote the development of the first commercial scale biorefineries that do not rely on corn kernel starch as the feedstock or standard biodiesel technology.
The Agency will make guarantees available on loans for eligible projects that will provide for the development, construction, and/or retrofitting of commercial biorefineries using eligible technology. Eligible technology is:
(a) Any technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel, and
(b) Any technology not described in paragraph (a) above that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.
Over the life of the program, it is likely that guarantees will be awarded to projects that are first-of-a-kind and that may include projects with commercial applications that are expanded to new regions, modified to utilize different feedstocks, or substantially improved such that they represent a significant technological risk.
• The section 9003 program being implemented is similar, but not identical to, the guaranteed loan program for innovative technologies implemented by the U.S. Department of Energy under title XVII of the Energy Policy Act of 2005 (Pub. L. 109-58). The Agency is implementing the section 9003 as a separate program because the types of projects that would be “good candidates” for guaranteed loans under title XVII of the Energy Policy Act of 2005 would not likely be good candidates for guaranteed loans under section 9003, and vice-versa.
The 2008 Farm Bill provides mandatory budget authority for this Program of $75 million in Fiscal Year 2009 to support loan guarantees based on credit subsidy scoring that is yet to be determined.
The maximum principal amount of a loan guaranteed under this Program is $250 million; there is no minimum amount. The amount of a loan guaranteed under this Program will be reduced by the amount of other direct Federal funding that the eligible borrower receives for the same project.
The maximum guarantee under this Program is 80 percent of the principal and interest due on a loan guaranteed under this Program if the loan amount is equal to or less than $80 million. If the loan amount is more than $80 million and less than $125 million, the maximum guarantee is 70 percent for the amount in excess of $80 million. If the loan amount is equal to or more than $125 million, the maximum guarantee is 60 percent for the entire loan amount.
The amount of a loan guaranteed for a project under this Program will not exceed 80 percent of total eligible project costs. Thus, the amount of guaranteed loan funds that may be made available to an applicant for an eligible project will not exceed 64 percent of the total eligible project costs.
The interest rate for the guaranteed loan will be negotiated between the lender and the applicant and shall be in line with interest rates on other similar government guaranteed loan programs. The interest rate may be either fixed or variable, as long as it is a legal rate, and shall be fully amortizing. The interest rate for both the guaranteed and unguaranteed portions of the loan must be of the same type (i.e., both fixed or both variable). The interest rate charged will be subject to Agency review and approval.
The length of a loan guaranteed under this Program would be for a period of no more than 20 years or 85 percent of the useful life of the project, as determined by the lender and confirmed by the Agency, whichever is less. The length of the loan term would be required to be the same for both the guaranteed and unguaranteed portion of the loan.
This Notice contains eligibility requirements for borrowers, projects, and lenders, as discussed below.
To be eligible to receive a guaranteed loan under this Program, a borrower must be one of the following:
• Individual,
• Indian tribe,
• Unit of State or local government,
• Corporation,
• Farm cooperative,
• Farmer cooperative organization,
• Association of agricultural producers,
• National Laboratory,
• Institution of higher education,
• Rural electric cooperative,
• Public power entity, or
• Consortium of any of those entities.
Projects eligible for loan guarantees under this Program must be located in a rural area and be for either:
• The development and construction of commercial-scale biorefineries using eligible technology, or
• The retrofitting of existing facilities, including, but not limited to, wood products facilities and sugar mills, with eligible technology.
Eligible technology is defined as either:
• A technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel; or
• A technology not described in the previous paragraph that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.
Regulated or supervised lenders that meet the requirements specified in this Notice (see section I) may be eligible to participate in this Program.
The lender must submit a separate application for each project for which a loan guarantee is sought under this Program. The contents of the application, including forms, certifications, and agreements, are very similar to what is required for the Business and Industry Guaranteed Loan Program and the Renewable Energy Systems and Energy Efficiency
Because of factors of cost and complexity for eligible projects under this Program, the lender must include with the application a project-specific feasibility study, as defined in this Notice. The feasibility study must be prepared by a qualified consultant. The feasibility study must address, in part, both the technical and economic feasibility of the project.
The Agency intends to accept applications twice during Fiscal Year 2009 for consideration for funding under this Program. The first window for submitting applications begins on the publication date of this Notice and closes December 31, 2008. Therefore, it is imperative that applicants submit complete applications to the USDA Rural Development National Office by December 31, 2008, in order to be considered for funding in the first half of FY 2009. Applicants not selected in the first round may reapply during the second application window.
The second window for submitting applications under this Program begins on March 1, 2009. Complete applications must be submitted to the USDA Rural Development National Office between March 1, 2009, and April 30, 2009, to be considered for funding in the second half of FY 2009. Applications received after April 30, 2009, will not be considered for funding in FY 2009.
In administering this program's budgetary authority for FY 2009, the Agency will allocate up to, but no more, than 50 percent of its FY 2009 $75 million budgetary authority to fund applications received by the end of the first application window. Any funds not obligated to support applications submitted during the first application window will be available to support applications received during the second window. The Agency, therefore, will have a minimum of 50 percent of its FY 2009 budgetary authority for this program available to support applications received during the second application window.
Ineligible or incomplete applications will be returned to the applicant. If an application is determined to be ineligible for any reason, the Agency will inform the lender, in writing, of the reasons and provide any applicable appeal rights. The denial or rejection of an application under the Program may be appealed as provided in this Notice.
Submission of an application neither reserves funding nor ensures funding. The Agency will evaluate each application and make a determination as to whether the borrower is eligible, whether the lender is eligible, whether the proposed project is eligible, the credit-worthiness and technical merit of the project, and whether the proposed funding request complies with all applicable statutes and regulations. The evaluation will be based on the information provided by the lender and on other sources of information, such as recognized industry experts in the applicable technology field, as necessary.
The Agency will score each application in order to prioritize each proposed project. The evaluation criteria that the Agency will use to score these projects are:
• Whether the borrower has established a market for the advanced biofuel and the byproducts produced.
• Whether the area in which the borrower proposes to place the biorefinery has other similar advanced biofuel facilities.
• Whether the borrower is proposing to use a feedstock not previously used in the production of advanced biofuels.
• Whether the borrower is proposing to work with producer associations or cooperatives.
• The level of financial participation by the borrower, including support from non-Federal and private sources. Such financial participation may take the form of direct financial support, technical support, and contributions of in-kind resources including such kinds of support from state government. Any direct Federal funding from other sources will reduce the amount of the loan that may be guaranteed under this program.
• Whether the borrower has established that the adoption of the process proposed in the application will have a positive impact on resource conservation, public health, and the environment.
• Whether the borrower can establish that, if adopted, the biofuels production technology proposed in the application will not have any significant negative impacts on existing manufacturing plants or other facilities that use similar feedstocks.
• The potential for rural economic development, including the number of local jobs created and inclusion of local banks or other capital sources in any proposed debt syndication.
• The level of local ownership proposed in the application.
• Whether the project can be replicated.
• The extent to which the project converts cellulosic biomass feedstocks into advanced biofuel.
• Whether the project is a first-of-a-kind technology, system, or process.
Using these evaluation criteria, the Agency expects that existing biodiesel technology is unlikely to score high enough to be selected for a guaranteed loan under this NOFA.
All guaranteed loan requests for this Program are subject to the provisions of this Notice as laid out in this section of the Notice.
The following definitions are applicable to this Notice.
(1) Biofuel derived from cellulose, hemicellulose, or lignin;
(2) Biofuel derived from sugar and starch (other than ethanol derived from corn kernel starch);
(3) Biofuel derived from waste material, including crop residue, other vegetative waste material, animal waste, food waste, and yard waste;
(4) Diesel-equivalent fuel derived from renewable biomass, including vegetable oil and animal fat;
(5) Biogas (including landfill gas and sewage waste treatment gas) produced through the conversion of organic matter from renewable biomass;
(6) Butanol or other alcohols produced through the conversion of organic matter from renewable biomass; or
(7) Other fuel derived from cellulosic biomass.
(1) Describes clearly the borrower's ownership structure and management, including experience and succession planning;
(2) Discusses, if applicable, the borrower's parent, affiliates, and subsidiaries, including their names and a description of the relationship;
(3) Discusses how the borrower will operate the proposed project, including, at a minimum, a description of:
(i) The business and its strategy;
(ii) Possible vendors and models of major system components;
(iii) The products and services to be provided;
(iv) The availability of the resources (e.g., labor, raw materials, supplies) necessary to provide those products and services;
(v) Site location and its relation to product distribution (e.g., rail lines or highways) and any land use or other permits necessary to operate the facility; and
(vi) The market for the product and its competition, including any and all competitive threats and advantages;
(4) Presents pro forma financial statements, including:
(i) Balance sheet and income and expense for a period of not less than 3 years of stabilized operation, and
(ii) Cash flows for the life of the project; and
(5) Describes the proposed use of funds.
(1) A technology that is being adopted in a viable commercial-scale operation of a biorefinery that produces an advanced biofuel; or
(2) A technology not described in paragraph (1) of this definition that has been demonstrated to have technical and economic potential for commercial application in a biorefinery that produces an advanced biofuel.
(1) The failure of a lender to perform those services that a reasonably prudent lender would perform in originating, servicing, and liquidating its own portfolio of unguaranteed loans; or
(2) The failure of the lender to perform its origination and servicing responsibilities in accordance with its origination and servicing policies and procedures in use by the lender at the time the loan is made.
(3) The term includes the concepts of failure to act, not acting in a timely manner, or acting in a manner contrary to the manner in which a reasonably prudent lender would act.
(1) Materials, pre-commercial thinnings, or invasive species from National Forest System land and public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) that:
(i) Are byproducts of preventive treatments that are removed to reduce hazardous fuels; to reduce or contain disease or insect infestation; or to restore ecosystem health;
(ii) Would not otherwise be used for higher-value products; and
(iii) Are harvested in accordance with applicable law and land management plans and the requirements for old-growth maintenance, restoration, and management direction of paragraphs (2), (3), and (4) of subsection (e) of section 102 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6512) and large-tree retention of subsection (f) of that section; or
(2) Any organic matter that is available on a renewable or recurring basis from non-Federal land or land belonging to an Indian or Indian tribe that is held in trust by the United States or subject to a restriction against alienation imposed by the United States, including:
(i) Renewable plant material, including feed grains; other agricultural commodities; other plants and trees; and algae; and
(ii) Waste material, including crop residue; other vegetative waste material (including wood waste and wood residues); animal waste and byproducts (including fats, oils, greases, and manure); and food waste and yard waste.
(1) The advanced biofuel biorefinery's likely financial and production success is evidenced in a thorough evaluation including, but not limited to:
(i) Feedstocks;
(ii) Process engineering;
(iii) Siting;
(iv) Technology;
(v) Energy production; and
(vi) Financial and sensitivity review using a banking industry software analysis program with appropriate industry standards.
(2) The evaluation in paragraph (1) of this definition is completed by an independent third-party expert in a feasibility study, technical report, or other analysis, each of which must be satisfactory to the Agency, that demonstrates the success of the project.
(3) The advanced biofuel technology has at least a 12 month (four season) operating cycle at semi-work scale.
(1) Evidence that a proposed project's revenue will be sufficient to recover the full cost of the project over the term of the guaranteed loan, service debt, and result in an anticipated annual rate of return sufficient to encourage investors or lenders to provide funding for the project.
(2) Such proposed project will be able to operate profitably without public and private sector subsidies upon completion of construction (volumetric excise tax is not included as a subsidy).
(3) Contracts for feedstocks are adequate to address proposed off-take from the biorefinery.
(4) The proposed project demonstrates the ability to achieve market entry, suitable infrastructure to transport the advanced biofuel to its market is available, and general market competitiveness of the advanced biofuel technology and related products.
(5) The project must demonstrate that it can be easily replicated and that replications can be sited at multiple facilities across a wide geographic area based on the proposed deployment plan.
(6) The advanced biofuel technology has at least a 12 months (four seasons) operating history at semi-work scale, which demonstrates the ability to operate at a commercial scale.
Except as specified in paragraphs (a) through (d) of this section, the Administrator may, on a case-by-case basis, make exceptions to any requirement or provision of this Notice only when such an exception is in the best financial interests of the Federal Government and is otherwise not in conflict with applicable law.
(a)
(b)
(c)
(d)
A person has review or appeal rights in accordance with 7 CFR part 11.
No conflict of interest or appearance of conflict of interest will be allowed. For purposes of this Notice, conflict of interest includes, but is not limited to, distribution or payment of guaranteed loan funds or award of project contracts to an individual owner, partner, stockholder, or beneficiary of the lender or borrower or an immediate family member of such an individual.
(a)
(b)
(1) During construction, the lender will submit quarterly construction progress reports to the Agency. These reports will contain, at a minimum, construction milestone attainment, loan advances, and personnel hiring, training, and retention.
(2) Periodic reports, to be submitted quarterly unless otherwise specified in the Conditional Commitment, regarding the condition of its Agency guaranteed loan portfolio (including borrower status and loan classification) and any material change in the general financial condition of the borrower since the last periodic report was submitted.
(3) Monthly default reports, including borrower payment history, for each loan in monetary default using a form approved by the Agency.
(4) Notification within 15 days of:
(i) Any loan agreement violation by any borrower, including when a borrower is 30 days past due or is otherwise in default;
(ii) Any permanent or temporary reduction in interest rate; and
(iii) Any change in the loan classification of any loan made under this Notice.
(5) If a lender receives a final loss payment, an annual report on its collection activities for each unsatisfied account for 3 years following payment of the final loss claim.
Copies of all forms, regulations, and instructions referenced in this Notice may be obtained through the Agency.
To be eligible for a guaranteed loan under this Program, a borrower: must meet each of the conditions specified in the following paragraphs, as applicable.
(a) The borrower must be one of the following:
(1) An individual;
(2) An Indian tribe;
(3) A unit of State or local government;
(4) A corporation;
(5) A farm cooperative;
(6) A farmer cooperative organization;
(7) An association of agricultural producers;
(8) A National Laboratory;
(9) An institution of higher education;
(10) A rural electric cooperative;
(11) A public power entity; or
(12) A consortium of any of the above entities.
(b) Individual borrowers must either:
(1) Be citizens of the United States (U.S.), the Republic of Palau, the Federated States of Micronesia, the Republic of the Marshall Islands, or American Samoa, or
(2) Reside in the U.S. after legal admittance for permanent residence.
(c) Entities other than individuals must be at least 51 percent owned by persons who are either citizens as identified above or legally admitted permanent residents residing in the U.S.
(d) Each borrower must have, or obtain, the legal authority necessary to construct, operate, and maintain the proposed facility and services and to obtain, give security for, and repay the proposed loan.
(e) A borrower will be considered ineligible for a guarantee under this Program if either the borrower or any owner with more than 20 percent ownership interest in the borrower:
(i) Has an outstanding judgment obtained by the U.S. in a Federal Court (other than U.S. Tax Court),
(ii) Is delinquent on the payment of Federal income taxes,
(iii) Is delinquent on Federal debt, or
(iv) Is debarred or suspended from receiving Federal assistance.
Projects eligible for loan guarantees under this Program must meet the criteria specified in this section.
(a) The project must be located in a rural area.
(b) The project must be for either:
(1) The development and construction of commercial-scale biorefineries using eligible technology or
(2) The retrofitting of existing facilities, including, but not limited to, wood products facilities and sugar mills, with eligible technology.
(c) The project must meet the financial metric criteria specified in paragraphs (c)(1) through (c)(3) of this section. These financial metric criteria shall be calculated from the realistic information in the pro forma statements or borrower financial statements of a typical operating year after the project is completed and stabilized.
(1) A debt coverage ratio of 1.0 or higher;
(2) A debt-to-tangible net worth ratio of 4:1 or lower for start-up businesses and of 9:1 or lower for existing businesses.
(3) A loan-to-value ratio of no more than 1.0.
To be eligible to participate in this Program under this Notice, a lender must be a regulated or supervised lender and must maintain at all times the following minimum acceptable levels of capital:
• Total Risk-Based Capital ratio of 10 percent or higher;
• Tier 1 Risk-Based Capital ratio of 6 percent or higher; and
• Tier 1 Leverage Capital ratio of 5 percent or higher.
If the regulated or supervised lender is a commercial bank or thrift, these levels would be based on those reflected in Call Reports and Thrift Financial Reports.
Further, the Agency will approve loan guarantees only for lenders with adequate experience with similar projects and the expertise to make, secure, service, and collect loans approved under this Notice. Lenders debarred from other Federal credit programs will not be eligible under this program.
Applications for loan guarantees, which are to be filed with the USDA Rural Development National Office's Energy Branch as shown under
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(i)
(ii)
(7)
(i) A personal credit report from an acceptable credit reporting company for a proprietor (owner), each partner, officer, director, key employee, and stockholder owning 20 percent or more interest in the applicant, except for those corporations listed on a major stock exchange. Credit reports are not required for elected and appointed officials when the applicant is a public body.
(ii) Commercial credit reports obtained by the lender on the borrower and any parent, affiliate, and subsidiary firms.
(8)
(9)
(10)
(11)
(i) A summary of the technology to be used in the project;
(ii) The viability of such technology for the particular project application;
(iii) Whether the project is retrofit or Greenfield;
(iv) Borrower's management;
(v) Repayment ability (including a cash-flow analysis);
(vi) Sponsor's history of debt repayment;
(vii) Necessity of any debt refinancing;
(viii) The credit reports of the borrower, its principals, and any parent, affiliate, or subsidiary; and
(ix) The credit analysis specified in Section II.N of this Notice.
(12)
(i) Prohibition against assuming liabilities or obligations of others;
(ii) Restriction on dividend payments;
(iii) Limitation on the purchase or sale of equipment and fixed assets;
(iv) Limitation on compensation of officers and owners;
(v) Financial covenants regarding working capital or current ratio requirement, and maximum debt-to-net worth ratio;
(vi) Borrower change of control;
(vii) Repayment and amortization of the loan;
(viii) List of collateral and lien priority for the loan;
(ix) Type and frequency of financial statements to be required for the duration of the loan;
(x) A section for the later insertion of any additional requirements imposed by the Agency in its Conditional Commitment; and
(xi) A section for the later insertion of any necessary mitigation measures by the borrower to avoid or reduce adverse environmental impacts from this proposal's construction or operation.
(13)
(14)
(15)
(i) A certification by the lender stating that it has completed a comprehensive analysis of the proposal, the borrower is eligible, the loan is for an eligible project, and there is reasonable assurance of repayment ability based on the borrower's history, projections and equity, and the collateral to be obtained.
(ii) A certification by the lender that the proposed project will be in compliance with all applicable State and Federal environmental laws and regulations.
(16)
(17)
(18)
(c)
(1) All references in those forms to the Business and Industry program or the Section 9006 program in whatever manner, and whether referenced singularly or jointly, shall be deemed to be references to the BioRefinery Assistance Program described in this Notice, and
(2) All references to the Business and Industry or Section 9006 regulations in those forms in whatever manner, whether general or specific, whether singularly or jointly, and whether or not specific Code of Federal Regulation citations are used, shall be deemed to be a reference to the requirements of the BioRefinery Assistance Program described in this Notice. In addition, the following modifications are to be used for this Program.
(i) Application for Loan Guarantee (Form RD 4279-1) is modified as described below.
(A) Part A, Block 10, Type of Borrower, do not fill out if your entity is not listed.
(B) Part A, Block 11. Instead of the SIC Code, fill in your NAICS.
(C) Part A, Block 22 is not applicable.
(D) Part A, Block 29, Financial Statements. Comply with the financial statement requirements in this Notice rather than in Block 29.
(E) Part A, Block 30, which deals with guarantors, is not applicable.
(F) Part A, Block 33, Technical Report. Replace Technical Report with Feasibility Study, which will include a technical assessment of the project.
(G) Part B, Block 17, which addresses equity. Do not fill in this block, but instead provide similar information according to the equity requirements contained in this Notice.
(H) Part B, Block 22, which addresses the lender's analysis. Attach the lender's analysis as described in this Notice.
(3) Lender's Agreement (Form RD 4279-4), Section I, Item B, is applicable with the addition that negligent servicing includes any instance where a lender fails to ensure that all environmental laws are being complied with by any person receiving guaranteed loan funds under this Program.
(4) Loan Note Guarantee (Form RD 4279-5), Section 3, Full Faith and Credit, under Conditions of Guarantee is applicable with the addition that negligent servicing includes any instance where a lender fails to ensure that all environmental laws are being complied with by a person receiving guaranteed loan funds under this Program.
(d)
(1)
(i) Discuss the proposed project delivery method. Such methods include a design, bid, build where a separate engineering firm may design the project and prepare a request for bids and the successful bidder constructs the project at the borrower's risk, and a design build method, often referred to as turnkey, where the borrower establishes the specifications for the project and secures the services of a developer who will design and build the project at the developer's risk;
(ii) Discuss the advanced biofuels technology equipment manufacturers of major components being considered in terms of the length of time in business and the number of units installed at the capacity and scale being considered;
(iii) Discuss the project team members' qualifications for engineering, designing, and installing advanced biofuels refineries including any relevant certifications by recognized organizations or bodies. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available; and
(iv) Describe the advanced biofuels refinery operator's qualifications and experience for servicing, operating, and maintaining such equipment or projects. Provide a list of the same or similar projects designed, installed, or supplied and currently operating and with references if available.
(2)
(i) Advanced biofuels refineries must be installed in accordance with applicable local, State, and national codes and regulations. Identify zoning and code issues, and required permits and the schedule for meeting those requirements and securing those permits.
(ii) Identify licenses where required and the schedule for obtaining those licenses.
(iii) Identify land use agreements required for the project and the schedule for securing the agreements and the term of those agreements.
(iv) Identify any permits or agreements required for solid, liquid, and gaseous emissions or effluents and the schedule for securing those permits and agreements.
(v) Identify available component warranties for the specific project location and size.
(vi) Identify all environmental issues, including environmental compliance issues, associated with the project.
(3)
(4)
(i) The application must include a concise but complete description of the project including location of the project; resource characteristics, including the kind and amount of feedstocks; biorefinery specifications; kind, amount,
(ii) The application must include a description of the project site and address issues such as site access, foundations, backup equipment when applicable, and the environmental information documents Form RD 1940-20 and required narrative in the 7 CFR part 1940, subpart G, Exhibit H format. Identify any unique construction and installation issues.
(iii) Sites must be controlled by the eligible borrower for at least the proposed project life or for the financing term of any associated federal loans or loan guarantees.
(5)
(6)
(7)
(8)
(i) Information regarding available biorefinery and component warranties and availability of spare parts;
(ii) A description of the routine operations and maintenance requirements of the proposed biorefinery, including maintenance schedule for the mechanical, piping, and electrical systems and system monitoring and control requirements, as well as provision of information that supports expected useful life of the biorefinery and timing of major component replacement or rebuilds;
(iii) A discussion of the costs and labor associated with operations and maintenance of the biorefinery and plans for in-sourcing or outsourcing. A description of the opportunities for technology transfer for long term project operations and maintenance by a local entity or owner/operator; and
(iv) Provision and discussion of the risk management plan for handling large, unanticipated failures of major components.
(9)
(e)
(1) Providing a detailed analysis and description of project costs including project management, resource assessment, project design, project permitting, land agreements, equipment, site preparation, systems installation, startup and shakedown, warranties, insurance, financing, professional services, and operations and maintenance costs;
(2) Providing a detailed analysis and description of annual project revenues and expenses over the useful life of the project;
(3) Providing a detailed description of applicable investment incentives, productivity incentives, loans, and grants; and
(4) Identifying any other project authorities and subsidies that affect the project.
(a)
(b)
(c)
(d)
(e)
(1) Whether the borrower has established a market for the advanced biofuel and the byproducts produced. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the business has less than or equal to a 50 percent commitment for feedstocks, marketing agreements for the
(ii) If the business has a greater than 50 percent commitment for feedstocks, marketing agreements for the advanced biofuel and the byproducts produced, 5 points will be awarded.
(2) Whether the area in which the borrower proposes to place the biorefinery has other similar advanced biofuel facilities. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the biorefinery will be located in a trade area that has other advanced biofuel facilities, with area defined as “within the area supplying the feedstock,” 0 points will be awarded.
(ii) If the biorefinery will be located in a trade area that does not have other advanced biofuel facilities, with area defined as “within the area supplying the feedstock,” 5 points will be awarded.
(3) Whether the borrower is proposing to use a feedstock not previously used in the production of advanced biofuels. A maximum of 14 points can be awarded. Points to be awarded will be determined as follows:
(i) If the borrower proposes to use a feedstock previously used in the production of advanced biofuels in a commercial facility, 0 points will be awarded.
(ii) If the borrower proposes to use a feedstock not previously used in production of advanced biofuels in a commercial facility, 14 points will be awarded.
(4) Whether the borrower is proposing to work with producer associations or cooperatives. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the borrower procurement or marketing agreements amount to less than or equal to 50 percent of annual feedstock and biofuel and byproduct dollars with producer associations or cooperatives, 0 points will be awarded.
(ii) If the borrower procurement or marketing agreements amount to more than 50 percent of annual feedstock and biofuel and byproduct dollars with producer associations or cooperatives, 5 points will be awarded.
(5) The level of financial participation by the borrower, including support from non-Federal and private sources. Such financial participation may take the form of direct financial support, technical support, and contributions of in-kind resources including financial or other support from state or local government. A maximum of 20 points can be awarded. Other Direct Federal funding will not be considered as part of the borrower's cash equity participation. Points to be awarded will be determined as follows:
(i) If the borrower's cash equity injection plus other sources is equal to or greater than 30 percent, but less than 40 percent, tangible balance sheet equity, 10 points will be awarded.
(ii) If the borrower's cash equity injection plus other sources is equal to or greater than 40 percent tangible balance sheet equity, 20 points will be awarded.
(iii) If a project uses other Federal direct funding, 10 points will be deducted.
(6) Whether the borrower has established that the adoption of the process proposed in the application will have a positive impact on resource conservation, public health, and the environment. A maximum of 9 points can be awarded. Points to be awarded will be determined as follows:
(i) If process adoption will have a positive impact on resource conservation, 3 points will be awarded.
(ii) If process adoption will have a positive impact on public health, 3 points will be awarded.
(iii) If process adoption will have a positive impact on environment, 3 points will be awarded.
(7) Whether the borrower can establish that, if adopted, the biofuels production technology proposed in the application will not have any significant negative impacts on existing manufacturing plants or other facilities that use similar feedstocks. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the borrower has not established, through an independent third party, that the biofuels production technology proposed in the application, if adopted, will not have any significant negative impacts on existing manufacturing plants or other facilities that use similar feed stocks, 0 points will be awarded.
(ii) Applicant has established, through an independent third party, that the biofuels production technology proposed in the application, if adopted, will not have any significant negative impacts on existing manufacturing plants or other facilities that use similar feed stocks, 5 points will be awarded.
(8) The potential for rural economic development. If the business creates jobs with an average wage that exceeds both the State and County median household wages, 3 points will be awarded.
(9) The level of local ownership proposed in the application. A maximum of 13 points can be awarded. Points to be awarded will be determined as follows:
(i) If local ownership is greater than 20 percent, with area defined as “within the area supplying the feedstock,” up to 6 points will be awarded.
(ii) If local ownership is greater than 50 percent, with area defined as “within the area supplying the feedstock,” 13 points will be awarded.
(10) Whether the project can be replicated. A maximum of 5 points can be awarded. Points to be awarded will be determined as follows:
(i) If the project can be commercially replicated regionally (
(ii) If the project can be commercially replicated nationally, up to 5 points will be awarded.
(11) The extent to which the project converts cellulosic biomass feedstocks into advanced biofuels. A maximum of 6 points can be awarded.
(i) If 50% or less of the amount of advanced biofuels produced by the project is derived from cellulosic renewable biomass feedstocks, then 0 points will be awarded.
(ii) If more than 50% of the amount of advanced biofuels produced by the project is from cellulosic renewable biomass feedstocks, then 6 points will be awarded.
(12) If the project is a first-of-a-kind technology, system, or process, 10 points will be awarded.
(a)
(b)
(c)
(d)
All lenders requesting or obtaining a loan guarantee under this Notice are responsible for:
(a) Processing applications for guaranteed loans;
(b) Developing and maintaining adequately documented loan files;
(c) Recommending only loan proposals that are eligible and financially feasible;
(d) Obtaining valid evidence of debt and collateral in accordance with sound lending practices;
(e) Supervising construction;
(f) Distribution of loan funds;
(g) Servicing guaranteed loans in a prudent manner, including liquidation if necessary;
(h) Following Agency regulations; and
(i) Obtaining Agency approvals or concurrence as required.
(a)
(1) The lender must address all of the elements of credit quality in a written credit analysis, including cash flow, collateral, and adequacy of equity.
(i)
(ii)
(iii)
(2) The credit analysis must also include spreadsheets of the balance sheets and income statements of the borrower for the 3 previous years (for existing businesses), pro forma balance sheets at startup, and projected yearend balance sheets and income statements for a period of not less than 3 years of stabilized operation, with appropriate ratios and comparisons with industrial standards (such as Dun & Bradstreet or Robert Morris Associates) to the extent available.
(3) All data must be shown in total dollars and also in common size form, obtained by expressing all balance sheet items as a percentage of assets and all income and expense items as a percentage of sales.
(b)
(c)
(1) All appraisals used to establish the fair market value of the real property must not be more than 1 year old.
(2) All appraisals will include consideration of the potential effects from a release of hazardous substances or petroleum products or other environmental hazards on the market value of the collateral.
(3) A complete self-contained appraisal must be conducted.
(4) Lenders must complete, for all applications, a Phase I Environmental Site Assessment (ESA) in accordance with ASTM standards, which should be provided to the appraiser for completion of the self-contained appraisal. Lenders shall use specialized appraisers.
(d)
(1)
(2)
(3)
(4)
(i) Certification by the project engineer to the lender that the work referred to in the draw has been successfully completed; and
(ii) Certification from the lender that all debts have been paid and all mechanics' liens have been waived.
(e)
(1)
(2)
(3)
(4)
(i) Any required environmental review must be completed by the Agency prior to the Agency obligating any funds.
(ii) The borrower will be notified of all specific compliance requirements, including, but not limited to, the publication of public notices, and consultation with State Historic Preservation Offices and the U.S. Fish and Wildlife Service.
(iii) A site visit by the Agency may be scheduled, if necessary, to determine the scope of the review.
(iv) A borrower taking any actions or incurring any obligations prior to or during application review and processing that would either limit the range of alternatives to be considered or that would have an adverse effect on the environment, such as the initiation of construction, may result in project ineligibility.
(f)
(g)
(a)
(1) The lender must service the entire loan and must remain mortgagee and secured party of record notwithstanding the fact that another party may hold a portion of the loan.
(2) The Loan Note Guarantee is unenforceable by the lender to the extent any loss is occasioned by violation of usury laws, use of loan funds for unauthorized purposes, negligent servicing, or failure to obtain the required security interest regardless of the time at which the Agency acquires knowledge of the foregoing. This responsibility includes, but is not limited to, the collection of payments, obtaining compliance with the covenants and provisions in the loan agreement, obtaining and analyzing financial statements, checking on payment of taxes and insurance premiums, and maintaining liens on collateral.
(b)
(c)
(d)
(1) The lender must submit to the Agency:
(i) Quarterly financial statements within 45 days of the end of each quarter and
(ii) Annual audited financial statements within 120 days of the end of the borrower's fiscal year.
(2) The lender must analyze the financial statements and provide the Agency with a written summary of the lender's analysis and conclusions,
(e)
(1)
(i) The actual amount of advanced biofuels produced to assess whether project goals are being met.
(ii) If applicable, documentation that identified health and/or sanitation problem has been solved.
(iii) A summary of the cost of operating and maintaining the facility.
(iv) Description of any maintenance or operational problems associated with the facility.
(v) Demonstration that the project is and has been in compliance with all applicable State and Federal environmental laws and regulations.
(vi) The number of jobs created.
(vii) A description on the status of the project's feedstock including, but not limited to, the feedstock being used, outstanding feedstock contracts, feedstock changes and interruptions, and quality of the feedstock.
(2)
(f)
(1) All releases of collateral with a value exceeding $100,000 must be supported by a current appraisal on the collateral released. The appraisal will be at the expense of the borrower and must meet the appraisal requirements contained in this Notice. The remaining collateral must be sufficient to provide for repayment of the Agency's guaranteed loan. The Agency may, at its discretion, require an appraisal of the remaining collateral in cases where it is determined that the Agency may be adversely affected by the release of collateral. Sale or release of collateral must be based on an arm's-length transaction.
(2) Within the parameters of the paragraph (f)(1):
(i) Lenders may, over the life of the guaranteed loan, release collateral with a cumulative value of up to 20 percent of the original loan amount without Agency concurrence if the proceeds generated are used to reduce the guaranteed loan or to buy replacement collateral.
(ii) Release of collateral with a cumulative value in excess of 20 percent of the original loan or when the proceeds will not be used to reduce the guaranteed loan or to buy replacement collateral, must be requested, in writing, by the lender and concurred by the Agency, in writing, in advance of the release. A written evaluation will be completed by the lender to justify the release.
(g)
(1) Subject to approval by the lender and the Agency and the payment to the Agency of a one percent fee, loans are assumable. Assumption shall be deemed to occur in the event of a change in the control of the borrower. For purposes of the loan, change of control means the merger, sale of all or substantially all of the assets of the borrower, or the sale of more than 25 percent of the stock or other equity interest of either the borrower or its corporate parent.
(2) All loan transfers and assumptions must comply with the following:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(A) The assumption will be done on the lender's form of assumption agreement and will contain the Agency case number of the transferor and transferee. The lender will provide the Agency with a copy of the transfer and assumption agreement. The lender must ensure that all transfers and assumptions are noted on all original Loan Note Guarantees.
(B) The lender will provide to the Agency a written certification that the transfer and assumption is valid, enforceable, and complies with all Agency regulations.
(viii)
(ix)
(x)
(A) The lender must have an appropriate appraiser, acceptable to
(B) The market value of the collateral, plus any additional property the transferee proposes to offer as collateral, must be adequate to secure the balance of the guaranteed loans, as determined by the Agency.
(C) Cash downpayments may be paid directly to the transferor provided:
(
(
(
(
(h)
(1) The subordination be in the best financial interests of the Federal government;
(2) The lien to which the guaranteed loan is subordinated is for a fixed dollar limit;
(3) Lien priorities remain for the portion of the loan that was not subordinated; and
(4) The subordination does not extend the term of the guaranteed loan, and in no event exceeds more than 3 years.
(i)
(1)
(2)
(i) If the lender does not repurchase the unpaid guaranteed portion of the loan as provided in paragraph (1) of this section, the Agency will purchase from the holder the unpaid principal balance of the guaranteed portion together with accrued interest to the date of repurchase, less the lender's servicing fee, within 30 days after written demand to the Agency from the holder. (This is in addition to the copy of the written demand on the lender.) The guarantee will not cover the note interest to the holder on the guaranteed loan accruing after 90 days from the date of the original demand letter of the holder to the lender requesting the repurchase.
(ii) The holder's demand to the Agency must include a copy of the written demand made upon the lender. The holder must also include evidence of its right to require payment from the Agency. Such evidence will consist of either the original of the Loan Note Guarantee properly endorsed to the Agency or the original of the Assignment Guarantee Agreement properly assigned to the Agency without recourse including all rights, title, and interest in the loan. The holder must include in its demand the amount due including unpaid principal, unpaid interest to date of demand, and interest subsequently accruing from date of demand to proposed payment date. The Agency will be subrogated to all rights of the holder.
(iii) The Agency will notify the lender of its receipt of the holder's demand for payment. The lender must promptly provide the Agency with the information necessary for the Agency to determine the appropriate amount due the holder. Upon request by the Agency, the lender will furnish a current statement certified by an appropriate authorized officer of the lender of the unpaid principal and interest then owed by the borrower on the loan and the amount then owed to any holder. Any discrepancy between the amount claimed by the holder and the information submitted by the lender must be resolved between the lender and the holder before payment will be approved. Such conflict will suspend the running of the 30 day payment requirement.
(iv) Purchase by the Agency neither changes, alters, nor modifies any of the lender's obligations to the Agency arising from the loan or guarantee nor does it waive any of Agency's rights against the lender. The Agency will have the right to set-off against the lender all rights inuring to the Agency as the holder of the instrument against the Agency's obligation to the lender under the guarantee.
(3)
(j)
(k)
(1) The lender must notify the Agency when a borrower is 30 days past due on a payment or is otherwise in default of the loan agreement. Form RD 1980-44,
(2) In considering options, the prospect for providing a permanent cure without adversely affecting the risk to the Agency and the lender is the paramount objective.
(i) Curative actions include but are not limited to:
(A) Deferment of principal (subject to rights of any holder);
(B) An additional unguaranteed loan by the lender to bring the account current;
(C) Reamortization of or rescheduling the payments on the loan (subject to rights of any holder);
(D) Transfer and assumption of the loan in accordance with the provisions in this Notice;
(E) Reorganization;
(F) Liquidation;
(G) Subsequent loan guarantees; and
(H) Changes in interest rates with the Agency's, the lender's, and holder's approval, provided that the interest rate is adjusted proportionately between the guaranteed and unguaranteed portion of the loan.
(ii) In the event a deferment, rescheduling, reamortization, or moratorium is accomplished, it will be limited to the remaining life of the collateral or remaining limits as contained in the loan term provisions in this Notice, whichever is less.
(l)
(1) The maximum loss to be paid by the Agency will never exceed the original principal plus accrued interest regardless of any protective advances made.
(2) Protective advances and interest thereon at the note rate will be guaranteed at the same percentage of loss as provided in the Loan Note Guarantee.
(3) Protective advances must constitute an indebtedness of the borrower to the lender and be secured by the security instruments. Agency written authorization is required when cumulative protective advances exceed $200,000.
(m)
(1)
(i) A loan has been delinquent 90 days and the lender and borrower have not been able to cure the delinquency through one of the actions identified in this Notice.
(ii) It has been determined that delaying liquidation will jeopardize full recovery on the loan.
(iii) The borrower or lender has been uncooperative in resolving the problem and the Agency or the lender has reason to believe the borrower is not acting in good faith, and it would enhance the position of the guarantee to liquidate immediately.
(2)
(3)
(4)
(i) Such proof as the Agency requires to establish the lender's ownership of the guaranteed loan promissory note and related security instruments and a copy of the payment ledger if available which reflects the current loan balance and accrued interest to date and the method of computing the interest.
(ii) A full and complete list of all collateral.
(iii) The recommended liquidation methods for making the maximum collection possible on the indebtedness and the justification for such methods, including recommended action for acquiring and disposing of all collateral.
(iv) Necessary steps for preservation of the collateral.
(v) Copies of the borrower's latest available financial statements.
(vi) An itemized list of estimated liquidation expenses expected to be incurred along with justification for each expense.
(vii) A schedule to periodically report to the Agency on the progress of liquidation.
(viii) Estimated protective advance amounts with justification.
(ix) Proposed protective bid amounts on collateral to be sold at auction and a breakdown to show how the amounts were determined.
(x) If a voluntary conveyance is considered, the proposed amount to be credited to the guaranteed debt.
(xi) Legal opinions, if needed.
(xii) The lender will obtain an independent appraisal report meeting the requirements of appraisal requirements in this Notice on all collateral securing the loan which will reflect the fair market value and potential liquidation value. In order to formulate a liquidation plan which maximizes recovery, collateral must be evaluated for the release of hazardous substances, petroleum products, or other environmental hazards which may adversely impact the market value of the collateral. Both the estimate and the appraisal shall consider this aspect. The independent appraiser's fee, including the cost of a Phase I Environmental Site Assessment (ESA) in accordance with ASTM standards, will be shared equally by the Agency and the lender.
(5)
(i) A transfer and assumption of the borrower's operation can be accomplished before or after the loan
(ii) A protective bid may be made by the lender, with prior Agency written approval, at a foreclosure sale to protect the lender's and the Agency's interest. The protective bid will not exceed the amount of the loan, including expenses of foreclosure, and should be based on the liquidation value considering estimated expenses for holding and reselling the property. These expenses include, but are not limited to, expenses for resale, interest accrual, length of time necessary for resale, maintenance, guard service, weatherization, and prior liens.
(iii) Under no circumstances will the Agency pay more than 90 days of additional accrued interest once the liquidation plan is approved.
(6)
(7)
(8)
(9)
(10)
(i) The cost of liquidation is increased or the value of the collateral is decreased by environmental issues;
(ii) The collateral is functionally or economically obsolete;
(iii) The collateral has deteriorated; or
(iv) The collateral is specialized and there is little or no demand for it.
(11)
(i) A borrower voluntarily liquidates the collateral, but the sale fails to pay the guaranteed indebtedness;
(ii) The collateral is voluntarily conveyed to the lender; or
(iii) A liquidation plan is being developed for forced liquidation.
(12)
(i) The lender and the Agency must receive complete financial information on all parties obligated for the loan and must be satisfied that the statements reflect the true and correct financial position of the debtor including all assets. Adequate consideration must be received before a release from liability is issued. Adequate consideration includes money, additional security, or other benefit to the goals and objectives of the Agency.
(ii) Once the Agency and the lender agree on a reasonable amount that is fair and adequate, the lender can proceed to effect the compromise settlement.
(iii) A compromise will only be accepted if it is in the best financial interest of the Federal government.
(n)
(1)
(2)
(i) The estimated loss payment shall be applied as of the date of such payment. The total amount of the loss payment remitted by the Agency will be applied by the lender on the guaranteed portion of the loan debt. Such application does not release the borrower from liability.
(ii) An estimated loss will be applied first to reduce the principal balance on the guaranteed loan and the balance, if any, to accrued interest. Interest accrual on the defaulted loan will be discontinued.
(iii) A protective advance claim will be paid only at the time of the final report of loss payment, except in certain transfer and assumption situations as specified in 7 CFR part 4287.
(3)
(i) The lender must document that all of the collateral has been accounted for and properly liquidated and that liquidation proceeds have been properly accounted for and applied correctly to the loan.
(ii) The lender will show a breakdown of any protective advance amount as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made.
(iii) The lender will show a breakdown of liquidation expenses as to the payee, purpose of the expenditure, date paid, and evidence that the amount expended was proper and that payment was actually made. Liquidation expenses are recoverable only from collateral proceeds. Attorney fees may be approved as liquidation expenses provided the fees are reasonable and cover legal issues pertaining to the liquidation that could not be properly handled by the lender and its in-house counsel.
(iv) Accrued interest will be supported by documentation as to how the amount was accrued. If the interest rate was a variable rate, the lender will include documentation of changes in both the selected base rate and the loan rate.
(v) Loss payments will be paid by the Agency within 60 days after the review of the final loss report and accounting of the collateral.
(4)
(5)
(6)
(7)
(i) If the loss is greater than any estimated loss payment, the Agency will pay the additional amount owed by the Agency to the lender.
(ii) If the loss is less than the estimated loss payment, the lender will reimburse the Agency for the overpayment plus interest at the note rate from the date of payment.
(iii) If the Agency has conducted the liquidation, it will pay the lender in accordance with the Loan Note Guarantee.
(o)
(p)
(1)
(i) The lender will file a proof of claim where necessary and all the necessary papers and pleadings concerning the case.
(ii) The lender will attend and, where necessary, participate in meetings of the creditors and all court proceedings.
(iii) When permitted by the Bankruptcy Code, the lender will request modification of any plan of reorganization whenever it appears that additional recoveries are likely.
(iv) The Agency will be kept adequately and regularly informed, in writing, of all aspects of the proceedings.
(v) In a Chapter 11 reorganization, if an independent appraisal of collateral is necessary in the Agency's opinion, the Agency and the lender will share such appraisal fee equally.
(2)
(i)
(A) If a borrower has filed for protection under Chapter 11 of the United States Code for a reorganization (but not Chapter 13) and all or a portion of the debt has been discharged, the lender will request an estimated loss payment of the guaranteed portion of the accrued interest and principal discharged by the court. Only one estimated loss payment is allowed during the reorganization. All subsequent claims of the lender during reorganization will be considered revisions to the initial estimated loss. A revised estimated loss payment may be processed by the Agency, at its option, in accordance with any court-approved changes in the reorganization plan. Once the reorganization plan has been completed, the lender is responsible for submitting the documentation necessary for the Agency to review and adjust the estimated loss claim to reflect any actual discharge of principal and interest and to reimburse the lender for any court-ordered interest-rate reduction under the terms of the reorganization plan.
(B) The lender will use Form RD 449-30 to request an estimated loss payment and to revise any estimated loss payments during the course of the reorganization plan. The estimated loss claim, as well as any revisions to this claim, will be accompanied by documentation to support the claim.
(C) Upon completion of a reorganization plan, the lender will complete a Form RD 1980-44 and forward this form to the Finance Office.
(ii)
(A) Interest losses sustained during the period of the reorganization plan will be processed in accordance with paragraph (p)(2)(i) of this section.
(B) Interest losses sustained after the reorganization plan is completed will be processed annually when the lender sustains a loss as a result of a permanent interest rate reduction which extends beyond the period of the reorganization plan.
(C) If an estimated loss claim is paid during the operation of the Chapter 11 reorganization plan and the borrower repays in full the remaining balance without an additional loss sustained by the lender, a final report of loss is not necessary.
(iii)
(iv)
(v)
(vi)
(3)
(i) When a bankruptcy proceeding results in a liquidation of the borrower by a trustee, legal expenses will be handled as directed by the court.
(ii) Chapter 11 pertains to a reorganization of a business contemplating an ongoing business rather than a termination and dissolution of the business where legal protection is afforded to the business as defined under Chapter 11 of the Bankruptcy Code. Consequently, expenses incurred by the lender in a Chapter 11 reorganization can never be liquidation expenses unless the proceeding becomes a Chapter 11 liquidation. If the proceeding should become a Liquidating 11, reasonable and customary liquidation expenses may be deducted from proceeds of collateral as provided in the Lender's Agreement. Chapter 7 pertains to a liquidation of the borrower's assets. If, and when, liquidation of the borrower's assets under Chapter 7 is conducted by the bankruptcy trustee, then the lender cannot claim expenses.
(a) The borrower must allow the Agency access to the project and its performance information until the loan is repaid in full and permit periodic inspection of the project by a representative of the Agency.
(b) The borrower must permit representatives of the Agency (or other agencies of the U.S.) to inspect and make copies of any records pertaining to any Agency guaranteed loan during regular office hours of the borrower or at any other time upon agreement between the borrower and the Agency, as appropriate.
(a)
(b)
(1) To any holder, 100 percent of any loss sustained by the holder on the guaranteed portion of the loan and on interest due on such portion.
(2) To the lender, the lesser of:
(i) Any loss sustained by the lender on the guaranteed portion, including principal and interest evidenced by the notes or assumption agreements and secured advances for protection and preservation of collateral made with the Agency's authorization; or
(ii) The guaranteed principal advanced to or assumed by the borrower and any interest due thereon.
(c)
(d)
(1) In the event of material fraud, negligence or misrepresentation by the lender or the lender's participation in or condoning of such material fraud, negligence or misrepresentation, the lender will be liable for payments made by the Agency to any holder.
(2) A lender will receive all payments of principal and interest on account of the entire loan and will promptly remit to the holder its pro rata share thereof, determined according to its respective interest in the loan, less only the lender's servicing fee.
(e)
(1)
(i) The interest rate may be either fixed or variable, as long as it is a legal rate, and shall be fully amortizing.
(ii) The interest rate for both the guaranteed and unguaranteed portions of the loan must be of the same type (i.e., both fixed or both variable).
(iii) The guaranteed and unguaranteed portions of the loan can bear interest at different rates, provided that the blended rate on the entire guaranteed loan shall not exceed the rate on the guaranteed portion of the loan by more than one (1) percent.
(iv) Both portions of the loan must amortize at the same rate.
(2)
(i) The variable interest rate may be adjusted at different intervals during the term of the loan, but the adjustments may not be more often than quarterly and no less than yearly to prevent negative amortization, and must be specified in the loan agreement.
(ii) Variable rate loans will not provide for negative amortization nor will they give the borrower the ability to choose its payment among various options.
(iii) The lender must incorporate, within the variable rate Promissory Note at loan closing, the provision for adjustment of payment installments coincident with an interest-rate adjustment.
(iv) The lender will ensure that the outstanding principal balance is properly amortized within the prescribed loan maturity to eliminate the possibility of a balloon payment at the end of the loan.
(3)
(i)
(A) Fixed rates can be changed to variable rates to reduce the borrower's interest rate only when the variable rate has a ceiling for the life of the guaranteed loan that is less than or equal to the original fixed rate.
(B) The interest rates, after adjustments, must comply with the requirements for interest rates on new loans as established under this Notice.
(C) The lender is responsible for the legal documentation of interest-rate changes by an endorsement or any other legally effective amendment to the promissory note; however, no new notes may be issued. Copies of all legal documents must be provided to the Agency.
(ii)
(f)
(1) The repayment term for a loan under this Notice will be for a maximum period of 20 years or 85 percent of the useful life of the project, as determined by the lender and confirmed by the Agency, whichever is less. The length of the loan term shall be the same for both the guaranteed and unguaranteed portion of the loan.
(2) The first installment of principal may be scheduled for payment after the project is operational and has begun to generate income. However, the first full installment of principal must be due and payable within 3 years from the date of the Promissory Note and be paid at least annually thereafter. Interest payments will be paid at least annually from the date of the note.
(3) Only loans that require a periodic payment schedule that will retire the debt over the term of the loan without a balloon payment will be guaranteed (i.e., the loan will fully amortize over its life without any balloon payment due at maturity).
(4) The maturity of a loan will be based on the use of proceeds, the useful life of the assets being financed, and the borrower's ability to repay. The lender may apply the maximum guidelines specified above only when the loan cannot be repaid over a shorter term.
(5) Guarantees must be provided only after consideration is given to the borrower's overall credit quality and to the terms and conditions of any applicable subsidies, tax credits, and other such incentives.
(6) A principal plus interest repayment schedule is permissible.
(7) The lender will determine the particular prepayment provisions to offer, subject to concurrence by the Agency.
(g)
(1)
(2)
(i) If the loan amount is equal to or less than $80 million, 80%;
(ii) If the loan amount is more than $80 million and less than $125 million, 80% on the first $80 million and 70% on the loan amount that is greater than $80 million; and
(iii) If the loan amount is equal to or more than $125 million, 60%.
(3)
(i) Purchase and installation of equipment (new, refurbished, or remanufactured), except agricultural tillage equipment, used equipment, and vehicles.
(ii) Construction or retrofitting, except residential.
(iii) Permit and license fees;
(iv) Professional service fees, except for application preparation;
(v) Feasibility studies;
(vi) Business plans;
(vii) Working capital;
(viii) Land acquisition; and
(ix) Cost of financing, excluding guarantee and renewal fees.
(h)
(1)
(i) The guarantee fee will be calculated by multiplying the outstanding principal balance by the percentage of the loan that is guaranteed under this program by the guarantee fee rate shown below. The guarantee fee rate shall be determined as follows:
(A) Two percent for guarantees on loans greater than 75 percent of total project cost.
(B) One and one-half percent for guarantees on loans of greater than 65 percent but less than or equal to 75 percent of total project cost.
(C) One percent for guarantees on loans of 65 percent or less of total project cost.
(ii) The guarantee fee may be passed on to the borrower.
(2)
(i) Payments not received by April 1 are considered delinquent and, at the Agency's discretion, may result in cancellation of the guarantee to the lender. Holders' rights will continue in effect as specified in the Loan Note Guarantee and Assignment Guarantee Agreement. Any delinquent annual renewal fees will bear interest at the note rate and will be deducted from any loss payment due the lender.
(ii) The annual renewal fee will be calculated by multiplying the outstanding principal balance by the percentage of the loan that is guaranteed under this program by the annual renewal fee rate shown below. The renewal fee rate shall be as follows:
(A) One hundred basis points (1 percent) for guarantees on loans that were originally greater than 75 percent of total project costs.
(B) Seventy five basis points (0.75 percent) for guarantees on loans that were originally greater than 65 percent but less than or equal to 75 percent of total project costs.
(C) Fifty basis points (0.50 percent) for guarantees on loans that were originally for 65 percent or less of total project costs.
(iii) The annual renewal fee will be paid to the Agency for as long as the guaranteed loan is outstanding and is payable during the construction period.
(3)
(i)
(1) No major changes have been made in the lender's loan conditions and requirements since the issuance of the Conditional Commitment, unless such changes have been approved by the Agency.
(2) All planned property acquisition has been or will be completed, all development has been or will be substantially completed in accordance with plans and specifications, and conforms with applicable Federal, state, and local codes.
(3) Required hazard, flood, liability, worker compensation, and personal life insurance, when required, are in effect.
(4) Truth-in-lending requirements have been met.
(5) All equal credit opportunity requirements have been met.
(6) The loan has been properly closed, and the required security instruments have been obtained or will be obtained on any acquired property that cannot be covered initially under State law.
(7) The borrower has marketable title to the collateral then owned by the borrower, subject to the instrument securing the loan to be guaranteed and to any other exceptions approved, in writing, by the Agency.
(8) When required, the entire amount of funds for working capital has been disbursed except in cases where the Agency has approved disbursement over an extended period of time.
(9) All other requirements of the Conditional Commitment have been met.
(10) Lien priorities are consistent with the requirements of the Conditional Commitment. No claims or liens of laborers, subcontractors, suppliers of machinery and equipment, or other parties have been or will be filed against the collateral and no suits are pending or threatened that would adversely affect the collateral when the security instruments are filed.
(11) The loan proceeds will be disbursed for purposes and in amounts consistent with the Conditional Commitment and Form RD 4279-1. A copy of the detailed loan settlement of the lender must be attached to support this certification.
(12) There has been neither any material adverse change in the borrower's financial condition nor any other material adverse change in the borrower, for any reason, during the period of time from the Agency's issuance of the Conditional Commitment to issuance of the Loan Note Guarantee regardless of the cause or causes of the change and whether or not the change or causes of the change were within the lender's or borrower's control. The lender must address any assumptions or reservations in the requirement and must address all adverse changes of the borrower, and any parent, affiliate, or subsidiary of the borrower.
(13) None of the lender's officers, directors, stockholders, or other owners (except stockholders in an institution that has normal stockshare requirements for participation) has a substantial financial interest in the borrower and neither the borrower nor its officers, directors, stockholders, or other owners has a substantial financial interest in the lender. If the borrower is a member of the board of directors or an officer of a Farm Credit System (FCS) institution that is the lender, the lender will certify that an FCS institution on the next highest level will independently process the loan request and act as the lender's agent in servicing the account.
(14) The loan agreement includes all mitigation measures identified in the Agency's environmental impact analysis for this proposal (measures with which the borrower must comply) for the purpose of avoiding or reducing adverse environmental impacts of the proposal's construction or operation.
(j)
(1) When loan closing plans are established, the lender must notify the Agency in writing. At the same time, or immediately after loan closing, the lender must provide the following to the Agency
(i) Lender's certifications as required by Conditions Precedent to Issuance of Loan Note Guarantee in this Notice;
(ii) An executed Form RD 4279-4; and
(iii) An executed Form RD 1980-19, “Guaranteed Loan Closing Report,” and appropriate guarantee fee.
(2) When the Agency is satisfied that all conditions for the guarantee have been met, the Loan Note Guarantee and the following documents, as appropriate, will be issued:
(i)
(ii)
(iii)
(k)
(l)
(m)
(n)
(1)
(2)
The new lender's servicing capability, eligibility, and experience will be analyzed by the Agency prior to approval of the substitution. The original lender will provide the Agency with a letter stating the reasons it no longer desires to be a lender for the project. The substituted lender must execute a new part B of FormRD 4279-1.
(3)
(i) The Agency may approve the substitution of a new lender if:
(A) The proposed substitute lender:
(
(
(
(B) The substitution of the lender is requested, in writing, by the borrower, the proposed substitute lender, and the original lender if still in existence.
(ii) Where the lender has failed and been taken over by FDIC and the guaranteed loan is liquidated by FDIC rather than being sold to another lender, the Agency will pay losses and share in costs as if FDIC were an approved substitute lender.
(o)
(1)
(2)
(3)
(i) Written approval of the Agency is obtained;
(ii) The borrower agrees and executes the new notes;
(iii) The interest rate terms remain the same as those in effect when the loan was closed;
(iv) The maturity date of the loan is not changed;
(v) The Agency will not bear or guarantee any expenses that may be incurred in reference to such reissuance of notes;
(vi) There is adequate collateral securing the notes;
(vii) No intervening liens have arisen or have been perfected and the secured lien priority is better or remains the same; and
(viii) All holders agree.
(p)
(q)
(r)
(s)
(1) Full payment of the guaranteed loan;
(2) Full payment of any loss obligation or negotiated loss settlement except for future recovery provisions and payments made as a result of the Debt Collection Improvement Act of 1996. After final payment of claims to lenders and/or holders, the Agency will retain all funds received as the result of
(3) Written request from the lender to the Agency that the guarantee will terminate 30 days after the date of the request, provided that the lender holds all of the guaranteed portion, and the original Loan Note Guarantee is returned to the Agency to be canceled.
“The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on this basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
To file a complaint of discrimination, write USDA, Director, Office of Adjudication and Compliance, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice), or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.”
Office of Elementary and Secondary Education, Department of Education.
Final regulations.
The Secretary amends regulations governing the Impact Aid program under Title VIII of the Elementary and Secondary Education Act of 1965 (Act), as amended by the No Child Left Behind Act of 2001. The program, in general, provides assistance for maintenance and operations costs to local educational agencies (LEAs) that are affected by Federal activities. These amended regulations are necessary to clarify and improve the administration of payments under section 8002 of the Act relating to the Federal acquisition of real property.
These regulations are effective December 22, 2008. However, affected parties do not have to comply with the information collection requirements in § 222.23 until the Department of Education publishes in the
Catherine Schagh, Director, Impact Aid Program, U.S. Department of Education, 400 Maryland Avenue, SW., room 3E105, Washington, DC 20202-6244. Telephone: (202) 260-3858 or via the Internet, at:
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 (
On June 2, 2008, the Secretary published a notice of proposed rulemaking (NPRM) in the
In response to the Secretary's invitation in the NPRM, thirty-six parties submitted comments on the proposed regulations. In general, except as described below, the comments supported the proposed regulations or did not oppose them. An analysis of the comments and of the changes in the regulations since publication of the NPRM follows. We group major issues according to subject. We discuss other substantive issues under the sections of the regulations to which they pertain. Generally, we do not address technical and other minor changes or suggested changes the Secretary is not authorized to make under applicable law.
The Secretary is aware of other similar circumstances in which all of the waterfront or oceanfront property within an LEA is located on the eligible Federal property and there is no comparable taxable waterfront or oceanfront property in the LEA. If the Secretary determines that such a situation exists, the Secretary would invoke § 222.23(e)(1)(iii), upon request by the LEA, to permit the use of appropriate waterfront or oceanfront properties located in another LEA. The Secretary is amending the definition of
In the NPRM, the Secretary stated that she was particularly interested in comments related to whether it would be appropriate to establish a standard
Another commenter noted that the list of non-assessed or tax-exempt uses in proposed § 222.23(c)(1)(i) is not exhaustive. The same commenter noted that the failure to allocate a proportion of the eligible Federal property acres in each usage category for expected non-assessed or tax-exempt uses would result in the gross overstatement of the estimated assessed value. That commenter also believed that in arriving at a percentage to be used in allocating non-assessed and tax-exempt uses to the eligible Federal property, the local official would be looking at the prevalence of those uses within the boundaries of a one-mile perimeter of the eligible Federal property.
The Secretary acknowledges that the regulations do not contain an exhaustive list of non-assessed or tax-exempt uses. The words “such as” in the proposed regulation were meant to convey that the allocation should include any non-assessed or tax-exempt uses common in the area, not just those enumerated in the regulations. All of the non-assessed or tax-exempt uses common to the tax jurisdiction(s) should be considered by the local official in making the allocation.
The Secretary agrees that the failure to allocate a proportion of the eligible Federal property acres in each usage category for expected non-assessed or tax-exempt uses would result in the overstatement of the estimated assessed value. The regulations are intended to prevent such overstatement by ensuring that non-exempt or non-assessed uses are ascribed to a portion of eligible Federal property.
The Secretary disagrees with the commenter who stated that the percentage used to allocate a proportion of eligible Federal property to non-assessed or tax-exempt uses should be based on the property within a one-mile perimeter of the eligible Federal property. The Secretary believes that use of the tax jurisdiction(s) as a whole is a more suitable basis for projecting the non-assessed and tax-exempt uses likely to occur on the eligible Federal property should it revert to private ownership. We have revised § 222.23(c)(1)(i) to clarify this point.
The commenters argued that the average value of the selected adjacent taxable properties should be used in lieu of the lowest value, because using the lowest value would artificially deflate the estimated value of the eligible Federal property while the average value would more accurately reflect the value of the eligible Federal property. Some commenters stated that the proposed use of the lowest value would be a hardship on rural districts.
One commenter supported the use of the lowest-value taxable property as the basis for replication because, according to the commenter, this value represents a truer indication of an estimated value for the Federal property given limitations of physical adaptability, legal permissibility, and financial feasibility. Moreover, according to this commenter, the inability to obtain ten adjacent taxable properties would be indicative of other economic factors at play in the area, such that the use of the lowest value for replication is appropriate. The commenter further asserted that by basing replication on the lowest value, the proposed regulations were taking the calculations away from a true highest and best use methodology.
As described elsewhere in this preamble in the discussion of the limitation on the use of recent sales (§ 222.23(d)(2)(i)), contrary to the comment that using the lowest value as the basis for replication would artificially deflate the value of the eligible Federal property,these final regulations comport with the statutory requirement that the aggregate assessed value of eligible Federal property be determined on the basis of the highest and best use of adjacent property. This requirement is implemented when the local official categorizes and allocates the expected uses of eligible Federal property through a consideration of the highest and best uses of the adjacent taxable properties.
Finally, we have revised § 222.23(c)(2)(i) to specify that in those extremely rare circumstances in which the Secretary authorizes a local official to use fewer than three adjacent taxable properties to establish the base value for eligible Federal property, the average per-acre value of the selected adjacent property or properties is to be used in lieu of replication. An example of such “extremely rare circumstances” has also been added to the regulations.
One commenter suggested that the three-year cycle moves the EAV away from the common definition of highest and best use, presumably on the assumption that it slows increases in the EAV in the two non-base years in which the selected adjacent taxable properties must be used again. The same commenter questioned whether the foreclosure of a selected taxable property would be among the circumstances under which the regulations would permit the substitution of a new selected taxable property in one of the two years succeeding the base year.
Under § 222.23(d)(1)(iii), the substitution of an adjacent taxable property in a non-base year is appropriate only in the event of a change in assessment classification, a change to tax-exempt status, or a change in the character of the property. A foreclosure does not change the essential character of a property, although it may affect its value. Absent an accompanying change in assessment classification or change to tax-exempt status, foreclosure alone would not justify a substitution of an adjacent taxable property unless it could be shown that the character of the property has changed.
The same commenter questioned the basis for the numerator and denominator in the proportion governing the maximum permissible number of adjacent taxable properties that are recent sales. The commenter suggested three possible alternatives: (1) All recent sales of taxable properties for the LEA divided by all taxable properties in the LEA; (2) all recent sales of taxable properties within a one-mile radius of the eligible Federal property divided by all taxable property within that radius; or (3) all recent sales of taxable properties within the local tax areas of the sample group divided by all taxable property in those areas.
The commenter asserted that the first option would be very difficult because hundreds of thousands of parcels within the LEA would have to be examined. Finally, the commenter questioned whether all parcels would be of equal weight, regardless of size, in calculating the limitation on the use of recent sales.
As explained in the preamble to the NPRM (73 FR 31595), the limitation on the use of adjacent taxable properties that are recent sales does not contravene the statutory requirement in section 8002(b)(3) that the aggregate assessed value of eligible Federal property be determined on the basis of the highest and best use of adjacent property. Under the final regulations, the local official takes into consideration the highest and best uses of the adjacent taxable properties in categorizing and allocating the expected uses of eligible Federal property, a crucial step in arriving at an aggregate assessed value.
Limiting the extent to which adjacent taxable properties used in calculating base values may be recent sales later on in the process does not negate the use of the highest and best use concept in the earlier stage. The aggregate assessed value obtained at the conclusion of the process is based upon highest and best use, by virtue of the application of that concept in categorizing and allocating the expected uses of eligible Federal property.
As Examples 4 and 5 accompanying the final regulations make clear, the numerator and denominator of the proportion used to determine the number of selected adjacent taxable properties that may be recent sales are based upon sales in the relevant tax jurisdiction(s). To prevent any possible further confusion, we are clarifying § 222.23(d)(2)(i) to specify that it is in fact the tax jurisdiction that is used to identify taxable parcels in a category and recent sales in that category.
The comment regarding the necessity for examining hundreds of thousands of parcels is incorrect. Under the regulations, no examination of individual parcels is needed with respect to the limitation on recent sales; all that is necessary for each relevant category is the number of properties in that category that are recent sales and the total number of properties in that category within the taxing jurisdiction.
In the preamble to the NPRM, the Secretary requested comments on the availability of the data necessary to determine the number of selected adjacent taxable properties that may be recent sales (73 FR 31592). While no commenter specifically addressed this point, as stated, nearly all of the commenters supported the proposed limitation on the use of recent sales.
The proportion used to limit the use of adjacent taxable properties that are recent sales is unweighted. Each property counts equally regardless of size.
Some commenters said that the proposed restriction creates difficulties for rural LEAs. On the other hand, one LEA representative commented that the proposed one-mile limitation is reasonable, but that using a range of more than one mile would raise concerns about the validity of the EAV of the eligible Federal property.
That commenter expressed concern that the Department did not provide any examples of what circumstances might qualify as extremely rare circumstances justifying the use of adjacent taxable properties beyond the one-mile range. The commenter queried whether prior approval would be necessary before an LEA exceeds the specified range and how information about decisions of this nature will be communicated to other applicants.
Based on the volume of comments stating that a range of one mile from the perimeter of eligible Federal property would be inadequate for the selection of taxable properties, we have decided that it is appropriate to increase the maximum distance to no farther than two miles from the perimeter. Only when the Secretary determines that “extremely rare circumstances” exist may more distant taxable properties be used. Given that the final regulations also require the use of the closest taxable properties in most cases, we do not agree with the single commenter that increasing the permissible range would give rise to significant concern about the EAV of eligible Federal property derived on that basis.
With respect to whether prior approval for the use of more distant taxable properties is required, § 222.23(e)(1)(iii) of the regulations provides that the exception permitting the use of more distant properties applies only if the Secretary determines that extremely rare circumstances exist. Accordingly, LEAs whose local officials cannot locate taxable properties within the two-mile range should not unilaterally use more distant taxable properties, but should instead contact the Impact Aid Program for assistance. In addition, the Impact Aid Program will provide all applicants with regular updates on the implementation of these new regulatory requirements.
The same commenter queried whether, subject to the limitation on the use of adjacent taxable properties that are recent sales, given the emphasis in the law on highest and best use, the local official should select only the highest economically developed adjacent taxable properties, provided that they are physically adaptable, legally permissible and financially feasible.
The latter requirement (§ 222.23(e)(2)(ii)(C)) is expressed as a “must”; that is, the local official must consider the extent to which the eligible Federal property is physically adaptable to the expected uses and there is a need for those uses. The former requirement (§ 222.23(e)(2)(i)(A)), which is applicable to adjacent taxable properties, is expressed as a “may” because it only applies in those cases where a local official elects to consider the most developed and profitable use for which an adjacent property is physically adaptable. However, the intent of the proposal was that if the local official elects to consider the most developed and profitable use for which it is adaptable, the local official may only do so if that use is legally permissible and financially feasible and there is a need or demand for that use in the near future. We have revised the regulations in § 222.23(e)(2)(i)(A) to clarify this point.
All of the limitations contained in the definition of
Accordingly, with respect to the second comment, the local official must do more than assure that the uses of the adjacent taxable properties are physically adaptable, legally permissible, and financially feasible. He or she must assure that the potential uses considered are not speculative or remote. He or she must also consider, under § 222.23(e)(2)(ii)(B), whether the
In light of those principles, it likely would not be reasonable, for example, for a local official to base the valuation of a 100,000-acre military installation on ten half-acre residential properties with $500,000 houses on them. Among other things, the immediate demand in the area for another 200,000 properties of that type would be considered speculative and remote.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and therefore subject to the requirements of the Executive order and review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments, or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) create novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is not significant under the Executive order.
We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently. In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations, we have determined that the benefits of the regulations justify the costs. We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In general, the final regulations will provide more specificity with respect to local officials' selection of adjacent parcels upon which they base their valuation of the Federal property. These more specific rules generally will reduce burden by eliminating the need for lengthy consultations with Department staff, multiple revisions to valuation submissions, and application amendments. Although one of the regulatory changes would require local officials to select a minimum number (generally 10) of properties on which to base the valuation of the Federal property and, therefore, may require some local officials to add more properties than they currently are using, any resulting increase in the local official's time for this task is offset by the accompanying regulatory change to reduce the selection cycle from every year to once every three years.
These final regulations will provide the following benefits for section 8002 applicants: Greater uniformity in how local officials value the eligible Federal property in each of their jurisdictions; elimination of inequitable inflation in the value of the eligible Federal property; and greater reliability and consistency in the valuation process nationwide.
Section 222.23 contains information collection requirements related to the submission of an applicant's section 8002 application. The section 8002 application form and the regulations that require it (34 CFR 222.3) are approved under OMB number 1810-0036, with an expiration date of January 31, 2009. Table 1 of that approved application (Tax Assessor's Valuation of Section 8002-eligible Federal Property) requires each applicant LEA's tax assessment official (local official) to certify the accuracy and completeness of certain information about the eligible section 8002 property, including its aggregate EAV as required by section 8002(b)(3) of the ESEA, and summary information upon which that value was derived. We anticipate OMB approval of a revised collection reflecting these requirements following the publication of the final regulations.
Section 222.23 makes several changes to the information that the local official must obtain and use in determining the aggregate EAV of the Federal property. However, for the reasons explained below, the Secretary believes that these changes do not result in an increase in the paperwork collection burden.
Sections 222.23(a)(3) and (c)(1) require local officials to identify the taxable use portions of the eligible Federal property by excluding a proportion of each expected use category that the local official would allocate to accommodate anticipated non-assessed or tax-exempt uses. We proposed this change to avoid overstating the aggregate EAV of the eligible Federal property upon which section 8002 payments are based, which otherwise might occur if a portion of the property is included that likely would remain exempt from real property taxation if no longer federally owned.
In addition, Section 222.23(c)(2)(i) requires local officials to obtain a minimum sample size of 10 adjacent properties for each type of property, rather than using a lesser number of properties. We proposed this change to standardize the minimum sample size and provide greater consistency and reliability in payments. Federal property valuations must be established as consistently as possible to achieve equity in LEAs' payments, which are based in part upon those valuations and are mutually dependent upon one another due to lack of full funding for the program.
Although the change in the minimum sample size may increase the burden for some LEAs, it will reduce or have no effect on the collection burden of others that currently obtain a higher number of sample properties. In any event, the Secretary believes that both of these changes will be offset by the following simultaneous burden reductions: (1) In § 222.23(d)(1), moving from an annual to a three-year sample selection cycle; and (2) in § 222.23(d)(2), limiting the number of recent sales that a local official may select in each base selection year, which will take far less time than searching for all new, appropriate, recent sales every year.
In the NPRM, and in accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
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20 U.S.C. 7701-7714, unless otherwise noted.
(a) For an LEA with an otherwise approvable application to be eligible to receive financial assistance under section 8002 of the Act, the LEA must meet the requirements in subpart A of this part and § 222.22. In addition, unless otherwise provided by statute as meeting the requirements in section 8002(a)(1)(C), the LEA must document—
(d) * * *
(1) For a new section 8002 applicant or newly acquired eligible Federal property, only upon—
(i) Original records as of the time(s) of Federal acquisition of real property, prepared by a legally authorized official, documenting the assessed value of that real property;
(ii) Facsimiles, such as microfilm, or other reproductions of those records; or
(iii) If the documents specified in paragraphs (d)(1)(i) and (ii) are unavailable, other records that the Secretary determines to be appropriate and reliable for establishing eligibility under section 8002(a)(1) of the Act, such as Federal agency records or local historical records.
(e) The Secretary does not base the determination or redetermination of an LEA's eligibility under this section upon secondary documentation that is in the nature of an opinion, such as estimates, certifications, or appraisals.
(a)
(1) A local official who is responsible for assessing the value of real property located in the jurisdiction of the LEA in order to levy a property tax makes the determination of the section 8002 aggregate assessed value, based on estimated assessed values (EAVs) for the eligible Federal property in the jurisdiction.
(2) The local official first categorizes the types of expected uses of the eligible Federal property in each Federal installation or area (
(3) For each category of expected use of the eligible Federal property identified in accordance with paragraph (a)(2) of this section for each Federal installation or area, the local official then determines a base value in accordance with paragraphs (c) and (d) of this section.
(4) The local official next determines a section 8002 EAV for each category of expected use of the eligible Federal property in each Federal installation or area. The official determines that EAV by adjusting the base value for that category established in accordance with paragraph (a)(3) of this section, by any percentage, ratio, index, or other factor that the official would use to determine the assessed value (as defined in § 222.20) of the eligible Federal property to generate local real property tax revenues for current expenditures if that eligible Federal property were taxable. (This process is illustrated in Example 8 and Table 8-2 at the end of this section.)
(5) The local official then determines a total section 8002 EAV for each Federal installation or area in the LEA by adding together the assessed values determined pursuant to paragraph (a)(4) of this section for all property use categories of eligible Federal property in that Federal installation or area.
(6) The local official determines a section 8002 aggregate assessed value for the LEA as follows:
(i) If the LEA contains a single Federal installation or area with eligible Federal property, the total section 8002 EAV determined pursuant to paragraph (a)(5) of this section constitutes the section 8002 aggregate assessed value for the LEA.
(ii) If the LEA contains more than one Federal installation or area with eligible Federal property, the local official calculates the section 8002 aggregate assessed value for all of the eligible Federal property in the LEA by adding together the section 8002 total EAVs determined pursuant to paragraph (a)(5) of this section for all Federal installations and areas containing eligible Federal property within the LEA. (This process is illustrated in
(b)
(i) Identifying the tax assessment classifications that represent the highest and best uses of the taxable adjacent property (
(ii) Determining the relative proportions of taxable adjacent properties, based on acreage, that are devoted to each of those tax assessment classifications that represent the highest and best uses of the taxable adjacent property (
(2) The local official then determines the allocation of each of those expected uses to the eligible Federal property acres by multiplying each of the proportions determined under paragraph (b)(1)(ii) of this section by the total acres of the eligible Federal property in that Federal installation or area.
(c)
(1) The local official first identifies the taxable-use portion of the eligible Federal property acres in each expected use category as follows:
(i) The local official allocates a proportion (percentage) of the eligible Federal property acres identified for each expected use category under paragraph (b)(2) of this section to expected non-assessed or tax-exempt uses, such as public open space, schools, churches, and roads. The local official bases these proportions on the actual non-assessed or tax-exempt uses for each category of taxable property in the entire tax jurisdiction(s) where the selected taxable adjacent properties are located.
(ii) The local official then determines the number of acres attributable to non-assessed or tax-exempt uses for each expected use category by multiplying the non-assessed or tax-exempt proportions identified in paragraph (c)(1)(i) of this section by the number of acres in each expected-use category determined pursuant to paragraph (b)(2) of this section.
The eligible Federal property (1,000 acres) is surrounded by properties that are classified for tax purposes according to their highest and best uses as residential (40 percent) and agricultural (60 percent) property. For the residential category (400 acres), the local official determines that approximately 20 percent would be devoted to non-assessed or tax-exempt uses, such as roads, parks, churches, and schools. The local official multiplies that proportion (.20) by the number of eligible Federal acres allocated to the residential category (400 acres) to determine the number of eligible Federal acres (80 acres) that likely would not be assessed for taxation or would be tax-exempt if the Federal Government no longer owned that property, as illustrated in the chart at the end of this example (Table 1-1). The local official follows a similar process for the proportion of the eligible Federal property the official allocated to agricultural use.
(iii) The local official then calculates the number of acres attributable to taxable use for each expected use category by subtracting the number of acres attributable to non-assessed or tax-exempt uses determined under paragraph (c)(1)(ii) of this section from the total number of acres of eligible Federal property in that use category identified in paragraph (b)(2) of this section.
(2) For the taxable use portion determined under paragraph (c)(1)(iii) of this section for each expected use category, the local official then calculates a base value as follows:
(i) The local official selects from each expected use category identified pursuant to paragraph (b)(1)(i) of this section a minimum sample size of 10 taxable adjacent properties that represent the highest and best uses of the taxable adjacent properties. The official identifies the value that is recorded on the assessment records for each selected taxable adjacent property before any adjustment, ratio, percentage, or other factor is applied to establish a taxable (assessed) value. If at least three but fewer than 10 taxable adjacent properties are selected in an identified use category, the local official calculates a per acre value for each adjacent property and then identifies which of those properties has the lowest per-acre value. The official replicates that adjacent property's value and acreage as many times as needed until the combination of actual and replicated adjacent properties reaches ten in number. In extremely rare circumstances, the Secretary may permit the local official to select fewer than three parcels in a tax classification if doing so is determined by the Secretary to be necessary and reasonable and there is an insufficient number of adjacent taxable properties to replicate. In those extremely rare circumstances, the local official establishes the base value of the eligible Federal property using the average per acre value of the selected adjacent property or properties.
The eligible Federal property is surrounded by properties that are classified for tax purposes as residential, commercial, and agricultural property. The local official selects at least 10 taxable adjacent parcels from each of the residential and agricultural property classifications as the basis for valuing the eligible Federal property.
In the commercial classification, however, only six taxable adjacent properties are selected. The lowest per-acre-valued parcel, Parcel A, is valued at $6,000 per acre. As illustrated in Table 2-1, the local official selects all six of the commercial taxable adjacent properties, and then replicates Parcel A's value and acreage four more times to reach the minimum number of ten properties for that classification.
There are three golf courses in an LEA, one on eligible Federal property and the other two on taxable property adjacent to the eligible Federal property. Under the local tax classification scheme, there is a separate tax category for golf courses. Since there are only two adjacent taxable properties in that tax classification in the taxing jurisdiction, the LEA seeks permission to establish the base value for the golf course on the eligible Federal property using the average per-acre value of the two adjacent taxable golf courses. After verifying the facts, the Secretary determines that extremely rare circumstances exist within the meaning of § 222.23(c)(2)(i) and grants the LEA's request.
(ii) The local official then calculates an average per-acre value for the taxable portion of each expected use category by totaling the values (following application of any adjustment factors, if relevant) and acres of the actual and any replicated adjacent properties and then dividing the total value by the total number of acres in those properties, as illustrated in the following chart (Table 2-1).
(iii) The local official then multiplies the average per-acre value calculated under paragraph (c)(2)(ii) of this section by the number of acres of eligible Federal property in the taxable portion of that expected-use category, determined in accordance with paragraph (b)(2) of this section to calculate the base value for that category.
(d)
(1) The local official determines base values on a three-year cycle, as follows:
(i) The local official allocates expected uses to the eligible Federal property in accordance with paragraph (b)(2) of this section and selects taxable adjacent properties in accordance with paragraph (c)(2)(i) of this section once every three years (base year).
(ii) For each of the following two application years, the local official uses the same allocation of expected uses of the eligible Federal property and the same taxable adjacent parcels selected for the base year, but updates the values and acreages of the selected taxable adjacent parcels.
(iii) If a previously selected taxable adjacent property becomes unsuitable for determining the base value for the expected-use category because that property has changed assessment classification, become tax-exempt, or undergone a change in character from the time that the property was selected for the base year, the local official substitutes a similar taxable adjacent property from the same expected-use category (assessment classification) in accordance with the requirements in paragraph (c)(2)(i) of this section.
For the fiscal year (FY) 2010 section 8002 application, the local official selects 15 residential taxable adjacent properties to use as the basis for valuing a portion of the eligible Federal property, and provides the value and acreages of each of those properties for the previous year (2009). The local official must use those same properties for the following two application years (2011 and 2012), assuming that those properties retain the same assessment classification, remain taxable, and do not undergo a change in the original character upon which their selection was based. For each of those following two years, the local official updates the values and acreages of each selected residential taxable adjacent property based on the preceding year's tax data (2010 and 2011, respectively).
However, during that two-year period, one of the residential taxable adjacent properties changes in character because the residential improvement is destroyed. That change to the original character makes the property unsuitable to include in the selected group of residential taxable adjacent properties for the remaining two years of the three-year period. Accordingly, the local official substitutes a residential taxable adjacent property that is similar to the originally selected property (
(2)(i) When selecting taxable adjacent properties for the base year in accordance with paragraph (c)(2)(i) of this section, the local official may include taxable adjacent properties that are recent sales (as defined in paragraph (e)(3) of this section), among other taxable adjacent properties, up to the following proportion:
Beginning with the most recent year for which data are available (2007), the local official determines that 40 taxable agricultural properties sold or otherwise transferred ownership in that tax jurisdiction during the three most recent years for which data are available (2005 through 2007) and that there were 500 taxable agricultural properties during 2007 (the most recent year for which data are available). (If a particular property sold more than once during the three most recent years for which data are available, the local official counts each sale.) The local official determines the proportion of sales for taxable agricultural property as follows:
(ii) The local official determines the number of recent sales the official may include with other selected taxable adjacent properties for that expected use category as follows:
The eligible section 8002 Federal property in the LEA is a federally owned forest. Based on the highest and best uses of taxable adjacent properties, three expected use categories (assessment classifications) of properties surround that forest: Residential, commercial, and agricultural. After identifying and excluding a non-assessed or tax-exempt proportion for each expected use category of the eligible Federal property, in accordance with paragraphs (a)(3) and (c)(1) of this section, the local official selects 10 taxable adjacent properties each for the residential and commercial use categories, and 20 taxable adjacent properties for the agricultural use category to determine the base value for the taxable portion of each expected use category of the eligible Federal property.
During the three most recent years for which data are available, 10 percent of the residential properties in the tax jurisdiction were sold, six percent of the commercial properties were sold, and eight percent of the agricultural properties were sold. As illustrated in the following chart, of the 10 residential adjacent properties selected, the local official may select only one recent sale (10 percent (.10) × 10 residential adjacent properties = one) to use in determining the base value for that expected use category of the eligible Federal property.
For the commercial classification, six percent of the taxable properties in the tax jurisdiction were recent sales. As illustrated in the following chart, the local official may not select any recent sales for that expected-use category because six percent (.06) of the 10 selected commercial adjacent properties is less than one whole number, and rounding down therefore results in 0 (six percent (.06) × 10 commercial adjacent properties =.6 of a property).
Finally, as illustrated in the following chart, for the 20 selected agricultural adjacent properties, the local official may use one recent sale for that expected-use category, because eight percent (.08) of the 20 properties equals 1.6 properties (eight percent (.08) × 20 agricultural adjacent properties = 1.6) and rounding down to the nearest whole number results in one property.
(e)
(1)
(i) In most cases, the term
(ii) The term
(iii) The Secretary considers the term
A very small LEA consists predominantly of non-taxable and tax-exempt property including eligible Federal property. The small taxable portion of the LEA is topographically dissimilar from the Federal property and classified for tax purposes differently than the eligible Federal property most likely would be if it were on the tax rolls, in the opinion of the local
In an LEA bordering on the Pacific Ocean, the entire coastline is taken up by the eligible Federal property. Based on the absence of taxable oceanfront property in the LEA, the LEA seeks permission to use taxable oceanfront property in the adjoining LEA. After verifying the facts, the Secretary determines that extremely rare circumstances exist within the meaning of § 222.23(e)(1)(iii) and grants the LEA's request.
(2)(i)
(ii) In determining the highest and best use, the local official—
(A) Also may consider the most developed and profitable use for which the taxable adjacent property is physically adaptable, but only if that use is legally permissible and financially feasible, and for which there is a need or demand in the near future;
(B) May not base the highest and best use of taxable adjacent property on potential uses that are speculative or remote; and
(C) Must consider the extent to which the eligible Federal property is physically adaptable for those expected uses and the extent to which those uses would be needed if the property were not in Federal ownership.
If a Federal installation to be valued is bordered by residential and commercial/industrial properties, the local official takes into consideration those various highest and best uses (residential and commercial/industrial) in determining the EAV of the eligible Federal property as described in paragraphs (a) and (c)(2)(i) of this section.
Under that process, using acres, the local official first determines the relative proportions of adjacent properties devoted to each of those highest and best uses. For example, the local official determines that the highest and best uses of the adjacent properties are residential (60 percent) and commercial/industrial (40 percent). However, before allocating the acres of the eligible Federal property (1,000 acres) to those uses as described in paragraphs (a)(2) and (b) of this section, the local official must consider whether the Federal property is adaptable for and there is a need for those uses, in accordance with paragraph (e)(2)(ii)(B) of this section.
For example, if the Federal property is hilly and rocky or contains a large area of marshland, it may not be practical for the property to be developed primarily as residential property. Using his or her professional judgment, the local official may decide that it would be more appropriate to designate 50 percent of the acres as vacant or woodland or some other taxable classification that would indicate that improvements would likely not be located on that property. This may also affect the proportion of the property that would be designated as commercial/industrial because some of those commercial/industrial uses would support the area designated for residential use. Thus, the local official designates the remaining 50 percent of the acres as 20 percent residential and 30 percent commercial/industrial.
After the local official determines the appropriate proportions of expected uses, the official then multiplies those proportions by the total number of eligible Federal acres (1,000) to determine the number of eligible Federal acres in each expected use category, resulting in the following: residential (20 percent or 200 acres), vacant (50 percent or 500 acres), and commercial/industrial (30 percent or 300 acres). The local official then determines the base value for the taxable use portion of each expected use category under paragraph (c)(2) of this section, beginning by selecting a sample of properties that represents the highest and best uses of the taxable adjacent properties.
In selecting the sample, the local official must consider whether the Federal property would support the same degree of development as the taxable adjacent properties selected (e.g., density, size, and improvements) and whether there would be a need for that type and degree of development in the near future. The local official then makes any necessary adjustments to the sample.
(3)
Two different Federal properties are located within an LEA—a Federal forest (100 eligible acres) and a naval facility (1,000 eligible acres). Based on the highest and best uses of taxable adjacent properties, and as described more specifically below, the local official establishes an EAV for the eligible Federal property in the LEA of $92,577,000 in the base year of a three-year cycle. That EAV is based on categorizing the Federal forest as 100 percent (100 acres) woodland expected use and the naval facility as 60 percent (600 acres) residential expected use and 40 percent (400 acres) commercial/industrial expected use.
The taxing jurisdiction determines the assessed value for taxable property by multiplying the value of the property by a single assessment ratio applicable to the property's assessment category. In this case, the applicable assessment ratios are: Woodland property—30 percent of the property's value; residential property—60 percent of the property's value; and commercial/industrial property—75 percent of the property's value.
The local official first determines the type of expected-use categories (assessment classifications) and respective proportions to use in valuing the eligible Federal property, based on the highest and best use of the taxable adjacent properties. In this case, the local official categorizes 100 percent of the Federal forest as being in the woodland use category (assessment classification) based on the highest and best use of taxable adjacent properties. The local official multiplies that proportion by the total number of eligible Federal acres (100), to determine the number of Federal acres attributable to the woodland use category (100 acres).
The local official then determines a base value for each category of expected use of the eligible Federal property as described in paragraphs (a)(3), (c), and (d) of this section. The official first determines the taxable-use portion for each expected use category, as described in paragraph (c)(1) of this section, by excluding the proportion of the total area of each use category of the eligible Federal property that the official determines should be allocated to non-assessed or tax-exempt uses.
Based on the general proportion of non-assessed or tax-exempt uses for woodland property, the local official allocates 10 percent of the woodland acres for non-assessed or tax-exempt purposes, and multiplies that proportion by the total number of acres of eligible Federal property categorized as woodland (100 acres), resulting in 10 acres attributable to a non-assessed or tax-exempt proportion of woodland. The local official then subtracts that non-assessed or tax-exempt portion (10 acres) from the total acres of eligible Federal property in that expected-use category (100 acres), resulting in 90 acres attributable to the taxable portion of the woodland expected-use category.
The local official then selects a sample of taxable adjacent properties from the expected use category (woodland), as described in paragraphs (c)(2) and (d) of this section, and uses that sample to establish a base value for that category. The sample includes the minimum required number of taxable adjacent properties (generally at least 10) from the woodland category. In addition, in selecting that sample of properties, the local official uses only the allowable proportion of recent sales, calculated as described in paragraph (d)(2) of this section. In selecting the specific taxable adjacent properties that make up that sample and that reflect the highest and best uses of the adjacent taxable properties in accordance with paragraph (c)(2)(i) of this section, the local official also considers whether the Federal property is adaptable for and whether there would be a need for those specific types of properties, such as in size and improvements, in accordance with paragraph (e)(2)(ii)(B) of this section.
The local official calculates the average value per acre ($1,000) of the selected sample of taxable adjacent woodland properties. The local official then multiplies the number of acres attributable to the taxable portion of the
The local official then determines the section 8002 EAV for the Federal forest as described in paragraph (a)(4) of this section by multiplying the base value established for the woodland portion of the property ($90,000) by 30 percent (the assessment ratio for woodland property), resulting in a section 8002 EAV of $27,000 for the Federal forest.
The local official first determines the type of expected-use categories (assessment classifications) and respective proportions to use in valuing the eligible Federal property. For the naval facility, the local official determines that the relative mix of taxable adjacent properties, based on their highest and best uses, is 60 percent residential and 40 percent commercial/industrial. The local official multiplies those proportions by the total eligible Federal acres in the naval facility (1,000), resulting in 600 acres (60 percent × 1,000 acres = 600 acres) to be valued as residential expected use and 400 acres (40 percent × 1,000 acres = 400 acres) to be valued as commercial/industrial expected use.
The local official then determines a base value for each of those expected use categories of the eligible Federal property. For the residential expected-use category, the local official allocates 20 percent for non-assessed or tax-exempt uses, and multiplies that proportion by the number of eligible Federal acres allocated to that expected-use category (600 acres), resulting in 120 acres allocated to non-assessed or tax-exempt uses. The local official excludes those 120 acres by subtracting them from the total number of residential acres (600 acres), resulting in 480 acres allocated to taxable residential uses for the residential portion of the eligible Federal property in the naval facility.
For the commercial/industrial expected-use category, the local official allocates 15 percent for non-assessed or tax-exempt uses, and multiplies that proportion by the number of eligible Federal acres allocated to that expected-use category (400 acres), resulting in 60 acres allocated to non-assessed or tax-exempt uses. The local official excludes those 60 acres by subtracting them from the total number of commercial/industrial acres (400 acres), resulting in 340 acres allocated to taxable commercial/industrial uses for the commercial/industrial portion of the eligible Federal property in the naval facility.
The local official then selects a sample of taxable adjacent properties from each identified use category, as described in paragraphs (c)(2) and (d) of this section, which the official uses to establish a base value for each of those expected-use categories. That sample includes the minimum required number of taxable adjacent properties (generally at least 10) for each expected use category. In addition, in selecting the sample of properties, the official uses only the allowable proportion of recent sales, calculated as described in paragraph (d)(2) of this section.
In considering whether the specific group of taxable adjacent properties selected reflects the highest and best uses of the adjacent taxable properties in accordance with paragraph (c)(2)(i) of this section, the local official also considers whether the Federal property is adaptable for and whether there would be a need for those specific types of properties, in accordance with paragraph (e)(2)(ii)(B) of this section.
For example, if the official selects 10 residential parcels that are all small, such as one quarter (.25) of an acre or less, and uses those parcels to determine an EAV for a large area of Federal property, the result may exaggerate what would likely happen to that property if it were available for development. If the official uses only these small parcels (e.g., .25 acres each) for the 480 acres allocated to taxable residential uses for the residential portion of the eligible Federal property, the official would be projecting that approximately 1,920 small residential lots would be developed on that Federal property (.25 × 480 = 1,920) if the property were no longer in Federal ownership. The Department believes that it would be extremely unlikely that 480 acres of the property would develop into this number of residential properties. This outcome would not reflect the local official's best judgment of the reasonable development of the property. To avoid this inappropriate result, the official would identify other taxable adjacent parcels of varying sizes to provide a more accurate picture of how the Federal property would be developed if it were on the tax rolls.
Similarly, with respect to improvements, if the local official selected taxable adjacent properties that all were improved parcels, the official would be projecting that all of the 480 acres allocated to taxable residential uses for the residential portion of the eligible Federal property would be improved. If the residential taxable adjacent parcels are a mixture of improved and unimproved properties, that projection also may be speculative based on the number of improvements that reasonably would be needed for the current and any expected new population. If the assumption is not reasonable that the entire 480 acres would be improved, then the local official would make adjustments accordingly in the sample of taxable adjacent properties by adding some unimproved residential parcels to the sample.
For the portion of the naval facility allocated to taxable residential use, the local official calculates the average per-acre value ($100,000) of the selected sample of residential adjacent properties as described in paragraph (c)(2)(ii) of this section. The local official then multiplies the number of acres allocated to the taxable residential portion (480 acres) by the average value per acre ($100,000) of the sample of residential adjacent properties to determine the base value ($48,000,000) for that portion of the eligible Federal property, as described in paragraph (c)(2)(iii) of this section. The local official determines a section 8002 EAV for that residential portion by multiplying the $48 million by 60 percent (assessment ratio for residential property), resulting in $28,800,000 as described in paragraph (a)(4) of this section.
Similarly, for the portion of the naval facility allocated to taxable commercial/industrial use, the local official calculates an aggregate per acre value ($250,000) of the selected sample of commercial/industrial taxable adjacent properties as described in paragraph (c)(2)(ii) of this section. The local official then multiplies the number of eligible Federal property acres allocated to the taxable commercial/industrial portion (340 acres) by the average value per acre of the selected commercial/industrial adjacent properties ($250,000) to determine the base value for that portion of the eligible Federal property ($85,000,000), as described in paragraph (c)(2)(iii) of this section. The local official determines a section 8002 EAV for that commercial/industrial portion by multiplying the $85,000,000 by 75 percent (the assessment ratio for commercial/industrial property), resulting in $63,750,000 as described in paragraph (a)(4) of this section.
The local official then calculates the total section 8002 EAV for the entire naval facility as described in paragraph (a)(5) of this section by adding the figures for the residential portion ($28,800,000) and the commercial/ industrial portion ($63,750,000), resulting in a total section 8002 EAV for the entire naval facility of $92,550,000.
This entire process is illustrated in Tables 8-1 and 8-2 below: