12–13–05 Tuesday Vol. 70 No. 238 Dec. 13, 2005
Pages 73553–73904
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i II Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005
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Contents Federal Register Vol. 70, No. 238
Tuesday, December 13, 2005
Actuaries, Joint Board for Enrollment Customs and Border Protection Bureau See Joint Board for Enrollment of Actuaries NOTICES Customhouse broker license cancellation, suspension, etc. Agency for Toxic Substances and Disease Registry A.P. Champagne Co., Inc., et al., 73783 NOTICES Diaz & Flores, Inc., et al., 73783 Superfund program: Grizzard, Bernell W., 73783–73784 Substance-Specific Applied Research Program; status Torres, Gaspar F., et al., 73784 update; republication, 73749–73773 Education Department Agriculture Department NOTICES See Animal and Plant Health Inspection Service Grants and cooperative agreements; availability, etc.: See Forest Service Special education and rehabilitative services— See Grain Inspection, Packers and Stockyards Disability and Rehabilitation Research Projects and Administration NOTICES Centers Program, 73738–73741 Agency information collection activities; proposals, submissions, and approvals, 73720–73721 Environmental Protection Agency RULES American Battle Monuments Commission Air programs: NOTICES Stratospheric ozone protection— Senior Executive Service Performance Review Board; Methyl bromide; critical use exemption process; membership, 73726 supplemental request, 73604–73618 Air programs; State authority delegations: Animal and Plant Health Inspection Service Oklahoma, 73595–73604 RULES Water pollution; effluent guidelines for point source Plant-related quarantine, domestic: categories: Karnal bunt, 73553–73556 Iron and steel manufacturing, 73618–73623 PROPOSED RULES Centers for Disease Control and Prevention Air programs; State authority delegations: NOTICES Oklahoma, 73675–73676 Agency information collection activities; proposals, Semi-annual agenda submissions, and approvals, 73773–73775 Correction, 73676 NOTICES Centers for Medicare & Medicaid Services Agency information collection activities; proposals, RULES submissions, and approvals, 73741–73744 Medicare: Medicare Part B services (other than physician services); Executive Office of the President application of inherent reasonableness payment See Presidential Documents policy, 73623–73634 Commerce Department Federal Aviation Administration See International Trade Administration RULES See National Oceanic and Atmospheric Administration Airworthiness directives: See National Telecommunications and Information BAE Systems (Operations) Ltd., 73583–73585 Administration Dassault, 73577–73579 Rolls-Royce plc, 73576–73577 Community Development Financial Institutions Fund Turbomeca, 73579–73583 RULES Airworthiness standards: Grants: Special conditions— Community Development Financial Institutions Program, Boeing Model 737-200/200C/300/400/500/600/700/ 73887–73898 700C/800/900 series airplanes, 73561–73576 NOTICES Sabreliner Model NA-265-60 airplanes, 73559–73561 Grants and cooperative agreements; availability, etc.: Standard instrument approach procedures, 73585–73587 Bank Enterprise Award Program, 73899 PROPOSED RULES Community Development Financial Institutions Program, Airworthiness directives: 73866–73877 Aerospatiale, 73671–73674 Native American— BAE Systems (Operations) Ltd., 73665–73668 Assistance Program, 73877–73886 Boeing, 73663–73665 Empresa Brasileira de Aeronautica S.A. (EMBRAER), Comptroller of the Currency 73668–73671 NOTICES Meetings: Agency information collection activities; proposals, Washington, DC, Metropolitan Area Special Flight Rules submissions, and approvals, 73745–73747 Area, 73674–73675
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NOTICES See Centers for Medicare & Medicaid Services Technical standard orders: See Food and Drug Administration Cargo restraint strap assemblies, 73817 See National Institutes of Health NOTICES Federal Deposit Insurance Corporation Agency information collection activities; proposals, PROPOSED RULES submissions, and approvals, 73747–73749 Deposit insurance coverage; large-bank deposit insurance determination modernization proposal, 73652–73663 Homeland Security Department NOTICES See Customs and Border Protection Bureau Agency information collection activities; proposals, See Federal Emergency Management Agency submissions, and approvals, 73745–73747 Housing and Urban Development Department Federal Emergency Management Agency NOTICES RULES Agency information collection activities; proposals, Flood elevation determinations: submissions, and approvals, 73784–73785 Various States, 73634–73645 Grant and cooperative agreement awards: PROPOSED RULES Fair Housing Initiatives Program, 73785–73787 Flood elevation determinations: Mortgage and loan insurance programs: Various States, 73677–73699 HUD-held unsubsidized multifamily and healthcare loan sale, 73787–73788 Federal Reserve System NOTICES Interior Department Agency information collection activities; proposals, See Fish and Wildlife Service submissions, and approvals, 73744–73747 See Land Management Bureau Banks and bank holding companies: See National Park Service Formations, acquisitions, and mergers, 73747 See Reclamation Bureau
Fish and Wildlife Service International Trade Administration NOTICES RULES Endangered and threatened species: Antidumping: Critical habitat designations— Stainless steel bar from— Thread-leaved brodiaea, 73820–73863 India, 73726–73727 PROPOSED RULES Stainless steel butt-weld pipe fittings from— Endangered and threatened species: Taiwan, 73727–73729 Critical habitat designations— Stainless steel sheet and strip in coils from— Laguna Mountains skipper, 73699–73717 Germany, 73729–73731 Export trade certificates of review, 73731–73732 Food and Drug Administration International Trade Commission NOTICES NOTICES Human drugs: Import investigations: World Health Organization— Welded stainless steel pipe from— Narcotic drugs; international drug scheduling; Korea and Taiwan [Editorial Note: This document, Psychotropic Substances Convention, 73775–73779 published at 70 FR 73452 in the Federal Register of Monday, December 12, 2005, was erroneously Forest Service listed under International Trade Administration in NOTICES that issue’s table of contents.] Meetings: California Coast Province Advisory Committee, 73721– Joint Board for Enrollment of Actuaries 73722 NOTICES Reports and guidance documents; availability, etc.: Meetings: National Environmental Policy Act; implementation— Actuarial Examinations Advisory Committee, 73720 Oil and gas exploration and development activities; documentation: categorical exclusion, 73722–73726 Labor Department See Occupational Safety and Health Administration General Services Administration NOTICES Land Management Bureau Federal Travel: NOTICES Federal Travel Regulation bulletin 05-08; travel charge Environmental statements; notice of intent: card policies and guidance, 73747 Colorado, Utah, and Wyoming; BLM-administered lands; oil shale and tar sands resources leasing, 73791– Grain Inspection, Packers and Stockyards Administration 73792 RULES Meetings: High quality specialty grains transported in containers; Resource Advisory Committees— export inspection and weighing waiver, 73556–73559 Roseburg District, 73793 Public land orders: Health and Human Services Department Colorado, 73793 See Agency for Toxic Substances and Disease Registry Resource management plans, etc.: See Centers for Disease Control and Prevention Price Field Office planning area, UT, 73788–73790
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Vernal Field Office planning area, UT, 73790 Occupational Safety and Health Administration Withdrawal and reservation of lands: NOTICES Wyoming, 73792 Nationally recognized testing laboratories, etc.: TUV Product Services GmbH, 73798–73799 National Credit Union Administration NOTICES Personnel Management Office Meetings; Sunshine Act, 73799–73800 PROPOSED RULES Administrative Law Judge Program; revision, 73646–73652 National Crime Prevention and Privacy Compact Council Presidential Documents RULES PROCLAMATIONS National Fingerprint File Program: Special observances: Qualification requirements, 73587 Human Rights Day, Bill of Rights Day, and Human Rights Week, 73901–73904 National Institutes of Health NOTICES Presidio Trust Inventions, Government-owned; availability for licensing, RULES 73779–73781 Debt collection, 73587–73595 Meetings: National Institute of Mental Health, 73781–73782 Reclamation Bureau Scientific Review Center, 73782–73783 NOTICES Public conservation and recreation areas: National Oceanic and Atmospheric Administration Keyhole and Sundance Boat Clubs, Keyhole Reservoir, PROPOSED RULES WY; non-renewal of permits, 73796–73798 Fishery conservation and management: Northeastern United States fisheries— Securities and Exchange Commission American lobster, 73717–73719 NOTICES NOTICES Securities Exchange Act : Marine mammals: Broker-dealers; financial statement requirements, 73809– Incidental taking; authorization letters, etc.— 73810 San Nicolas Island, Ventura County, CA; black abalone Self-regulatory organizations; proposed rule changes: research surveys; California sea lions, etc., 73732– National Association of Securities Dealers, Inc., 73810– 73737 73811 Pacific Exchange, Inc., 73811–73815 National Park Service Applications, hearings, determinations, etc.: NOTICES Sony Corp., 73809 Agency information collection activities; proposals, submissions, and approvals, 73793–73794 Social Security Administration Environmental statements; availability, etc.: NOTICES Lincoln Boyhood National Memorial, IN, 73794–73795 Agency information collection activities; proposals, Rock Creek Park and Rock Creek and Potomac Parkway, submissions, and approvals, 73815–73817 Washington, DC, 73795–73796 Environmental statements; notice of intent: Surface Transportation Board Arches National Park, UT; transportation plan, 73796 NOTICES Railroad services abandonment: Minnesota Commercial Railway Co., 73817–73818 National Telecommunications and Information Administration Toxic Substances and Disease Registry Agency See Agency for Toxic Substances and Disease Registry NOTICES Grants and cooperative agreements; availability, etc.: Transportation Department Public Telecommunications Facilities Program, 73737– See Federal Aviation Administration 73738 See Surface Transportation Board
Neighborhood Reinvestment Corporation Treasury Department NOTICES See Community Development Financial Institutions Fund Meetings; Sunshine Act, 73800 See Comptroller of the Currency
Nuclear Regulatory Commission NOTICES Separate Parts In This Issue Petitions; Director’s decisions: FirstEnergy Nuclear Operating Co. et. al., 73801–73802 Part II Reports and guidance documents; availability, etc.: Interior Department, Fish and Wildlife Service, 73820– Completion times for inoperable containment isolation 73863 valves at General Electric plants using consolidated line item improvement process, 73802–73809 Part III Applications, hearings, determinations, etc.: Treasury Department, Community Development Financial Entergy Louisiana, Inc., et al., 73800–73801 Institutions Fund, 73866–73898
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Part IV To subscribe to the Federal Register Table of Contents Executive Office of the President, Presidential Documents, LISTSERV electronic mailing list, go to http:// 73901–73904 listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 7968...... 73903 5 CFR Proposed Rules: 337...... 73646 930...... 73646 7 CFR 301...... 73553 800...... 73556 12 CFR 1805...... 73887 Proposed Rules: Ch. III ...... 73652 14 CFR 25 (2 documents) ...... 73559, 73561 39 (5 documents) ...... 73576, 73577, 73579, 73581, 73583 97...... 73585 Proposed Rules: 39 (4 documents) ...... 73663, 73665, 73668, 73671 93...... 73674 28 CFR 905...... 73587 36 CFR 1011...... 73587 40 CFR 61...... 73595 63...... 73595 82...... 73604 420...... 73618 Proposed Rules: 61...... 73675 63...... 73675 122...... 73676 42 CFR 405...... 73623 44 CFR 65...... 73634 Proposed Rules: 67...... 73677 50 CFR 17...... 73820 Proposed Rules: 17...... 73699 697...... 73717
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Rules and Regulations Federal Register Vol. 70, No. 238
Tuesday, December 13, 2005
This section of the FEDERAL REGISTER select APHIS–2005–0110 to submit or Upon detection of Karnal bunt in contains regulatory documents having general view public comments and to view Arizona in March of 1996, Federal applicability and legal effect, most of which supporting and related materials quarantine and emergency actions were are keyed to and codified in the Code of available electronically. After the close imposed to prevent the interstate spread Federal Regulations, which is published under of the comment period, the docket can of the disease to other wheat producing 50 titles pursuant to 44 U.S.C. 1510. be viewed using the ‘‘Advanced Search’’ areas in the United States. The The Code of Federal Regulations is sold by function in Regulations.gov. quarantine continues in effect, although the Superintendent of Documents. Prices of • Postal Mail/Commercial Delivery: it has since been modified, both in new books are listed in the first FEDERAL Please send four copies of your terms of its physical boundaries and in REGISTER issue of each week. comment (an original and three copies) terms of its restrictions on the to Docket No. 05–078–1, Regulatory production and movement of regulated Analysis and Development, PPD, articles from regulated areas. The DEPARTMENT OF AGRICULTURE APHIS, Station 3A–03.08, 4700 River regulations regarding Karnal bunt are set forth in 7 CFR 301.89–1 through Animal and Plant Health Inspection Road Unit 118, Riverdale, MD 20737– 301.89–16 (referred to below as the Service 1238. Please state that your comment refers to Docket No. 05–078–1. regulations). The regulations in § 301.89–3(e) 7 CFR Part 301 Reading Room: You may read any comments that we receive on this provide that we will classify a field or [Docket No. 05–078–1] docket in our reading room. The reading area as a regulated area when it is: • room is located in room 1141 of the A field planted with seed from a lot Karnal Bunt; Addition and Removal of USDA South Building, 14th Street and found to contain a bunted wheat kernel; Regulated Areas in Arizona • Independence Avenue SW., A distinct definable area that AGENCY: Animal and Plant Health Washington, DC. Normal reading room contains at least one field that was Inspection Service, USDA. hours are 8 a.m. to 4:30 p.m., Monday found during survey to contain a bunted ACTION: Interim rule and request for through Friday, except holidays. To be wheat kernel. The distinct definable comments. sure someone is there to help you, area may include an area where Karnal please call (202) 690–2817 before bunt is not known to exist but where SUMMARY: We are amending the Karnal coming. intensive surveys are required because bunt regulations to make changes to the Other Information: Additional of the areas’s proximity to a field found list of areas or fields regulated because information about APHIS and its during survey to contain a bunted of Karnal bunt, a fungal disease of kernel; or programs is available on the Internet at • wheat. We are adding certain areas in http://www.aphis.usda.gov. A distinct definable area that Maricopa and Pinal Counties, AZ, to the contains at least one field that has been list of regulated areas either because FOR FURTHER INFORMATION CONTACT: Dr. determined to be associated with grain they were found during surveys to Vedpal Malik, Karnal Bunt Program at a handling facility containing a contain a bunted wheat kernel, or Manager, Pest Detection and bunted kernel of a host crop. The because they are within the 3-mile-wide Management Programs, PPQ, APHIS, distinct definable area may include an buffer zone around fields or areas 4700 River Road Unit 134, Riverdale, area where Karnal bunt is not known to affected with Karnal bunt. We are also MD 20737–1236; (301) 734–3769. exist but where intensive surveys are removing certain areas or fields in SUPPLEMENTARY INFORMATION: required because of the area’s proximity Maricopa County, AZ, from the list of to the field associated with the bunted Background regulated areas based on our kernel at the handling facility. determination that those fields or areas Karnal bunt is a fungal disease of The boundaries of distinct definable meet our criteria for release from wheat (Triticum aestivum), durum areas are determined using the criteria regulation. These actions are necessary wheat (Triticum durum), and triticale in paragraphs (b) through (d) of to prevent the spread of Karnal bunt to (Triticum aestivum X Secale cereale), a § 301.89–3, which provide for the noninfected areas of the United States hybrid of wheat and rye. Karnal bunt is regulation of less than an entire State, and to relieve restrictions on certain caused by the smut fungus Tilletia the inclusion of noninfected acreage in areas that are no longer necessary. indica (Mitra) Mundkur and is spread a regulated area, and the temporary DATES: This interim rule is effective primarily through the movement of designation of nonregulated areas as December 7, 2005. We will consider all infected seed. Some countries in the regulated areas. Paragraph (c) of comments that we receive on or before international wheat market regulate § 301.89–3 states that the Administrator February 13, 2006. Karnal bunt as a fungal disease may include noninfected acreage within ADDRESSES: You may submit comments requiring quarantine; therefore, without a regulated area due to its proximity to by either of the following methods: measures taken by the Animal and Plant an infestation or inseparability from the • Federal eRulemaking Portal: Go to Health Inspection Service (APHIS), infected locality for regulatory purposes, http://www.regulations.gov and, in the United States Department of as determined by: ‘‘Search for Open Regulations’’ box, Agriculture, to prevent its spread, the • Projections of the spread of Karnal select ‘‘Animal and Plant Health presence of Karnal bunt in the United bunt along the periphery of the Inspection Service’’ from the agency States could have significant infestation; drop-down menu, then click on consequences with regard to the export • The availability of natural habitats ‘‘Submit.’’ In the Docket ID column, of wheat to international markets. and host materials within the
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noninfected acreage that are suitable for within those areas that are no longer grown in those fields could not be used establishment and survival of Karnal warranted. as seed within or outside a regulated bunt; and area unless it was tested and found free Immediate Action • The necessity of including of bunted kernels and spores. Thus, noninfected acreage within the Immediate action is necessary to help deregulation allows for freer movement regulated area in order to establish prevent Karnal bunt from spreading to of grain and seed from those areas that readily identifiable boundaries. noninfected areas of the United States. are affected by this aspect of the interim When we include noninfected acreage This rule will also relieve restrictions on rule. in a regulated area for one or more of the certain fields or areas that are no longer The impact of this aspect of the rule reasons previously listed, the warranted. Under these circumstances, on individual producers is not likely to noninfected acreage, along with the rest the Administrator has determined that be significant. The elimination of of the acreage in the regulated area, is prior notice and opportunity for public restrictions will increase marketing intensively surveyed. Negative results comment are contrary to the public opportunities for producers, with from surveys of the noninfected acreage interest and that there is good cause impacts on prices those producers may provide assurance that all infected under 5 U.S.C. 553 for making this set for their wheat, durum wheat, or acreage is within the regulated area. In action effective less than 30 days after triticale. Producers whose fields are effect, the noninfected acreage serves as publication in the Federal Register. deregulated may enjoy increased market a buffer zone between fields or areas We will consider comments we opportunities for any wheat, durum affected with Karnal bunt and areas receive during the comment period for wheat, or triticale they grow in the outside of the regulated area. this interim rule (see DATES above). future (e.g. the availability of export Under the regulations in § 301.89–3(f), After the comment period closes, we markets). They may also receive a a field known to have been infected will publish another document in the higher commodity price for their wheat, with Karnal bunt, as well as any non- Federal Register. The document will durum wheat, or triticale, although any infected acreage surrounding the field, include a discussion of any comments price changes would most likely be will be released from regulation if: we receive and any amendments we are small. This is due in part to the • The field is no longer being used for making to the rule. perceived notion that wheat produced crop production; or Executive Order 12866 and Regulatory in a regulated area is of lower quality. • Each year for a period of 5 Flexibility Act Deregulation may remove this stigma. consecutive 1 years, the field is Despite the increased ability to move This rule has been reviewed under grain and seed, as well as a potential subjected to any one of the following Executive Order 12866. For this action, management practices (the practice used increase in the price received for wheat, the Office of Management and Budget the benefits to individual producers are may vary from year to year): (1) Planted has waived its review under Executive not likely to be significant. There are with a cultivated non-host crop, (2) Order 12866. several reasons for this. First, grain in tilled once annually, or (3) planted with We are amending the Karnal bunt regulated areas is tested for Karnal bunt a host crop that tests negative, through regulations to make changes to the list at no charge to the producer. Thus, the absence of bunted kernels, for of areas or fields regulated because of removing this testing requirement does Karnal bunt. Karnal bunt, a fungal disease of wheat. not translate into a cost savings for The regulations in § 301.89–3(g) We are adding certain areas in Maricopa producers, but merely eliminates an describe the boundaries of the regulated and Pinal Counties, AZ, to the list of inconvenience. Second, little to no areas in Arizona, California, and Texas. regulated areas either because they were wheat seed will be grown in the affected In this interim rule, we are amending found during surveys to contain a areas of Maricopa County, AZ. In 2004, § 301.89–3(g) by adding 5,215 acres (36 bunted wheat kernel, or because they seed demand accounted for fields) in Maricopa County, AZ, and are within the 3-mile-wide buffer zone approximately 5 percent of total 5,085 acres (approximately 15 to 20 around fields or areas affected with domestic wheat production. Given such fields) in Pinal County, AZ, to the list Karnal bunt. We are also removing a small percentage and the small size of of regulated areas either because the certain areas or fields in Maricopa the area in question relative to other fields within those areas were found County, AZ, from the list of regulated wheat producing regions, it is not during detection and delineating areas based on our determination that expected that this region will grow a surveys to contain a bunted wheat those fields or areas meet our criteria for significant amount of wheat for seed. kernel, or because the fields within release from regulation. These actions Thus, the benefits associated with those areas fall within the 3-mile-wide are necessary to prevent the spread of removing restrictions on the movement buffer zone around fields affected with Karnal bunt to noninfected areas of the of seed are expected to be minimal in Karnal bunt. This action is necessary in United States and to relieve restrictions this area. Finally, in 2004, Maricopa order to help prevent the spread of on certain areas that are no longer County accounted for only 0.07 percent Karnal bunt into noninfected areas of necessary. of total U.S. wheat production. the United States. Deregulating certain areas or fields in Therefore, deregulation of these fields or We are also removing 3,802 acres (37 Maricopa County, AZ, will benefit areas would not influence the price of fields) in Maricopa County, AZ, from producers in these areas who wish to wheat to a significant degree if at all. the list of regulated areas based on our produce host crops in the future. Regulation of certain areas in determination that these fields or areas Deregulation will allow producers to Maricopa and Pinal Counties, AZ, is are eligible for release from regulation move wheat grain and seed with no also unlikely to have a profound effect under the criteria in § 301.89–3(f). This restrictions. Prior to this rule, any on individual producers. In this case, action relieves restrictions on fields wheat, durum wheat, or triticale grown producers will still be allowed to in those areas or fields could be moved transport and market their grain in non- 1 On October 5, 2005, we published a proposed into or through a non-regulated area regulated areas if it tests negative for rule in the Federal Register (70 FR 58084–58086; Docket 04–134–1) in which we proposed to, among without restriction only if it first tested bunted kernels. As stated above, this other things, amend the regulations to refer to 5 negative for bunted kernels. In addition, cost is borne by the government and not cumulative years rather than 5 consecutive years. any wheat, durum wheat, or triticale by individual producers, so producers
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are only affected by the inconvenience intergovernmental consultation with E.; then north to the northwest corner of of testing. Further, little or no wheat State and local officials. (See 7 CFR part sec. 5, T. 1S., R. 1 E.; then west to the seed is expected to be produced in these 3015, subpart V.) northeast corner of sec. 6, T. 1 S., R. 1 areas, so the restrictions on seed W.; then south to the southeast corner Executive Order 12988 movement should be negligible. Finally, of sec. 7, T. 1 S., R. 1 W.; then west to although producers may see a more This rule has been reviewed under the northeast corner of sec. 14, T. 1 S., limited market for their product and Executive Order 12988, Civil Justice R. 2 W.; then south to the southeast face lower prices, the influence of this Reform. This rule: (1) Preempts all State corner of sec. 14, T. 1 S., R. 2 W.; then wheat producing area is small. In 2004, and local laws and regulations that are west to the northeast corner of sec. 20, the counties mentioned above together inconsistent with this rule; (2) has no T. 1 S., R. 2 W.; then south to the accounted for only 0.15 percent of total retroactive effect; and (3) does not southeast corner of sec. 20, T. 1 S., R. U.S. wheat production. Thus, any price require administrative proceedings 2 W.; then west to the northeast corner changes would be very small. before parties may file suit in court of sec. 29, T. 1 S., R. 3 W.; then south The Regulatory Flexibility Act challenging this rule. to the southeast corner of sec. 29, T. 1 requires that agencies consider the Paperwork Reduction Act S., R. 3 W.; then west to the southwest economic impact of their rules on small corner of sec. 26, T. 1 S., R. 5 W.; then businesses, organizations, and This interim rule contains no north to the northwest corner of sec. 14, governmental jurisdictions. Those most information collection or recordkeeping T. 1 N., R. 5 W.; then east to the likely affected by this interim rule are requirements under the Paperwork southwest corner of sec. 7, T. 1 N., R. producers whose fields have been added Reduction Act of 1995 (44 U.S.C. 3501 2 W.; then north to the northwest corner to the list of regulated areas. et seq.). of sec. 7, T. 1 N., R. 2 W.; then east to Additionally, those farmers whose fields List of Subjects in 7 CFR Part 301 the northeast corner of sec. 7, T. 1 N., have been removed from the list of R. 2 W.; then north to the northwest regulated areas and plan to grow wheat Agricultural commodities, Plant corner of sec. 5, T. 1 N., R. 2 W.; then in the future will also be affected. The diseases and pests, Quarantine, east to the northeast corner of sec. 5, T. number of producers likely to be Reporting and recordkeeping 1 N., R. 2 W.; then north to the affected by this interim rule is not requirements, Transportation. northwest corner of sec. 28, T. 2 N., R. expected to be large. Also, it is not I Accordingly, we are amending 7 CFR 2 W.; then east to the northeast corner expected that the interim rule will have part 301 as follows: of sec. 28, T. 2 N., R. 2 W.; then north a significant impact on the affected to the northwest corner of sec. 3, T. 3 producers. The reasons for this are PART 301—DOMESTIC QUARANTINE N., R. 2 W.; then east to the northeast presented in the preceding paragraphs. NOTICES corner of sec. 1, T. 3 N., R. 1 W.; then Producers affected by the interim rule south to the northwest corner of sec. 19, are likely to be small in size based on I 1. The authority citation for part 301 T. 3 N., R. 1 E.; then east to the the U.S. Small Business Administration continues to read as follows: northeast corner of sec. 20, T. 3 N., R. (SBA) standards for wheat farmers, with Authority: 7 U.S.C. 7701–7772 and 7781– 1 E.; then south to the northeast corner supporting data from the 2002 Census of 7786; 7 CFR 2.22, 2.80, and 371.3. of sec. 29, T. 3 N., R. 1 E.; then east to Agriculture (2002 Census), which is the Section 301.75–15 also issued under Sec. the northeast corner of sec. 27, T. 3 N., most recent census available. The SBA 204, Title II, Pub. L. 106–113, 113 Stat. R. 1 E.; then south to the southeast classifies wheat producers with total 1501A–293; sections 301.75–15 and 301.75– corner of sec. 27, T. 3 N., R. 1 E.; then annual sales of not more than $750,000 16 also issued under Sec. 203, Title II, Pub. east to the northeast corner of sec. 35, as small entities. According to 2002 L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 T. 3 N., R. 1 E.; then south to the Census data, there were a total of 232 note). southeast corner of sec. 35, T. 3N., R. 1 wheat-for-grain (all kind of wheat) farms I 2. In § 301.89–3, paragraph (g) is E.; then east to the northeast corner of in Arizona in 2002. Of those, 38 farms amended as follows: sec. 1, T. 2 N., R. 1 E.; then south to the were in Maricopa County and 67 farms I a. Under the heading ‘‘Arizona,’’ in northeast corner of sec. 1, T. 1 N., R. 1 in Pinal County. Of this number, 91 the entry for Maricopa County, by E.; then east to the northeast corner of percent had annual sales in 2002 of less revising paragraphs (1), (3), and (4) to sec. 4, T. 1 N., R. 2 E.; then south to the than $500,000, which is well below the read as set forth below. northwest corner of sec. 15, T. 1 N., R. SBA’s small entity threshold of I b. Under the heading ‘‘Arizona,’’ in 2 E.; then east to the northeast corner of $750,000 for wheat farms. Therefore, the entry for Pinal County, by revising sec. 15, T. 1 N., R. 2 E.; then south to these findings, in conjunction with paragraph (2) to read as set forth below. the southeast corner of sec. 27, T. 1 N., those above, demonstrate that although R. 2 E.; then west to the southwest most of the entities impacted by the rule § 301.89–3 Regulated areas. corner of sec. 27, T. 1 N., R. 2 E.; then are expected to be small, the impact on * * * * * south to the southeast corner of sec. 33, those entities is not expected to be (g) * * * T. 1 N., R. 2 E.; then west to the significant. Arizona Under these circumstances, the northeast corner of sec. 4, T. 1 S., R. 2 Administrator of the Animal and Plant * * * * * E.; then south to the southeast corner of Health Inspection Service has Maricopa County. (1) Beginning at the sec. 4, T. 1 S., R. 2 E.; then west to the determined that this action will not southeast corner of sec. 17, T. 1 S., R. southwest corner of sec. 4, T. 1 S., R. 2 have a significant economic impact on 2 E.; then west to the southwest corner E.; then south to the point of beginning. a substantial number of small entities. of sec. 14, T. 1 S., R. 1 E.; then north * * * * * to the northwest corner of sec. 14, T. 1 (3) Beginning at the southeast corner Executive Order 12372 S., R.1 E.; then west to the southwest of sec. 30, T. 6 S., R. 5 W.; then west This program/activity is listed in the corner of sec. 9, T. 1 S., R. 1 E.; then to the northeast corner of sec. 33, T. 6 Catalog of Federal Domestic Assistance north to the northwest corner of sec. 9, S., R. 6 W.; then south to the southeast under No. 10.025 and is subject to T. 1 S., R. 1 E.; then west to the corner of sec. 33, T. 6 S., R. 6 W.; then Executive Order 12372, which requires southwest corner of sec. 5, T. 1 S., R. 1 west to the southwest corner of sec. 36,
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T. 6 S., R. 7 W.; then north to the of sec. 30, T. 6 S., R. 3 E.; then south DEPARTMENT OF AGRICULTURE northwest corner of sec. 36, T. 6 S., R. to the southeast corner of sec. 30, T. 6 7 W.; then west to the southwest corner S., R. 3 E.; then west to the southwest Grain Inspection, Packers and of sec. 26, T. 6 S., R. 7 W.; then north corner of sec. 30, T. 6 S., R. 3 E.; then Stockyards Administration to the northwest corner of sec. 23, T. 6 north to the southeast corner of sec. 25, S., R. 7 W.; then west to the southeast T. 6 S., R. 2 E.; then west to the 7 CFR Part 800 corner of sec. 18, T. 6 S., R. 7 W.; then southwest corner of sec. 25, T. 6 S., R. RIN 0580–AA87 north to the northeast corner of sec. 6, 2 E.; then north to the southeast corner T. 6 S., R. 7 W.; then west to the of sec. 11, T. 6 S., R. 2 E.; then west to Export Inspection and Weighing southeast corner of sec. 31, T. 5 S., R. the southwest corner of sec. 11, T. 6 S., Waiver for High Quality Specialty 7 W.; then north to the northwest corner R. 2 E.; then north to the northwest Grains Transported in Containers of sec. 29, T. 5 S., R. 7 W.; then east to corner of sec. 35, T. 4 S., R. 2 E.; then the northeast corner of sec. 29, T. 5 S., AGENCY: Grain Inspection, Packers and east to the northeast corner of sec. 35, R. 7 W.; then east to the southwest Stockyards Administration, USDA. T. 4 S., R. 2 E.; then north to the corner of sec. 22, T. 5 S., R. 7 W.; then ACTION: Final rule. north to the northwest corner of sec. 22, northwest corner of sec. 25, T. 4 S., R. T. 5 S., R 7 W.; then east to the 2 E.; then east to the southwest corner SUMMARY: The Grain Inspection, Packers southwest corner of sec. 14, T. 5 S., R. of sec. 20, T. 4 S., R. 3 E.; then north and Stockyards Administration (GIPSA) 7 W.; then north to the northwest corner to the northwest corner of sec. 20, T. 4 is amending regulations under the of sec. 14, T. 5 S., R. 7 W.; then east to S., R. 3 E.; then east to the northeast United States Grain Standards Act the northeast corner of sec. 13, T. 5 S., corner of sec. 24, T. 4 S., R. 3 E.; then (USGSA) to waive the mandatory R. 6 W.; then south to the southeast south to the southeast corner of sec. 24, inspection and weighing requirements corner of sec. 24, T. 5 S., R. 6 W.; then T. 4 S., R. 3 E.; then east to the northeast of the USGSA for high quality specialty east to the northeast corner of sec. 30, corner of sec. 28, T. 4 S., R. 4 E.; then grains exported in containers. GIPSA is T. 5 S., R. 5 W.; then south to the south to the northwest corner of sec. 34, establishing this waiver to facilitate the southeast corner of sec. 30, T. 5 S., R. T. 4 S., R. 4 E.; then east to the northeast marketing of high quality specialty 5 W.; then east to the northeast corner corner of sec. 35, T. 4 S., R. 4 E.; then grains exported in containers. This of sec. 32, T. 5 S., R. 5 W.; then south south to the northwest corner of sec. 1, action is consistent with the objectives to the southeast corner of sec. 32, T. 5 T. 5 S., R. 4 E.; then east to the northeast of the USGSA and will promote the S., R. 5 W.; then east to the northeast corner of sec. 1, T. 5 S., R. 4 E.; then continuing development of the high quality specialty export market. This corner of sec. 5, T. 6 S., R. 5 W.; then south to the southeast corner of sec. 1, waiver will be in effect for a maximum south to the southeast corner of sec. 20, T. 5 S., R. 4 E.; then west to the of 5 years, and if after this time period T. 6 S., R. 5 W.; then west to the northeast corner of sec. 12, T. 5 S., R. northeast corner of sec. 30, T. 6 S., R. GIPSA determines that this waiver 4 E.; then south to the southeast corner continues to advance the objectives of 5 W.; then south to the point of of sec. 24, T. 5 S., R. 4 E.; then west to beginning. the USGSA, GIPSA will consider the southwest corner of sec. 24, T. 5 S., making this waiver permanent. (4) Beginning at the southeast corner R. 4 E.; then south to the northeast DATES: Effective January 12, 2006 of sec. 36, T. 2 N., R. 5 E.; then west to corner of sec. 35, T. 5 S., R. 4 E.; then the northeast corner of sec. 4, T. 1 N., west to the northwest corner of sec. 35, FOR FURTHER INFORMATION CONTACT: John R. 5 E.; then south to the southeast T. 5 S., R. 4 E.; then south to the Sharpe, Director, Compliance Division, corner of sec. 4, T. 1 N., R. 5 E.; then at his e-mail address: southeast corner of sec. 37, T. 5 S., R. west to the southwest corner of sec. 4, [email protected] or telephone 4 E.; then west to the northwest corner T. 1 N., R. 5 E.; then south to the him at (202) 720–8262. of sec. 50, T. 5 S., R. 4 E.; then south southeast corner of sec. 17, T. 1 N., R. SUPPLEMENTARY INFORMATION: 5 E.; then west to the southwest corner to the southeast corner of sec. 49, T. 6 of sec. 17, T. 1 N., R. 5 E.; then north S., R. 4 E.; then west to the northeast Background to the northwest corner of sec. 17, T. 1 corner of sec. 5, T. 6 S., R. 4 E.; then The USGSA authorizes the N., R. 5 E.; then west to the southwest south to the point of beginning. Department to waive the mandatory corner of sec. 12, T. 1 N., R. 4 E.; then * * * * * inspection and weighing requirements north to the northwest corner of sec. 12, Done in Washington, DC, this 7th day of of the USGSA in circumstances when T. 1 N., R. 4 E.; then east to the December 2005. the objectives of the USGSA would not northeast corner of sec. 12, T. 1 N., R. Elizabeth E. Gaston, be impaired. Current waivers from the 4 E.; then north to the northwest corner official inspection and Class X weighing of sec. 7, T. 2 N., R. 5 E.; then east to Acting Administrator, Animal and Plant requirements for export grain appear in the northeast corner of sec. 12, T. 2 N., Health Inspection Service. section 7 CFR 800.18 of the regulations. R. 5 E.; then south to the point of [FR Doc. 05–23995 Filed 12–12–05; 8:45 am] These waivers are provided for grain beginning. BILLING CODE 3410–34–P exported for seeding purposes, grain Pinal County: shipped in bond, grain exported by rail * * * * * or truck to Canada or Mexico, grain not (2) Beginning at the southeast corner sold by grade, exporters and individual of sec. 5, T. 6 S., R. 4 E.; then west to elevator operators shipping less than the southwest corner of sec. 1, T. 6 S., 15,000 metric tons during the current R. 3 E.; then south to the southeast and preceding calendar years, and when corner of sec. 14, T. 6 S., R. 3 E.; then services are not available or in west to the southwest corner of sec. 14, emergency situations. T. 6 S., R. 3 E.; then south to the This final rule provides a waiver for southeast corner of sec. 22, T. 6 S., R. high quality specialty grains exported in 3 E.; then west to the northeast corner containers.
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The high quality specialty grain requesting and receiving official waiver continues to advance the market has evolved in recent years as inspection and weighing services objectives of the USGSA, GIPSA will specialty grain shippers have catered to should they desire such services. consider making this waiver permanent. the specific needs of buyers around the On April 28, 2005, GIPSA published GIPSA will monitor this waiver of world. Transactions involving high an interim final rule with request for official inspection and weighing quality specialty grains are typically comments in the Federal Register (70 requirements; however, if at any time, made between dedicated buyers and FR 21921) to amend the regulations GIPSA determines that this waiver is sellers who have ongoing business under the USGSA to waive the not consistent with the objectives of the relationships and fully understand each mandatory inspection and weighing Act, GIPSA will remove this waiver. other’s specific needs and capabilities. requirements for high quality specialty Comment Review Prototypically, sales are for small grains exported in containers. GIPSA volumes of grain meeting strict established this waiver to facilitate the GIPSA received comments from two commercial contract specifications for marketing of high quality specialty separate commenters in response to its quality, production, handling, and grains exported in containers and this interim final rule published on April 28, packaging. The contractual action is consistent with the objectives 2005, in the Federal Register (70 FR specifications may require a single or of the USGSA. GIPSA believes that this 21921). An individual representing a limited number of seed varieties and waiver will promote the continuing high quality specialty grain company may specify certain agronomic, development of the high quality submitted two e-mail comments, and harvesting, conditioning, or handling specialty export market. another comment was submitted on practices. In the interim final rule, GIPSA behalf of a grain trade association. The The quality management processes defined high quality specialty grain as following paragraphs address comments employed by participants of the high grain sold under contract terms that (1) received regarding the interim final rule. specify quality better than the grade quality specialty grain market typically 1. Definition of High Quality Specialty limits for U.S. No. 1 grain, or (2) specify exceed those practiced in the Grains commodity grain market where ‘‘organic’’ as defined by the regulations commingling and blending of different 7 CFR part 205 under the Organic Foods The comments received questioned quality grains is an inherent part of the Production Act of 1990, as amended. the meaning of the definition of high marketing process. As a result, the To ensure that exporters of high quality specialty grain as provided in characteristics of these high quality quality specialty grains comply with the interim final rule. The grain trade specialty grains are differentiated from this waiver, GIPSA is requiring association stated that the definition of commodity grain. exporters to maintain records generated high quality specialty grain is too Traditionally, shippers of high quality during their normal course of business narrow in that it provides only for specialty grain exported in containers that pertain to these shipments and organic grains and for grains with handled less than 15,000 metric tons of make these documents available to quality specifications higher than U.S. grain annually and thereby, were GIPSA upon request for review or No. 1. Specifically, the commenter exempt from mandatory inspection and copying purposes. GIPSA is not suggested that the definition of high weighing requirements in accordance requiring exporters of high quality quality specialty grains be ‘‘revised to with Section 800.18(b) of the regulations specialty grains to complete or submit include grains with specific intrinsic under the USGSA. However, as the high new Federal government record(s), characteristics that give value to quality specialty grain market has form(s), or report(s). GIPSA is requiring customers beyond the official U.S. grain grown, volumes have begun to exceed exporters to maintain, submit upon grading factors in U.S. No. 2 or 1 corn.’’ the 15,000 metric ton waiver threshold request, and make available GIPSA does not believe that it should requiring shippers to have their high documentation that fully and correctly expand the definition of high quality quality specialty grains inspected and disclose transactions concerning high specialty grains to include specific weighed in accordance with the quality specialty grain exported in intrinsic characteristics. GIPSA believes USGSA. The cost of official inspection containers. These records shall be that the inclusion of such characteristics and weighing for these specialty maintained for a period of 3 years. This in the definition would allow a broader operations is approximately $1.80 per information collection requirement is exemption from the mandatory metric ton compared to an average $0.34 essential to ensure that exporters who inspection and weighing requirements per metric ton for bulk commodity ship high quality specialty grain in than is consistent with the USGSA. exports. Furthermore, the contract containers comply with the waiver Accordingly, GIPSA is not making any quality specifications for high quality provisions. changes to the definition based on this specialty grains typically exceed the The Paperwork Reduction Act comment. grade limits for U.S. No. 1 grain. GIPSA requires the Agency to measure The comment received from the high is therefore waiving high quality recordkeeping burden. Under this final quality specialty grain company specialty grains, as defined by GIPSA, rule, exporters must maintain records suggested that GIPSA clarify its exported in containers from the generated during the normal course of definition of high quality specialty grain mandatory export inspection and business. Experience has shown that the to define whether some factors or all weighing requirements. U.S. grain industry maintains grain factors must exceed the grade limits for Accordingly, this action will promote contracts which specify quality U.S. No. 1 grain. The commenter also the marketing of high quality specialty parameters agreed to by buyers and expressed concerns about the difficulty grains and will not impair the objectives sellers of grain. GIPSA believes that in procuring specialty soybeans with of the USGSA. Organizations exporting grain contracts would provide sufficient test weight that exceeds U.S. No. 1 high quality specialty grain will information to determine if exporters of because of environmental or varietal continue to be required to notify GIPSA high quality specialty grain are influences. After reviewing these issues, of their actions for registration purposes complying with the waiver. GIPSA believes that the definition in accordance with the USGSA. This waiver will be in affect for a should be clarified. Moreover, nothing in this exemption maximum of 5 years and if after this Virtually all high quality specialty will prevent buyers and sellers from time period GIPSA determines that this grain is traded on contract specifications
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that require all factors exceed the grade weighing, or description of grain under Advisory Committee resolved that limits for U.S. No. 1 grain with the the Act. Otherwise, this rule will not GIPSA should continue to enforce the exception of test weight. GIPSA preempt any State or local laws, mandatory export inspection and recognizes that test weight is a factor regulations, or policies unless they weighing requirements for commodity that is used throughout the market in present irreconcilable conflict with this grains and establish a waiver for high making stowage calculations, as a rule. There are no administrative quality specialty grains exported in measurement of stocks (volume) and procedures that must be exhausted prior containers. GIPSA believes that waiving production (yield), and as a general to any judicial challenge to the high quality specialty grains exported in indicator of grain quality. However, provisions of this rule. containers is consistent with the intent other attributes in high quality specialty Paperwork Reduction Act and of the USGSA and will allow this grain such as oil and protein content, Government Paperwork Elimination Act market to continue to evolve. etc. may provide a better indicator for Various methods were considered to end-use quality. Consequently, the In compliance with the Paperwork address the challenges facing U.S. high definition merits clarification and is Reduction Act of 1995 (44 U.S.C. quality specialty grain producers, amended to read as follows: ‘‘Grain sold Chapter 35), the information collection marketers, processors, and handlers under contract terms that specify all and record keeping requirements exporting via containers from global factors exceed the grade limits for U.S. included in this final rule has been competition. GIPSA looked at requiring No. 1 grain, except for the factor test approved by OMB under Control No. relaxed inspection and weighing weight * * *’’ 0580–0022. GIPSA estimates that the requirements for these grains and The commenter also asked why the time required for each exporter to decided that they would still place an example of post-harvest, pesticide-free maintain, submit upon request, and undue burden on these types of corn would qualify for an exemption make available contractual information shipments. since 90 percent of corn harvested has in a manner consistent with this rule is This final rule will allow exporters of no post-harvest chemicals applied. This an average of 6-hours per year at $5.50 high quality specialty grains shipped in comment has merit and, as a result, per hour for a total annual burden of containers to ship such grain without GIPSA will not use it in the future as an $33.00 per exporter. Assuming that the the burden of mandatory inspection and example of high quality specialty grain. estimated 80 exporters of high quality weighing, while allowing them to specialty grain in containers provide 2. Phyto-Sanitary Certification request the service when desired. GIPSA this contractual information, the Relieving this burden will allow the The comment from the grain trade total annual burden is estimated to be industry to grow and better compete in association questioned why GIPSA’s $2,640. the global market. interim final rule did not address the GIPSA is committed to compliance This rule poses minimal additional requirement for phyto-sanitary with the Government Paperwork cost to exporters. However, this rule certification for specialty grain exported Elimination Act, which requires eliminates the cost of the mandatory in containers. The commenter Government agencies, in general, to export inspection and weighing recommended that GIPSA’s interim provide the public the option of requirements for high quality specialty final rule should permit approved submitting information or transacting grain exported in containers. GIPSA private labs to perform phyto-sanitary business electronically to the maximum estimates this cost to be at $1.80 per certification to reduce cost. In brief, the extent possible. metric ton of grain exported and GIPSA USGSA does not provide GIPSA Regulatory Flexibility Act Certification believes that the benefits of this rule authority to regulate phyto-sanitary outweighs the cost. inspections and/or certification; GIPSA has determined that this final consequently, GIPSA can not address rule does not have a significant List of Subjects in 7 CFR Part 800 this issue. economic impact on a substantial Administrative practice and GIPSA will develop instructions to number of small entities, as defined in procedure, Export, Grain provide further guidance on the Regulatory Flexibility Act (5 U.S.C. I For reasons set out in the preamble, 7 requirements for high quality specialty 601 et seq.). GIPSA has considered the CFR part 800 is amended as follows: grain exported in containers. GIPSA will economic impact of this final rule on also monitor exporters of high quality small entities and has determined that PART 800—GENERAL PROVISIONS specialty grain in containers to ensure its provisions would not have a I 1. The authority citation for part 800 compliance with these waiver significant economic impact on a continues to read as follows: provisions. substantial number of small entities GIPSA did not receive any comments because it eliminates burden. This final Authority: Pub. L. 94–582, 90 Stat. 2867, regarding the information collection and rule would effectively eliminate the cost as amended (7 U.S.C. 71 et seq). recordkeeping requirements published impact on small businesses that would I 2. Section 800.0 is amended as in its interim final rule. otherwise have to pay for onsite follows: inspection and weighing services for Executive Orders 12866 and 12988 I a. Paragraphs (b)(44) through (106) are specialty grain exported in containers. redesignated as (b)(45) through (107), This rule has been determined to be The proliferation of high quality respectively. non-significant for the purpose of specialty grain exported in containers I b. New paragraph (b)(44) is added to Executive Order 12866 by the Office of has caused shippers of high quality read as follows: Management and Budget (OMB). This specialty grains to exceed the 15,000 rule has been reviewed under Executive metric ton waiver threshold for export § 800.0 Meaning of Terms. Order 12988, Civil Justice Reform. This inspection and weighing. GIPSA posed * * * * * action is not intended to have a this situation to its Advisory Committee (b) * * * retroactive effect. The USGSA provides on November 16, 2004. GIPSA’s (44) High Quality Specialty Grain. in Sec 87g that no subdivision may Advisory Committee is composed of Grain sold under contract terms that require or impose any requirements or members representing producers, specify all factors exceed the grade restrictions concerning the inspection, handlers, processors, and exporters. The limits for U.S. No. 1 grain, except for the
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factor test weight, or specify ‘‘organic’’ special conditions contain the 4 p.m., Monday through Friday, except as defined by 7 CFR part 205. This additional safety standards that the Federal holidays. definition expires July 31, 2010. Administrator considers necessary to We will consider all comments we * * * * * establish a level of safety equivalent to receive on or before the closing date for comments. We will consider comments I 3. Section 800.18 is amended by that established by the existing filed late if it is possible to do so revising paragraph (b)(8) to read as airworthiness standards. without incurring expense or delay. We follows: DATES: The effective date of these special conditions is December 5, 2005. may change these special conditions § 800.18 Waivers of the official inspection We must receive your comments by based on the comments we receive. and Class X weighing requirements. January 12, 2006. If you want the FAA to acknowledge receipt of your comments on these * * * * * ADDRESSES: You must mail two copies special conditions, include with your (b) * * * of your comments to: Federal Aviation comments a pre-addressed, stamped (8) High Quality Specialty Grain Administration, Transport Airplane postcard on which the docket number Shipped in Containers. Official Directorate, Attention: Rules Docket appears. We will stamp the date on the inspection and weighing requirements (ANM–113), Docket No. NM336, 1601 postcard and mail it back to you. do not apply to high quality specialty Lind Avenue, SW., Renton, Washington grain exported in containers. Records 98055–4056. You may deliver two Background generated during the normal course of copies to the Transport Airplane On May 6, 2005, Flight Research, Inc., business that pertain to these shipments Directorate at the above address. You shall be made available to the Service 1062 Flight Line, Hangar 161, Mojave, must mark your comments: Docket No. California 93501, applied for a upon request, for review or copying. NM336. You can inspect comments in These records shall be maintained for a Supplemental Type Certificate (STC) to the Rules Docket weekdays, except modify Sabreliner Model NA–265–60 period of 3 years. This waiver expires Federal Holidays, between 7:30 a.m. and July 31, 2010. airplanes. These models are currently 4 p.m. approved under Type Certificate No. * * * * * FOR FURTHER INFORMATION CONTACT: Greg A2WE. The Sabreliner Model NA–265– James E. Link, Dunn, FAA, Airplane and Flight Crew 60 is a transport category airplane Administrator, Grain Inspection, Packers and Interface Branch, ANM–111, Transport powered by two Pratt and Whitney Stockyards Administration. Airplane Directorate, Aircraft Turbo Wasp JT12A–8 engines. The [FR Doc. 05–23911 Filed 12–12–05; 8:45 am] Certification Service, 1601 Lind Avenue maximum takeoff weight is 20,172 SW., Renton, Washington 98055–4056; BILLING CODE 3410–EN–P pounds. These airplanes operate with a telephone (425) 227–2799; facsimile 2-person crew and can seat up to 10 (425) 227–1320. passengers. The modification DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: incorporates the installation of altimeter/air data display units Comments Invited Federal Aviation Administration manufactured by Innovative Solutions The FAA has determined that notice and Support, Inc. The avionics/ 14 CFR Part 25 and opportunity for prior public electronics and electrical systems comment is impracticable because these installed in this airplane have the [Docket No. NM336; Special Conditions No. procedures would significantly delay potential to be vulnerable to high- 25–309–SC] certification of the airplane and thus intensity radiated fields (HIRF) external delivery of the affected aircraft. In Special Conditions: Sabreliner Model to the airplane. addition, the substance of these special NA–265–60 Airplanes; High-Intensity conditions has been subject to the Type Certification Basis Radiated Fields (HIRF). public comment process in several prior Under the provisions of 14 CFR AGENCY: Federal Aviation instances with no substantive comments 21.101, Flight Research, Inc. must show Administration (FAA), DOT. received. The FAA therefore finds that that the Sabreliner Model NA–265–60, ACTION: Final special conditions; request good cause exists for making these as changed, continues to meet the for comments. special conditions effective upon applicable provisions of the regulations issuance; however, we invite interested incorporated by reference in Type SUMMARY: These special conditions are people to take part in this rulemaking by Certificate No. A2WE, or the applicable issued for Sabreliner Model NA–265–60 sending written comments, data, or regulations in effect on the date of airplanes modified by Flight Research, views. The most helpful comments application for the change. The Inc. These modified airplanes will have reference a specific portion of the regulations incorporated by reference in a novel or unusual design feature when special conditions, explain the reason the type certificate are commonly compared to the state of technology for any recommended change, and referred to as the ‘‘original type envisioned in the airworthiness include supporting data. We ask that certification basis.’’ The certification standards for transport category you send us two copies of written basis for the Sabreliner Model NA–265– airplanes. The modification comments. 60 airplanes includes Civil Aeronautics incorporates the installation of We will file in the docket all Manual 4b, as amended by Amendment altimeter/air data display units comments we receive, as well as a 4b–1 through Amendment 4b–9, Special manufactured by Innovative Solutions report summarizing each substantive Civil Air Regulation No. SR 422B Item and Support, Inc. These display units public contact with FAA personnel 2, the Special Conditions set forth in perform critical functions. The concerning these special conditions. Attachment ‘‘A’’ of FAA letter to NAA applicable airworthiness regulations do You may inspect the docket before and [North American Aviation] dated not contain adequate or appropriate after the comment closing date. If you October 8, 1959, and FAA letter to NAA safety standards for the protection of wish to review the docket in person, go dated January 30, 1962. these systems from the effects of high- to the address in the ADDRESSES section If the Administrator finds that the intensity radiated fields (HIRF). These of this preamble between 7:30 a.m. and applicable airworthiness regulations
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(i.e., part 25, as amended) do not airplane. The current airworthiness transmitters, and the advent of space contain adequate or appropriate safety standards of part 25 do not contain and satellite communications coupled standards for the Sabreliner Model NA– adequate or appropriate safety standards with electronic command and control of 265–60 airplanes because of a novel or for the protection of this equipment the airplane, the immunity of critical unusual design feature, special from the adverse effects of HIRF. avionics/electronics and electrical conditions are prescribed under § 21.16. Accordingly, these systems are systems to HIRF must be established. In addition to the applicable considered to be a novel or unusual It is not possible to precisely define airworthiness regulations and special design feature. the HIRF to which the airplane will be conditions, the Sabreliner Model NA– Discussion exposed in service. There is also 265–60 airplanes must comply with the uncertainty concerning the effectiveness fuel vent and exhaust emission There is no specific regulation that of airframe shielding for HIRF. requirements of 14 CFR part 34 and the addresses protection requirements for Furthermore, coupling of noise certification requirements of 14 electrical and electronic systems from electromagnetic energy to cockpit- CFR part 36. HIRF. Increased power levels from installed equipment through the cockpit Special conditions, as defined in 14 ground-based radio transmitters and the window apertures is undefined. Based CFR 11.19, are issued under § 11.38 and growing use of sensitive avionics/ on surveys and analysis of existing HIRF become part of the type certification electronics and electrical systems to emitters, an adequate level of protection basis under § 21.101. command and control airplanes have exists when compliance with the HIRF Special conditions are initially made it necessary to provide adequate protection special condition is shown applicable to the model for which they protection. with either paragraph 1 or 2 below: are issued. Should Flight Research, Inc. To ensure that a level of safety is 1. A minimum threat of 100 volts rms apply at a later date for a supplemental achieved equivalent to that intended by (root-mean-square) per meter electric type certificate to modify any other the regulations incorporated by field strength from 10 KHz to 18 GHz. model included on Type Certificate No. reference, special conditions are needed A2WE to incorporate the same or for the Sabreliner Model NA–265–60 a. The threat must be applied to the similar novel or unusual design feature, airplanes modified by Flight Research, system elements and their associated these special conditions would also Inc. These special conditions require wiring harnesses without the benefit of apply to the other model under § 21.101. that new avionics/electronics and airframe shielding. electrical systems that perform critical b. Demonstration of this level of Novel or Unusual Design Features functions be designed and installed to protection is established through system As noted earlier, the Sabreliner Model preclude component damage and tests and analysis. NA–265–60 airplanes modified by interruption of function due to both the 2. A threat external to the airframe of Flight Research, Inc. will incorporate direct and indirect effects of HIRF. the field strengths identified in the table altimeter/air data display units that will below for the frequency ranges perform critical functions. These High-Intensity Radiated Fields (HIRF) indicated. Both peak and average field display units may be vulnerable to high- With the trend toward increased strength components from the table are intensity radiated fields external to the power levels from ground-based to be demonstrated.
Field Strength Frequency (volts per meter) Peak Average
10 kHz–100 kHz ...... 50 50 100 kHz–500 kHz ...... 50 50 500 kHz–2 MHz ...... 50 50 2 MHz–30 MHz ...... 100 100 30 MHz–70 MHz ...... 50 50 70 MHz–100 MHz ...... 50 50 100MHz–200 MHz ...... 100 100 200 MHz–400 MHz ...... 100 100 400 MHz–700 MHz ...... 700 50 700 MHz–1 GHz ...... 700 100 1 GHz–2 GHz ...... 2000 200 2 GHz–4 GHz ...... 3000 200 4 GHz–6 GHz ...... 3000 200 6 GHz–8 GHz ...... 1000 200 8 GHz–12 GHz ...... 3000 300 12 GHz–18 GHz ...... 2000 200 18 GHz–40 GHz ...... 600 200
The field strengths are expressed in terms of peak of the root-mean-square (rms) over the complete modulation period.
The threat levels identified above are Applicability a supplemental type certificate to the result of an FAA review of existing modify any other model included on studies on the subject of HIRF, in light As discussed above, these special Type Certificate No. A2WE to of the ongoing work of the conditions are applicable to Sabreliner incorporate the same or similar novel or Electromagnetic Effects Harmonization Model NA–265–60 airplanes modified unusual design feature, these special Working Group of the Aviation by Flight Research, Inc. Should Flight conditions would apply to that model as Rulemaking Advisory Committee. Research, Inc. apply at a later date for well under provisions of § 21.101.
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Conclusion Issued in Renton, Washington, on Background December 5, 2005. Boeing Commercial Airplanes intends This action affects only certain novel Kevin M. Mullin, or unusual design features on Sabreliner to modify the Model 737 series Acting Manager, Transport Airplane airplanes to incorporate a new Model NA–265–60 airplanes modified Directorate, Aircraft Certification Service. flammability reduction means (FRM) by Flight Research, Inc. It is not a rule [FR Doc. 05–23935 Filed 12–12–05; 8:45 am] that will inert the center fuel tanks with of general applicability and affects only BILLING CODE 4910–13–P nitrogen-enriched air (NEA). Though the the applicant who applied to the FAA provisions of § 25.981, as amended by for approval of these features on the DEPARTMENT OF TRANSPORTATION Amendment 25–102, will apply to this airplane. design change, these special conditions The substance of these special Federal Aviation Administration address novel design features. These conditions has been subjected to the special conditions are similar to those notice and comment procedure in 14 CFR Part 25 published in the Federal Register several prior instances and has been [Docket No. NM270; Special Conditions [Docket No NM309; Special Conditions No. No. 25–285–SC] for incorporation of an derived without substantive change 25–308–SC] from those previously issued. Because a FRM on Boeing Model 747–100/200B/ delay would significantly affect the Special Conditions: Boeing Model 737– 200F/200C/SR/SP/100B/300/100B SUD/ certification of the airplane, which is 200/200C/300/400/500/600/700/700C/ 400/400D/400F series airplanes (70 FR imminent, the FAA has determined that 800/900 Series Airplanes; Flammability 7800, January 24, 2005). prior public notice and comment are Reduction Means (Fuel Tank Inerting) Regulations used as the standard for unnecessary and impracticable, and certification of transport category AGENCY: Federal Aviation good cause exists for adopting these airplanes prior to Amendment 25–102, Administration (FAA), DOT. effective June 6, 2001, were intended to special conditions upon issuance. The ACTION: Final special conditions. prevent fuel tank explosions by FAA is requesting comments to allow eliminating possible ignition sources interested persons to submit views that SUMMARY: These special conditions are from inside the fuel tanks. Service may not have been submitted in issued for the Boeing Model 737–200/ experience of airplanes certificated to response to the prior opportunities for 200C/300/400/500/600/700/700C/800/ the earlier standards shows that ignition 900 series airplanes. These airplanes, as comment described above. source prevention alone has not been modified by Boeing Commercial totally effective at preventing accidents. List of Subjects in 14 CFR Part 25 Airplanes, include a new flammability Commercial transport airplane fuel tank reduction means that uses a nitrogen Aircraft, Aviation safety, Reporting safety requirements have remained generation system to reduce the oxygen and recordkeeping requirements. relatively unchanged throughout the content in the center wing fuel tank so evolution of piston-powered airplanes I The authority citation for these that exposure to a combustible mixture and later into the jet age. The of fuel and air is substantially special conditions is as follows: fundamental premise for precluding fuel minimized. This system is intended to Authority: 49 U.S.C. 106(g), 40113, 44701, tank explosions has involved reduce the average flammability 44702, 44704. exposure of the fleet of airplanes with establishing that the design does not result in a condition that would cause The Special Conditions the system installed to a level equivalent to 3 percent of the airplane an ignition source within the fuel tank I Accordingly, pursuant to the authority operating time. The applicable ullage (the space in the tank occupied delegated to me by the Administrator, airworthiness regulations do not contain by fuel vapor and air). A basic the following special conditions are adequate or appropriate safety standards assumption in this approach has been issued as part of the supplemental type for the design and installation of this that the fuel tank could contain certification basis for the Sabreliner system. These special conditions flammable vapors under a wide range of Model NA–265–60 airplanes modified contain the additional safety standards airplane operating conditions, even though there were periods of time in by Flight Research, Inc. the Administrator considers necessary which the vapor space would not 1. Protection from Unwanted Effects to ensure an acceptable level of safety for the installation of the system and to support combustion. of High-Intensity Radiated Fields define performance objectives the Fuel Properties (HIRF). Each electrical and electronic system must achieve to be considered system that performs critical functions an acceptable means for minimizing Jet fuel vapors are flammable in must be designed and installed to development of flammable vapors in the certain temperature and pressure ranges. ensure that the operation and fuel tank installation. The flammability temperature range of jet engine fuel vapors varies with the operational capability of these systems DATES: The effective date of these type and properties of the fuel, the to perform critical functions are not special conditions is December 5, 2005. adversely affected when the airplane is ambient pressure in the tank, and the FOR FURTHER INFORMATION CONTACT: amount of dissolved oxygen released exposed to high-intensity radiated Mike Dostert, Propulsion and fields. from the fuel into the tank. The amount Mechanical Systems Branch, FAA, of dissolved oxygen in a tank will also 2. For the purpose of these special ANM–112, Transport Airplane vary depending on the amount of conditions, the following definition Directorate, Aircraft Certification vibration and sloshing of the fuel that applies: Critical Functions: Functions Service, 1601 Lind Avenue, SW., occurs within the tank. whose failure would contribute to or Renton, Washington, 98055–4056; Jet A fuel is the most commonly used cause a failure condition that would telephone (425) 227–2132, facsimile commercial jet fuel in the United States. prevent the continued safe flight and (425) 227–1320, e-mail Jet A–1 fuel is commonly used in other landing of the airplane. [email protected]. parts of the world. At sea level and with SUPPLEMENTARY INFORMATION: no sloshing or vibration present, these
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fuels have flammability characteristics (NTSB) issued recommendations to Register that established an Aviation such that insufficient hydrocarbon improve fuel tank safety that included Rulemaking Advisory Committee molecules will be present in the fuel prevention of ignition sources and (ARAC) working group, the Fuel Tank vapor-air mixture, to ignite when the addressing fuel tank flammability (i.e., Harmonization Working Group temperature in the fuel tank is below the other two points of the fire triangle). (FTHWG). The FAA tasked the FTHWG approximately 100 °F. Too many The FAA initiated safety reviews of with providing a report to the FAA hydrocarbon molecules will be present all larger transport airplane type recommending regulatory text to in the vapor to allow it to ignite when certificates to review the fail-safe address limiting fuel tank flammability the fuel temperature is above features of previously approved designs in both new type certificates and the approximately 175 °F. The temperature and also initiated research into the fleet of in service airplanes. The ARAC range where a flammable fuel vapor will feasibility of amending the regulations consists of interested parties, including form can vary with different batches of to address fuel tank flammability. the public, and provides a public fuel, even for a specific fuel type. In Results from the safety reviews process to advise the FAA concerning between these temperatures the fuel indicated a significant number of single development of new regulations. vapor is flammable. This flammability and combinations of failures that can [NOTE: The FAA formally established temperature range decreases as the result in ignition sources within the fuel ARAC in 1991 (56 FR 2190, January 22, airplane gains altitude because of the tanks. The FAA has adopted rulemaking 1991), to provide advice and corresponding decrease of internal tank to require design and/or maintenance recommendations concerning the full air pressure. For example, at an altitude actions to address these issues; range of the FAA’s safety-related of 30,000 feet, the flammability however, past experience indicates rulemaking activity.] temperature range is about 60 °F to 120 unforeseen design and maintenance The FTHWG evaluated numerous °F. Most transport category airplanes errors can result in development of possible means of reducing or used in air carrier service are approved ignition sources. These findings show eliminating hazards associated with for operation at altitudes from sea level minimizing or preventing the formation explosive vapors in fuel tanks. On July to 45,000 feet. Those airplanes operated of flammable vapors by addressing the 23, 1998, the ARAC submitted its report in the United States and in most flammability points of the fire triangle to the FAA. The full report is in the overseas locations use Jet A or Jet A–1 will enhance fuel tank safety. docket created for this ARAC working fuel, which typically limits exposure to On April 3, 1997, the FAA published group (Docket No. FAA–1998–4183). operation in the flammability range to a notice in the Federal Register (62 FR This docket can be reviewed on the U.S. warmer days. 16014), Fuel Tank Ignition Prevention Department of Transportation electronic We have always assumed that Measures, that requested comments Document Management System on the airplanes would sometimes be operated concerning the 1996 NTSB Internet at http://dms.dot.gov. with flammable fuel vapors in their fuel recommendations regarding reduced The report provided a tank ullage (the space in the tank flammability. That notice provided recommendation for the FAA to initiate occupied by fuel vapor and air). significant discussion of the service rulemaking action to amend § 25.981, history, background, and issues related applicable to new type design airplanes, Fire Triangle to reducing flammability in transport to include a requirement to limit the Three conditions must be present in airplane fuel tanks. Comments time transport airplane fuel tanks could a fuel tank to support combustion. submitted to that notice indicated operate with flammable vapors in the These include the presence of a suitable additional information was needed vapor space of the tank. The amount of fuel vapor, the presence of before the FAA could initiate recommended regulatory text proposed, sufficient oxygen, and the presence of rulemaking action to address all of the ‘‘Limiting the development of an ignition source. This has been named recommendations. flammable conditions in the fuel tanks, the ‘‘fire triangle.’’ Each point of the Past safety initiatives by the FAA and based on the intended fuel types, to less triangle represents one of these industry to reduce the likelihood of fuel than 7 percent of the expected fleet conditions. Because of technological tank explosions resulting from post operational time (defined in this rule as limitations in the past, the FAA crash ground fires have evaluated means flammability exposure evaluation time philosophy regarding the prevention of to address other factors of the fire (FEET)), or providing means to mitigate fuel tank explosions to ensure airplane triangle. Previous attempts were made the effects of an ignition of fuel vapors safety was to only preclude ignition to develop commercially viable systems within the fuel tanks such that any sources within fuel tanks. This or features that would reduce or damage caused by an ignition will not philosophy included application of fail- eliminate other aspects of the fire prevent continued safe flight and safe design requirements to fuel tank triangle (fuel or oxygen) such as fuel landing.’’ The report included a components (lightning design tank inerting or ullage space vapor discussion of various options for requirements, fuel tank wiring, fuel tank ‘‘scrubbing’’ (ventilating the tank ullage showing compliance with this proposal, temperature limits, etc.) that are with air to remove fuel vapor to prevent including managing heat input to the intended to preclude ignition sources the accumulation of flammable fuel tanks, installation of inerting from being present in fuel tanks even concentrations of fuel vapor). Those systems or polyurethane fire when component failures occur. initial attempts proved to be impractical suppressing foam, and suppressing an for commercial transport airplanes due explosion if one occurred. Need To Address Flammability to the weight, complexity, and poor The level of flammability defined in Three accidents have occurred in the reliability of the systems, or undesirable the proposal was established based on a last 13 years as the result of unknown secondary effects such as unacceptable comparison of the safety record of ignition sources within the fuel tank in atmospheric pollution. center wing fuel tanks that, in certain spite of past efforts, highlighting the airplanes, are heated by equipment difficulty in continuously preventing Fuel Tank Harmonization Working located under the tank, and unheated ignition from occurring within fuel Group fuel tanks located in the wing. The tanks. Between 1996 and 2000 the On January 23, 1998, the FAA ARAC concluded that the safety record National Transportation Safety Board published a notice in the Federal of fuel tanks located in the wings with
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a flammability exposure of 2 to 4 (§ 25.981(c)), and additional changes concentrations, into the ullage space of percent of the FEET was adequate and regarding prevention of ignition sources fuel tanks and displaces the normal fuel that if the same level could be achieved in fuel tanks. Section 25.981(c) was vapor/air mixture in the tank. in center wing fuel tanks, the overall based on the FTHWG recommendation Use of the hollow fiber technology safety objective would be achieved. The to achieve a safety level equivalent to allowed nitrogen to be separated from thermal analyses documented in the that achieved by the fleet of transports air, which eliminated the need to carry report revealed that center wing fuel with unheated aluminum wing tanks, and store the nitrogen in the airplane. tanks that are heated by air conditioning between 2 to 4 percent flammability. Researchers were aware of the earlier equipment located beneath them The FAA stated in the preamble to system’s shortcomings in the areas of contain flammable vapors, on a fleet Amendment 25–102 that the intent of weight, reliability, cost, and average basis, in the range of 15 to 30 the rule was to— performance. Recent advances in the technology have resolved those percent of the fleet operating time. * * * require that practical means, such as During the ARAC review, it was also transferring heat from the fuel tank (e.g., use concerns and eliminated the need for determined that certain airplane types of ventilation or cooling air), be incorporated storing nitrogen on board the airplane. do not locate heat sources adjacent to into the airplane design if heat sources were Criteria for Inerting the fuel tanks and have significant placed in or near the fuel tanks that surface areas that allow cooling of the significantly increased the formation of Earlier fuel tank inerting designs fuel tank by outside air. These airplanes flammable fuel vapors in the tank, or if the produced for military applications were provide significantly reduced tank is located in an area of the airplane based on defining ‘‘inert’’ as a maximum flammability exposure, near the 2 to 4 where little or no cooling occurs. The intent oxygen concentration of 9 percent. This of the rule is to require that fuel tanks are not value was established by the military for percent value of the wing tanks. The heated, and cool at a rate equivalent to that group therefore determined that it of a wing tank in the transport airplane being protection of fuel tanks from battle would be feasible to design new evaluated. This may require incorporating damage. One major finding from the airplanes such that airplane operation design features to reduce flammability, for FAA’s research and development efforts with fuel tanks that were in the example cooling and ventilation means or was the determination that the 9 percent flammable range would be limited to inerting for fuel tanks located in the center maximum oxygen concentration level nearly that of the wing fuel tanks. wing box, horizontal stabilizer, or auxiliary benchmark, established to protect Findings from the ARAC report fuel tanks located in the cargo compartment. military airplanes from high-energy indicated that the primary method of Advisory circulars associated with ignition sources encountered in battle, compliance available at that time with Amendment 25–102 include AC was significantly lower than that needed the requirement proposed by the ARAC 25.981–1B, ‘‘Fuel Tank Ignition Source to inert civilian transport airplane fuel would likely be to control heat transfer Prevention Guidelines,’’ and AC tanks from ignition sources resulting into and out of fuel tanks. Design 25.981–2, ‘‘Fuel Tank Flammability from airplane system failures and features such as locating the air Minimization.’’ Like all advisory malfunctions that have much lower conditioning equipment away from the material, these advisory circulars energy. This FAA research established a fuel tanks, providing ventilation of the describe an acceptable means, but not maximum value of 12 percent as being air conditioning bay to limit heating and the only means, for demonstrating adequate at sea level. The test results are to cool fuel tanks, and/or insulating the compliance with the regulations. currently available on FAA web site: tanks from heat sources, would be http://www.fire.tc.faa.gov/pdf/tn02– FAA Research practical means of complying with the 79.pdf as FAA Technical Note ‘‘Limiting regulation proposed by the ARAC. In addition to the notice published in Oxygen Concentrations Required to In addition to its recommendation to the Federal Register on April 3, 1997, Inert Jet Fuel Vapors Existing at revise § 25.981, the ARAC also the FAA initiated research to provide a Reduced Fuel Tank Pressures,’’ report recommended that the FAA continue to better understanding of the ignition number DOT/FAA/AR–TN02/79. As a evaluate means for minimizing the process of commercial aviation fuel result of this research, the quantity of development of flammable vapors vapors and to explore new concepts for NEA that is needed to inert commercial within the fuel tanks to determine reducing or eliminating the presence of airplane fuel tanks was lessened so that whether other alternatives, such as flammable fuel air mixtures within fuel an effective FRM can now be smaller ground-based inerting of fuel tanks, tanks. and less complex than was originally assumed. The 12 percent value is based could be shown to be cost effective. Fuel Tank Inerting To address the ARAC on the limited energy sources associated recommendations, the FAA continued In the public comments received in with an electrical arc that could be with research and development activity response to the 1997 notice, reference generated by airplane system failures on to determine the feasibility of requiring was made to hollow fiber membrane typical transport airplanes and does not inerting for both new and existing technology that had been developed and include events such as explosives or designs. was in use in other applications, such hostile fire. as the medical community, to separate As previously discussed, existing fuel FAA Rulemaking Activity oxygen from nitrogen in air. Air is made tank system requirements (contained in Based in part on the ARAC up of about 78 percent nitrogen and 21 earlier Civil Air Regulation (CAR) 4b recommendations to limit fuel tank percent oxygen, and the hollow fiber and now in 14 Code of Federal flammability exposure on new type membrane material uses the absorption Regulations (CFR) part 25) have focused designs, the FAA developed and difference between the nitrogen and solely on prevention of ignition sources. published Amendment 25–102 in the oxygen molecules to separate the NEA The FRM is intended to add an Federal Register on May 7, 2001 (66 FR from the oxygen. In airplane additional layer of safety by reducing 23085). The amendment included applications NEA is produced when the exposure to flammable vapors in the changes to § 25.981 that require pressurized air from an airplane source heated center wing tank, not necessarily minimization of fuel tank flammability such as the engines is forced through eliminating them under all operating to address both reduction in the time the hollow fibers. The NEA is then conditions. Consequently, ignition fuel tanks contain flammable vapors, directed, at appropriate nitrogen prevention measures will still be the
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principal layer of defense in fuel system Boeing Model 737–200/200C/300/400/ converter and then through a heat safety, now augmented by substantially 500/600/700/700C/800/900 series exchanger, where it is cooled using reducing the time that flammable vapors airplanes because of a novel or unusual outside cooling air. The cooled air flows are present in higher flammability tanks. design feature, special conditions are through a filter into an air separation We expect that by combining these two prescribed under the provisions of module (ASM) that generates NEA, approaches, particularly for tanks with § 21.16. which is supplied to the center fuel high flammability exposure, such as the In addition to the applicable tank. Oxygen-enriched air (OEA) that is heated center wing tank or tanks with airworthiness regulations and special generated in this process is dumped limited cooling, risks for future fuel tank conditions, the Model 737–200/200C/ overboard. The FRM also includes explosions can be substantially reduced. 300/400/500/600/700/700C/800/900 modifications to the fuel tank vent series airplanes must comply with the system to minimize dilution of the Boeing Application for Certification of fuel vent and exhaust emission nitrogen-enriched ullage in the center a Fuel Tank Inerting System requirements of 14 CFR part 34 and the tank due to cross-venting characteristics On September 23, 2005 (737 Classics) acoustical change requirements of of the existing center wing fuel tank and December 2, 2005 (737 NG), Boeing § 21.93(b). vent design. Commercial Airplanes applied for a Special conditions, as defined in Boeing has proposed that limited change to Type Certificate A16WE to § 11.19, are issued in accordance with dispatch relief for operation with an modify Model 737–200/200C/300/400/ § 11.38 and become part of the type inoperative NGS be allowed. Boeing has 500/600/700/700C/800/900 series certification basis in accordance with initially proposed a 10-day Master airplanes to incorporate a new FRM that § 21.101. Minimum Equipment List (MMEL) relief inerts the center fuel tanks with NEA. Special conditions are initially for the system. Boeing has stated that to These airplanes, approved under Type applicable to the model for which they meet operator needs and system Certificate No. A16WE, are two-engine are issued. Should the type certificate reliability and availability objectives, transport airplanes with a passenger for that model be amended later to built-in test functions would be capacity up to 189, depending on the include any other model that included and system status indication of submodel. These airplanes have an incorporates the same or similar novel some kind would be provided. In approximate maximum gross weight of or unusual design feature, or should any addition, indications would be provided 174,700 pounds with an operating range other model already included on the in the cockpit on certain airplane up to 3,380 miles. same type certificate be modified to models that have engine indicating and incorporate the same or similar novel or Type Certification Basis crew alerting systems. The reliability of unusual design feature, these special the system is expected to be designed to Under the provisions of § 21.101, conditions would also apply to the other achieve a mean time between failure Boeing Commercial Airplanes must model under the provisions of § 21.101. (MTBF) of 5000 hours or better. show that the Model 737–200/200C/ 300/400/500/600/700/700C/800/900 Novel or Unusual Design Features Discussion series airplanes, as changed, continue to Boeing has applied for approval of an The FAA policy for establishing the meet the applicable provisions of the FRM to minimize the development of type design approval basis of the FRM regulations incorporated by reference in flammable vapors in the center fuel design will result in application of Type Certificate No. A16WE, or the tanks of Model 737–200/200C/300/400/ §§ 25.981(a) and (b), Amendment 25– applicable regulations in effect on the 500/600/700/700C/800/900 series 102, for the changes to the airplane that date of application for the change. The airplanes. Boeing also plans to seek might increase the risk of ignition of regulations incorporated by reference in approval of this system on Boeing fuel vapors. Boeing will therefore be the type certificate are commonly Model 757, 767, and 777 airplanes. required to substantiate that changes referred to as the ‘‘original type Boeing has proposed to voluntarily introduced by the FRM will meet the certification basis.’’ The regulations comply with § 25.981(c), Amendment ignition prevention requirements of incorporated by reference in Type 25–102, which is normally only §§ 25.981(a) and (b), Amendment 25– Certificate A16WE include 14 CFR part applicable to new type designs or type 102 and other applicable regulations. 25, dated February 1, 1965, as amended design changes affecting fuel tank With respect to compliance with by Amendments 25–1 through 25–94, flammability. The provisions of § 21.101 § 25.981(c), AC 25.981–2 provides except for special conditions and require Boeing to also comply with guidance in addressing minimization of exceptions noted in Type Certificate §§ 25.981(a) and (b), Amendment 25– fuel tank flammability within a heated Data Sheet A16WE. 102, for the changed aspects of the fuel tank, but there are no specific In addition, if the regulations airplane by showing that the FRM does regulations that address the design and incorporated by reference do not not introduce any additional potential installation of an FRM that inerts the provide adequate standards with respect sources of ignition into the fuel tanks. fuel tank. These special conditions to the change, the applicant must The FRM uses a nitrogen generation include additional requirements above comply with certain regulations in effect system (NGS) that comprises a bleed-air that of Amendment 25–102 to on the date of application for the shutoff valve, ozone converter, heat § 25.981(c) to minimize fuel tank change. The FAA has determined that exchanger, air conditioning pack air flammability, such that the level of the FRM installation on the Boeing cooling flow shutoff valve, filter, air minimization in these special Model 737–200/200C/300/400/500/600/ separation module, temperature conditions would prevent a fuel tank 700/700C/800/900 series airplanes must regulating valve controller and sensor, with an FRM from being flammable also be shown to comply with high-flow descent control valve, float during specific warm day operating § 25.981(a) and (b) at Amendment 25– valve, and system ducting. The system conditions, such as those present when 102. is located in the air conditioning pack recent accidents occurred. If the Administrator finds that the bay below the center wing fuel tank. applicable airworthiness regulations (14 Engine bleed air from the existing Definition of ‘‘Inert’’ CFR part 25) do not contain adequate or engine pneumatic bleed source flows For the purpose of these special appropriate safety standards for the through a control valve into an ozone conditions, the tank is considered inert
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when the oxygen concentration within The results of changing these variables criteria in the model are based on the each compartment of the tank is 12 for a large number of flights can then be assumption that as these variables percent or less at sea level up to 10,000 used to approximate the results of the change, the concentration of vapors in feet, then linearly increasing from 12 real world exposure of a large fleet of the tank instantaneously stabilizes and percent at 10,000 feet to 14.5 percent at airplanes. that the fuel tank is at a uniform 40,000 feet and extrapolated linearly Factors that are considered in the temperature. This model does not above that altitude. The reference to Monte Carlo analysis required by these include consideration of the time lag for each section of the tank is necessary special conditions include those the vapor concentration to reach because fuel tanks that are affecting all airplane models in the equilibrium, the condensation of fuel compartmentalized may encounter transport airplane fleet such as: a vapors from differences in temperature localized oxygen concentrations in one statistical distribution of ground, that occur in the fuel tanks, or the effect or more compartments that exceed the overnight, and cruise air temperatures of mass loading (times when the fuel 12 percent value. Currently there is not likely to be experienced worldwide, a tank is at the unusable fuel level and adequate data available to establish statistical distribution of likely fuel there is insufficient fuel at a given whether exceeding the 12 percent limit types, and properties of those fuels, and temperature to form flammable vapors). in one compartment of a fuel tank could a definition of the conditions when the However, fresh air drawn into an create a hazard. For example, ignition of tank in question will be considered otherwise inert tank during descent vapors in one compartment could result flammable. The analysis also includes does not immediately saturate with fuel in a flame front within the compartment factors affecting specific airplane vapors so localized concentrations that travels to adjacent compartments models such as climb and descent above the inert level during descent do and results in an ignition source that profiles, fuel management, heat transfer not represent a hazardous condition. exceeds the ignition energy (the characteristics of the fuel tanks, These special conditions allow the time minimum amount of energy required to statistical distribution of flight lengths during descent, where a localized ignite fuel vapors) values used to (mission durations) expected for the amount of fresh air may enter a fuel establish the 12 percent limit. Therefore, airplane model worldwide, etc. To tank, to be excluded from the ignition in other compartments of the quantify the fleet exposure, the Monte determination of fuel tank flammability tank may be possible. Technical Carlo analysis approach is applied to a exposure. discussions with the applicant indicate statistically significant number Definition of Transport Effects the pressure rise in a fuel tank that was (1,000,000) of flights where each of the at or near the 12 percent oxygen factors described above is randomly The effects of low fuel conditions concentration level would likely be well selected. The flights are then selected to (mass loading) and the effects of fuel below the value that would rupture a be representative of the fleet using the vaporization and condensation with typical transport airplane fuel tank. defined distributions of the factors time and temperature changes, referred While this may be possible to show, it described previously. For example, to as ‘‘transport effects’’ in these special is not within the scope of these special flight one may be a short mission on a conditions, are excluded from conditions. Therefore, the effect of the cold day with an average flash point consideration in the Monte Carlo model definition of ‘‘inert’’ within these fuel, and flight two may be a long used for demonstrating compliance with special conditions is that the average mission on an average day with a low these special conditions. These effects oxygen concentration of each individual flash point fuel, and on and on until have been excluded because they were compartment or bay of the tank must be 1,000,000 flights have been defined in not considered in the original ARAC evaluated and shown to meet the this manner. For every one of the analysis, which was based on a relative oxygen concentration limits specified in 1,000,000 flights, the time that the fuel measure of flammability. For example, the definitions section of these special temperature is above the flash point of the 3 percent flammability value conditions (12 percent or less at sea the fuel, and the tank is not inert, is established by the ARAC as the level) to be considered inert. calculated and used to establish if the benchmark for fuel tank safety for wing fuel tank is flammable. Averaging the fuel tanks did not include the effects of Determining Flammability results for all 1,000,000 flights provides cooling of the wing tank surfaces and The methodology for determining fuel an average percentage of the flight time the associated condensation of vapors tank flammability defined for use in that any particular flight is considered from the tank ullage. If this effect had these special conditions is based on that to be flammable. While these special been included in the wing tank used by ARAC to compare the conditions do not require that the flammability calculation, it would have flammability of unheated aluminum analysis be conducted for 1,000,000 resulted in a significantly lower wing wing fuel tanks to that of tanks that are flights, the accuracy of the Monte Carlo tank flammability benchmark value. The heated by adjacent equipment. The analysis improves as the number of ARAC analysis also did not consider the ARAC evaluated the relative flights increases. Therefore, to account effects of mass loading which would flammability of airplane fuel tanks using for this improved accuracy, Appendix 2 significantly lower the calculated a statistical analysis commonly referred of these special conditions defines flammability value for fuel tanks that to as a ‘‘Monte Carlo’’ analysis that lower flammability limits if the are routinely emptied (e.g., center wing considered a number of factors affecting applicant chooses to use fewer than tanks). The FAA and European Aviation formation of flammable vapors in the 1,000,000 flights. Safety Agency (EASA) have determined fuel tanks. The Monte Carlo analysis The determination of whether the fuel that using the ARAC methodology calculates values for the parameter of tank is flammable is based on the provides a suitable basis for determining interest by randomly selecting values for temperature of the fuel in the tank the adequacy of an FRM system. each of the uncertain variables from determined from the tank thermal The effect of condensation and distribution tables. This calculation is model, the atmospheric pressure in the vaporization in reducing the conducted over and over to simulate a fuel tank, and properties of the fuel flammability exposure of wing tanks is process where the variables are quantity loaded for a given flight, which comparable to the effect of the low fuel randomly selected from defined is randomly selected from a database condition in reducing the flammability distributions for each of the variables. consisting of worldwide data. The exposure of center tanks. We therefore
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consider these effects to be offsetting, so • The time when the FRM is working maintenance review of indications, that by eliminating their consideration, properly but fails to inert the tank or reading of stored maintenance messages the analysis will produce results for part of the tank, because of mission or functional checks (possibly prior to both types of tanks that are comparable. variation or other effects; the first flight of the day) to meet the Using this approach, it is possible to • The time the FRM is not reliability levels defined in these special follow the ARAC recommendation of functioning properly and the operator is conditions. The determination of a using the unheated aluminum wing tank unaware of the failure; and proper interval and procedure will as the standard for evaluating the • The time the FRM is not follow completion of the certification flammability exposure of all other tanks. functioning properly and the operator is testing and demonstration of the For this reason, both factors have been aware of the failure and is operating the system’s reliability and performance excluded when establishing the airplane for a limited time under MEL prior to certification. flammability exposure limits. During relief. Any features or maintenance actions development of these harmonized The applicant may propose that needed to achieve the minimum special conditions, the FAA and EASA MMEL relief is provided for aircraft reliability of the FRM will result in fuel agreed that using the ARAC operation with the FRM unavailable; system airworthiness limitations similar however, since the intent of methodology provides a suitable basis to those defined in § 25.981(b). Boeing § 25.981(c)(1) is to minimize for determining the flammability of a will be required to include in the flammability, the FRM system should be fuel tank and consideration of transport instructions for continued airworthiness operational to the maximum extent effects should not be permitted. (ICA) the replacement times, inspection practical. Therefore, these special intervals, inspection procedures, and Flammability Limit conditions include reliability and the fuel system limitations required by reporting requirements to enhance The FAA, in conjunction with EASA § 25.981(b). Overall system performance system reliability so that dispatch of and Transport Canada, has developed and reliability must achieve a fleet airplanes with the FRM inoperative criteria within these special conditions average flammability that meets the would be very infrequent. Cockpit that require overall fuel tank indication of the system function that is requirements of these special flammability to be limited to 3 percent accessible to the flightcrew is not an conditions. If the system reliability falls of the fleet average operating time. This explicit requirement, but may be to a point where the fleet average overall average flammability limit required if the results of the Monte flammability exposure exceeds these consists of times when the system Carlo analysis show the system cannot requirements, Boeing will be required to performance cannot maintain an inert otherwise meet the flammability and define appropriate corrective actions, to tank ullage, primarily during descent reliability requirements defined in these be approved by the FAA, that will bring when the change in ambient pressures special conditions. Flight test the exposure back down to the draws air into the fuel tanks, and those demonstration and analysis will be acceptable level. times when the FRM is inoperative due required to demonstrate that the Boeing proposed that the FRM be to failures of the system and the performance of the inerting system is eligible for a 10-day MMEL dispatch airplane is dispatched with the system effective in inerting the tank during interval. The Flight Operations inoperative. those portions of ground and the flight Evaluation Board (FOEB) will establish Specific Risk Flammability Limit operations where inerting is needed to the approved interval based on data the meet the flammability requirements of applicant submits to the FAA. The These special conditions also include these special conditions. MMEL dispatch interval is one of the a requirement to limit fuel tank Various means may be used to ensure factors affecting system reliability flammability to 3 percent during ground system reliability and performance. analyses that must be considered early operations, and climb phases of flight to These may include system integrity in the design of the FRM, prior to FAA address the specific risk associated with monitoring and indication, redundancy approval of the MMEL. Boeing operation during warmer day conditions of components, and maintenance requested that the authorities agree to when accidents have occurred. The actions. A combination of maintenance use of an MMEL inoperative dispatch specific risk requirement is intended to indication and/or maintenance check interval for design of the system. Boeing establish minimum system performance procedures will be required to limit data indicate that certain systems on the levels and therefore the 3 percent exposure to latent failures within the airplane are routinely repaired prior to flammability limit excludes reliability system, or high inherent reliability is the maximum allowable interval. These related contributions, which are needed to assure the system will meet special conditions require that Boeing addressed in the average flammability the fuel tank flammability requirements. use an MMEL inoperative dispatch assessment. The specific risk The applicant’s inerting system does not interval of 60 hours in the analysis as requirement may be met by conducting incorporate redundant features and representative of the mean time for a separate Monte Carlo analysis for each includes a number of components which an inoperative condition may of the specific phases of flight during essential for proper system operation. occur for the 10-day MMEL maximum warmer day conditions defined in these Past experience has shown inherent interval requested. Boeing must also special conditions, without including reliability of this type of system would include actual dispatch inoperative the times when the FRM is not available be difficult to achieve. Therefore, if interval data in the quarterly reports because of failures of the system or system maintenance indication is not required by Special Condition III(c)(2). dispatch with the FRM inoperative. provided for features of the system Boeing may request to use an alternative Inerting System Indications essential for proper system operation, interval in the reliability analysis. Use system functional checks at appropriate of a value less than 60 hours would be Fleet average flammability exposure intervals determined by the reliability a factor considered by the FOEB in involves several elements, including— analysis will be required for these establishing the maximum MMEL • The time the FRM is working features. Validation of proper function dispatch limit. The reporting properly and inerts the tank or when the of essential features of the system would requirement will provide data necessary tank is not flammable; likely be required once per day by to validate that the reliability of the
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FRM achieved in service meets the OSHA). Fuel tanks are classified as inerted tanks via plumbing. The levels used in the analysis. confined spaces and contain high plumbing includes, but is not limited to, Appropriate maintenance and concentrations of fuel vapors that must plumbing for the vent system, fuel feed operational limitations with the FRM be exhausted from the fuel tank before system, refuel system, transfer system inoperative may also be required and entry. Other precautions such as and cross-feed system. NEA could enter noted in the MMEL. The MMEL measurement of the oxygen adjacent fuel tanks via structural leaks. limitations and any operational concentrations before entering a fuel It could also enter other fuel tanks procedures should be established based tank are already required. Addition of through plumbing if valves are operated on results of the Monte Carlo analysis, the FRM that utilizes inerting may result or fail in the open position. The including the results associated with in reduced oxygen concentrations due markings should also be stenciled on operations in warmer climates where to leakage of the system in locations in the external upper and lower surfaces of the fuel tanks are flammable a the airplane where service personnel the inerted tank adjacent to any significant portion of the FEET when would not expect it. A worker is openings to ensure maintenance not inert. While the system reliability considered to have entered a confined personnel understand the possible analysis may show that it is possible to space just by putting his or her head contents of the fuel tank. Advisory achieve an overall average fleet across the plane of the opening. If the Circular 25.981–2 provides additional exposure equal to or less than that of a confined space contains high guidance regarding markings and typical unheated aluminum wing tank, concentrations of inert gases, workers placards. even with an MMEL allowing very long who are simply working near the inoperative intervals, the intent of the opening may be at risk. Any hazards Effect of FRM on Auxiliary Fuel Tank rule is to minimize flammability. associated with working in adjacent System Supplemental Type Certificates Therefore, the shortest practical MMEL spaces near the opening should be relief interval should be proposed. To identified in the marking of the opening Boeing plans to offer a service bulletin ensure limited airplane operation with to the confined space. A large that will describe installation of the the system inoperative and to meet the percentage of the work involved in FRM on existing in-service airplanes. reliability requirements of these special properly inspecting and modifying Some in-service airplanes have auxiliary conditions, appropriate level messages airplane fuel tanks and their associated fuel tank systems installed that interface that are needed to comply with any systems must be done in the interior of with the center wing tank. The Boeing dispatch limitations of the MMEL must the tanks. Performing the necessary FRM design is intended to provide be provided. tasks requires inspection and inerting of the center wing fuel tank volume of the 737 and does not include Confined Space Hazard Markings maintenance personnel to physically enter the tank, where many consideration of the auxiliary tank Introduction of the FRM will result in environmental hazards exist. These installations. Installation of the FRM on NEA within the center wing fuel tank potential hazards that exist in any fuel existing airplanes with auxiliary fuel and the possibility of NEA in tank, regardless of whether nitrogen tank systems may therefore require compartments adjacent to the fuel tank inerting has been installed, include fire additional modifications to the auxiliary if leakage from the tank or NEA supply and explosion, toxic and irritating fuel tank system to prevent lines were to occur. Lack of oxygen in chemicals, oxygen deficiency, and the development of a condition that may these areas could be hazardous to confined nature of the fuel tank itself. In cause the tank to exceed the 12 percent maintenance personnel, the passengers, order to prevent related injuries, oxygen limit. The FAA will address or flightcrew. Existing certification operator and repair station maintenance these issues during development and requirements do not address all aspects organizations have developed specific approval of the service bulletin for the of these hazards. Paragraph II(f) of these procedures for identifying, controlling, FRM. special conditions requires the or eliminating the hazards associated applicant to provide markings to with fuel-tank entry. In addition Disposal of Oxygen-Enriched Air (OEA) emphasize the potential hazards government agencies have adopted The FRM produces both NEA and associated with confined spaces and safety requirements for use when areas where a hazardous atmosphere OEA. The OEA generated by the FRM entering fuel tanks and other confined could result in an increased fire hazard could be present due to the addition of spaces. These same procedures would an FRM. if not disposed of properly. The OEA be applied to the reduced oxygen produced by the ASM is ducted and For the purposes of these special environment likely to be present in an conditions, a confined space is an dumped overboard. Special inerted fuel tank. requirements are included in these enclosed or partially enclosed area that The designs currently under special conditions to address potential is big enough for a worker to enter and consideration locate the FRM in the leakage of OEA due to failures and safe perform assigned work and has limited fairing below the center wing fuel tank. disposal of the OEA during normal or restricted means for entry or exit. It Access to these areas is obtained by operation. is not designed for someone to work in opening doors or removing panels regularly, but workers may need to enter which could allow some ventilation of To ensure that an acceptable level of the confined space for tasks such as the spaces adjacent to the FRM. But this safety is achieved for the modified inspection, cleaning, maintenance, and may not be enough to avoid creating a airplanes using a system that inerts repair. (Reference U.S. Department of hazard. Therefore, we intend that heated fuel tanks with NEA, these Labor Occupational Safety & Health marking be provided to warn service special conditions (per § 21.16) are Administration (OSHA), 29 CFR personnel of possible hazards associated needed to address the unusual design 1910.146(b).) The requirement in these with the reduced oxygen concentrations features of an FRM. These special special conditions does not significantly in the areas adjacent to the FRM. conditions contain the additional safety change the procedures maintenance Appropriate markings would be standards that the Administrator personnel use to enter fuel tanks and are required for all inerted fuel tanks, tanks considers necessary to establish a level not intended to conflict with existing adjacent to inerted fuel tanks and all of safety equivalent to that established government agency requirements (e.g., fuel tanks communicating with the by the existing airworthiness standards.
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Discussion of Comments ignition testing at various oxygen special conditions. We agree that daily Notice of Proposed Special contents and review of other test data, maintenance checks could be Conditions No. 25–05–06–SC for the such as Navy live gunfire tests using 30 burdensome to operators of the affected Boeing Model 737–200/200C/300/400/ mm incendiary ammunition. These data airplanes. The preamble discussion was 500/600/700/700C/800/900 series are provided in Naval Weapons Center not intended to mandate daily checks by airplanes was published in the Federal document NWC TP 7129, ‘‘The maintenance personnel. However, in Register on June 15, 2005 (70 FR 34702). Effectiveness of Ullage Nitrogen-Inerting order to comply with the special Systems Against 30 mm High-Explosive conditions, the applicant must Five commenters responded to the Incendiary Projectiles,’’ dated May demonstrate that the FRM meets notice. 1991, that is available in the docket file specific performance and reliability General Comments for these special conditions. These data requirements. Various design methods Comment: The commenter disagrees show that 12 percent oxygen to ensure the reliability and with the premise in the proposed concentration will prevent a fuel tank performance is provided may include a special conditions that wing fuel tanks explosion for airplane system failure combination of system integrity offer an acceptable minimum level of and malfunction-generated ignition monitoring and indication, redundancy flammability exposure and is therefore sources. No changes were made as a of components, and maintenance concerned about using this minimum result of this comment. actions. The need for system functional checks and the interval between the level for development of inerting Novel or Unusual Design Features systems. The commenter believes that checks will be established based on the Comment: The commenter requests level of ‘‘system maintenance indication the flammability exposure in the fuel that the sentence ‘‘The OEA from the provided for features of the system tanks should be reduced to the lowest ASM is mixed with cooling air from the essential for proper system operation’’ level technically feasible. heat exchanger to dilute the oxygen and the reliability of the system. If FAA Reply: We do not concur. These concentration and then exhausted continual system monitoring is special conditions address fuel tank overboard’’ be deleted. The commenter provided or features of the system have flammability for Boeing Model 737 states this does not apply to the 737 high inherent reliability, daily checks airplanes currently in service. Although FRM design. would not be needed to meet the technical advancements have made it FAA Reply: We concur in part with reliability requirements in these special practical to incorporate FRM into the commenter. We have removed this conditions. As we stated in the existing airplanes, it is not practical at sentence from the second to the last preamble, the determination of a proper this time to reduce fuel tank paragraph under this section in the final interval and procedure will follow flammability exposure below the levels special conditions but have modified completion of the certification testing identified in these special conditions the previous sentence to state ‘‘The and demonstration of the system’s because airplane systems needed to cooled air flows through a filter into an reliability and performance prior to support the current technology that air separation module (ASM) that certification. The time interval between utilizes inerting were not sized to generates NEA, which is supplied to the system health checks and maintenance provide an optimized pressurized air center fuel tank. Oxygen-enriched air will be established by the reliability source. Compliance with the average (OEA) which is generated in this analysis, any airworthiness limitations, fuel tank flammability requirement and process is dumped overboard.’’ We have and the FOEB. No changes were made the warm day requirement in these also modified the sentence regarding as a result of this comment. special conditions results in a how OEA will be disposed, under the Comment: The commenter states that significant reduction in fuel tank Disposal of Oxygen-Enriched Air (OEA) these special conditions propose that flammability, to a level below that of an section, to state ‘‘The OEA produced by the MMEL permit operation with an unheated aluminum wing fuel tank, and the ASM is ducted and dumped inoperative flammability reduction improved airplane safety. No changes overboard’’ to be consistent with how system (FRS) for up to 10 days/60 flight were made as a result of this comment. the system has been designed. hours. The commenter agrees that the Comment: The commenter requests system should be operational to the Inerting System Indications that the long-term goal for the definition maximum extent practical and of ‘‘inert’’ at sea level be established as Comment: The commenter requests therefore, as stated in the preamble, ‘‘the 9 percent oxygen concentration. The that alternative options to daily shortest practical MMEL relief interval commenter believes that the 12 percent maintenance checks of the FRM system should be proposed.’’ The commenter value used in the definition of ‘‘inert’’ be provided in the instructions for believes that 10 days is an excessive in the proposed special conditions, continued airworthiness for operators MMEL relief interval for the FRS and should be considered as a ‘‘level of that would have difficulty in meeting a states that a 3-day interval, such as reduced flammability.’’ The commenter daily maintenance requirement. The adopted for other inoperative safety states that past research conducted to commenter states that a daily systems such as flight data recorders, support development of military aircraft maintenance check of the FRM system would be a more appropriate interval. inerting systems has shown that fuel does not fit into their current FAA Reply: We do not concur with vapors are combustible at 12 percent maintenance programs and would be a the commenter regarding setting a oxygen concentration. These military burden to their operation. The preamble specific MMEL interval in the special systems, designed to protect against to the proposed special conditions states conditions. The applicant has proposed high-energy (intentional) ignition that ‘‘if system maintenance indication a 10-day MMEL relief period, but the threats, have established 9 percent as an is not provided for features of the FOEB will determine and approve the acceptable oxygen concentration to system essential for proper system appropriate MMEL intervals based on prevent ignition. operation, system functional checks will data the applicant submits to the FAA. FAA Reply: We do not concur. The be required for these features.’’ The applicant must show that the fleet special condition requirement of 12 FAA Reply: We recognize the concern average flammability exposure of a tank percent maximum oxygen concentration stated by the commenter and provide with an FRM installed is equal to or less at sea level is based on FAA fuel vapor clarification of the intent of these than 3 percent, including any time
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when the system is inoperative. Setting The FRS [flammability reduction system] auxiliary fuel tank installation from a prescriptive limit on the MMEL shall be subject to analysis using increasing the flammability exposure in interval such as 3 days would not allow conventional processes and methodology to the center wing fuel tank above that the designer to use the more objective ensure that the minimum scheduled required under paragraphs II(a)(1), maintenance tasks required for securing the performance based criteria that are continuing airworthiness of the system and II(a)(2), and II(b) or degrading the currently in these special conditions. No installation are identified and published as performance or reliability of the FRM. changes were made as a result of this part of the CS 25.1529 compliance. No changes have been made as a comment. Maintenance tasks arising from either the result of this comment. Monte Carlo analysis or a CS 25.1309 safety Special Conditions Comment: This commenter requests assessment shall be dealt with in accordance that the FAA revise paragraphs III(c) I. Definitions with the principles laid down in FAA AC 25.19. The applicant shall prepare a and III(c)(1) in the final 737 FRM Comment: The commenter requests validation program for the associated Special Conditions to align with the ‘‘bulk average’’ be removed from the continuing airworthiness maintenance tasks, EASA 747 FRM Special Condition definition of inert. The commenter fault finding procedures, and maintenance RP747–E–01 requirement for In-Service requests this change in order that the procedures. monitoring which states ‘‘Following FAA and EASA FRM special conditions The commenter agrees that conventional introduction to service the applicant for the Boeing 737 series airplanes procedures should be used to identify must introduce an event monitoring remain harmonized. necessary maintenance tasks. The FAA program, accruing data from a FAA Reply: We concur with the wording implies that limitations must reasonably representative sample of commenter. We have modified the be identified for all maintenance tasks, global operations, to ensure that the definition to read as follows: whereas detailed development of the implications of component failures Inert. For the purpose of these special Model 747 FRM maintenance affecting the FRS are adequately conditions, the tank is considered inert procedures has identified that this is not assessed on an on-going basis.’’ The In- when the oxygen concentration within appropriate for some tasks (i.e., the service monitoring requirement each compartment of the tank is 12 daily inspection of status messages on proposed for the EASA 737 FRM percent or less at sea level up to 10,000 the Engine Indication and Crew Alerting Special Condition is the same. The feet, then linearly increasing from 12 System (EICAS)). Airworthiness commenter states that the sampling percent at 10,000 feet to 14.5 percent at limitations in the form of maintenance approach in the EASA requirement will 40,000 feet and extrapolated linearly tasks, inspections, or Critical Design be sufficient to verify whether the FRM above that altitude. Configuration Control Limitations is operating within the expected failure II. System Performance and Reliability (CDCCL) were defined by SFAR 88 to rates, or if changes are necessary to improve reliability. Requirements Comment: The commenter would like address unsafe conditions resulting harmonized with EASA will facilitate to know why the takeoff phase of flight from ignition source risks. The proposed consistent requirements for all was not included in the warm day FRM is intended as an additional layer manufacturers and operators. requirements in paragraphs II(b) and of safety above ignition source II(b)(2). The commenter states the 747 prevention measures. The FRM will be FAA Reply: We do not concur with FRM Special Conditions 25–285–SC allowed to be inoperative and on the changing the special conditions. The included this phase. Minimum Equipment List (MEL). reporting requirements defined in these FAA Reply: Although the takeoff Therefore, no feature of the FRM affects special conditions allow the design phase of flight is not specifically called the airworthiness of the airplane. approval holder (DAH) the latitude to out in these special conditions, it FAA Reply: We agree in part regarding develop a reporting system for approval remains one portion of the flight that the comment that Airworthiness by the authorities based on data must be included in the warm day Limitations, in the form of maintenance obtained through business agreements requirements. We changed paragraph tasks, inspections, or CDCCLs were with certain operators. Since the special II(b)(2) to define the climb portion of the defined by SFAR 88 to address unsafe conditions do not require data be flight to include the short time interval conditions resulting from ignition collected from all operators and allows of takeoff. The ground phase of source risks and that the FRM is seen as the DAH to propose a reporting system operation is differentiated from the an additional layer of protection to the that does not require data from all climb phase (that includes takeoff) by ignition source prevention measures. operators, the requirements already aircraft rotation. This was done to However, the performance and allow for sampling to some degree. simplify the flammability analysis by reliability of the FRM, are critical to Since the FRS may only be installed on eliminating the need to conduct a providing that additional layer of safety a relatively small number of airplanes separate warm day flammability for the center wing tank and as such, operated in distinct portions of the analysis for the takeoff phase of flight. there must be limitations established to globe, it may not be possible to provide No changes were made as a result of this ensure that maintenance actions and data for ‘‘reasonably representative comment. installations of auxiliary fuel tanks do sample of global operations’’ as stated in not increase the overall fleet average the EASA proposed special conditions. III. Maintenance flammability exposures above that No changes were made as a result of this Comment: The commenter requests permitted by these special conditions. comment. that the requirements in paragraphs Airworthiness Limitations for the FRM Appendix 1: Monte Carlo Analysis III(a) and III(b) of the FAA 737 FRM system are only required for: Special Conditions be revised to align (1) those FRM components that, if Comment: The commenter requests with the following maintenance failed, would affect the performance that the phrase ‘‘fleet average requirement in the EASA 747 FRM and/or reliability of the FRM system as flammability exposure’’ be changed to Special Condition RP747–E–01 (the dictated by the requirements in ‘‘fleet average or warm day flammability maintenance requirement proposed for paragraphs II(a) and (b); and exposure’’ in paragraph (c) of Appendix the EASA 737 FRM Special Conditions (2) any critical features of a fuel tank 1. The commenter requests this change is identical): system needed in order to prevent an be made in order that the FAA and
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EASA 737 FRM special requirements FAA Reply: The requirements of these other model already included on the remain harmonized. special conditions apply to specific same type certificate be modified to FAA Reply: We concur with the airplane models as shown in the incorporate the same or similar novel or commenter. We intend that paragraph applicability section of these final unusual design feature, the special (c) of Appendix 1 require that, in special conditions. Version 6A of the conditions would also apply to the other addition to submitting the Monte Carlo Monte Carlo has been identified in the model under the provisions of § 21.101. Model 747 special conditions as the analysis, the applicant must also Conclusion identify any assumed variation in the acceptable means of showing the parameters used in the analysis that flammability exposure meets the This action affects only certain novel affect either the fleet average or the requirements of those special or unusual design features on Boeing warm day flammability exposure. The conditions. We do not expect that the Model 737–200/200C/300/400/500/600/ requested change is consistent with our applicant would be required to use a 700/700C/800/900 series airplanes. It is intent. later version of the Monte Carlo to not a rule of general applicability and demonstrate compliance with these affects only the applicant who applied Appendix 2: Monte Carlo Model special conditions. However, we have to the FAA for approval of these features Comment: This commenter notes that proposed regulatory changes in the on the airplane. the Web site listed for retrieving a copy Notice of Proposed Rulemaking Under standard practice, the effective of the FAA developed Monte Carlo published in the Federal Register on date of final special conditions would model, referenced in Appendix 2, November 23, 2005 (70 FR 70922). If the be 30 days after the date of publication paragraph I(b) of the Boeing Model 747 proposed requirements are adopted, in the Federal Register; however, as the FRM Final Special Conditions 25–285– Boeing and all other affected design certification date for the Boeing 737– SC, has been removed from paragraph approval holders would be required to 200/200C/300/400/500/600/700/700C/ (b) in the 737 FRM special conditions conduct a flammability analysis using 800/900 series airplanes is imminent, and requests the FAA explain this the Monte Carlo Model incorporated by the FAA finds that good cause exits to change. reference within the amended § 25.981. making these special conditions FAA Reply: We removed the reference Changes incorporated into the Monte effective upon issuance. Carlo in later versions include to the website because of concerns that List of Subjects in 14 CFR Part 25 this website would not be available in simplification and standardization of the future due to changes being made the inputs to the model. The NPRM Aircraft, Aviation safety, Reporting for the availability of an updated would not allow use of version 6A of and recordkeeping requirements. the Monte Carlo Model for version of the Monte Carlo. The I The authority citation for these demonstrating compliance. Any applicant has a copy of the Monte Carlo special conditions is as follows: Model and has completed their airplane model that is affected by the NPRM, including the Model 747, would Authority: 49 U.S.C. 106(g), 40113, 44701, flammability assessment using version 44702, 44704. 6A of the model. Reference to the need to comply with the requirements website was provided primarily so that of the final rule. As always, an applicant The Special Conditions may choose to request a finding of the public could have access to the I Accordingly, pursuant to the authority model. Version 6A of the model can be equivalent safety. No change was made as a result of this comment. delegated to me by the Administrator, obtained by contacting the person listed the following special conditions are under FOR FURTHER INFORMATION Appendix 2: Monte Carlo Variables and issued as part of the type certification CONTACT section of these final special Data Tables basis for the Boeing Model 737–200/ conditions. However, since the Comment: The commenter requests 200C/300/400/500/600/700/700C/800/ proposed 737 FRM special conditions clarification of the relevance of the last 900 series airplanes, modified by Boeing were originally published, we have also sentence in paragraph (c)(2) of Commercial Airplanes to include a published a Notice of Proposed Appendix 2, ‘‘The warm day subset (see flammability reduction means (FRM) Rulemaking that includes the Monte paragraph II(b)(2) of Appendix 2 of that uses a nitrogen generation system to Carlo assessment methodology by these special conditions) for ground and inert the center wing tank with nitrogen- reference as part of the proposed rule climb uses a range of temperatures enriched air (NEA). and we have made this information above 80° F and is included in the Compliance with these special available on the internet. Therefore, we Monte Carlo model’’ to the subject of conditions does not relieve the have included the new website address this paragraph on Atmosphere. applicant from compliance with the as follows as a result of this comment. FAA Reply: We concur and have existing certification requirements. http://www.fire.tc.faa.gov/systems/ changed the wording as follows: ‘‘The I. Definitions fueltank/FTFAM.stm. warm day subset (see paragraph II(b)(1) Comment: Another commenter of these special conditions) for ground (a) Bulk Average Fuel Temperature. requests clarification regarding how the and climb phases uses a range of The average fuel temperature within the FAA will ensure that a later version of temperatures above 80° F and is fuel tank, or different sections of the the FAA Monte Carlo model will still included in the Monte Carlo model.’’ tank if the tank is subdivided by baffles provide an identical assessment of or compartments. flammability exposure as Version 6A Applicability (b) Flammability Exposure Evaluation referenced in Appendix 2, paragraph As discussed above, these special Time (FEET). For the purpose of these I(b) in the 747 FRM Special Conditions conditions are applicable to the Boeing special conditions, the time from the 25–285–SC. The commenter would also Model 737–200/200C/300/400/500/600/ start of preparing the airplane for flight, like to know if an applicant can elect to 700/700C/800/900 series airplanes. through the flight and landing, until all comply with the Monte Carlo Version Should the type certificate be amended payload is unloaded and all passengers 6A, referenced in the 747 FRM Special later to include any other model that and crew have disembarked. In the Conditions, regardless of the aircraft incorporates the same or similar novel Monte Carlo program, the flight time is type. or unusual design feature, or should any randomly selected from the Mission
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Range Distribution (Table 3), the pre- fuel tank with an FRM installed is equal reliability requirements of paragraph II flight times are provided as a function to or less than 3 percent of the FEET; (a) of these special conditions. of the flight time, and the post-flight and (f) The access doors and panels to the time is a constant 30 minutes. (2) demonstrates that neither the fuel tanks with an FRM (including any (c) Flammable. With respect to a fluid performance (when the FRM is tanks that communicate with an inerted or gas, flammable means susceptible to operational) nor reliability (including all tank via a vent system), and to any other igniting readily or to exploding (14 CFR periods when the FRM is inoperative) confined spaces or enclosed areas that part 1, Definitions). A non-flammable contributions to the overall fleet average could contain NEA under normal ullage is one where the gas mixture is flammability exposure of a tank with an conditions or failure conditions, must too lean or too rich to burn and/or is FRM installed is more than 1.8 percent be permanently stenciled, marked, or inert per the definition below. (this will establish appropriate placarded as appropriate to warn (d) Flash Point. The flash point of a maintenance inspection procedures and maintenance crews of the possible flammable fluid is the lowest intervals as required in paragraph III (a) presence of a potentially hazardous temperature at which the application of of these special conditions). atmosphere. The proposal for markings a flame to a heated sample causes the (3) identifies critical features of the does not alter the existing requirements vapor to ignite momentarily, or ‘‘flash.’’ fuel tank system to prevent an auxiliary that must be addressed when entering The test for jet fuel is defined in ASTM fuel tank installation from increasing airplane fuel tanks. Specification D56, ‘‘Standard Test the flammability exposure of the center (g) Any FRM failures, or failures that Method for Flash Point by Tag Close wing tank above that permitted under could affect the FRM, with potential Cup Tester.’’ paragraphs II(a)(1), II(a)(2), and II(b) of catastrophic consequences must not (e) Hazardous Atmosphere. An these special conditions and to prevent result from a single failure or a atmosphere that may expose any degradation of the performance and combination of failures not shown to be person(s) to the risk of death, reliability of the FRM. extremely improbable. incapacitation, impairment of ability to (b) The applicant must submit a III. Maintenance self-rescue (escape unaided from a Monte Carlo analysis that demonstrates space), injury, or acute illness. that the FRM, when functional, reduces (a) Airworthiness Limitations must be (f) Inert. For the purpose of these the overall flammability exposure of identified for all maintenance and/or special conditions, the tank is each fuel tank with an FRM installed for inspection tasks required to identify considered inert when the oxygen warm day ground and climb phases to failures of components within the FRM concentration within each compartment a level equal to or less than 3 percent that are needed to meet paragraphs II of the tank is 12 percent or less at sea of the FEET in each of these phases for (a), (b), and (c)(2) of these special level up to 10,000 feet, then linearly the following conditions— conditions. Airworthiness Limitations increasing from 12 percent at 10,000 feet (1) The analysis must use the subset must also be identified for the critical to 14.5 percent at 40,000 feet and of 80 °F and warmer days from the fuel tank system features identified extrapolated linearly above that altitude. Monte Carlo analyses done for overall under paragraph II (a)(3). (g) Inerting. A process where a performance; and (b) The applicant must provide the noncombustible gas is introduced into (2) The flammability exposure must maintenance procedures that will be the ullage of a fuel tank to displace be calculated by comparing the time necessary and present a design review sufficient oxygen so that the ullage during ground and climb phases (takeoff that identifies any hazardous aspects to becomes inert. is included in the climb phase) for be considered during maintenance of (h) Monte Carlo Analysis. An which the tank was flammable and not the FRM that will be included in the analytical tool that provides a means to inert, with the total time for the ground instructions for continued airworthiness assess the degree of fleet average and and climb phases. (ICA) or appropriate maintenance warm day flammability exposure time (c) The applicant must provide data documents. for a fuel tank. See appendices 1 and 2 from ground testing and flight testing (c) To ensure that the effects of of these special conditions for specific that— component failures on FRM reliability requirements for conducting the Monte (1) validate the inputs to the Monte are adequately assessed on an on-going Carlo analysis. Carlo analysis needed to show basis, the applicant must— (i) Transport Effects. Transport effects compliance with (or meet the (1) demonstrate effective means to are the effects on fuel vapor requirements of) paragraphs II (a), (b), ensure collection of FRM reliability concentration caused by low fuel and (c)(2) of these special conditions; data. The means must provide data conditions (mass loading), fuel and affecting FRM availablity, such as condensation, and vaporization. (2) substantiate that the NEA component failures, and the FRM (j) Ullage, or Ullage Space. The distribution is effective at inerting all inoperative intervals due to dispatch volume within the fuel tank not portions of the tank where the inerting under the MMEL; occupied by liquid fuel at the time system is needed to show compliance (2) provide a report to the FAA on a interval under evaluation. with these paragraphs. quarterly basis for the first five years (d) The applicant must validate that after service introduction. After that II. System Performance and Reliability the FRM meets the requirements of period, continued quarterly reporting The FRM, for the airplane model paragraphs II (a), (b), and (c)(2) of these may be replaced with other reliability under evaluation, must comply with the special conditions, with any tracking methods found acceptable to following performance and reliability combination of engine model, engine the FAA or eliminated if it is requirements: thrust rating, fuel type, and relevant established that the reliability of the (a) The applicant must submit a pneumatic system configuration FRM meets, and will continue to meet, Monte Carlo analysis, as defined in approved for the airplane. the exposure requirements of appendices 1 and 2 of these special (e) Sufficient accessibility for paragraphs II (a) and (b) of these special conditions, that— maintenance personnel, or the conditions; (1) demonstrates that the overall fleet flightcrew, must be provided to FRM (3) provide a report to the validating average flammability exposure of each status indications necessary to meet the authorities for a period of at least two
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years following introduction to service; Note: localized concentrations above the fuel tank, overnight temperature drop, and and inert level as a result of fresh air that is oxygen evolution from the fuel into the (4) develop service instructions or drawn into the fuel tank through vents ullage. Transport effects are not to be allowed revise the applicable airplane manual, during descent would not be considered as as parameters in the analysis. flammable. (b) For the purposes of these special per a schedule agreed on by the FAA, (4) Expected system reliability; conditions, a fuel tank is considered to correct any failures of the FRM that (5) The MMEL/MEL dispatch inoperative flammable when the ullage is not inert and occur in service that could increase the period assumed in the reliability analysis (60 the fuel vapor concentration is within the fleet average or warm day flammability flight hours must be used for a 10-day MMEL flammable range for the fuel type being used. exposure of the tank to more than the dispatch limit unless an alternative period The fuel vapor concentration of the ullage in exposure requirements of paragraphs II has been approved by the FAA), including a fuel tank must be determined based on the (a) and (b) of these special conditions. action to be taken when dispatching with the bulk average fuel temperature within the FRM inoperative (Note: The actual MMEL tank. This vapor concentration must be Appendix 1 dispatch inoperative period data must be assumed to exist throughout all bays of the included in the engineering reporting tank. For those airplanes with fuel tanks Monte Carlo Analysis requirement of paragraph III(c)(1) of these having different flammability exposure (a) A Monte Carlo analysis must be special conditions.); within different compartments of the tank, conducted for the fuel tank under evaluation (6) Possible time periods of system where mixing of the vapor or NEA does not to determine fleet average and warm day inoperability due to latent or known failures, occur, the Monte Carlo analysis must be flammability exposure for the airplane and including airplane system shut-downs and conducted for the compartment of the tank fuel type under evaluation. The analysis failures that could cause the FRM to shut with the highest flammability. The must include the parameters defined in down or become inoperative; and compartment with the highest flammability appendices 1 and 2 of these special (7) Effects of failures of the FRM that could exposure for each flight phase must be used conditions. The airplane specific parameters increase the flammability of the fuel tank. in the analysis to establish the fleet average and assumptions used in the Monte Carlo (c) The Monte Carlo analysis, including a flammability exposure. For example, the analysis must include: description of any variation assumed in the center wing fuel tank in some designs (1) FRM Performance—as defined by parameters (as identified under paragraph (a) extends into the wing and has compartments system performance. of this appendix) that affect fleet average or of the tank that are cooled by outside air, and (2) Cruise Altitude—as defined by airplane warm day flammability exposure, and other compartments of the tank that are performance. substantiating data must be submitted to the insulated from outside air. Therefore, the fuel (3) Cruise Ambient Temperature—as FAA for approval. temperature and flammability is significantly defined in appendix 2 of these special different between these compartments of the conditions. Appendix 2 fuel tank. (4) Overnight Temperature Drop—as I. Monte Carlo Model (c) Atmosphere. defined in appendix 2 of these special (1) To predict flammability exposure (a) The FAA has developed a Monte Carlo conditions. during a given flight, the variation of ground model that can be used to calculate fleet (5) Fuel Flash Point and Upper and Lower ambient temperatures, cruise ambient average and warm day flammability exposure Flammability Limits—as defined in appendix temperatures, and a method to compute the for a fuel tank in an airplane. Use of the 2 of these special conditions. transition from ground to cruise and back program requires the user to enter the (6) Fuel Burn—as defined by airplane again must be used. The variation of the airplane performance data specific to the performance. ground and cruise ambient temperatures and airplane model being evaluated, such as (7) Fuel Quantity—as defined by airplane the flash point of the fuel is defined by a maximum range, cruise mach number, performance. Gaussian curve, given by the 50 percent typical step climb altitudes, tank thermal (8) Fuel Transfer—as defined by airplane value and a ± 1 standard deviation value. characteristics specified as exponential performance. heating/cooling time constants, and (2) The ground and cruise temperatures are (9) Fueling Duration—as defined by equilibrium temperatures for various fuel linked by a set of assumptions on the airplane performance. tank conditions. The general methodology for atmosphere. The temperature varies with (10) Ground Temperature—as defined in conducting a Monte Carlo model is described altitude following the International Standard appendix 2 of these special conditions. in AC 25.981–2. Atmosphere (ISA) rate of change from the (11) Mach Number—as defined by airplane (b) The FAA model, or one with ground temperature until the cruise performance. modifications approved by the FAA, must be temperature for the flight is reached. Above (12) Mission Distribution—the applicant used as the means of compliance with these this altitude, the ambient temperature is must use the mission distribution defined in special conditions. The accepted model can fixed at the cruise ambient temperature. This appendix 2 of these special conditions or be obtained from either the person identified results in a variation in the upper may request FAA approval of alternate data in the FOR FURTHER INFORMATION CONTACT atmospheric (tropopause) temperature. For from the service history of the Model 737. section of this document, or the following cold days, an inversion is applied up to (13) Oxygen Evolution—as defined by Web site: http://www.fire.tc.faa.gov/systems/ 10,000 feet, and then the ISA rate of change airplane performance and as discussed in fueltank/FTFAM.stm. The following is used. The warm day subset (see paragraph Appendix 2 of these special conditions. procedures, input variables, and data tables II(b)(1) of these special conditions) for (14) Maximum Airplane Range—as defined must be used in the analysis if the applicant ground and climb uses a range of ° by airplane performance. develops a unique model to determine fleet temperatures above 80 F and is included in (15) Tank Thermal Characteristics—as average flammability exposure for a specific the Monte Carlo model. defined by airplane performance. airplane type. (3) The analysis must include a minimum (16) Descent Profile Distribution—the number of flights, and for each flight a applicant must use a fixed 2500 feet per II. Monte Carlo Variables and Data Tables separate random number must be generated minute descent rate or may request FAA (a) Fleet average flammability exposure is for each of the three parameters (that is, approval of alternate data from the service the percent of the mission time the fuel tank ground ambient temperature, cruise ambient history of the Model 737. ullage is flammable for a fleet of an airplane temperature, and fuel flash point) using the (b) The assumptions for the analysis must type operating over the range of actual or Gaussian distribution defined in Table 1. The include— expected missions and in a world-wide range applicant can verify the output values from (1) FRM performance throughout the of environmental conditions and fuel the Gaussian distribution using Table 2. flammability exposure evaluation time; properties. Variables used to calculate fleet (d) Fuel Properties. (2) Vent losses due to crosswind effects average flammability exposure must include (1) Flash point variation. The variation of and airplane performance; atmosphere, mission length (as defined in the flash point of the fuel is defined by a (3) Any time periods when the system is Special Condition I. Definitions, as FEET), Gaussian curve, given by the 50 percent operating properly but fails to inert the tank; fuel flash point, thermal characteristics of the value and a ±1 standard deviation value.
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(2) Upper and Lower Flammability Limits. (i) LFL at sea level = flash point value with increasing altitude at a rate of 1 The flammability envelope of the fuel that temperature of the fuel at sea level minus 10 degree F per 512 ft. must be used for the flammability exposure degrees F. LFL decreases from sea level value Note: Table 1 includes the Gaussian analysis is a function of the flash point of the with increasing altitude at a rate of 1 degree distribution for fuel flash point. Table 2 also fuel selected by the Monte Carlo for a given F per 808 ft. flight. The flammability envelope for the fuel includes information to verify output values (ii) UFL at sea level = flash point is defined by the upper flammability limit for fuel properties. Table 2 is based on (UFL) and lower flammability limit (LFL) as temperature of the fuel at sea level plus 63.5 typical use of Jet A type fuel, with limited follows: degrees F. UFL decreases from the sea level TS–1 type fuel use.
TABLE 1.—GAUSSIAN DISTRIBUTION FOR GROUND AMBIENT TEMPERATURE, CRUISE AMBIENT TEMPERATURE, AND FUEL FLASH POINT
Temperature in deg F Ground ambient Cruise ambient Flash point Parameter temperature temperature (FP)
Mean Temp ...... 59.95 ¥70 120 Neg 1 std dev ...... 20.14 8 8 Pos 1 std dev ...... 17.28 8 8
TABLE 2.—VERIFICATION OF TABLE 1
Percent probability of Ground ambient Cruise ambient Ground ambient Cruise ambient Flash point temps & flash point being temperature temperature Flash Point temperature temperature (FP) below the listed values deg F deg F deg F deg C deg C deg C
1 ...... 13.1 ¥88.6 101.4 ¥10.5 ¥67.0 38.5 5 ...... 26.8 ¥83.2 106.8 ¥2.9 ¥64.0 41.6 10 ...... 34.1 ¥80.3 109.7 1.2 ¥62.4 43.2 15 ...... 39.1 ¥78.3 111.7 3.9 ¥61.3 44.3 20 ...... 43.0 ¥76.7 113.3 6.1 ¥60.4 45.1 25 ...... 46.4 ¥75.4 114.6 8.0 ¥59.7 45.9 30 ...... 49.4 ¥74.2 115.8 9.7 ¥59.0 46.6 35 ...... 52.2 ¥73.1 116.9 11.2 ¥58.4 47.2 40 ...... 54.8 ¥72.0 118.0 12.7 ¥57.8 47.8 45 ...... 57.4 ¥71.0 119.0 14.1 ¥57.2 48.3 50 ...... 59.9 ¥70.0 120.0 15.5 ¥56.7 48.9 55 ...... 62.1 ¥69.0 121.0 16.7 ¥56.1 49.4 60 ...... 64.3 ¥68.0 122.0 18.0 ¥55.5 50.0 65 ...... 66.6 ¥66.9 123.1 19.2 ¥55.0 50.6 70 ...... 69.0 ¥65.8 124.2 20.6 ¥54.3 51.2 75 ...... 71.6 ¥64.6 125.4 22.0 ¥53.7 51.9 80 ...... 74.5 ¥63.3 126.7 23.6 ¥52.9 52.6 85 ...... 77.9 ¥61.7 128.3 25.5 ¥52.1 53.5 90 ...... 82.1 ¥59.7 130.3 27.8 ¥51.0 54.6 95 ...... 88.4 ¥56.8 133.2 31.3 ¥49.4 56.2 99 ...... 100.1 ¥51.4 138.6 37.9 ¥46.3 59.2
(e) Flight Mission Distribution. (2) The mission length selected for a given interpolation between the values in the table (1) The mission length for each flight is flight is used by the Monte Carlo model to must be assumed. determined from an equation that takes the select a 30-, 60-, or 90-minute time on the BILLING CODE 4911–13–P maximum mission length for the airplane ground prior to takeoff, and the type of flight and randomly selects multiple flight lengths profile to be followed. Table 3 must be used based on typical airline use. to define the mission distribution. A linear
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BILLING CODE 4911–13–C full only on longer-range flights and would (3) The outside air temperature (OAT) drop (f) Fuel Tank Thermal Characteristics. be empty a long time before touchdown. For for that night is to be chosen as a random (1) The applicant must account for the short flights, it would be empty for the whole value from the following Gaussian curve: thermal conditions of the fuel tank both on flight. For a main tank that carried reserve the ground and in flight. The Monte Carlo fuel, it would be full for a long time and TABLE 5.—OAT DROP model, defines the ground condition using an would only be down to empty at touchdown. equilibrium delta temperature (relative to the In this case, empty would really be at reserve OAT Drop ambient temperature) the tank will reach Parameter level, and the thermal constants at empty Temperature °F given a long enough time, with any heat should be those for the reserve level. inputs from airplane sources. Values are also (4) The applicant, whether using the Mean Temp ...... 12.0 input to define two exponential time 1 std dev ...... 6.0 constants (one for a near empty tank and one available model or using another analysis tool, must propose means to validate thermal for a near full tank) for the ground condition. (h) Oxygen Evolution. The oxygen time constants and equilibrium temperatures These time constants define the time for the evolution rate must be considered in the to be used in the analysis. The applicant may fuel in the fuel tank to heat or cool in Monte Carlo analysis if it can affect the response to heat input. The fuel is assumed propose using a more detailed thermal flammability of the fuel tank or compartment. to heat or cool according to a normal definition, such as changing time constants Fuel contains dissolved gases, and in the case exponential transition, governed by the as a function of fuel quantity, provided the of oxygen and nitrogen absorbed from the air, temperature difference between the current details and substantiating information are the oxygen level in the fuel can exceed 30 temperature and the equilibrium acceptable and the Monte Carlo model percent, instead of the normal 21 percent temperature, given by ambient temperature program changes are validated. oxygen in air. Some of these gases will be plus delta temperature. Input values for this (g) Overnight Temperature Drop. released from the fuel during the reduction data can be obtained from validated thermal (1) An overnight temperature drop must be of ambient pressure experienced in the climb models of the tank based on ground and considered in the Monte Carlo analysis as it and cruise phases of flight. The applicant flight test data. The inputs for the in-flight may affect the oxygen concentration level in must consider the effects of air evolution condition are similar but are used for in- the fuel tank. The overnight temperature from the fuel on the level of oxygen in the flight analysis. drop for these special conditions will be tank ullage during ground and flight (2) Fuel management techniques are defined using: operations and address these effects on the unique to each manufacturer’s design. • A temperature at the beginning of the overall performance of the FRM. The Variations in fuel quantity within the tank for overnight period based on the landing applicant must provide the air evolution rate given points in the flight, including fuel temperature that is a random value based on for the fuel tank under evaluation, along with transfer for any purpose, must be accounted substantiation data. a Gaussian distribution; and for in the model. The model uses a ‘‘tank (i) Number of Simulated Flights Required • An overnight temperature drop that is a full’’ time, specified in minutes, that defines in Analysis. For the Monte Carlo analysis to the time before touchdown when the fuel random value based on a Gaussian be valid for showing compliance with the tank is still full. For a center wing tank used distribution. fleet average and warm day flammability first, this number would be the maximum (2) For any flight that will end with an exposure requirements of these special flight time, and the tank would start to empty overnight ground period (one flight per day conditions, the applicant must run the at takeoff. For a main tank used last, the tank out of an average of ‘‘x’’ number of flights per analysis for an appropriate number of flights will remain full for a shorter time before day, (depending on use of the particular to ensure that the fleet average and warm day touchdown and would be ‘‘empty’’ at airplane model being evaluated), the landing flammability exposure for the fuel tank under touchdown (that is, tank empty at 0 minutes outside air temperature (OAT) is to be chosen evaluation meets the flammability limits before touchdown). For a main tank with as a random value from the following defined in Table 6. reserves, the term empty means at reserve Gaussian curve: level rather than totally empty. The thermal TABLE 6.—FLAMMABILITY LIMIT data for tank empty would also be for reserve TABLE 4.—LANDING OAT level. Maximum (3) The model also uses a ‘‘tank empty’’ Landing Number of flights in Monte acceptable fuel time to define the time when the tank is Parameter Temperature °F Carlo analysis tank flammability emptying, and the program uses a linear (percent) interpolation between the exponential time Mean Temp ...... 58.68 constants for full and empty during the time neg 1 std dev ...... 20.55 1,000 ...... 2.73 the tank is emptying. For a tank that is only pos 1 std dev ...... 13.21 5,000 ...... 2.88 used for long-range flights, the tank would be 10,000 ...... 2.91
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TABLE 6.—FLAMMABILITY LIMIT— ADDRESSES: Contact Rolls-Royce plc, engine are needed to perform blade Continued P.O. Box 31, Derby, England, DE248BJ; rework, and that the average labor rate telephone: 011–44–1332–242424; fax: is $65 per work hour. Based on these Maximum 011–44–1332–245418, for the service figures, we estimate the total cost of the Number of flights in Monte acceptable fuel information identified in this AD. AD to U.S. operators to be $689,000. Carlo analysis tank flammability You may examine the AD docket at (percent) the FAA, New England Region, Office of Authority for this Rulemaking 100,000 ...... 2.98 the Regional Counsel, 12 New England Title 49 of the United States Code 1,000,000 ...... 3.00 Executive Park, Burlington, MA. You specifies the FAA’s authority to issue may examine the service information, at rules on aviation safety. Subtitle I, Issued in Renton, Washington, on the FAA, New England Region, Office of section 106, describes the authority of December 5, 2005. the Regional Counsel, 12 New England the FAA Administrator. Subtitle VII, Ali Bahrami, Executive Park, Burlington, MA. Aviation Programs, describes in more Manager, Transport Airplane Directorate, FOR FURTHER INFORMATION CONTACT: detail the scope of the Agency’s Aircraft Certification Service. Christopher Spinney, Aerospace authority. Engineer, Engine Certification Office, We are issuing this rulemaking under [FR Doc. 05–23936 Filed 12–12–05; 8:45 am] FAA, Engine And Propeller Directorate, the authority described in subtitle VII, BILLING CODE 4910–13–P 12 New England Executive Park; part A, subpart III, section 44701, Burlington, MA 01803–5299; telephone ‘‘General requirements.’’ Under that section, Congress charges the FAA with DEPARTMENT OF TRANSPORTATION (781) 238–7175; fax (781) 238–7199. SUPPLEMENTARY INFORMATION: The FAA promoting safe flight of civil aircraft in Federal Aviation Administration proposed to amend 14 CFR Part 39 with air commerce by prescribing regulations a new AD, applicable to RR models for practices, methods, and procedures 14 CFR Part 39 RB211 Trent 875–17, Trent 877–17, the Administrator finds necessary for Trent 884–17, Trent 884B–17, Trent safety in air commerce. This regulation [Docket No. 2003–NE–38–AD; Amendment 892–17, Trent 892B–17, and Trent 895– is within the scope of that authority 39–14404; AD 2005–25–11] 17 turbofan engines with LP compressor because it addresses an unsafe condition RIN 2120–AA64 fan blades, P/N FW18548 installed. We that is likely to exist or develop on published the proposed AD in the products identified in this rulemaking Airworthiness Directives; Rolls-Royce Federal Register on May 27, 2005 (70 action. plc RB211 Trent 800 Series Turbofan FR 30653). That action proposed to Regulatory Findings Engines require LP compressor fan blade We have determined this AD will not AGENCY: Federal Aviation replacement with new or previously reworked blades, or rework of the have federalism implications under Administration (FAA), DOT. Executive Order 13132. This AD will ACTION: Final rule. existing LP compressor fan blades, at reduced compliance times from the not have a substantial direct effect on the States, on the relationship between SUMMARY: The FAA is superseding an previous AD, for certain airplane and existing airworthiness directive (AD) for engine rating combinations and certain the national government and the States, Rolls-Royce plc (RR) models RB211 maximum gross weight limits. or on the distribution of power and responsibilities among the various Trent 875–17, Trent 877–17, Trent 884– Examining the AD Docket 17, Trent 884B–17, Trent 892–17, Trent levels of government. For the reasons discussed above, I 892B–17, and Trent 895–17 turbofan You may examine the AD Docket certify that this AD: engines with low pressure (LP) (including any comments and service (1) Is not a ‘‘significant regulatory compressor fan blades, part number (P/ information), by appointment, between 8 a.m. and 4:30 p.m., Monday through action’’ under Executive Order 12866; N) FW18548 installed. That AD (2) Is not a ‘‘significant rule’’ under currently requires LP compressor fan Friday, except Federal holidays. See ADDRESSES for the location. DOT Regulatory Policies and Procedures blade replacement with new or (44 FR 11034, February 26, 1979); and previously reworked blades, or rework Comments (3) Will not have a significant of the existing LP compressor fan We provided the public the economic impact, positive or negative, blades. This ad requires the same on a substantial number of small entities actions but at reduced compliance times opportunity to participate in the development of this AD. We considered under the criteria of the Regulatory for certain airplane and engine rating Flexibility Act. combinations and certain maximum the one comment received. The commenter supports the proposal. We prepared a summary of the costs gross weight limits. This AD results to comply with this AD and placed it in from a number of new production LP Conclusion the AD Docket. You may get a copy of compressor fan blades found with We carefully reviewed the available this summary by sending a request to us surfaces formed outside of design intent. data, including the comment received, at the address listed under ADDRESSES. We are issuing this AD to prevent and determined that air safety and the Include ‘‘AD Docket No. 2003–NE–38– possible multiple uncontained LP public interest require adopting the AD AD’’ in your request. compressor fan blade failure, due to as proposed. cracking in the blade root caused by List of Subjects in 14 CFR Part 39 increased stresses in the shear key slots. Costs of Compliance Air transportation, Aircraft, Aviation DATES: This AD becomes effective About 392 RR RB211 Trent 800 series safety, Incorporation by reference, January 17, 2006. The Director of the turbofan engines of the affected design Safety. Federal Register approved the are in the worldwide fleet. About 106 Adoption of the Amendment incorporation by reference of certain engines installed on airplanes of U.S. publications listed in the regulations as registry will be affected by this AD. We I Accordingly, under the authority of January 17, 2006. estimate about 100 work hours per delegated to me by the Administrator,
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the Federal Aviation Administration Effective Date surfaces formed outside of design intent. We amends 14 CFR part 39 as follows: (a) This AD becomes effective January 17, are issuing this AD to prevent possible 2006. multiple uncontained LP compressor fan PART 39—AIRWORTHINESS blade failure, due to cracking in the blade DIRECTIVES Affected ADs root caused by increased stresses in the shear (b) This AD supersedes AD 2004–15–02, key slots. I 1. The authority citation for part 39 Amendment 39–13736. Compliance continues to read as follows: Applicability (e) You are responsible for having the Authority: 49 U.S.C. 106(g), 40113, 44701. (c) This AD applies to Rolls-Royce plc (RR) actions required by this AD performed within § 39.13 [Amended] models RB211 Trent 875–17, Trent 877–17, the compliance times specified unless the Trent 884–17, Trent 884B–17, Trent 892–17, actions have already been done. I 2. The FAA amends § 39.13 by Trent 892B–17, and Trent 895–17 turbofan Actions Required for LP Compressor Fan removing Amendment 39–13736 (69 FR engines, with low pressure (LP) compressor Blades 44925, August 12, 2004) and by adding fan blades, part number FW18548 installed. a new airworthiness directive, These engines are installed on, but not (f) Replace LP compressor fan blades with Amendment 39–14404, to read as limited to, Boeing 777 series airplanes. new or previously reworked LP compressor blades before accumulating the specified follows: Unsafe Condition cycles-since-new (CSN) in the following 2005–25–11 Rolls-Royce plc: Amendment (d) This AD results from a number of new Table 1, or rework the existing blades as 39–14404. Docket No. 2003–NE–38–AD. production LP compressor blades found with specified in paragraph (g) of this AD.
TABLE 1.—LP COMPRESSOR FAN BLADE REPLACEMENT OR REWORK SCHEDULE
Airplane Replace or maximum gross rework LP Boeing 777 Series: weight RB211 Trent Engine compressor fan (times 1,000 Model blades before pounds) accumulating:
–300 ...... 660, 632.5 –884, –892, –884B 2,400 CSN. –200 ...... 656 –892, –895 2,400 CSN. –200 ...... 648 –892, –892B 3,200 CSN. –200 ...... 632.5 –892B 3,200 CSN. –200 ...... 632.5 –892 4,100 CSN. –200 ...... 555 –884 4,100 CSN. –200 ...... 545 –877 4,100 CSN. –200 ...... 535 –875 4,100 CSN. –200 ...... 506 –875 4,100 CSN.
(g) Rework LP compressor fan blades at or Alternative Methods of Compliance Issued in Burlington, Massachusetts, on before accumulating the specified CSN in (j) The Manager, Engine Certification December 5, 2005. Table 1 of this AD. Follow paragraphs 3.B.(1) Office, has the authority to approve Carlos Pestana, through 3.B.(22) of Accomplishment alternative methods of compliance for this Acting Manager, Engine and Propeller Instructions of RR service bulletin (SB) No. AD if requested using the procedures found Directorate, Aircraft Certification Service. in 14 CFR 39.19. RB.211–72–E044, Revision 2, dated October [FR Doc. 05–23834 Filed 12–12–05; 8:45 am] 8, 2004, to do the blade rework. Material Incorporated by Reference BILLING CODE 4910–13–P (h) For engines moved between (k) You must use Rolls-Royce plc Service configurations, calculate the cycles Bulletin No. RB.211–72–E044, Revision 2, remaining using either of the following: dated October 8, 2004, to perform the blade DEPARTMENT OF TRANSPORTATION (1) Subtract the total CSN from the most rework required by this AD. The Director of limiting configuration’s limit from Table 1 of the Federal Register approved the Federal Aviation Administration this AD; or incorporation by reference of this service (2) Calculate the cycles remaining using bulletin in accordance with 5 U.S.C. 552(a) 14 CFR Part 39 the following equation: and 1 CFR part 51. You can get a copy from Rolls-Royce plc, PO Box 31, Derby, England, [Docket No. FAA–2005–22560; Directorate DE248BJ; telephone: 011–44–1332–242424; Identifier 2005–NM–061–AD; Amendment X X X fax: 011–44–1332–245418. You can review a XL=−+++1 1 2 3 ..... 39–14408; AD 2005–25–15] rc copy at the FAA, New England Region, Office L1 L2 L3 of the Regional Counsel, 12 New England RIN 2120–AA64 Where: Executive Park, Burlington, MA; or at the National Archives and Records Airworthiness Directives; Dassault Xr = Cycles remaining in current Administration (NARA). For information on Model Falcon 2000 Airplanes Equipped configuration. the availability of this material at NARA, call With CFE Company CFE738–1–1B Lc = Cyclic limit of current configuration 202–741–6030, or go to: http:// Turbofan Engines from Table 1 of this AD. www.archives.gov/federal-register/cfr/ibr- Xn = Cycles accumulated in configuration n. locations.html. AGENCY: Federal Aviation Ln = Cyclic limit in configuration n from Related Information Administration (FAA), Department of Table 1 of this AD. (l) CAA airworthiness directive G–2004– Transportation (DOT). (i) Information on the source life of the 030, dated December 23, 2004, and RR Alert ACTION: Final rule. cycle limits in Table 1 of this AD can be SB No. RB.211–72–AE055, Revision 4, dated found in RR Alert SB No. RB.211–72–AE055, December 9, 2004, pertain to the subject of SUMMARY: The FAA is adopting a new Revision 3, dated May 28, 2004. this AD. airworthiness directive (AD) for certain
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Dassault Model Falcon 2000 airplanes 2005 (70 FR 57217). That NPRM not have a substantial direct effect on equipped with CFE Company CFE738– proposed to require determining the the States, on the relationship between 1–1B turbofan engines. This AD requires serial number of the engines installed the national government and the States, determining the serial number of the on the airplane, inspecting any affected or on the distribution of power and engines installed on the airplane, engine to verify that a spherical bearing responsibilities among the various inspecting any affected engine to verify is installed on the attachment fitting of levels of government. that a spherical bearing is installed on the engine mount, and corrective action For the reasons discussed above, I the attachment fitting of the engine if necessary. certify that this AD: mount, and corrective action if (1) Is not a ‘‘significant regulatory Comments necessary. This AD results from a report action’’ under Executive Order 12866; of a missing spherical bearing on the We provided the public the (2) Is not a ‘‘significant rule’’ under attachment fitting of the front engine opportunity to participate in the DOT Regulatory Policies and Procedures mount on an in-service airplane, and development of this AD. We received no (44 FR 11034, February 26, 1979); and subsequent damage and abnormal comments on the NPRM or on the (3) Will not have a significant fatigue of the attachment fitting. We are determination of the cost to the public. economic impact, positive or negative, issuing this AD to prevent reduced Conclusion on a substantial number of small entities structural integrity of the engine mount, under the criteria of the Regulatory which could result in possible We have carefully reviewed the Flexibility Act. separation of an engine from the available data and determined that air We prepared a regulatory evaluation airplane. safety and the public interest require of the estimated costs to comply with adopting the AD as proposed. DATES: This AD becomes effective this AD and placed it in the AD docket. January 17, 2006. Clarification of Alternative Method of See the ADDRESSES section for a location The Director of the Federal Register Compliance (AMOC) Paragraph to examine the regulatory evaluation. approved the incorporation by reference We have changed this AD to clarify List of Subjects in 14 CFR Part 39 of a certain publication listed in the AD the appropriate procedure for notifying as of January 17, 2006. Air transportation, Aircraft, Aviation the principal inspector before using any safety, Incorporation by reference, ADDRESSES: You may examine the AD approved AMOC on any airplane to Safety. docket on the Internet at http:// which the AMOC applies. dms.dot.gov or in person at the Docket Adoption of the Amendment Costs of Compliance Management Facility, U.S. Department I of Transportation, 400 Seventh Street Accordingly, under the authority This inspection affects about 7 delegated to me by the Administrator, SW., Nassif Building, room PL–401, airplanes of U.S. registry. The Washington, DC. the FAA amends 14 CFR part 39 as inspection will take about 2 work hours follows: Contact Dassault Falcon Jet, P.O. Box per airplane, at an average labor rate of 2000, South Hackensack, New Jersey $65 per work hour. Based on these PART 39—AIRWORTHINESS 07606, for service information identified figures, the estimated cost of the AD for DIRECTIVES in this AD. U.S. operators is $910, or $130 per FOR FURTHER INFORMATION CONTACT: Tom airplane. I 1. The authority citation for part 39 Rodriguez, Aerospace Engineer, continues to read as follows: Authority for This Rulemaking International Branch, ANM–116, Authority: 49 U.S.C. 106(g), 40113, 44701. Transport Airplane Directorate, FAA, Title 49 of the United States Code 1601 Lind Avenue, SW., Renton, specifies the FAA’s authority to issue § 39.13 [Amended] Washington 98055–4056; telephone rules on aviation safety. Subtitle I, I 2. The Federal Aviation (425) 227–1137; fax (425) 227–1149. Section 106, describes the authority of Administration (FAA) amends § 39.13 SUPPLEMENTARY INFORMATION: the FAA Administrator. Subtitle VII, by adding the following new Aviation Programs, describes in more airworthiness directive (AD): Examining the Docket detail the scope of the Agency’s You may examine the airworthiness authority. 2005–25–15 Dassault Aviation: Amendment 39–14408. Docket No. directive (AD) docket on the Internet at We are issuing this rulemaking under FAA–2005–22560; Directorate Identifier http://dms.dot.gov or in person at the the authority described in Subtitle VII, 2005–NM–061–AD Docket Management Facility office Part A, Subpart III, Section 44701, between 9 a.m. and 5 p.m., Monday ‘‘General requirements.’’ Under that Effective Date through Friday, except Federal holidays. section, Congress charges the FAA with (a) This AD becomes effective January 17, The Docket Management Facility office promoting safe flight of civil aircraft in 2006. (telephone (800) 647–5227) is located on air commerce by prescribing regulations Affected ADs the plaza level of the Nassif Building at for practices, methods, and procedures (b) None. the street address stated in the the Administrator finds necessary for ADDRESSES section. safety in air commerce. This regulation Applicability is within the scope of that authority (c) This AD applies to Dassault Model Discussion because it addresses an unsafe condition Falcon 2000 airplanes, certificated in any The FAA issued a notice of proposed that is likely to exist or develop on category; equipped with CFE Company rulemaking (NPRM) to amend 14 CFR products identified in this rulemaking CFE738–1–1B turbofan engines. part 39 to include an AD that would action. Unsafe Condition apply certain Dassault Model Falcon Regulatory Findings (d) This AD results from a report of a 2000 airplanes equipped with CFE missing spherical bearing on the attachment Company CFE738–1–1B turbofan We have determined that this AD will fitting of the front engine mount on an in- engines. That NPRM was published in not have federalism implications under service airplane, and subsequent damage and the Federal Register on September 30, Executive Order 13132. This AD will abnormal fatigue of the attachment fitting.
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We are issuing this AD to prevent reduced the actions that are required by this AD, ADDRESSES: Use one of the following structural integrity of the engine mount, unless the AD specifies otherwise. The addresses to comment on this AD: which could result in possible separation of Director of the Federal Register approved the • DOT Docket Web site: Go to an engine from the airplane. incorporation by reference of this document http://dms.dot.gov and follow the in accordance with 5 U.S.C. 552(a) and 1 CFR Compliance part 51. Contact Dassault Falcon Jet, P.O. Box instructions for sending your comments (e) You are responsible for having the electronically. 2000, South Hackensack, New Jersey 07606, • actions required by this AD performed within for a copy of this service information. You Government-wide rulemaking Web the compliance times specified, unless the may review copies at the Docket Management site: Go to http://www.regulations.gov actions have already been done. Facility, U.S. Department of Transportation, and follow the instructions for sending Determine Serial Number (S/N) and Inspect 400 Seventh Street, SW., room PL–401, your comments electronically. if Necessary Nassif Building, Washington, DC; on the • Mail: Docket Management Facility; internet at http://dms.dot.gov; or at the (f) Within the applicable compliance time U.S. Department of Transportation, 400 National Archives and Records Seventh Street, SW., Nassif Building, specified in paragraph (f)(1), (f)(2), or (f)(3) of Administration (NARA). For information on this AD: Determine the serial number of the the availability of this material at the NARA, Room PL–401, Washington, DC 20590– engines installed on the airplane, as 0001. call (202) 741–6030, or go to http:// • identified in the table in paragraph 1.A., www.archives.gov/federal_register/ Fax: (202) 493–2251. ‘‘Effectivity,’’ of Dassault Service Bulletin code_of_federal_regulations/ • Hand Delivery: Room PL–401 on F2000–299, dated July 23, 2004; if any ibr_locations.html. the plaza level of the Nassif Building, affected serial number is found on any engine, perform a borescope inspection to Issued in Renton, Washington, on 400 Seventh Street, SW., Washington, verify that a spherical bearing is installed on December 2, 2005. DC, between 9 a.m. and 5 p.m., Monday the attachment fitting of the front engine Kalene C. Yanamura, through Friday, except Federal holidays. mount by doing all the applicable actions Acting Manager, Transport Airplane Contact Turbomeca, 40220 Tarnos, specified in the Accomplishment Directorate, Aircraft Certification Service. France; telephone 33 05 59 74 40 00, fax Instructions of the service bulletin. [FR Doc. 05–23829 Filed 12–12–05; 8:45 am] 33 05 59 74 45 15, for the service (1) For airplanes with any engine having information identified in this AD. 850 total landings or less as of the effective BILLING CODE 4910–13–P date of this AD: Before the accumulation of FOR FURTHER INFORMATION CONTACT: 880 total landings on the engine. Christopher Spinney, Aerospace (2) For airplanes with any engine having DEPARTMENT OF TRANSPORTATION Engineer, Engine Certification Office, more than 850 total landings, but 1,000 total FAA, Engine and Propeller Directorate, landings or less as of the effective date of this Federal Aviation Administration 12 New England Executive Park, AD: Within 1 month after the effective date Burlington, MA 01803–5299; telephone of this AD. 14 CFR Part 39 (781) 238–7175; fax (781) 238–7199. (3) For airplanes with any engine having more than 1,000 total landings as of the [Docket No. FAA–2005–22928; Directorate SUPPLEMENTARY INFORMATION: The effective date of this AD: Within 10 landings Identifier 2005–NE–43–AD; Amendment 39– Direction Generale de L’Aviation Civile after the effective date of this AD. 14406; AD 2005–25–13] (DGAC), which is the airworthiness authority for France, notified us that an Corrective Action RIN 2120–AA64 unsafe condition might exist on (g) If any spherical bearing is found Turbomeca Arriel 2B and 2B1 turboshaft missing during the inspection required by Airworthiness Directives; Turbomeca paragraph (f) of this AD: Before further flight, Arriel 2B and 2B1 Turboshaft Engines engines without modification TU22 repair according to a method approved by incorporated. The DGAC advises that on AGENCY: either the Manager, International Branch, Federal Aviation several of these engines, large ANM–116, Transport Airplane Directorate, Administration (FAA), Department of circumferential cracks were found in the FAA; or the Direction Ge´ne´rale de l’Aviation Transportation (DOT). free turbine shield at the blending Civile (or its delegated agent). ACTION: Final rule; request for radius between the containment shield No Reporting Requirement comments. and the rear flange. These cracks could cause a loss of engine alignment during (h) This AD does not require submitting SUMMARY: The FAA is adopting a new reporting information to the manufacturer. maneuvering loads and lead to in-flight airworthiness directive (AD) for engine shutdown. Alternative Methods of Compliance Turbomeca Arriel 2B and 2B1 turboshaft (AMOCs) engines without modification TU22 Relevant Service Information (i)(1) The Manager, International Branch, incorporated. This AD requires initial We have reviewed and approved the ANM–116, has the authority to approve and repetitive visual checks of the free technical contents of Turbomeca Alert AMOCs for this AD, if requested in turbine shield for cracks. This AD Mandatory Service Bulletin No. A292 72 accordance with the procedures found in 14 results from reports of several free 2821, dated June 27, 2005, that CFR 39.19. turbine shields found with large describes procedures for visual checks (2) Before using any AMOC approved in circumferential cracks. We are issuing accordance with 14 CFR 39.19 on any of the free turbine shield for cracks. The this AD to prevent failure of the free DGAC classified this service bulletin as airplane to which the AMOC applies, notify turbine shield, leading to engine the appropriate principal inspector in the mandatory and issued AD F–2005–162, FAA Flight Standards Certificate Holding misalignment, in-flight engine dated September 28, 2005, in order to District Office. shutdown, emergency autorotation ensure the airworthiness of these Arriel landing, or accident. Related Information 2B and 2B1 engines in France. DATES: Effective December 28, 2005. The (j) French airworthiness directive F–2004– Director of the Federal Register Bilateral Airworthiness Agreement 128, issued August 4, 2004, also addresses approved the incorporation by reference These Turbomeca Arriel 2B and 2B1 the subject of this AD. of certain publications listed in the turboshaft engines are manufactured in Material Incorporated by Reference regulations as of December 28, 2005. France and are type certificated for (k) You must use Dassault Service Bulletin We must receive any comments on operation in the United States under the F2000–299, dated July 23, 2004, to perform this AD by February 13, 2006. provisions of section 21.29 of the
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Federal Aviation Regulations (14 CFR We will post all comments we responsibilities among the various 21.29) and the applicable bilateral receive, without change, to http:// levels of government. airworthiness agreement. Under this dms.dot.gov, including any personal For the reasons discussed above, I bilateral airworthiness agreement, the information you provide. We will also certify that the regulation: DGAC kept the FAA informed of the post a report summarizing each 1. Is not a ‘‘significant regulatory situation described above. We have substantive verbal contact with FAA action’’ under Executive Order 12866; examined the findings of the DGAC, personnel concerning this AD. Using the 2. Is not a ‘‘significant rule’’ under the reviewed all available information, and search function of the DMS Web site, DOT Regulatory Policies and Procedures determined that AD action is necessary anyone can find and read the comments (44 FR 11034, February 26, 1979); and for products of this type design that are in any of our dockets, including the certificated for operation in the United name of the individual who sent the 3. Will not have a significant States. comment (or signed the comment on economic impact, positive or negative, behalf of an association, business, labor on a substantial number of small entities FAA’s Determination and Requirements union, etc.). You may review the DOT’s under the criteria of the Regulatory of This AD complete Privacy Act Statement in the Flexibility Act. The unsafe condition described Federal Register published on April 11, We prepared a summary of the costs previously is likely to exist or develop 2000 (65 FR 19477–78) or you may visit to comply with this AD and placed it in on other Turbomeca Arriel 2B and 2B1 http://dms.dot.gov. the AD Docket. You may get a copy of this summary by sending a request to us turboshaft engines without modification Examining the AD Docket TU22 incorporated, of the same type at the address listed under ADDRESSES. design. We are issuing this AD to You may examine the docket that List of Subjects in 14 CFR Part 39 prevent failure of the free turbine shield, contains the AD, any comments leading to engine misalignment, in- received, and any final disposition in Air transportation, Aircraft, Aviation flight engine shutdown, emergency person at the Docket Management safety, Incorporation by reference, autorotation landing, or accident. This Facility Docket Offices between 9 a.m. Safety. AD requires initial visual checks of the and 5 p.m., Monday through Friday, Adoption of the Amendment free turbine shield for cracks within 10 except Federal holidays. The Docket operating hours of the effective date of Office (telephone (800) 647–5227) is I Under the authority delegated to me the AD, repetitive visual checks at located on the plaza level of the by the Administrator, the Federal certain compliance intervals based on Department of Transportation Nassif Aviation Administration amends part 39 shield condition, and replacement if Building at the street address stated in of the Federal Aviation Regulations (14 necessary. This AD also allows ADDRESSES. Comments will be available CFR part 39) as follows: incorporation of Turbomeca in the AD docket shortly after the DMS modification TU22 as optional receives them. PART 39—AIRWORTHINESS terminating action to the required DIRECTIVES Authority for This Rulemaking repetitive visual checks. You must use I the service information described Title 49 of the United States Code 1. The authority citation for part 39 previously to perform the actions specifies the FAA’s authority to issue continues to read as follows: required by this AD. rules on aviation safety. Subtitle I, Authority: 49 U.S.C. 106(g), 40113, 44701. Section 106, describes the authority of FAA’s Determination of the Effective § 39.13 [Amended] the FAA Administrator. Subtitle VII, Date Aviation Programs, describes in more 2. The FAA amends § 39.13 by adding Since an unsafe condition exists that detail the scope of the Agency’s the following new airworthiness requires the immediate adoption of this authority. directive: AD, we have found that notice and We are issuing this rulemaking under 2005–25–13 Turbomeca: Amendment 39– opportunity for public comment before the authority described in Subtitle VII, 14406. Docket No. FAA–2005–22928; issuing this AD are impracticable, and Part A, Subpart III, Section 44701, Directorate Identifier 2005–NE–43–AD. that good cause exists for making this ‘‘General requirements.’’ Under that Effective Date amendment effective in less than 30 section, Congress charges the FAA with (a) This airworthiness directive (AD) days. promoting safe flight of civil aircraft in becomes effective December 28, 2005. air commerce by prescribing regulations Comments Invited for practices, methods, and procedures Affected ADs This AD is a final rule that involves the Administrator finds necessary for (b) None. requirements affecting flight safety and safety in air commerce. This regulation Applicability was not preceded by notice and an is within the scope of that authority (c) This AD applies to Turbomeca Arriel 2B opportunity for public comment; because it addresses an unsafe condition and 2B1 turboshaft engines without however, we invite you to send us any that is likely to exist or develop on modification TU22 incorporated. These written relevant data, views, or products identified in this rulemaking engines are installed on, but not limited to, arguments regarding this AD. Send your action. Eurocopter France AS350B3 and EC130B4 comments to an address listed under helicopters. Regulatory Findings ADDRESSES. Include ‘‘AD Docket No. Unsafe Condition FAA–2005–22928; Directorate Identifier We have determined that this AD will 2005–NE–43–AD’’ in the subject line of not have federalism implications under (d) This AD results from reports of several free turbine shields found with large your comments. We specifically invite Executive Order 13132. This AD will circumferential cracks. We are issuing this comments on the overall regulatory, not have a substantial direct effect on AD to prevent failure of the free turbine economic, environmental, and energy the States, on the relationship between shield, leading to engine misalignment, in- aspects of the rule that might suggest a the national Government and the States, flight engine shutdown, emergency need to modify it. or on the distribution of power and autorotation landing, or accident.
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Compliance Visual Checks Turbomeca Mandatory Service Bulletin (e) You are responsible for having the (f) Within 10 operating hours after the (MSB) A292 72 2821, dated June 27, 2005. actions required by this AD performed within effective date of this AD: (2) Replace the free turbine shield or the compliance times specified unless the (1) Visually check the free turbine shield establish a repetitive check interval using the actions have already been done. for cracks using 2.A. through 2.D.(2) of criteria in the following Table 1:
TABLE 1.—FREE TURBINE SHIELD CHECK, DISPOSITION CRITERIA
Crack locations using Number of cracks: appendix 1 from MSB Crack length: Re-check using paragraphs (f)(1) and (f)(2) of A292 72 2821: this AD, or replace:
(i) 0 ...... Not Applicable ...... Not Applicable ...... Re-check shield within 500 N1 cycles. (ii) 1 ...... D–A ...... (A) Less than 170 mm ...... Re-check shield within 100 N1 cycles. (B) Between 170 mm and 200 mm ...... Re-check shield daily. (C) Greater than 200 mm ...... Replace shield before further flight. (iii) 1 ...... A–B ...... (A) Less than 201 mm ...... Re-check within 100 cycles. (5:00 o’clock Area) ..... (B) Between 201 mm and 248 mm ...... Re-check daily. (C) Greater than 248 mm ...... Replace shield before further flight. (iv) 1 ...... C–D ...... (A) Less than 297 mm ...... Re-check within 100 cycles. (8:00 o’clock Area) ..... (B) Between 297 mm and 366 mm ...... Re-check daily. (C) Greater than 366 mm ...... Replace shield before further flight. (v) 2 ...... One in A–B and one (A) Zone 1 using Appendix 3 of MSB A292 Re-check within 100 cycles. in C–D. 72 2821. (B) Zone 2 using Appendix 3 of MSB A292 Re-check daily. 72 2821. (C) Zone 3 using Appendix 3 of MSB A292 Replace shield before further flight. 72 2821. (vi) 2 ...... Either one or both in Any ...... Replace shield before further flight. D–A. (vii) 2 ...... Both in A–B ...... Any ...... Replace shield before further flight. (viii) 2 ...... Both in C–D ...... Any ...... Replace shield before further flight. (ix) 3 or more ...... Any ...... Any ...... Replace shield before further flight.
(3) You may treat multiple cracks adjacent on the Internet at http://dms.dot.gov; or at the SUMMARY: The FAA is adopting a new to each other as a single crack by using the National Archives and Records airworthiness directive (AD) for length measured between the two extremities Administration (NARA). For information on Turbomeca Astazou XIV B and XIV H of the cracks. the availability of this material at NARA, call turboshaft engines that have operated (4) Single cracks that span two locations 202–741–6030, or go to: http:// must use the location that yields the most www.archives.gov/federal-register/cfr/ibr- with air intake noise suppressors. This conservative re-check interval or replacement locations.html. AD requires ensuring proper installation requirement. of air intake noise suppressors, and Issued in Burlington, Massachusetts, on ultrasonically inspecting 2nd stage axial Optional Terminating Action December 5, 2005. compressor wheel blades operated in (g) Incorporation of Turbomeca Carlos Pestana, engines with improperly installed modification TU22 terminates the repetitive Acting Manager, Engine and Propeller intake noise suppressors. This AD visual checks required by this AD. Directorate, Aircraft Certification Service. results from several reports of failure of Alternative Methods of Compliance [FR Doc. 05–23831 Filed 12–12–05; 8:45 am] 2nd stage axial compressor wheel (h) The Manager, Engine Certification BILLING CODE 4910–13–P blades. We are issuing this AD to Office, has the authority to approve prevent failure of 2nd stage axial alternative methods of compliance for this compressor wheel blades, leading to in- AD if requested using the procedures found DEPARTMENT OF TRANSPORTATION flight engine shutdown and autorotation in 14 CFR 39.19. Federal Aviation Administration landing. Related Information DATES: Effective December 28, 2005. The (i) Direction Generale de L’Aviation Civile 14 CFR Part 39 Director of the Federal Register AD F–2005–162, dated September 28, 2005, approved the incorporation by reference also addresses the subject of this AD. [Docket No. FAA–2005–23004; Directorate of certain publications listed in the Material Incorporated by Reference Identifier 2005–NE–42–AD; Amendment 39– regulations as of December 28, 2005. 14405; AD 2005–25–12] (j) You must use Turbomeca Mandatory We must receive any comments on Service Bulletin A292 72 2821, dated June this AD by February 13, 2006. 27, 2005, to perform the actions required by RIN 2120–AA64 this AD. The Director of the Federal Register ADDRESSES: Use one of the following approved the incorporation by reference of Airworthiness Directives; Turbomeca addresses to comment on this AD: this service bulletin in accordance with 5 Astazou XIV B and XIV H Turboshaft • DOT Docket Web site: Go to U.S.C. 552(a) and 1 CFR part 51. Contact Engines http://dms.dot.gov and follow the Turbomeca, 40220 Tarnos, France; telephone instructions for sending your comments 33 05 59 74 40 00, fax 33 05 59 74 45 15, AGENCY: Federal Aviation Administration (FAA), Department of electronically. for a copy of this service information. You • may review copies at the Docket Management Transportation (DOT). Government-wide rulemaking Web site: Go to http://www.regulations.gov Facility; U.S. Department of Transportation, ACTION: Final rule; request for and follow the instructions for sending 400 Seventh Street, SW., Nassif Building, comments. Room PL–401, Washington, DC 20590–0001, your comments electronically.
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• Mail: Docket Management Facility; bilateral airworthiness agreement, the dms.dot.gov, including any personal U.S. Department of Transportation, 400 DGAC kept the FAA informed of the information you provide. We will also Seventh Street, SW., Nassif Building, situation described above. We have post a report summarizing each Room PL–401, Washington, DC 20590– examined the findings of the DGAC, substantive verbal contact with FAA 0001. reviewed all available information, and personnel concerning this AD. Using the • Fax: (202) 493–2251. determined that AD action is necessary search function of the DMS Web site, • Hand Delivery: Room PL–401 on for products of this type design that are anyone can find and read the comments the plaza level of the Nassif Building, certificated for operation in the United in any of our dockets, including the 400 Seventh Street, SW., Washington, States. name of the individual who sent the DC, between 9 a.m. and 5 p.m., Monday FAA’s Determination and Requirements comment (or signed the comment on through Friday, except Federal holidays. of This AD behalf of an association, business, labor Contact Turbomeca, 40220 Tarnos, union, etc.). You may review the DOT’s France; telephone 33 05 59 74 40 00, fax The unsafe condition described complete Privacy Act Statement in the 33 05 59 74 45 15, for the service previously is likely to exist or develop Federal Register published on April 11, information identified in this AD. on other Turbomeca Astazou XIV B and 2000 (65 FR 19477–78) or you may visit XIV H turboshaft engines of the same FOR FURTHER INFORMATION CONTACT: http://dms.dot.gov. type design. We are issuing this AD to Christopher Spinney, Aerospace prevent failure of 2nd stage axial Examining the AD Docket Engineer, Engine Certification Office, compressor wheel blades, leading to in- FAA, Engine and Propeller Directorate, You may examine the docket that flight engine shutdown and autorotation 12 New England Executive Park, contains the AD, any comments landing. This AD requires: Burlington, MA 01803–5299; telephone • received, and any final disposition in Before further flight, ensuring person at the Docket Management (781) 238–7175; fax (781) 238–7199. proper installation of air intake noise SUPPLEMENTARY INFORMATION: The Facility Docket Office between 9 a.m. suppressors; and and 5 p.m., Monday through Friday, Direction Generale de L’Aviation Civile • For engines operated with except Federal holidays. The Docket (DGAC), which is the airworthiness improperly installed air intake noise Office (telephone (800) 647–5227) is authority for France, notified us that an suppressors, removing the engine and located on the plaza level of the unsafe condition might exist on performing an ultrasonic inspection of Department of Transportation Nassif Turbomeca Astazou XIV B and XIV H 2nd stage axial compressor wheel Building at the street address stated in turboshaft engines that have operated blades, within 50 flight hours or 6 ADDRESSES. Comments will be available with an air intake noise suppressor. The months after the effective date of this in the AD docket shortly after the DMS DGAC advises that several cases of AD, whichever occurs first, and receives them. failure of 2nd stage axial compressor replacing blades that fail inspection. wheel blades have occurred in service. You must use the service information Authority for This Rulemaking An investigation revealed that these described previously to perform the Title 49 of the United States Code failures result from aerodynamic- removals, blade inspections, induced stresses caused by improperly specifies the FAA’s authority to issue replacements, and installations required rules on aviation safety. Subtitle I, installed air intake noise suppressors. by this AD. An improperly installed air intake noise Section 106, describes the authority of suppressor has too great an angular FAA’s Determination of the Effective the FAA Administrator. Subtitle VII, position on the air intake casing. This in Date Aviation Programs, describes in more turn results in downstream airflow Since an unsafe condition exists that detail the scope of the Agency’s turbulence causing high stresses in the requires the immediate adoption of this authority. 2nd stage axial compressor wheel AD, we have found that notice and We are issuing this rulemaking under blades. opportunity for public comment before the authority described in Subtitle VII, Part A, Subpart III, Section 44701, Relevant Service Information issuing this AD are impracticable, and that good cause exists for making this ‘‘General requirements.’’ Under that We have reviewed and approved the amendment effective in less than 30 section, Congress charges the FAA with technical contents of Turbomeca Alert days. promoting safe flight of civil aircraft in Service Bulletin (ASB) No. A283 72 air commerce by prescribing regulations 0800, dated February 5, 2004, that Comments Invited for practices, methods, and procedures describes instructions for ultrasonic This AD is a final rule that involves the Administrator finds necessary for inspection of 2nd stage axial compressor requirements affecting flight safety and safety in air commerce. This regulation wheel blades. The DGAC classified this was not preceded by notice and an is within the scope of that authority alert service bulletin as mandatory and opportunity for public comment; because it addresses an unsafe condition issued AD F–2004–029, dated February however, we invite you to send us any that is likely to exist or develop on 18, 2004, in order to ensure the written relevant data, views, or products identified in this rulemaking airworthiness of these Astazou XIV B arguments regarding this AD. Send your action. and XIV H turboshaft engines in France. comments to an address listed under Regulatory Findings ADDRESSES. Include ‘‘AD Docket No. Bilateral Airworthiness Agreement FAA–2005–23004; Directorate Identifier We have determined that this AD will These Astazou XIV B and XIV H 2005–NE–42–AD’’ in the subject line of not have federalism implications under turboshaft engines are manufactured in your comments. We specifically invite Executive Order 13132. This AD will France and are type certificated for comments on the overall regulatory, not have a substantial direct effect on operation in the United States under the economic, environmental, and energy the States, on the relationship between provisions of section 21.29 of the aspects of the rule that might suggest a the national Government and the States, Federal Aviation Regulations (14 CFR need to modify it. or on the distribution of power and 21.29) and the applicable bilateral We will post all comments we responsibilities among the various airworthiness agreement. Under this receive, without change, to http:// levels of government.
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For the reasons discussed above, I the compliance times specified unless the DEPARTMENT OF TRANSPORTATION certify that the regulation: actions have already been done. Federal Aviation Administration 1. Is not a ‘‘significant regulatory Ensure Proper Installation of Air Intake action’’ under Executive Order 12866; Noise Suppressors 2. Is not a ‘‘significant rule’’ under the 14 CFR Part 39 DOT Regulatory Policies and Procedures (f) Before further flight, ensure proper installation of air intake noise suppressors. [Docket No. FAA–2005–22290; Directorate (44 FR 11034, February 26, 1979); and (g) You can find information on doing this Identifier 2005–NM–129–AD; Amendment 3. Will not have a significant in aircraft maintenance manual (AMM) 39–14407; AD 2005–25–14] economic impact, positive or negative, section 71–30–41 for Aerospatiale AS319B RIN 2120–AA64 on a substantial number of small entities helicopters, and in AMM section 71–61–401 under the criteria of the Regulatory for Aerospatiale AS342J helicopters. Airworthiness Directives; BAE Flexibility Act. Systems (Operations) Limited We prepared a summary of the costs Engines That Operated With Improperly (Jetstream) Model 4101 Airplanes to comply with this AD and placed it in Installed Air Intake Noise Suppressors the AD Docket. You may get a copy of (h) For engines that operated with AGENCY: Federal Aviation this summary by sending a request to us improperly installed air intake noise Administration (FAA), Department of at the address listed under ADDRESSES. suppressors: Transportation (DOT). (1) Perform an ultrasonic inspection of 2nd ACTION: Final rule. List of Subjects in 14 CFR Part 39 stage axial compressor wheel blades, within Air transportation, Aircraft, Aviation 50 flight hours or 6 months after the effective SUMMARY: The FAA is adopting a new safety, Incorporation by reference, date of this AD, whichever occurs first, and airworthiness directive (AD) for all BAE Safety. replace blades that fail inspection. Systems (Operations) Limited (2) Use 2.B.(1) through 2.B.(2)(b) of Adoption of the Amendment (Jetstream) Model 4101 airplanes. This Turbomeca Alert Service Bulletin No. A283 AD requires modifying the wiring of the I Under the authority delegated to me 72 0800, dated February 5, 2004, to do the starter-generator terminal block. This by the Administrator, the Federal inspection. AD results from a report of total Aviation Administration amends part 39 Alternative Methods of Compliance electrical failure just as the airplane of the Federal Aviation Regulations (14 (i) The Manager, Engine Certification landed. We are issuing this AD to CFR part 39) as follows: Office, has the authority to approve prevent total electrical failure and consequent reduced controllability of PART 39—AIRWORTHINESS alternative methods of compliance for this AD if requested using the procedures found the airplane. DIRECTIVES in 14 CFR 39.19. DATES: This AD becomes effective January 17, 2006. 1. The authority citation for part 39 Related Information continues to read as follows: The Director of the Federal Register (j) Direction Generale de L’Aviation Civile approved the incorporation by reference Authority: 49 U.S.C. 106(g), 40113, 44701. airworthiness directive F–2004–029, dated of a certain publication listed in the AD § 39.13 [Amended] February 18, 2004, also addresses the subject as of January 17, 2006. of this AD. I 2. The FAA amends § 39.13 by adding ADDRESSES: You may examine the AD the following new airworthiness Material Incorporated by Reference docket on the Internet at http:// directive: (k) You must use Turbomeca Alert Service dms.dot.gov or in person at the Docket Bulletin No. A283 72 0800, dated February Management Facility, U.S. Department 2005–25–12 Turbomeca: Amendment 39– 5, 2004, to perform the removals, blade of Transportation, 400 Seventh Street, 14405. Docket No. FAA–2005–23004; SW., Nassif Building, room PL–401, Directorate Identifier 2005–NE–42–AD. inspections, replacements, and installations required by this AD. The Director of the Washington, DC. Effective Date Federal Register approved the incorporation Contact British Aerospace Regional (a) This airworthiness directive (AD) by reference of this service bulletin in Aircraft American Support, 13850 becomes effective December 28, 2005. accordance with 5 U.S.C. 552(a) and 1 CFR Mclearen Road, Herndon, Virginia part 51. Contact Turbomeca, 40220 Tarnos, Affected ADs 20171, for service information identified France; telephone 33 05 59 74 40 00, fax 33 in this AD. (b) None. 05 59 74 45 15, for a copy of this service FOR FURTHER INFORMATION CONTACT: Applicability information. You may review copies at the Todd Thompson, Aerospace Engineer, (c) This AD applies to Turbomeca Astazou Docket Management Facility; U.S. International Branch, ANM–116, FAA, XIV B and XIV H turboshaft engines that Department of Transportation, 400 Seventh Transport Airplane Directorate, 1601 have operated with air intake noise Street, SW., Nassif Building, Room PL–401, Lind Avenue, SW., Renton, Washington Washington, DC 20590–0001, on the internet suppressors. These engines are installed on, 98055–4056; telephone (425) 227–1175; at http://dms.dot.gov; or at the National but not limited to, single-engine Aerospatiale fax (425) 227–1149. AS319B ‘‘Alouette III’’ and AS342J ‘‘Gazelle’’ Archives and Records Administration helicopters. (NARA). For information on the availability SUPPLEMENTARY INFORMATION: of this material at NARA, call 202–741–6030, Unsafe Condition Examining the Docket or go to: http://www.archives.gov/federal- (d) This AD results from several reports of register/cfr/ibr-locations.html. You may examine the airworthiness failure of 2nd stage axial compressor wheel directive (AD) docket on the Internet at blades. We are issuing this AD to prevent Issued in Burlington, Massachusetts, on http://dms.dot.gov or in person at the failure of 2nd stage axial compressor wheel December 5, 2005. Docket Management Facility office blades, leading to in-flight engine shutdown Carlos Pestana, between 9 a.m. and 5 p.m., Monday and autorotation landing. Acting Manager, Engine and Propeller through Friday, except Federal holidays. Compliance Directorate, Aircraft Certification Service. The Docket Management Facility office (e) You are responsible for having the [FR Doc. 05–23827 Filed 12–12–05; 8:45 am] (telephone (800) 647–5227) is located on actions required by this AD performed within BILLING CODE 4910–13–P the plaza level of the Nassif Building at
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the street address stated in the approved AMOC on any airplane to under the criteria of the Regulatory ADDRESSES section. which the AMOC applies. Flexibility Act. We prepared a regulatory evaluation Discussion Conclusion of the estimated costs to comply with The FAA issued a notice of proposed We have carefully reviewed the this AD and placed it in the AD docket. rulemaking (NPRM) to amend 14 CFR available data, including the comments See the ADDRESSES section for a location part 39 to include an AD that would received, and determined that air safety to examine the regulatory evaluation. apply to all BAE Systems (Operations) and the public interest require adopting List of Subjects in 14 CFR Part 39 Limited (Jetstream) Model 4101 the AD with the change described airplanes. That NPRM was published in previously. We have determined that Air transportation, Aircraft, Aviation the Federal Register on September 6, this change will neither increase the safety, Incorporation by reference, 2005 (70 FR 52947). That NPRM economic burden on any operator nor Safety. proposed to require modifying the increase the scope of the AD. Adoption of the Amendment wiring of the starter-generator terminal block. Costs of Compliance I Accordingly, under the authority delegated to me by the Administrator, Comments This AD affects about 57 airplanes of U.S. registry. The actions take about 10 the FAA amends 14 CFR part 39 as We provided the public the work hours per airplane, at an average follows: opportunity to participate in the labor rate of $65 per work hour. Based PART 39—AIRWORTHINESS development of this AD. We have on these figures, the estimated cost of DIRECTIVES considered the comments received. this AD for U.S. operators is $37,050, or Support for the NPRM and Request for $650 per airplane. I 1. The authority citation for part 39 Further Information About Alternative Authority for This Rulemaking continues to read as follows: Methods of Compliance (AMOCs) Authority: 49 U.S.C. 106(g), 40113, 44701. Title 49 of the United States Code One commenter concurs with our specifies the FAA’s authority to issue § 39.13 [Amended] decision to act on the manufacturer’s rules on aviation safety. Subtitle I, proposed solution to the unsafe I 2. The Federal Aviation Section 106, describes the authority of Administration (FAA) amends § 39.13 condition. The commenter also requests the FAA Administrator. Subtitle VII, information about what kinds of by adding the following new Aviation Programs, describes in more airworthiness directive (AD): AMOCs we will find acceptable for detail the scope of the Agency’s compliance with the actions required by authority. 2005–25–14 BAE Systems (Operations) the final rule. Limited (Formerly British Aerospace It is difficult to describe the specific We are issuing this rulemaking under Regional Aircraft): Amendment 39– types of AMOCs that we will find the authority described in Subtitle VII, 14407. Docket No. FAA–2005–22290; acceptable for compliance with this AD Part A, Subpart III, Section 44701, Directorate Identifier 2005–NM–129–AD. ‘‘General requirements.’’ Under that because AMOCs vary according to the Effective Date airplane operator, and cannot be section, Congress charges the FAA with promoting safe flight of civil aircraft in (a) This AD becomes effective January 17, predicted until we receive a written 2006. request. In general, AMOCs are different air commerce by prescribing regulations Affected ADs approaches or techniques that are not for practices, methods, and procedures specified in an AD that can, after our the Administrator finds necessary for (b) None. safety in air commerce. This regulation approval, be used to correct an unsafe Applicability is within the scope of that authority condition on an aircraft or aircraft (c) This AD applies to all BAE Systems product. The AMOC must be acceptable because it addresses an unsafe condition that is likely to exist or develop on (Operations) Limited Model Jetstream 4101 to accomplish the intent of the AD, airplanes, certificated in any category. products identified in this rulemaking provide an acceptable level of safety, Unsafe Condition and have sufficient technical action. justification so that we can evaluate the (d) This AD results from a report of total Regulatory Findings electrical failure just as the airplane landed. request. For example, a compliance time We have determined that this AD will We are issuing this AD to prevent total that differs from the requirements of the not have federalism implications under electrical failure and consequent reduced AD can be approved if the revised time Executive Order 13132. This AD will controllability of the airplane. period in combination with other not have a substantial direct effect on Compliance mitigating actions provides an the States, on the relationship between acceptable level of safety for the (e) You are responsible for having the the national government and the States, requirements of the AD. The purpose of actions required by this AD performed within or on the distribution of power and the compliance times specified, unless the AMOCs is to ensure the most efficient responsibilities among the various actions have already been done. method of compliance for individual levels of government. operators and also to eliminate the need Modification for constant AD revisions when For the reasons discussed above, I (f) Within 6 months after the effective date acceptable methods are developed for certify that this AD: of this AD: Modify the wiring of the starter- AD compliance. (1) Is not a ‘‘significant regulatory generator terminal block in accordance with It is not necessary to change the final action’’ under Executive Order 12866; the Accomplishment Instructions of BAE rule in this regard. (2) Is not a ‘‘significant rule’’ under Systems (Operations) Limited Service DOT Regulatory Policies and Procedures Bulletin J41–24–041, dated May 10, 2004. Clarification of AMOC Paragraph (44 FR 11034, February 26, 1979); and Alternative Methods of Compliance We have revised this action to clarify (3) Will not have a significant (AMOCs) the appropriate procedure for notifying economic impact, positive or negative, (g)(1) The Manager, International Branch, the principal inspector before using any on a substantial number of small entities ANM–116, Transport Airplane Directorate,
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FAA, has the authority to approve AMOCs designed to provide safe and efficient 8260, as modified by the the National for this AD, if requested in accordance with use of the navigable airspace and to Flight Data Center (FDC)/Permanent the procedures found in 14 CFR 39.19. promote safe flight operations under Notice to Airmen (P-NOTAM), which is (2) Before using any AMOC approved in instrument flight rules at the affected incorporated by reference in the accordance with § 39.19 on any airplane to which the AMOC applies, notify the airports. amendment under 5 U.S.C. 552(a), 1 appropriate principal inspector in the FAA DATES: This rule is effective December CFR part 51, and § 97.20 of the Code of Flight Standards Certificate Holding District 13, 2005. The compliance date for each Federal Regulations. Materials Office. SIAP is specified in the amendatory incorporated by reference are available for examination or purchase as stated Related Information provisions. above. (h) British airworthiness directive G–2005– The incorporation by reference of certain publications listed in the The large number of SIAPs, their 0006, dated February 7, 2005, also addresses complex nature, and the need for a regulations is approved by the Director the subject of this AD. special format make their verbatim of the Federal Register as of December Material Incorporated by Reference publication in the Federal Register 13, 2005. (i) You must use BAE Systems (Operations) expensive and impractical. Further, ADDRESSES: Availability of matter Limited Service Bulletin J41–24–041, dated airmen do not use the regulatory text of May 10, 2004, to perform the actions that are incorporated by reference in the the SIAPs, but refer to their graphic required by this AD, unless the AD specifies amendment is as follows: depiction on charts printed by otherwise. The Director of the Federal For Examination: publishers of aeronautical materials. Register approved the incorporation by 1. FAA Rules Docket, FAA Thus, the advantages of incorporation reference of this document in accordance Headquarters Building, 800 by reference are realized and with 5 U.S.C. 552(a) and 1 CFR part 51. Independence Ave, SW., Washington, Contact British Aerospace Regional Aircraft publication of the complete description DC 20591; of each SIAP contained in FAA form American Support, 13850 Mclearen Road, 2. The FAA Regional Office of the documents is unnecessary. The Herndon, Virginia 20171, for a copy of this region in which affected airport is service information. You may review copies provisions of this amendment state the located; or at the Docket Management Facility, U.S. affected CFR sections, with the types 3. The National Flight Procedures Department of Transportation, 400 Seventh and effective dates of the SIAPs. This Office, 6500 South MacArthur Blvd., Street, SW., room PL–401, Nassif Building, amendment also identifies the airport, Oklahoma City, OK 73169 or, Washington, DC; on the Internet at http:// its location, the procedure identification 4. The National Archives and Records dms.dot.gov; or at the National Archives and and the amendment number. Records Administration (NARA). For Administration (NARA). For information on the availability of this information on the availability of this The Rule material at the NARA, call (202) 741–6030, material at NARA, call 202–741–6030, or go to http://www.archives.gov/ This amendment to 14 CFR part 97 is _ _ _ _ or go to: http://www.archives.gov/ effective upon publication of each federal register/code of federal regulations/ _ _ federal register/ separate SIAP as amended in the ibr locations.html. _ _ _ code of federal regulations/ transmittal. For safety and timeliness of Issued in Renton, Washington, on ibr_locations.html. December 2, 2005. change considerations, this amendment For Purchase: Individual SIAP copies incorporates only specific changes Kalene C. Yanamura, may be obtained from: contained for each SIAP as modified by Acting Manager, Transport Airplane 1. FAA Public Inquiry Center (APA– FDC/P–NOTAMs. Directorate, Aircraft Certification Service. 200), FAA Headquarters Building, 800 The SIAPs, as modified by FDC P– [FR Doc. 05–23830 Filed 12–12–05; 8:45 am] Independence Avenue, SW., NOTAM, and contained in this BILLING CODE 4910–13–P Washington, DC 20591; or amendment are based on the criteria 2. The FAA Regional Office of the contained in the U.S. Standard for region in which the affected airport is Terminal Instrument Procedures DEPARTMENT OF TRANSPORTATION located. (TERPS). In developing these chart By Subscription: Copies of all SIAPs, Federal Aviation Administration changes to SIAPs, the TERPS criteria mailed once every 2 weeks, are for sale were applied to only these specific by the Superintendent of Documents, 14 CFR Part 97 conditions existing at the affected U.S. Government Printing Office, airports. All SIAP amendments in this [Docket No. 30470; Amdt. No. 3145] Washington, DC 20402. rule have been previously issued by the FOR FURTHER INFORMATION CONTACT: FAA in a FDC NOTAM as an emergency Standard Instrument Approach Donald P. Pate, Flight Procedure action of immediate flight safety relating Procedures; Miscellaneous Standards Branch (AFS–420), Flight directly to published aeronautical Amendments Technologies and Programs Division, charts. The circumstances which AGENCY: Federal Aviation Flight Standards Service, Federal created the need for all these SIAP Administration (FAA), DOT. Aviation Administration, Mike amendments requires making them Monroney Aeronautical Center, 6500 ACTION: Final rule. effective in less than 30 days. South MacArthur Blvd, Oklahoma City, Further, the SIAPs contained in this SUMMARY: This amendment amends OK 73169 (Mail Address: P.O. Box amendment are based on the criteria Standard Instrument Approach 25082 Oklahoma City, OK 73125) contained in TERPS. Because of the Procedures (SIAPs) for operations at telephone: (405) 954–4164. close and immediate relationship certain airports. These regulatory SUPPLEMENTARY INFORMATION: This between these SIAPs and safety in air actions are needed because of changes amendment to Title 14, Code of Federal commerce, I find that notice and public occurring in the National Airspace Regulations, part 97 (14 CFR part 97) procedure before adopting these SIAPs System, such as the commissioning of amends Standard Instrument Approach are impracticable and contrary to the new navigational facilities, addition of Procedures (SIAPs). The complete public interest and, where applicable, new obstacles, or changes in air traffic regulatory description of each SIAP is that good cause exists for making these requirements. These changes are contained in the appropriate FAA Form SIAPs effective in less than 30 days.
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Conclusion List of Subjects in 14 CFR Part 97 Authority: 49 U.S.C. 106(g), 40103, 40106, Air Traffic Control, Airports, 40113, 40114, 40120, 44502, 44514, 44701, The FAA has determined that this 44719, 44721–44722. regulation only involves an established Incorporation by reference, and Navigation (Air). I body of technical regulations for which 2. Part 97 is amended to read as frequent and routine amendments are Issued in Washington, DC on December 2, follows: 2005. necessary to keep them operationally §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 James J. Ballough, current. It, therefore: (1) Is not a and 97.35 [Amended] ‘‘significant regulatory action’’ under Director, Flight Standards Service. By amending: § 97.23 VOR, VOR/ Executive Order 12866; (2) is not a Adoption of the Amendment ‘‘significant rule’’ under DOT DME, VOR or TACAN, and VOR/DME I Accordingly, pursuant to the authority Regulatory Policies and Procedures (44 or TACAN; § 97.25 LOC, LOC/DME, delegated to me, Title 14, Code of FR 11034; February 26, 1979); and (3) LDA, LDA/DME, SDF, SDF/DME; Federal regulations, part 97, 14 CFR part does not warrant preparation of a § 97.27 NDB, NDB/DME; § 97.29 ILS, 97, is amended by amending Standard ILS/DME, ISMLS, MLS/DME, MLS/ regulatory evaluation as the anticipated Instrument Approach Procedures, impact is so minimal. For the same RNAV; § 97.31 RADAR SIAPs; § 97.33 effective at 0901 UTC on the dates RNAV SIAPs; and § 97.35 COPTER reason, the FAA certifies that this specified, as follows: amendment will not have a significant SIAPs, Identified as follows: economic impact on a substantial PART 97—STANDARD INSTRUMENT Effective Upon Publication number of small entities under the APPROACH PROCEDURES criteria of the Regulatory Flexibility Act. I 1. The authority citation for part 97 continues to read as follows:
FDC Date State City Airport FDC No. Subject
11/15/05 ...... ID LEWISTON ...... LEWISTON-NEZ PERCE COUNTY ... 5/0530 ILS RWY 26, AMDT 11/B. 11/17/05 ...... AK CHALKYITSIK ...... CHALKYITSIK ...... 5/0723 RNAV (GPS) RWY 21, ORIG-A. 11/17/05 ...... AK CHALKYITSIK ...... CHALKYITSIK ...... 5/0724 RNAV (GPS) RWY 3, ORIG-A. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0739 RNAV (GPS) RWY 9, ORIG-B. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0741 RNAV (GPS) RWY 27, ORIG-B. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0742 RNAV (GPS) RWY 3, ORIG-B. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0744 RNAV (GPS) RWY 15, ORIG-C. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0746 RNAV (GPS) RWY 33, ORIG-B. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0747 RNAV (GPS) RWY 21, ORIG-B. 11/17/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/0748 VOR OR TACAN RWY 15, AMDT 21B. 11/21/05 ...... KS WICHITA ...... WICHITA MID-CONTINENT ...... 5/0750 ILS OR LOC RWY 19L, ORIG-A. 11/28/05 ...... KS WICHITA ...... WICHITA MID-CONTINENT ...... 5/0769 RNAV (GPS) Y RWY 19L, ORIG-A. 11/28/05 ...... KS WICHITA ...... WICHITA MID-CONTINENT ...... 5/0771 RNAV (GPS) Z RWY 19L, ORIG-A. 11/22/05 ...... MI HOLLAND ...... TULIP CITY ...... 5/0866 ILS OR LOC/DME RWY 26, ORIG-A. 11/28/05 ...... MO JOPLIN ...... JOPLIN REGIONAL ...... 5/0884 RNAV (GPS) RWY 31, ORIG-A. 11/28/05 ...... MO JOPLIN ...... JOPLIN REGIONAL ...... 5/0885 LOC BC RWY 31, AMDT 21A. 11/23/05 ...... OR MCMINNVILLE ...... MCMINNVILLE MUNI ...... 5/0890 ILS OR LOC RWY 22, AMDT 3B. 11/23/05 ...... ID POCATELLO ...... POCATELLO REGIONAL ...... 5/0910 ILS OR LOC RWY 21, AMDT 26A. 11/23/05 ...... ID POCATELLO ...... POCATELLO REGIONAL ...... 5/0911 RNAV (GPS) RWY 21, ORIG-A. 11/23/05 ...... ID POCATELLO ...... POCATELLO REGIONAL...... 5/0912 VOR/DME OR TACAN RWY 21, AMDT 10A. 11/28/05 ...... MO COLUMBIA ...... COLUMBIA REGIONAL ...... 5/0921 VOR RWY 13 AMDT 3B. 11/22/05 ...... MA BOSTON ...... GENERAL EDWARD LAWRENCE 5/0850 ILS RWY 15R, AMDT 1B. LOGAN INTL. 11/22/05 ...... AZ CHANDLER ...... CHANDLER MUNI ...... 5/0862 NDB RWY 4R, ORIG-B. 11/22/05 ...... AZ CHANDLER ...... CHANDLER MUNI ...... 5/0863 RNAV (GPS) RWY4R, ORIG-A. 11/22/05 ...... AZ CHANDLER ...... CHANDLER MUNI ...... 5/0864 VOR RWY 4R, ORIG-A. 11/29/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/1030 ILS OR LOC RWY 21, AMDT 9C. 11/29/05 ...... SD SIOUX FALLS ...... JOE FOSS FIELD ...... 5/1031 ILS OR LOC RWY 3, AMDT 27C. 11/28/05 ...... CO WRAY ...... WRAY MUNI ...... 5/0991 RNAV (GPS) RWY 17, ORIG-A. 11/28/08 ...... CO WRAY ...... WRAY MUNI ...... 5/0992 RNAV (GPS) RWY 35, ORIG-A. 11/29/05 ...... CO TRINIDAD ...... PERRY STOKES ...... 5/1008 RNAV (GPS)-B, ORIG-A. 11/29/05 ...... CO RIFLE ...... GARFIELD COUNTY REGIONAL ...... 5/1014 ILS RWY 26, ORIG-C. 11/29/05 ...... CO GRAND JUNCTION...... WALKER FIELD ...... 5/1017 ILS OR LOC/DME RWY 11, AMDT 14B. 11/29/05 ...... CO CRAIG ...... CRAIG-MOFFAT ...... 5/1019 VOR/DME RWY 7, AMDT 2B. 11/29/05 ...... GA MILLEN ...... MILLEN ...... 5/1028 NDB RWY 17, ORIG-A. 11/29/05 ...... GA MILLEN ...... MILLEN ...... 5/1029 RNAV (GPS) RWY 17, ORIG-A. 11/29/05 ...... CO MONTROSE ...... MONTROSE REGIONAL ...... 5/1035 ILS OR LOC/DME RWY 17, AMDT 1A.
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[FR Doc. 05–23851 Filed 12–12–05; 8:45 am] Executive Order 13132 record subjects indexed in the III BILLING CODE 4910–13–P The Compact Council is not an System. executive department or independent § 905.2 Purpose and authority. regulatory agency as defined in 44 The purpose of this part 905 is to NATIONAL CRIME PREVENTION AND U.S.C. 3502; accordingly, Executive require each National Fingerprint File PRIVACY COMPACT COUNCIL Order 13132 is not applicable. (NFF) participant to meet the standards Nonetheless, this rule fully complies set forth in the NFF Qualification 28 CFR Part 905 with the intent that the national Requirements as established by the government should be deferential to the [NCPPC 114] Compact Council (Council). The States when taking action that affects Council is established pursuant to the Qualification Requirements for the policymaking discretion of the National Crime Prevention and Privacy Participation in the National States. Fingerprint File Program Compact Act (Compact), title 42, U.S.C., Executive Order 12988 § 14616. AGENCY: National Crime Prevention and The Compact Council is not an § 905.3 Participation in the NFF Program. Privacy Compact Council. executive agency or independent ACTION: Final rule. Each NFF Program participant shall establishment as defined in 5 U.S.C. meet the standards set forth in the NFF SUMMARY: The Compact Council 105; accordingly, Executive Order 12988 Qualification Requirements as (Council), established pursuant to the is not applicable. established by the Council and endorsed National Crime Prevention and Privacy Unfunded Mandates Reform Act by the FBI’s Criminal Justice Compact (Compact) Act of 1998, is Approximately 75 percent of the Information Services Advisory Policy publishing a rule requiring a Compact Compact Council members are Board; however, such standards shall Party to meet minimum qualification representatives of state and local not interfere or conflict with the FBI’s standards while participating in the governments; accordingly, rules administration of the III, including the National Fingerprint File (NFF) prescribed by the Compact Council are NFF, for criminal justice purposes. Each Program. not Federal mandates. Accordingly, no participant’s performance will be DATES: This rule is effective on January actions are deemed necessary under the audited and measured by criteria 12, 2006. provisions of the Unfunded Mandates designed to assess compliance with FOR FURTHER INFORMATION CONTACT: Ms. Reform Act of 1995. those requirements. Measurements by Donna M. Uzzell, Compact Council which to determine compliance to the Chairman, Florida Department of Law Small Business Regulatory Enforcement NFF Qualification Requirements are Enforcement, P.O. Box 1489, Fairness Act of 1996 outlined in the FBI and State Sampling Tallahassee, FL 32302, telephone The Small Business Regulatory Standards. (For a copy of the standards, number (850) 410–7100. Enforcement Fairness Act (5 U.S.C. 801– contact the FBI Compact Officer, 1000 Custer Hollow Road, Module C–3, SUPPLEMENTARY INFORMATION: This 804) is not applicable to the Council’s Clarksburg, WV 26306–0001.) document finalizes the Compact rule because the Compact Council is not Council rule proposed in the Federal a ‘‘Federal agency’’ as defined by 5 Dated: November 3, 2005. Register on June 22, 2005. The Compact U.S.C. 804(1). Likewise, the reporting Donna M. Uzzell, Council accepted comments on the requirement of the Congressional Compact Council Chairman. proposed rule until July 22, 2005; Review Act (Subtitle E of the Small [FR Doc. 05–23948 Filed 12–12–05; 8:45 am] Business Regulatory Enforcement however, no comments were received. BILLING CODE 4410–02–P Fairness Act) does not apply. See 5 Administrative Procedures and U.S.C. 804. Executive Orders List of Subjects in 28 CFR Part 905 PRESIDIO TRUST Administrative Procedure Act Crime, Privacy, Information, Safety. The Compact Council, composed of 36 CFR Part 1011 I 15 members including 11 state and local Accordingly, title 28 of the Code of RIN 3212–AA07 governmental representatives, is Federal Regulations, chapter IX is amended by adding part 905 to read as authorized to promulgate rules, Debt Collection procedures, and standards for the follows: AGENCY: Presidio Trust. effective and proper use of the III PART 905—NATIONAL FINGERPRINT System for noncriminal justice FILE (NFF) PROGRAM QUALIFICATION ACTION: Final rule. purposes. The Compact Council is REQUIREMENTS publishing this rule in compliance with SUMMARY: The Presidio Trust published the mandate that rules, procedures, or Sec. a proposed rule in the Federal Register standards established by the Council be 905.1 Definition. on August 4, 2005 (70 FR 44870–44878) published in the Federal Register. See 905.2 Purpose and authority. concerning debt collection in 42 U.S.C. 14616, Articles II(4), VI(a)(1), 905.3 Participation in the NFF Program. connection with the area under the and VI(e). This publication complies Authority: 42 U.S.C. 14616. administrative jurisdiction of the with those requirements. Presidio Trust. The public comment § 905.1 Definition. period on the proposed rule closed on Executive Order 12866 ‘‘National Fingerprint File’’ means a September 19, 2005. No comment was The Compact Council is not an database of fingerprints, or other received by the Presidio Trust. This executive department or independent uniquely personal identifying final rule adopts debt collection regulatory agency as defined in 44 information, relating to an arrested or regulations to conform to the Debt U.S.C. 3502; accordingly, Executive charged individual maintained by the Collection Improvement Act of 1996, Order 12866 is not applicable. FBI to provide positive identification of the Federal Claims Collection
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Standards, and other laws applicable to Section Analysis another Federal agency would like to use the offset process to collect a debt the collection of nontax debts owed to Subpart A—Sections 1011.1 through from payment issued by the Presidio the Presidio Trust. 1011.3 Trust as a payment agency. DATES: This final rule is effective Subpart A of this final rule addresses January 12, 2006. the general provisions applicable to the Regulatory Analysis FOR FURTHER INFORMATION CONTACT: collection of nontax debts owed to the E.O. 12866, Regulatory Review Karen Cook, General Counsel, Presidio Presidio Trust. As stated in section 1011.2 of this This final rule is not a significant Trust, at (415) 561–5300, 34 Graham final rule, nothing in this regulation regulatory action as defined in Street, San Francisco, CA 94129. requires the Presidio Trust to duplicate Executive Order 12866. Dated: December 7, 2005. notices or administrative proceedings Regulatory Flexibility Act Karen A. Cook, required by contract, this regulation or The Presidio Trust certifies that this General Counsel. other laws or regulations. Thus, for example, the Presidio Trust is not final rule is not expected to have a SUPPLEMENTARY INFORMATION: required to provide a debtor with two significant economic impact on a hearings on the same issue merely substantial number of small entities Background because the entity uses two different under the Regulatory Flexibility Act or Executive Order 13272. This final rule establishes the Presidio collection tools, each of which requires Trust’s debt collection regulations. They that the debtor be provided with a Unfunded Mandates Reform Act hearing. conform to the Debt Collection This final rule will not impose a cost Improvement Act of 1996 (DCIA), Public Subpart B—Sections 1011.4 through of $100 million or more in any given Law 104–134, 110 Stat. 1321, 1358 (Apr. 1011.20 year on local, State or tribal 26, 1996), the Federal Claims Collection Subpart B of this final rule describes governments or private entities. Standards, 31 CFR Chapter IX (parts 900 the procedures to be followed by the Congressional Review Act through 904), and other laws applicable Presidio Trust when collecting debts to the collection of nontax debt owed to owed to the Presidio Trust. Among The Presidio Trust has submitted a the Government. other things, subpart B outlines the due copy of this rule, together with other This final rule provides procedures process procedures the Presidio Trust required information, to each House of for the collection of nontax debts owed will follow when using offset Congress and to the Comptroller General to the Presidio Trust. The Presidio Trust (administrative, tax refund and salary) of the United States prior to publication adopts the Governmentwide debt to collect a debt, when garnishing a of this rule in the Federal Register. This collection standards promulgated by the debtor’s wages, or before reporting a rule is not a ‘‘major rule’’ within the Departments of the Treasury and Justice, debt to a credit bureau. Specifically, the meaning of the Congressional Review known as the Federal Claims Collection Presidio Trust will provide debtors with Act, 5 U.S.C. 801 et seq. Standards (FCCS), as revised on notice of the amount and type of debt, List of Subjects for 36 CFR Part 1011 November 22, 2000 (65 FR 70390), and the intended collection action to be supplements the FCCS by prescribing taken, how a debtor may pay the debt Administrative practice and procedure, Claims, Debt collections, procedures consistent with the FCCS, as or make alternate repayment Federal employees, Garnishment of necessary and appropriate for Presidio arrangements, how a debtor may review wages, Reporting and recordkeeping Trust operations. The Presidio Trust documents related to the debt, how a requirements. may, but is not required to, adopt debtor may dispute the debt, and the additional procedures and guidelines consequences to the debtor if the debt Authority and Issuance consistent with this final rule, the FCCS, is not paid. Notices may be sent by first- class mail, and if not returned by the I For the reasons set forth in the and other applicable Federal laws, United States Postal Service, the preamble, 36 CFR part 1011 is added to policies and procedures. This final rule Presidio Trust may presume that the read as follows: also provides the procedures for the notice was received. See Rosenthal v. collection of debts owed to another Walker, 111 U.S. 185 (1884); Mahon v. PART 1011—DEBT COLLECTION Federal agency when a request for offset Credit Bureau of Placer County Subpart A—General Provisions is received from another Federal agency. Incorporated, 171 F.3d 1197 (9th Cir. This final rule does not apply to the 1999). Nothing in this final rule Sec. 1011.1 What definitions apply to the collection of tax debts, which is precludes the Presidio Trust from regulations in this part? governed by the Internal Revenue Code sending a notice by certified mail if 1011.2 Why is the Presidio Trust issuing of 1986 (26 U.S.C. 1 et seq.) and appropriate or required by statute. these regulations and what do they regulations, policies and procedures Subpart B also explains the cover? issued by the Internal Revenue Service. circumstances under which the Presidio 1011.3 Do these regulations adopt the Trust may waive interest, penalties and Federal Claims Collection Standards? Nothing in this final rule precludes administrative costs. the use of collection remedies not Subpart B—Procedures to Collect Presidio This final rule also incorporates Trust Debts 1011.4 What notice will the contained in this rule. For example, the procedures for several collection Presidio Trust may collect unused travel Presidio Trust send to a debtor when remedies authorized by the DCIA, such collecting a debt? advances through setoff of an as administrative wage garnishment. employee’s pay under 5 U.S.C. 5705. 1011.5 What interest, penalty charges and administrative costs will the Presidio The Presidio Trust may simultaneously Subpart C—Sections 1011.21 and 1011.22 Trust add to a debt? use multiple collection remedies to 1011.6 When will the Presidio Trust allow collect a debt, except as prohibited by Subpart C of this final rule describes a debtor to enter into a repayment law. the procedures to be followed when agreement?
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1011.7 When will the Presidio Trust federal payments through the Treasury Treasury Department, which is compromise a debt? Offset Program. responsible for the centralized 1011.8 When will the Presidio Trust Administrative wage garnishment collection of delinquent debts through suspend or terminate debt collection on means the process by which a Federal the offset of Federal payments and other a debt? agency may, without first obtaining a 1011.9 When will the Presidio Trust means. transfer a debt to the Financial court order, order a non-Federal IRS means the Internal Revenue Management Service for collection? employer to withhold amounts from a Service. 1011.10 How will the Presidio Trust use debtor’s wages to satisfy a delinquent Paying agency means any agency that administrative offset (offset of non-tax debt. is making payments of any kind to a federal payments) to collect a debt? Agency or Federal agency means a debtor. In some cases, the Presidio Trust 1011.11 How will the Presidio Trust use tax department, agency, court, court may be both the paying agency and the refund offset to collect a debt? administrative office, or instrumentality creditor agency. 1011.12 How will the Presidio Trust offset in the executive, judicial or legislative Person means an individual, a Federal employee’s salary to collect a branch of the federal government, corporation, partnership, association, debt? including government corporations. organization, state or local government, 1011.13 How will the Presidio Trust use administrative wage garnishment to Certification means a written or any other type of entity other than a collect a debt from a debtor’s wages? statement received by a paying agency Federal agency. 1011.14 How will the Presidio Trust report or disbursing official that requests the Private collection contractor means a debts to credit bureaus? paying agency or disbursing official to private debt collector under contract 1011.15 How will the Presidio Trust refer offset the salary of an employee and with an agency to collect a non-tax debt debts to private collection contractors? specifies that required procedural owed to the Presidio Trust. 1011.16 When will the Presidio Trust refer protections have been afforded the Salary offset means a type of debts to the Department of Justice? employee. administrative offset to collect a debt 1011.17 Will a debtor who owes a debt be Compromise means the settlement or owed by a Federal employee from the ineligible for Presidio Trust licenses, forgiveness of all or a portion of a debt. permits, leases, privileges or services? current pay account of the employee. 1011.18 How does a debtor request a Creditor agency means any Federal Tax refund offset means the reduction special review based on a change in agency that is owed a debt and includes of a tax refund by the amount of a circumstances such as catastrophic a debt collection center when it is acting delinquent debt owed to the Presidio illness, divorce, death or disability? on behalf of the Presidio Trust. Trust. 1011.19 Will the Presidio Trust issue a Debt means any amount of money, Treasury Department means the refund if money is erroneously collected funds or property that has been United States Department of the on a debt? determined by an appropriate agency Treasury. 1011.20 Will the Presidio Trust’s failure to official to be owed to the United States Treasury Offset Program means the comply with these regulations be a by a person. As used in this part, the Treasury Department’s program for defense to a debt? term ‘‘debt’’ does not include debts withholding funds payable by the Subpart C—Procedures for Offset of arising under the Internal Revenue United States to a person to satisfy a Presidio Trust Payments to Collect Debts Code. debt owed by the person utilizing the Owed To Other Federal Agencies Debt collection center means the Financial Management Service’s system 1011.21 How do other Federal agencies use Treasury Department or any agency or that compares information about the offset process to collect debts from division designated by the Secretary of payments with information about debts. payments issued by the Presidio Trust? the Treasury with authority to collect 1011.22 What does the Presidio Trust do debts on behalf of creditor agencies. § 1011.2 Why is the Presidio Trust issuing upon receipt of a request to offset the Debtor means a person who owes a these regulations and what do they cover? salary of a Presidio Trust employee to debt to the United States. (a) Scope. The Presidio Trust is collect a debt owed by the employee to Delinquent debt means a debt that has issuing these regulations to provide another Federal agency? not been paid by the date specified in procedures for the collection of debts Authority: 16 U.S.C. 460bb appendix, as the Presidio Trust’s initial written owed to the Presidio Trust. This part amended. demand for payment or applicable also provides procedures for collection of other debts owed to the United States Subpart A—General Provisions agreement or instrument (including a post-delinquency payment agreement) when a request for offset of a Treasury § 1011.1 What definitions apply to the unless other satisfactory payment payment is received by the Treasury regulations in this part? arrangements have been made. Department from another agency (for Disposable pay means that part of an example, when a Presidio Trust As used in this part: employee’s pay that remains after employee owes a debt to the United Administrative offset or offset means deductions that are required by law to States Department of Education). withholding funds payable by the be withheld have been made. (b) Applicability. (1) This part applies United States (including funds payable Employee or Federal employee means to the Presidio Trust when collecting a by the United States on behalf of a State a current employee of the Presidio Trust debt and to persons who owe a debt to Government) to, or held by the United or other Federal agency, including a the Presidio Trust, or to Federal States for, a person to satisfy a debt current member of the Armed Forces, agencies requesting offset of a payment owed by the person. The term Reserve of the Armed Forces of the issued by the Presidio Trust as a paying ‘‘administrative offset’’ includes, United States or of the National Guard. agency (including salary payments to without limitation, the offset of federal FCCS means the Federal Claims Presidio Trust employees). salary, vendor, retirement, and Social Collection Standards, which were (2) This part does not apply to tax Security benefit payments. The terms jointly published by the Departments of debts. ‘‘centralized administrative offset’’ and the Treasury and Justice and codified at (3) Nothing in this part precludes ‘‘centralized offset’’ refer to the process 31 CFR parts 900–904. collection or disposition of any debt by which the Treasury Department’s FMS means the Financial under statutes and regulations other Financial Management Service offsets Management Service, a bureau of the than those described in this part.
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(c) Additional policies, guidelines and the Presidio Trust by the due date, (iii) The name and address of the procedures. The Presidio Trust may which date will not be less than 30 days office to which the request for a hearing adopt additional policies, guidelines after the date of the notice, and the date should be sent. and procedures consistent with this part by which payment must be received by (11) How a debtor who is a Federal and other applicable law. the Presidio Trust to avoid the enforced employee subject to Federal salary offset (d) Duplication not required. Nothing collection actions described in may request a hearing (see § 1011.12(e) in this part requires the Presidio Trust paragraph (a)(6) of this section, which of this part), including: to duplicate notices or administrative date will not be less than 60 days after (i) The method and time period for proceedings required by contract, this the date of the notice; requesting a hearing; part or other laws or regulations. (4) How the debtor may enter into a (ii) That the timely filing of a request (e) Use of multiple collection written agreement to repay the debt for a hearing on or before the 15th remedies allowed. The Presidio Trust voluntarily under terms acceptable to business day following the date of the may simultaneously use multiple the Presidio Trust (see § 1011.6 of this notice will stay the commencement of collection remedies to collect a debt, part); salary offset, but not necessarily other except as prohibited by law. This part (5) The name, address and telephone collection procedures; is intended to promote aggressive debt number of a contact person within the (iii) The name and address of the collection, using for each debt all Presidio Trust; office to which the request for a hearing available collection remedies. These (6) The Presidio Trust’s intention to should be sent; remedies are not listed in any enforce collection if the debtor fails to (iv) That the Presidio Trust will refer prescribed order to provide the Presidio pay or otherwise resolve the debt, by the debt to the debtor’s employing Trust with flexibility in determining taking one or more of the following agency or to the FMS to implement which remedies will be most efficient in actions: salary offset, unless the employee files collecting the particular debt. (i) Use administrative offset or other a timely request for a hearing; (f) Cross-servicing with the Treasury offset to offset the debtor’s federal Department. These regulations (v) That a final decision on the payments, including, without hearing, if requested, will be issued at authorize the Presidio Trust to enter a limitation, income tax refunds, salary, cross-servicing agreement with the the earliest practical date, but not later certain benefit payments (such as Social than 60 days after the filing of the Treasury Department under which the Security), retirement, vendor, travel Treasury Department will take request for a hearing, unless the reimbursements and advances, and employee requests and the hearing authorized action to collect debts owed other federal payments (see § 1011.10 to the Presidio Trust. official grants a delay in the through 1011.12 of this part); proceedings; (ii) Refer the debt to a private § 1011.3 Do these regulations adopt the (vi) That any knowingly false or Federal Claims Collections Standards? collection agency (see § 1011.15 of this frivolous statements, representations or part); This part adopts and incorporates all evidence may subject the Federal (iii) Report the debt to a credit bureau provisions of the FCCS. This part also employee to penalties under the False (see § 1011.14 of this part); Claims Act (31 U.S.C. 3729–3731) or supplements the FCCS by prescribing (iv) Garnish the debtor’s wages other applicable statutory authority, and procedures consistent with the FCCS, as through administrative wage criminal penalties under 18 U.S.C. 286, necessary and appropriate for Presidio garnishment (see § 1011.13 of this part); Trust operations. (v) Refer the debt to the Department 287, 1001, and 1002, or other applicable of Justice to initiate litigation to collect statutory authority; Subpart B—Procedures to Collect (vii) That unless prohibited by Presidio Trust Debts the debt (see § 1011.16 of this part); (vi) Refer the debt to the FMS for contract or statute, amounts paid on or § 1011.4 What notice will the Presidio collection (see § 1011.9 of this part); deducted for the debt which are later Trust send to a debtor when collecting a (7) That debts over 180 days waived or found not owed to the United debt? delinquent must be referred to the FMS States will be promptly refunded to the (a) Notice requirements. The Presidio for the collection actions described in employee; and Trust will aggressively collect debts. paragraph (a)(6) of this section (see (viii) That proceedings with respect to The Presidio Trust will send at least one § 1011.9 of this part); such debt are governed by 5 U.S.C. 5514 written notice to a debtor informing the (8) How the debtor may inspect and and 31 U.S.C. 3716; debtor of the consequences of failing to obtain copies of disclosable records (12) That the debtor may request a pay or otherwise resolve a debt. The related to the debt; waiver of the debt; notice(s) will be sent to the debtor’s (9) How the debtor may request a (13) That the debtor’s spouse may most current address for the debtor in review of the Presidio Trust’s claim the spouse’s share of a joint the records of the Presidio Trust. Except determination that the debtor owes a income tax refund by filing Form 8379 as otherwise provided in paragraph (b) debt. with the IRS; of this section, the written notice(s) will (10) How a debtor may request a (14) That the debtor may exercise explain to the debtor: hearing if the Presidio Trust intends to other statutory or regulatory rights and (1) The amount, nature and basis of garnish the debtor’s non-Federal wages remedies available to the debtor; the debt; (see § 1011.13(a) of this part), including: (15) That the Presidio Trust may (2) How interest, penalty charges and (i) The method and time period for suspend or revoke any licenses, permits, administrative costs are added to the requesting a hearing; leases, privileges or services for failure debt, the date by which payment should (ii) That the timely filing of a request to pay a debt (see § 1011.17 of this part); be made to avoid such charges, and that for a hearing on or before the 15th and such assessments must be made unless business day following the date of the (16) That the debtor should advise the waived (see § 1011.5 of this part); notice will stay the commencement of Presidio Trust of a bankruptcy (3) The date by which payment is due administrative wage garnishment, but proceeding of the debtor or another and that the debt will be considered not necessarily other collection person liable for the debt being delinquent if payment is not received by procedures; and collected.
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(b) Exceptions to notice requirements. particular types of debts. The Presidio Trust will set the necessary terms of any The Presidio Trust may omit from a Trust will explain in the notice to the repayment agreement. No repayment notice to a debtor one or more of the debtor described in ‘‘.4 of this part how agreement will be binding on the provisions contained in paragraphs interest, penalties, administrative costs Presidio Trust unless it is in writing and (a)(6) through (a)(16) of this section if and other charges are assessed, unless signed by both the debtor and an the Presidio Trust, in consultation with the requirements are included in a authorized Presidio Trust its General Counsel, determines that any contract or repayment agreement. representative. The Presidio Trust is not provision is not legally required given (f) Waiver. (1) The Presidio Trust may required to enter into a repayment the collection remedies to be applied to waive collection of all or part of accrued agreement. a particular debt. interest, penalties and administrative § 1011.7 When will the Presidio Trust (c) Respond to debtors. The Presidio costs when it would be against equity compromise a debt? Trust will respond promptly to and good conscience or not in the communications from debtors. Presidio Trust’s best interest to collect (a) Authority. The Presidio Trust may compromise a debt in accordance with such charges. § 1011.5 What interest, penalty charges (2) A decision to waive interest, the FCCS and such procedures as the and administrative costs will the Presidio Presidio Trust may adopt. (See Trust add to a debt? penalties or administrative costs may be made at any time before a debt is paid. § 1011.16 of this subpart). (b) Report to IRS. The uncollected (a) Interest. (1) The Presidio Trust will However, unless otherwise provided in portion of a debt owed to the Presidio assess interest on all delinquent debts these regulations, when these charges unless prohibited by statute, regulation Trust that is not recovered as the result have been collected before the waiver of a compromise will be reported to the or contract. decision, they will not be refunded. (2) Interest begins to accrue on all IRS as income to the debtor in (g) Accrual during suspension of debt debts from the date the debt becomes accordance with IRS and Presidio Trust collection. In most cases, interest, delinquent. The Presidio Trust will procedures. penalties and administrative costs will waive collection of interest on that continue to accrue during any period § 1011.8 When will the Presidio Trust portion of the debt that is paid within when collection has been suspended for suspend or terminate debt collection on a 30 days after the date on which interest any reason (for example, when the debt? begins to accrue. The Presidio Trust will debtor has requested a hearing). The If, after pursuing all appropriate assess interest at the rate established by Presidio Trust may suspend accrual of means of collection, the Presidio Trust the Treasury Department under 31 any or all of these charges when accrual determines that a debt is uncollectible, U.S.C. 3717, unless a different rate is would be against equity and good the Presidio Trust may suspend or established by a contract, repayment conscience or not in the Presidio Trust’s terminate debt collection activity in agreement or statute. The Presidio Trust best interest. accordance with the FCCS and the will notify the debtor of the basis for the Presidio Trust’s procedures. interest rate assessed. § 1011.6 When will the Presidio Trust allow (b) Penalty. The Presidio Trust will a debtor to enter into a repayment § 1011.9 When will the Presidio Trust assess a penalty of not more than 6% a agreement? transfer a debt to the Financial Management year, or such other higher rate as (a) Voluntary repayment. In response Service for collection? authorized by law, on any portion of a to a notice of a debt, the debtor may (a) Cross-servicing. The Presidio Trust debt that is delinquent for more than 90 propose to the Presidio Trust the will transfer any eligible debt that is days. voluntary repayment of the debt in lieu more than 180 days delinquent to the (c) Administrative costs. The Presidio of the Presidio Trust taking other FMS for debt collection services, a Trust will assess charges to cover collection actions under this part. process known as ‘‘cross-servicing.’’ The administrative costs incurred as a result (b) Debtor’s request. The request from Presidio Trust may transfer debts of the debtor’s failure to pay a debt. The the debtor must: delinquent 180 days or less to the FMS Presidio Trust will waive collection of (1) Be in writing; in accordance with the procedures administrative costs on that portion of (2) Admit the existence of the entire described in 31 CFR 285.12. The FMS the debt that is paid within 30 days after debt; and takes appropriate action to collect or the date on which the administrative (3) Either propose payment of the debt compromise the transferred debt, or to costs begin to accrue. Administrative (together with interest, penalties and suspend or terminate collection action costs include the costs of processing and administrative costs) in a lump sum, or thereon, in accordance with the handling a debt, obtaining a credit set forth a proposed repayment statutory and regulatory requirements report, using a private collection schedule. and authorities applicable to the debt contractor, costs of a hearing including, (c) Repayment schedule. The Presidio and the collection action to be taken. the costs of a hearing officer, and service Trust will collect debts in one lump Appropriate action includes, without fees charged by a Federal agency for sum whenever feasible. The Presidio limitation, contact with the debtor, collection activities undertaken on Trust may accept payment in regular referral of the debt to the Treasury behalf of the Presidio Trust. installments that bear a reasonable Offset Program, private collection (d) Allocation of payments. A partial relationship to the size of the debt. agencies or the Department of Justice, or installment payment by a debtor will (d) Repayment agreement. The reporting of the debt to credit bureaus, be applied first to outstanding penalty Presidio Trust will consider a request to and administrative wage garnishment. assessments, second to administrative enter into a voluntary repayment (b) Notice; certification. At least 60 costs, third to accrued interest, and agreement in accordance with the FCCS. days prior to transferring a debt to the fourth to outstanding debt principal. The Presidio Trust may request FMS, the Presidio Trust will send notice (e) Additional authority. The Presidio additional information from the debtor, to the debtor as required by § 1011.4 of Trust may have additional policies, including, without limitation, financial this part. The Presidio Trust will certify guidelines and procedures regarding statements, in order to determine to the FMS, in writing, that the debt is how interest, penalties and whether to enter into a voluntary valid, delinquent, legally enforceable administrative costs are assessed on repayment agreement. The Presidio and that there are no legal bars to
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collection. In addition, the Presidio or appropriate, the Presidio Trust may to the debtor prior to sending a notice Trust will certify its compliance with all collect delinquent, legally enforceable to the debtor, as described in § 1011.4 of applicable due process and other debts through non-centralized this part, or completing the procedures requirements as described in this part administrative offset. In these cases, the described in paragraph (b)(2) and (c) of and other Federal laws. Presidio Trust may offset a payment this section. The Presidio Trust will give (c) Treasury Offset Program. As part internally or make an offset request the debtor notice and an opportunity for of its debt collection process, the FMS directly to a federal paying agency. review as soon as practicable and uses the Treasury Offset Program to (2) At least 30 days prior to offsetting promptly refund any money ultimately collect debts by administrative and tax a payment internally or requesting a found not to have been owed to the refund offset. The Treasury Offset federal paying agency to offset a Government. Program is a centralized offset program payment, the Presidio Trust will send administered by the FMS to collect notice to the debtor in accordance with § 1011.11 How will the Presidio Trust use delinquent debts owed to Federal the requirements of § 1011.4 of this part. tax refund offset to collect a debt? agencies and states (including past-due When referring a debt for offset under (a) Tax refund offset. In most cases, child support). Under the Treasury this paragraph (b), the Presidio Trust the FMS uses the Treasury Offset Offset Program, before a federal will certify, in writing, that the debt is Program to collect debts by the offset of payment is disbursed, the FMS valid, delinquent, legally enforceable tax refunds and other federal payments. compares the name and taxpayer and that there are no legal bars to See § 1011.9(c) of this part. If not identification number (TIN) of the payee collection by offset. In addition, the already transferred to the FMS under with the names and TINs of debtors that Presidio Trust will certify its § 1011.9 of this part, the Presidio Trust have been submitted by Federal compliance with the due process will refer to the Treasury Offset Program agencies and states to the Treasury requirements under 31 U.S.C. 3716(a) any delinquent, legally enforceable debt Offset Program database. If there is a and with these regulations concerning for collection by tax refund offset. match, the FMS (or, in some cases, administrative offset. (b) Notice; certification. At least 60 another Federal disbursing agency) (c) Administrative review. The notice days prior to referring a debt to the offsets all or a portion of the federal described in § 1011.4 of this part will Treasury Offset Program, the Presidio payment, disburses any remaining explain to the debtor how to request an Trust will send notice to the debtor in payment to the payee, and pays the administrative review of the Presidio accordance with the requirements of offset amount to the creditor agency. Trust determination that the debtor § 1011.4 of this part. The Presidio Trust Federal payments eligible for offset owes a debt and how to present will certify to the FMS’s Treasury Offset include, without limitation, income tax evidence that the debt is not delinquent Program, in writing, that the debt is refunds, salary, travel advances and or legally enforceable. In addition to delinquent and legally enforceable in reimbursements, retirement and vendor challenging the existence and amount of the amount submitted and that the payments, and Social Security and other the debt, the debtor may seek a review Presidio Trust has made reasonable benefit payments. of the terms of repayment. In most efforts to obtain payment of the debt. In cases, the Presidio Trust will provide addition, the Presidio Trust will certify § 1011.10 How will the Presidio Trust use the debtor with a ‘‘paper hearing’’ based its compliance with all applicable due administrative offset (offset of non-tax upon a review of the written record, process and other requirements federal payments) to collect a debt? including documentation provided by described in this part and other (a) Centralized administrative offset the debtor. The Presidio Trust will applicable law. through the Treasury Offset Program. (1) provide the debtor with a reasonable (c) Administrative review. The notice If not already transferred to the FMS opportunity for an oral hearing when described in § 1011.4 of this part will under § 1011.9 of this part, the Presidio the debtor requests reconsideration of provide the debtor with at least 60 days Trust will refer any eligible debt over the debt and the Presidio Trust prior to the initiation of tax refund offset 180 days delinquent to the Treasury determines that the question of the to request an administrative review as Offset Program for collection by indebtedness cannot be resolved by described in § 1011.10(c) of this part. centralized administrative offset. The review of the documentary evidence, for The Presidio Trust may suspend Presidio Trust may refer any eligible example, when the validity of the debt collection through tax refund offset and/ debt less than 180 days delinquent to turns on an issue of credibility or or other collection actions pending the the Treasury Offset Program for offset. veracity. Unless otherwise required by resolution of the debtor’s dispute. (2) At least 60 days prior to referring law, an oral hearing under this section a debt to the Treasury Offset Program, is not required to be a formal § 1011.12 How will the Presidio Trust in accordance with paragraph (a)(1) of evidentiary hearing, although the offset a Federal employee’s salary to collect this section, the Presidio Trust will send Presidio Trust will document all a debt? notice to the debtor in accordance with significant matters presented at the (a) Federal salary offset. (1) Salary the requirements of § 1011.4 of this part. hearing. The Presidio Trust may offset is used to collect debts owed to The Presidio Trust will certify to the suspend collection through the United States by Federal employees. FMS, in writing, that the debt is valid, administrative offset and/or other If a Presidio Trust employee owes a delinquent, legally enforceable and that collection actions pending the debt, the Presidio Trust may offset the there are no legal bars to collection by resolution of a debtor’s dispute. The employee’s federal salary to collect the offset. In addition, the Presidio Trust Presidio Trust may establish policies, debt in the manner described in this will certify its compliance with the due guidelines and procedures concerning section. For information on how a process requirements under 31 U.S.C. the administrative review process Federal agency other than the Presidio 3716(a) and with the requirements consistent with the FCCS and the Trust may collect a debt from the salary described in this part. regulations in this section. of a Presidio Trust employee, see (b) Non-centralized administrative (d) Procedures for expedited offset. § 1011.21 and 1011.22, subpart C, of this offset for a debt. (1) When centralized Under the circumstances described by part. administrative offset through the the FCCS, the Presidio Trust may effect (2) Nothing in this part requires the Treasury Offset Program is not available an offset against a payment to be made Presidio Trust to collect a debt in
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accordance with the provisions of this amount of the adjustment and a point of cannot be resolved by review of section if Federal law allows otherwise. contact for contesting such adjustment. documentary evidence alone (for (b) Centralized salary offset through (e) Hearing procedures. (1) Request example, when an issue of credibility or the Treasury Offset Program. As for a hearing. A Presidio Trust veracity is involved). The hearing described in § 1011.9(a) of this part, the employee who has received a notice that official will determine the procedure for Presidio Trust will refer debts to the a debt will be collected by means of the oral hearing, determining, for FMS for collection by administrative salary offset may request a hearing example, the hearing length. offset, including salary offset, through concerning the existence or amount of (6) Paper hearing. If the hearing the Treasury Offset Program. the debt. The employee also may official determines that an oral hearing (c) Non-centralized salary offset for request a hearing concerning the is not necessary, the official will make Treasury debts. The Presidio Trust may amount proposed to be deducted from the determination based upon a review collect delinquent debts through non- the employee’s pay each pay period. of the available written record, centralized salary offset. In these cases, The employee must send any request for including any documentation submitted the Presidio Trust may offset a payment hearing, in writing, to the office by the employee in support of the internally or make a request directly to designated in the notice described in employee’s position. a paying agency to offset a salary § 1011.4(a)(11). The request must be (7) Date of decision. The hearing payment to collect a delinquent debt received by the designated office on or official will issue a written opinion owed by a Federal employee. At least 30 before the 15th business day following setting forth the decision, based upon days prior to offsetting internally or the employee’s receipt of the notice. The documentary evidence and information requesting a Federal agency to offset a employee must sign the request and developed at the hearing, as soon as salary payment, the Presidio Trust will specify whether an oral or paper hearing practicable after the hearing. send notice to the debtor in accordance is requested. If an oral hearing is (8) Final agency action. The hearing with the requirements of § 1011.4 of this requested, the employee must explain official’s decision will be final. part. When referring a debt for offset, why the matter cannot be resolved by (f) Salary offset process. (1) the Presidio Trust will certify to the review of the documentary evidence Determination of disposable pay. The paying agency, in writing, that the debt alone. Presidio Trust payroll office will (2) Failure to submit timely request for is valid, delinquent and legally determine the amount of the employee’s hearing. If the employee fails to submit enforceable in the amount stated, and disposable pay (as defined in § 1011.1 of a request for hearing within the time there are no legal bars to collection by this part) and will implement salary period described in paragraph (e)(1) of salary offset. In addition, the Presidio offset. this section, the employee will have Trust will certify that all due process (2) When salary offset begins. waived the right to a hearing, and salary and other prerequisites to salary offset Deductions will begin within three offset may be initiated. However, the have been met. See 5 U.S.C. 5514, 31 official pay periods. Presidio Trust may accept a late request (3) Amount of salary offset. The U.S.C. 3716(a), and this section for a for hearing if the employee can show description of the process for salary amount to be offset from each salary that the late request was the result of payment will be up to 15% of the offset. circumstances beyond the employee’s (d) When prior notice not required. employee’s disposable pay, as follows: control or because of a failure to receive (i) If the amount of the debt is equal The Presidio Trust is not required to actual notice of the filing deadline. provide prior notice to a Presidio Trust to or less than 15% of the disposable (3) Hearing official. The Presidio pay, such debt generally will be employee when the following Trust hearing must be conducted by a adjustments are made: collected in one lump sum payment; hearing official who is not under the (ii) Installment deductions will be (1) Any adjustment to pay arising out supervision or control of the Board of made over a period of no greater than of a Presidio Trust employee’s election Directors of the Presidio Trust. The the anticipated period of employment. of coverage or a change in coverage hearing official need not be an employee An installment deduction will not under a Federal benefits program of the Federal Government. exceed 15% of the disposable pay from requiring periodic deductions from pay, (4) Notice of hearing. After the which the deduction is made unless the if the amount to be recovered was employee requests a hearing, a employee has agreed in writing to the accumulated over four pay periods or designated hearing official will inform deduction of a greater amount. fewer; the employee of the form of the hearing (4) Final salary payment. After the (2) A routine intra-agency adjustment to be provided. For oral hearings, the employee’s employment with the of pay that is made to correct an notice will set forth the date, time and Presidio Trust ends, the Presidio Trust overpayment of pay attributable to location of the hearing. For paper may make a lump sum deduction clerical or administrative errors or hearings, the notice will notify the exceeding 15% of disposable pay from delays in processing pay documents, if employee of the date by which the any final salary or other payments in the overpayment occurred within the employee should submit written order to satisfy a debt. four pay periods preceding the arguments to the designated hearing adjustment, and, at the time of such official. The hearing official will give § 1011.13 How will the Presidio Trust use adjustment, or as soon thereafter as the employee reasonable time to submit administrative wage garnishment to collect practical, the individual is provided documentation in support of the a debt from a debtor’s wages? written notice of the nature and the employee’s position. The hearing (a) Authority and process. The amount of the adjustment and point of official will schedule a new hearing date Presidio Trust is authorized to collect contact for contesting such adjustment; if requested by both parties. The hearing debts from a debtor’s wages by means of or official will give both parties reasonable administrative wage garnishment in (3) Any adjustment to collect a debt notice of the time and place of a accordance with the requirements of the amounting to $50 or less, if, at the time rescheduled hearing. FCCS and other applicable law. This of such adjustment, or as soon thereafter (5) Oral hearing. The hearing official part adopts and incorporates all of the as practical, the individual is provided will conduct an oral hearing if the provisions of 31 CFR 285.11 concerning written notice of the nature and the official determines that the matter administrative wage garnishment,
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including the hearing procedures Attorney General, to the Department of (7) Exceptional expenses, if any. described therein. The Presidio Trust Justice for approval of any compromise (c) Alternative payment arrangement. may use administrative wage of a debt or suspension or termination If the debtor requests a special review garnishment to collect a delinquent debt of collection activity. See the FCCS and under this section, the debtor must unless the debtor is making timely § 1011.7 and 1011.8 of this part. submit an alternative proposed payment (b) Litigation. The Presidio Trust will payments under an agreement to pay the schedule and a statement to the Presidio promptly refer to the Department of debt in installments (see § 1011.6 of this Trust, with supporting documents, Justice for litigation delinquent debts on part). At least 30 days prior to initiating showing why the current offset, an administrative wage garnishment, the which aggressive collection activity has garnishment or repayment schedule Presidio Trust will send notice to the been taken in accordance with this part imposes an extreme financial hardship debtor in accordance with the that the Presidio Trust determines on the debtor. The Presidio Trust will requirements of § 1011.4 of this part, should not be compromised, and on including the requirements of which collection activity should not be evaluate the statement and § 1011.4(a)(10) of this part. For debts suspended or terminated. The Presidio documentation and determine whether referred to the FMS under § 1011.9 of Trust may authorize the FMS to refer to the current offset, garnishment or this part, the Presidio Trust may the Department of Justice for litigation repayment schedule imposes extreme authorize the FMS to send a notice those delinquent debts that have been financial hardship on the debtor. The informing the debtor that administrative transferred to the FMS under § 1011.9 of Presidio Trust will notify the debtor in wage garnishment will be initiated and this part. writing of such determination, how the debtor may request a hearing as including, if appropriate, a revised described in § 1011.4(a)(10) of this part. § 1011.17 Will a debtor who owes a debt offset, garnishment or payment If a debtor makes a timely request for a be ineligible for Presidio Trust licenses, schedule. If the special review results in permits, leases, privileges or services? hearing, administrative wage a revised offset, garnishment or garnishment will not begin until a Unless prohibited by law, the Presidio repayment schedule, the Presidio Trust hearing is held and a decision is sent to Trust may terminate, suspend or revoke will notify the appropriate agency or the debtor. If a debtor’s hearing request licenses, permits, leases (subject to the other persons about the new terms. is not timely, the Presidio Trust may terms of the leases), or other privileges suspend collection by administrative or services for any inexcusable or § 1011.19 Will the Presidio Trust issue a wage garnishment. All travel expenses willful failure of a debtor to pay a debt. refund if money is erroneously collected on a debt? incurred by the debtor in connection The Presidio Trust may establish with an in-person hearing will be borne guidelines and procedures governing The Presidio Trust will promptly by the debtor. termination, suspension and revocation refund to a debtor any amount collected (b) Not applicable to federal salary for delinquent debtors. If applicable, the on a debt when the debt is waived or offset. This section does not apply to Presidio Trust will advise the debtor in otherwise found not to be owed to the federal salary offset, the process by the notice required by § 1011.4 of this United States, or as otherwise required which the Presidio Trust collects debts part of the Presidio Trust’s ability to by law. Refunds under this part will not from the salaries of Federal employees suspend or revoke licenses, permits, bear interest unless required by law. (see § 1011.12 of this part). leases, or privileges or services. § 1011.20 Will the Presidio Trust’s failure § 1011.18 How does a debtor request a § 1011.14 How will the Presidio Trust to comply with these regulations be a special review based on a change in report debts to credit bureaus? defense to a debt? The Presidio Trust will report circumstances such as catastrophic illness, delinquent debts to credit bureaus in divorce, death or disability? No, the failure of the Presidio Trust to accordance with the provisions of 31 (a) Material change in circumstances. comply with any standard in the FCCS, U.S.C. 3711(e) and the FCCS. At least 60 A debtor who owes a debt may, at any these regulations or such other days prior to reporting a delinquent debt time, request a special review by the procedures of the Presidio Trust will not to a consumer reporting agency, the Presidio Trust of the amount of any be available to any debtor as a defense. Presidio Trust will send notice to the offset, administrative wage garnishment debtor in accordance with the or voluntary payment, based on Subpart C—Procedures for Offset of requirements of § 1011.4 of this part. materially changed circumstances Presidio Trust Payments To Collect The Presidio Trust may authorize the beyond the control of the debtor such Debts Owed To Other Federal FMS to report to credit bureaus those as, without limitation, catastrophic Agencies delinquent debts that have been illness, divorce, death or disability. transferred to the FMS under § 1011.9 of (b) Inability to pay. For purposes of § 1011.21 How do other Federal agencies use the offset process to collect debts from this part. this section, in determining whether an involuntary or voluntary payment payments issued by the Presidio Trust? § 1011.15 How will the Presidio Trust refer would prevent the debtor from meeting (a) Offset of Presidio Trust payments debts to private collection contractors? essential subsistence expenses (costs to collect debts owed to other Federal The Presidio Trust will transfer incurred for food, housing, clothing, agencies. (1) In most cases, Federal delinquent debts to the FMS to obtain transportation and medical care), the agencies submit eligible debts to the debt collection services provided by debtor must submit a detailed statement Treasury Offset Program to collect private collection contractors. See and supporting documents for the delinquent debts from payments issued § 1011.9 of this part. debtor, the debtor’s, and dependents, by other Federal agencies, a process § 1011.16 When will the Presidio Trust indicating: known as ‘‘centralized offset.’’ When refer debts to the Department of Justice? (1) Income from all sources; centralized offset is not available or (2) Assets; (a) Compromise or suspension or (3) Liabilities; appropriate, any Federal agency may termination of collection activity. The (4) Number of dependents; ask the Presidio Trust (when acting as Presidio Trust will refer debts having a (5) Expenses for food, housing, a paying agency) to collect a debt owed principal balance over $100,000, or such clothing and transportation; to such agency by offsetting funds higher amount as authorized by the (6) Medical expenses; and payable to a debtor by the Presidio
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Trust, including salary payments issued Presidio Trust. The Presidio Trust will owes a debt (including the amount) and to the Presidio Trust employees. This determine the order in which the debts that the provisions of 5 CFR 550.1109 section and § 1011.22 of this subpart C will be collected based on the best have been fully complied with. The apply when a Federal agency asks the interests of the United States. creditor agency is responsible for Presidio Trust to offset a payment submitting a certified claim to the issued by the Presidio Trust to a person § 1011.22 What does the Presidio Trust do agency responsible for making such upon receipt of a request to offset the who owes a debt to the United States. salary of a Presidio Trust employee to payments before collection may begin. (2) This subpart C does not apply to collect a debt owed by the employee to Generally, creditor agencies will collect the collection of debts through tax another Federal agency? such monies through the Treasury refund offset. (a) Notice to the Presidio Trust Offset Program as described in (b) Administrative offset (including § 1011.9(c) of this part. salary offset); certification. The Presidio employee. When the Presidio Trust receives proper certification of a debt (3) Notice to the debtor. The Presidio Trust will initiate a requested offset Trust will provide to the debtor a copy only upon receipt of written owed by one of its employees, the Presidio Trust will begin deductions of any notices sent to the creditor certification from the creditor agency agency under paragraph (c)(2) of this that the debtor owes the delinquent, from the employee’s pay at the next officially established pay interval. The section. legally enforceable debt in the amount (d) When the debtor transfers to stated, and that the creditor agency has Presidio Trust will send a written notice to the employee indicating that a another Federal agency. (1) Notice to the fully complied with all applicable due creditor agency. If the debtor transfers to process and other requirements, and the certified debt claim has been received from the creditor agency, the amount of another Federal agency before the debt creditor agency’s regulations, as is paid in full, the Presidio Trust will applicable. Offsets will continue until the debt claimed to be owed to the creditor agency, the date deductions notify the creditor agency and will the debt is paid in full or otherwise certify the total amount of its collection resolved to the satisfaction of the from salary will begin, and the amount of such deductions. on the debt. The Presidio Trust will creditor agency. provide a copy of the certification to the (c) Where a creditor agency makes (b) Amount of deductions from a Presidio Trust employee’s salary. The creditor agency. The creditor agency is requests for offset. Requests for offset responsible for submitting a certified under this section must be sent to the amount deducted under § 1011.21(b) of this part will be the lesser of the amount claim to the debtor’s new employing Presidio Trust, ATTN: Chief Financial agency before collection may begin. Officer, P.O. Box 29052, San Francisco, of the debt certified by the creditor agency or an amount up to 15% of the (2) Notice to the debtor. The Presidio CA 94129–0052. Trust will provide to the debtor a copy (d) Incomplete certification. The debtor’s disposable pay. Deductions will of any notices and certifications sent to Presidio Trust will return an incomplete continue until the Presidio Trust knows the creditor agency under paragraph debt certification to the creditor agency that the debt is paid in full or until (d)(1) of this section. with notice that the creditor agency otherwise instructed by the creditor (e) Request for hearing official. The must comply with paragraph (b) of this agency. Alternatively, the amount offset Presidio Trust will provide a hearing section before action will be taken to may be an amount agreed upon, in official upon the creditor agency’s collect a debt from a payment issued by writing, by the debtor and the creditor request with respect to the Presidio the Presidio Trust. agency. See § 1011.12(g) (salary offset (e) Review. The Presidio Trust is not process). Trust employee. authorized to review the merits of the (c) When the debtor is no longer [FR Doc. 05–23951 Filed 12–12–05; 8:45 am] creditor agency’s determination with employed by the Presidio Trust. (1) BILLING CODE 4310–4R–P respect to the amount or validity of the Offset of final and subsequent debt certified by the creditor agency. payments. If the Presidio Trust (f) When the Presidio Trust will not employee retires or resigns or if his or ENVIRONMENTAL PROTECTION comply with offset request. The Presidio her employment ends before collection AGENCY Trust will comply with the offset of the debt is complete, the Presidio request of another agency unless the Trust will continue to offset up to 100% 40 CFR Parts 61 and 63 Presidio Trust determines that the offset of an employee’s subsequent payments [R06–OAR–2005–OK–0003; FRL–8006–7] would not be in the best interests of the until the debt is paid or otherwise United States, or would otherwise be resolved. Such payments include a National Emission Standards for contrary to law. debtor’s final salary payment, lump-sum Hazardous Air Pollutants; Delegation (g) Multiple debts. When two or more leave payment, and other payments of Authority to Oklahoma Department creditor agencies are seeking offsets payable to the debtor by the Presidio of Environmental Quality from payments made to the same Trust. person, or when two or more debts are (2) Notice to the creditor agency. If the AGENCY: Environmental Protection owed to a single creditor agency, the employee’s employment with the Agency (EPA). Presidio Trust may determine the order Presidio Trust terminates before the ACTION: Direct final rule; delegation of in which the debts will be collected or debt is paid in full, the Presidio Trust authority. whether one or more debts should be will certify to the creditor agency the collected by offset simultaneously. total amount of its collection. If the SUMMARY: The Oklahoma Department of (h) Priority of debts owed to the Presidio Trust is aware that the Environmental Quality (ODEQ) has Presidio Trust. For purposes of this employee is entitled to payments from submitted updated regulations for section, debts owed to the Presidio the Civil Service Retirement and receiving delegation of EPA authority Trust generally take precedence over Disability Fund, Federal Employee for implementation and enforcement of debts owed to other agencies. The Retirement System, or other similar National Emission Standards for Presidio Trust may determine whether payments, the Presidio Trust will Hazardous Air Pollutants (NESHAPs) to pay debts owed to other agencies provide written notice to the agency for all sources. These regulations apply before paying a debt owed to the making such payments that the debtor to certain NESHAPs promulgated by
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EPA, as amended through September 1, personal information provided, unless Region 6 reception area at 1445 Ross 2004. The delegation of authority under the comment includes information Avenue, Suite 700, Dallas, Texas. this notice applies only to sources claimed to be Confidential Business The delegation request is also located in Oklahoma, and does not Information (CBI) or other information available for public inspection at the extend to sources located in Indian the disclosure of which is restricted by State Air Agency listed below during country. EPA is providing notice that it statute. Do not submit information official business hours by appointment: is taking direct final action to approve through Regional Material in EDocket Oklahoma Department of the delegation of certain NESHAPs to (RME), regulations.gov, or e-mail if you Environmental Quality, Air Quality ODEQ. believe that it is CBI or otherwise Division, 707 North Robinson, Oklahoma City, Oklahoma 73101. DATES: This rule is effective on February protected from disclosure. The EPA 13, 2006 without further notice, unless RME Web site and the Federal FOR FURTHER INFORMATION CONTACT: Mr. EPA receives relevant adverse comment regulations.gov are ‘‘anonymous access’’ Jeff Robinson, U.S. EPA, Region 6, by January 12, 2006. If EPA receives systems, which means EPA will not Multimedia Planning and Permitting such comment, EPA will publish a know your identity or contact Division (6PD), 1445 Ross Avenue, timely withdrawal in the Federal information unless you provide it in the Dallas, TX 75202–2733, telephone (214) Register informing the public that this body of your comment. If you send an 665–6435; fax number 214–665–7263; or rule will not take effect. e-mail comment directly to EPA without electronic mail at [email protected]. ADDRESSES: Submit your comments, going through RME or regulations.gov, identified by Regional Materials in your e-mail address will be SUPPLEMENTARY INFORMATION: EDocket (RME) ID No. R06–OAR–2005– automatically captured and included as Throughout this document wherever OK–0003, by one of the following part of the comment that is placed in the ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean methods: public file and made available on the the EPA. • Internet. If you submit an electronic Federal eRulemaking Portal: http:// Table of Contents www.regulations.gov. Follow the on-line comment, EPA recommends that you instructions for submitting comments. include your name and other contact I. General Information • Agency Web site: http:// II. What Does This Action Do? information in the body of your III. What Is the Authority for Delegation? docket.epa.gov/rmepub/, Regional comment and with any disk or CD–ROM IV. What Criteria Must ODEQ Program Meet Materials in EDocket (RME), EPA’s you submit. If EPA cannot read your To Be Approved? electronic public docket and comment comment due to technical difficulties V. How Did ODEQ Meet the Subpart E system, is EPA’s preferred method for and cannot contact you for clarification, Approval Criteria? receiving comments. Once in the EPA may not be able to consider your VI. What Is Being Delegated? system, select ‘‘quick search,’’ then key comment. Electronic files should avoid VII. What Is Not Being Delegated? in the appropriate RME Docket the use of special characters, any form VIII. How Will Applicability Determinations Under Section 112 Be Made? identification number. Follow the on- of encryption, and be free of any defects line instructions for submitting IX. What Authority Does EPA Have? or viruses. X. What Information Must ODEQ Provide to comments. Docket: All documents in the EPA? • U.S. EPA Region 6 ‘‘Contact Us’’ electronic docket are listed in the XI. What Is EPA’s Oversight of This Web site: http://epa.gov/region6/ Regional Materials in EDocket (RME) Delegation to ODEQ? r6coment.htm. Please click on ‘‘6PD’’ index at http://docket.epa.gov/rmepub/. XII. Should Sources Submit Notices to EPA (Multimedia) and select ‘‘Air’’ before Or ODEQ? Although listed in the index, some submitting comments. XIII. How Will Unchanged Authorities Be • E-mail: Jeff Robinson at information is not publicly available, Delegated to ODEQ in the Future? [email protected]. i.e., CBI or other information whose XIV. Final Action • Fax: Mr. Jeff Robinson, Air Permits disclosure is restricted by statute. XV. Statutory and Executive Order Reviews Certain other material, such as Section (6PD–R), at fax number 214– I. General Information 665–7263. copyrighted material, is not placed on • Mail: Mr. Jeff Robinson, Air Permits the Internet and will be publicly A. Tips for Preparing Your Comments Section (6PD–R), Environmental available only in hard copy form. When submitting comments, Protection Agency, 1445 Ross Avenue, Publicly available docket materials are remember to: Suite 1200, Dallas, Texas 75202–2733. available either electronically in RME or 1. Identify the rulemaking by docket • Hand or Courier Delivery: Mr. Jeff in the official file which is available at number and other identifying Robinson, Air Permits Section (6PD–R), the Air Permitting Section (6PD–R), information (subject heading, Federal Environmental Protection Agency, 1445 Environmental Protection Agency, 1445 Register date and page number). Ross Avenue, Suite 1200, Dallas, Texas Ross Avenue, Suite 700, Dallas, Texas 2. Follow directions—The agency may 75202–2733. Such deliveries are 75202–2733. The file will be made ask you to respond to specific questions accepted only between the hours of 8 available by appointment for public or organize comments by referencing a a.m. and 4 p.m. weekdays except for inspection in the Region 6 FOIA Review Code of Federal Regulations (CFR) part legal holidays. Special arrangements Room between the hours of 8:30 a.m. or section number. should be made for deliveries of boxed and 4:30 p.m. weekdays except for legal 3. Explain why you agree or disagree; information. holidays. Contact the person listed in suggest alternatives and substitute Instructions: Direct your comments to the FOR FURTHER INFORMATION CONTACT language for your requested changes. Regional Materials in EDocket (RME) ID paragraph below to make an 4. Describe any assumptions and No. R06–OAR–2005–OK–0003. EPA’s appointment. If possible, please make provide any technical information and/ policy is that all comments received the appointment at least two working or data that you used. will be included in the public file days in advance of your visit. There will 5. If you estimate potential costs or without change, change and may be be a 15 cent per page fee for making burdens, explain how you arrived at made available online at http:// photocopies of documents. On the day your estimate in sufficient detail to docket.epa.gov/rmepub/, including any of the visit, please check in at the EPA allow for it to be reproduced.
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6. Provide specific examples to pollutants. The hazardous air pollutant standards as they applied to part 70 illustrate your concerns, and suggest standards are codified at 40 CFR parts sources. 60 FR 13088–13095 (March 10, alternatives. 61 and 63. 1995), EPA approved ODEQ’s program 7. Explain your views as clearly as for receiving delegation of existing and possible, avoiding the use of profanity IV. What Criteria Must ODEQ’s Program Meet To Be Approved? future standards when it granted final or personal threats. interim approval to ODEQ’s Title V 8. Make sure to submit your EPA previously approved ODEQ’s program. 61 FR 4220–4224 (February 5, comments by the comment period program for the delegation of NESHAPS 1996). EPA granted final approval of deadline identified. in 40 CFR part 61. 47 FR 17285 (April Oklahoma’s operating Title V operating 22, 1982). EPA also previously approved B. Submitting Confidential Business permits program on November 30, 2001. ODEQ’s program for the delegation of Information (CBI) 66 FR 63170–63175 (December 5, 2001). certain NESHAP standards in 40 CFR Under 40 CFR 63.91(d)(2), once a state Do not submit this information to EPA part 63. 66 FR 1584 (January 9, 2001). or local air pollution agency has through regulations.gov or e-mail. Section 112(l) of the CAA enables EPA Clearly mark the part or all of the to approve State air toxics programs or satisfied up-front approval criteria, it information that you claim to be CBI. rules to operate in place of the Federal needs only to reference the previous For CBI information in a disk or CD air toxics program or rules. 40 CFR part demonstration and reaffirm that it still ROM that you mail to EPA, mark the 63, subpart E (subpart E) governs EPA’s meets the criteria for any subsequent outside of the disk or CD ROM as CBI approval of State rules or programs submittals. ODEQ has final Title V and then identify electronically within under Section 112(l). program approval and has affirmed that the disk or CD ROM the specific EPA will approve an air toxics it still meets the up-front approval information that is claimed as CBI. In program if we find that: criteria. addition to one complete version of the (1) the State program is ‘‘no less VI. What Is Being Delegated? comment that includes information stringent’’ than the corresponding claimed as CBI, a copy of the comment Federal program or rule; EPA received a request to update the that does not contain the information (2) the State has adequate authority NESHAP delegations on June 15, 2005. claimed as CBI must be submitted for and resources to implement the ODEQ requested the EPA to update the inclusion in the public docket. program; delegation of authority for the following: Information so marked will not be (3) the schedule for implementation disclosed except in accordance with and compliance is sufficiently A. NESHAPs (40 CFR Part 61 procedures set forth in 40 CFR part 2. expeditious; and standards) through September 1, 2004; (4) the program otherwise complies and II. What Does This Notice Do? with Federal guidance. B. NESHAPs (40 CFR Part 63 EPA is taking direct final action to In order to obtain approval of its standards) through September 1, 2004. approve the delegation of certain program to implement and enforce NESHAPs to ODEQ. With this Federal section 112 rules as ODEQ’s request was for delegation of delegation, ODEQ has the primary promulgated without changes (straight certain NESHAPs for all sources (both responsibility to implement and enforce delegation), only the criteria of 40 CFR part 70 and non-part 70 sources). The the delegated standards. See Section VI, 63.91(d) must be met. 40 CFR request includes revisions of OAC below, for a complete discussion of 63.91(d)(3) provides that interim or final 252:100–41–15, as adopted by the which standards are being delegated Title V program approval will satisfy the Oklahoma Department of Environmental and which are not being delegated. criteria of 40 CFR 63.91(d) for part 70 Quality. For the Part 61 NESHAPs, this sources. revision included all NESHAPs III. What Is the Authority for promulgated by EPA as amended in the Delegation? V. How Did ODEQ Meet the Subpart E Federal Register through September 1, Section 112(l) of the CAA and 40 CFR Approval Criteria? 2004, excluding Subparts B, H, I, K, Q, part 63, subpart E, authorizes EPA to As part of its Title V submission, R, T, and W. For the Part 63 NESHAPs, delegate authority to any state or local ODEQ stated that it intended to use the this includes the NESHAPs set forth in agency which submits adequate mechanism of incorporation by Table 1 below. The effective date of the regulatory procedures for reference to adopt unchanged Federal Federal delegation for parts 61 and 63 implementation and enforcement of section 112 into its regulations. This standards is the effective date of this emission standards for hazardous air applied to both existing and future rule.
TABLE 1.—40 CFR PART 63 NESHAPS FOR SOURCE CATEGORIES DELEGATED TO ODEQ
Subpart Source category
A ...... General Provisions. F ...... Hazardous Organic NESHAP (HON)—Synthetic Organic Chemical Manufacturing Industry (SOCMI). G ...... HON—SOCMI Process Vents, Storage Vessels, Transfer Operations and Wastewater. H ...... HON—Equipment Leaks. I ...... HON—Certain Processes Negotiated Equipment Leak Regulation. J ...... Polyvinyl Chloride and Copolymers Production .1 L ...... Coke Oven Batteries. M ...... Perchloroethylene Dry Cleaning. N ...... Chromium Electroplating and Chromium Anodizing Tanks. O ...... Ethylene Oxide Sterilizers. Q ...... Industrial Process Cooling Towers. R ...... Gasoline Distribution. S ...... Pulp and Paper Industry. T ...... Halogenated Solvent Cleaning.
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TABLE 1.—40 CFR PART 63 NESHAPS FOR SOURCE CATEGORIES DELEGATED TO ODEQ—Continued
Subpart Source category
U ...... Group I Polymers and Resins. W ...... Epoxy Resins Production and Non-Nylon Polyamides Production. X ...... Secondary Lead Smelting. Y ...... Marine Tank Vessel Loading. AA ...... Phosphoric Acid Manufacturing Plants. BB ...... Phosphate Fertilizers Production Plants. CC ...... Petroleum Refineries. DD ...... Off-Site Waste and Recovery Operations. EE ...... Magnetic Tape Manufacturing. GG ...... Aerospace Manufacturing and Rework Facilities. HH ...... Oil and Natural Gas Production Facilities. II ...... Shipbuilding and Ship Repair Facilities. JJ ...... Wood Furniture Manufacturing Operations. KK ...... Printing and Publishing Industry. LL ...... Primary Aluminum Reduction Plants. MM ...... Chemical Recovery Combustion Sources at Kraft, Soda, Sulfide, and Stand-Alone Semichemical Pulp Mills. OO ...... Tanks—Level 1. PP ...... Containers. QQ ...... Surface Impoundments. RR ...... Individual Drain Systems. SS ...... Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process. TT ...... Equipment Leaks—Control Level 1. UU ...... Equipment Leaks—Control Level 2 Standards. VV ...... Oil-Water Separators and Organic-Water Separators. WW ...... Storage Vessels (Tanks)—Control Level 2. YY ...... Generic Maximum Achievable Control Technology Standards. CCC ...... Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration Plants. DDD ...... Mineral Wool Production. EEE ...... Hazardous Waste Combustors. GGG ...... Pharmaceuticals Production. HHH ...... Natural Gas Transmission and Storage Facilities. III ...... Flexible Polyurethane Foam Production. JJJ ...... Group IV Polymers and Resins. LLL ...... Portland Cement Manufacturing. MMM ...... Pesticide Active Ingredient Production. NNN ...... Wool Fiberglass Manufacturing. OOO ...... Amino/Phenolic Resins. PPP ...... Polyether Polyols Production. QQQ ...... Primary Copper Smelting. RRR ...... Secondary Aluminum Production. TTT ...... Primary Lead Smelting. UUU ...... Petroleum Refineries—Catalytic Cracking Units, Catalytic Reforming Units and Sulfur Recovery Plants. VVV ...... Publicly Owned Treatment Works (POTW). XXX ...... Ferroalloys Production: Ferromanganese and Silicomanganese. AAAA ...... Municipal Solid Waste Landfills. CCCC ...... Nutritional Yeast Manufacturing. DDDD ...... Plywood and Composite Wood Products. EEEE ...... Organic Liquid Distribution. FFFF ...... Miscellaneous Organic Chemical Manufacturing. GGGG ...... Solvent Extraction for Vegetable Oil Production. HHHH ...... Wet Formed Fiberglass Mat Production. IIII ...... Auto & Light Duty Truck. JJJJ ...... Paper & Other Web Coating. KKKK ...... Surface Coating of Metal Cans. MMMM ...... Surface Coating of Miscellaneous Metal Parts and Products. NNNN ...... Surface Coating of Large Appliances. OOOO ...... Printing, Coating, and Dyeing of Fabrics and Other Textiles. PPPP ...... Plastic Parts. QQQQ ...... Surface Coating of Wood Building Products. RRRR ...... Surface Coating of Metal Furniture. SSSS ...... Surface Coating of Metal Coil. TTTT ...... Leather Finishing Operations. UUUU ...... Cellulose Production Manufacture. VVVV ...... Boat Manufacturing. WWWW ...... Reinforced Plastic Composites Production. XXXX ...... Tire Manufacturing. YYYY ...... Stationary Combustion Turbines. ZZZZ ...... Reciprocating Internal Combustion Engines. AAAAA ...... Lime Manufacturing Plants. BBBBB ...... Semiconductor Manufacturing. CCCCC ...... Coke Ovens: Pushing, Quenching and Battery Stacks. EEEEE ...... Iron and Steel Foundries.
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TABLE 1.—40 CFR PART 63 NESHAPS FOR SOURCE CATEGORIES DELEGATED TO ODEQ—Continued
Subpart Source category
FFFFF ...... Integrated Iron and Steel. GGGGG ...... Site Remediation. HHHHH ...... Miscellaneous Coating Manufacturing. IIIII ...... Mercury Cell Chlor-Alkali Plants. JJJJJ ...... Brick and Structural Clay Products. KKKKK ...... Clay Ceramics Manufacturing. LLLLL ...... Asphalt Roofing and Processing. MMMMM ...... Flexible Polyurethane Foam Fabrication Operation. NNNNN ...... Hydrochloric Acid Production. PPPPP ...... Engine Test Cells/Stands. QQQQQ ...... Friction Products Manufacturing. RRRRR ...... Taconite Iron Ore Processing. SSSSS ...... Refractory Products Manufacturing. TTTTT ...... Primary Magnesium Refining. 1 The ODEQ has adopted the subpart unchanged and applied for delegation of the standard. The standard was vacated and remanded to EPA by the United States Court of Appeals for the District of Columbia Circuit. See, Mossville Environmental Action Network v. EPA, 370 F. 3d 1232 (DC Cir. 2004). Because of the DC Circuit Court’s holding this standard is not being delegated to ODEQ at this time.
VII. What Is Not Being Delegated? Emissions from Operating Mill reservation. Consistent with previous As mentioned above, ODEQ has not Tailings). Federal program approvals or delegations, EPA will continue to been delegated the authority for the In addition, EPA cannot delegate to a implement the NESHAPs in Indian following standards: State any of the Category II Subpart A authorities set forth in 40 CFR country because ODEQ has not 40 CFR Part 60, Subpart AAA adequately demonstrated its authority (Standards of Performance for New 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of over sources and activities located Residential Wood Heaters); within the exterior boundaries of Indian 40 CFR Part 60, Subpart WWW, Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative reservations and other areas in Indian (Standards of Performance for 2 Opacity Standards; § 63.7(e)(2)(ii) and country. Municipal Solid Waste Landfills); (f), Approval of Major Alternatives to 40 CFR Part 60, Subpart Cc, (Emission VIII. How Will Applicability Test Methods; § 63.8(f), Approval of Guidelines and Compliance Times for Determinations Under Section 112 Be Major Alternatives to Monitoring; and Municipal Solid Waste Landfills); Made? § 63.10(f), Approval of Major In approving this delegation, ODEQ 40 CFR Part 61, Subpart B (National Alternatives to Recordkeeping and will obtain concurrence from EPA on Emission Standards for Radon Reporting. Also, some MACT standards any matter involving the interpretation Emissions from Underground have certain provisions that cannot be of section 112 of the CAA or 40 CFR Uranium Mines); delegated to the States (e.g. 40 CFR part 63 to the extent that 40 CFR Part 61, Subpart H (National 63.106(b)). Therefore, any MACT implementation, administration, or Emission Standards for Emissions of standard that EPA is delegating to enforcement of these sections have not Radionuclides Other Than Radon ODEQ that provides that certain been covered by EPA determinations or From Department of Energy authorities cannot be delegated are guidance. Facilities); retained by EPA and not delegated. 40 CFR Part 61, Subpart I (National Furthermore, no authorities are IX. What Authority Does EPA Have? Emission Standards for Radionuclide delegated that require rulemaking in the Emissions from Federal Facilities We retain the right, as provided by Federal Register to implement, or where CAA section 112(l)(7), to enforce any Other Than Nuclear Regulatory Federal overview is the only way to Commission Licensees and Not applicable emission standard or ensure national consistency in the requirement under Section 112. EPA Covered by Subpart H); application of the standards or 40 CFR Part 61, Subpart K—(National requirements of CAA Section 112. 2 The Safe, Accountable, Flexible, Efficient Emission Standards for Radionuclide Finally, Section 112(r), the accidental Transportation Equity Act of 2005 includes a Emissions from Elemental release program authority, is not being provision relating to Oklahoma and EPA programs, Phosphorus Plants); delegated by this approval. providing: 40 CFR Part 61, Subpart Q (National Notwithstanding any other provision of law, if All of the inquiries and requests the Administrator of the Environmental Protection Emission Standards for Radon concerning implementation and Agency (referred to in this section as the Emissions from Department of Energy enforcement of the excluded standards ‘‘Administrator’’) determines that a regulatory facilities); in the State of Oklahoma should be program submitted by the State of Oklahoma for approval by the Administrator under a law 40 CFR Part 61, Subpart R (National directed to the EPA Region 6 Office. administered by the Administrator meets applicable Emission Standards for Radon This delegation to ODEQ to requirements of the law, and the Administrator Emissions from Phosphogypsum implement and enforce certain approves the State to administer the State program Stacks); under the law with respect to areas in the State that NESHAPs does not extend to sources or are not Indian country, on request of the State, the 40 CFR Part 61, Subpart T (National activities located in Indian country, as Administrator shall approve the State to administer Emission Standards for Radon defined in 18 U.S.C. 1151. Under this the State program in the areas of the State that are Emissions from the Disposal of definition, EPA treats as reservations, in Indian country, without any further Uranium Mill Tailings); and trust lands validly set aside for the use demonstration of authority by the State. H.R. 3, Section 10211(a). Oklahoma has not 40 CFR Part 61, Subpart W (National of a Tribe even if the trust lands have applied to administer the NESHAPS program in Emission Standards for Radon not been formally designated as a Indian country in accordance with this statute.
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also has the authority to make certain Additionally, EPA’s Emission XIII. How Will Unchanged Authorities decisions under the General Provisions Measurement Center of the Emissions Be Delegated to ODEQ in the Future? (subpart A) of part 63. We are granting Monitoring and Analysis Division must In the future, ODEQ will only need to ODEQ some of these authorities, and receive copies of any approved send a letter of request to EPA, Region retaining others, as explained in intermediate changes to test methods or 6, for those NSPS and NESHAP Sections VI and VII above. In addition, monitoring. (Please note that regulations that ODEQ has adopted by EPA may review and disapprove of intermediate changes to test methods reference. The letter must reference the State determinations and subsequently must be demonstrated as equivalent previous up-front approval require corrections. (See 40 CFR through the procedures set out in EPA demonstration and reaffirm that it still 63.91(g) and 65 FR 55810, 55823, method 301.) This information on meets the up-front approval criteria. We September 14, 2000.) approved intermediate changes to test will respond in writing to the request Furthermore, we retain any authority methods and monitoring will be used to stating that the request for delegation is in an individual emission standard that compile a database of decisions that will may not be delegated according to either granted or denied. A Federal be accessible to State and local agencies Register notice will be published to provisions of the standard. Also, listed and EPA Regions for reference in in the footnotes of the part 63 delegation inform the public and affected sources making future decisions. (For of the delegation, indicating where table at the end of this rule are the definitions of major, intermediate and authorities that cannot be delegated to source notifications and reports should minor alternative test methods or be sent, and to amend the relevant any State or local agency which we monitoring methods, see 40 CFR 63.90). therefore retain. portions of the Code of Federal The ODEQ should forward these Regulations showing which NESHAP X. What Information Must ODEQ intermediate test methods or monitoring standards have been delegated to ODEQ. Provide to EPA? changes via mail or facsimile to: Chief, Source Categorization Group A, EPA XIV. Final Action In delegating the authority to (MD–19), Research Triangle Park, NC implement and enforce these rules and The public was provided the 27711, Facsimile telephone number: in granting a waiver of EPA notification opportunity to comment on the (919) 541–1039. requirements, we require ODEQ to input proposed approval of the program and all source information into the XI. What Is EPA’s Oversight of This mechanism for delegation of Section Aerometric Information Retrieval Delegation to ODEQ? 112 standards, as applied to part 70 System (AIRS) for both point and area sources, on March 10, 1995. The sources. ODEQ must enter this EPA must oversee ODEQ’s decisions proposal was part of EPA’s proposed information into the AIRS system and to ensure the delegated authorities are approval of the Oklahoma Department update the information by September 30 being adequately implemented and of Environmental Quality’s operating of every year. ODEQ must provide any enforced. We will integrate oversight of permits program. 60 FR 13088. The EPA additional compliance related the delegated authorities into the did not receive adverse public information to EPA, Region 6, Office of existing mechanisms and resources for comments on the proposed delegation of Enforcement and Compliance Assurance oversight currently in place. If, during Section 112 standards. 61 FR 4220 within 45 days of a request under 40 oversight, we determine that ODEQ (February 5, 1996). In this action, the CFR 63.96(a). made decisions that decreased the public is given the opportunity to In receiving delegation for specific stringency of the delegated standards, comment on the approval of ODEQ’s General Provisions authorities, ODEQ then ODEQ shall be required to take request for delegation of authority to must submit to EPA Region 6 on a semi- corrective actions and the source(s) implement and enforce certain Section annual basis, copies of determinations affected by the decisions will be 112 standards for all sources (both part issued under these authorities. For part notified, as required by 40 CFR 70 and non-part 70 sources) which have 63 standards, these determinations 63.91(g)(1)(ii). We will initiate been adopted by reference into include: Applicability determinations withdrawal of the program or rule if the Oklahoma’s state regulations. However, (§ 63.1); approval/disapprovals of corrective actions taken are insufficient. the Agency views the approval of these construction and reconstruction XII. Should Sources Submit Notices to requests as a noncontroversial action (§ 63.5(e) and (f)); notifications EPA or ODEQ? and anticipates no adverse comments. regarding the use of a continuous Therefore, EPA is publishing this rule opacity monitoring system All of the information required without prior proposal. However, in the (§ 63.6(h)(7)(ii)); finding of compliance pursuant to the Federal NESHAP (40 ‘‘Proposed Rules’’ section of today’s (§ 63.6(h)(8)); approval/disapprovals of CFR parts 61 and 63) should be Federal Register publication, EPA is compliance extensions (§ 63.6(i)); submitted by sources located outside of publishing a separate document that approvals/disapprovals of minor Indian country directly to the ODEQ at will serve as the proposal to approve the (§ 63.7(e)(2)(i)) or intermediate the following address: Oklahoma program and delegation of authority (§ 63.7(e)(2)(ii) and (f)) alternative test Department of Environmental Quality, described in this action if adverse methods; approval of shorter sampling Air Quality Division, P.O. Box 1677, comments are received. This action will times and volumes (§ 63.7(e)(2)(iii)); Oklahoma City, OK 73101–1677. The be effective February 13, 2006 without waiver of performance testing ODEQ is the primary point of contact further notice unless the Agency (§ 63.7(e)(2)(iv) and (h)(2), (3)); with respect to delegated NESHAPs in receives relevant adverse comments by approvals/disapprovals of minor or Oklahoma (excluding Indian country). January 12, 2006. intermediate alternative monitoring Sources do not need to send a copy to If EPA receives adverse comments, we methods (§ 63.8(f)); approval of EPA. EPA Region 6 waives the will publish a timely withdrawal in the adjustments to time periods for requirement that notifications and Federal Register informing the public submitting reports (§§ 63.9 and 63.10); reports for delegated standards be the rule will not take effect. We will and approvals/disapprovals of minor submitted to EPA in addition to ODEQ address all public comments in a alternatives to recordkeeping and in accordance with 40 CFR 63.9(a)(4)(ii) subsequent final rule based on the reporting (§ 63.10(f)). and 63.10(a)(4)(ii). proposed rule. The EPA will not
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institute a second comment period on implications because it does not have required information to the U.S. Senate, this action. Any parties interested in substantial direct effects on the States, the U.S. House of Representatives, and commenting must do so at this time. on the relationship between the national the Comptroller General of the United Please note that if we receive adverse government and the States, or on the States prior to publication of the rule in comment on an amendment, paragraph, distribution of power and the Federal Register. A major rule or section of this rule and if that responsibilities among the various cannot take effect until 60 days after it provision may be severed from the levels of government, as specified in is published in the Federal Register. remainder of the rule, we may adopt as Executive Order 13132, ‘‘Federalism’’ This action is not a ‘‘major rule’’ as final those provisions of the rule that are (64 FR 43255, (August 10, 1999)). This defined by 5 U.S.C. 804(2). not the subject of an adverse comment. action merely proposes to approve a Under Section 307(b)(1) of the Clean state rule implementing a Federal XVI. Statutory and Executive Order Air Act, petitions for judicial review of standard, and does not alter the Reviews this action must be filed in the United relationship or the distribution of power States Court of Appeals for the The Office of Management and Budget and responsibilities established in the appropriate circuit by February 13, (OMB) has exempted this regulatory Clean Air Act. This proposed rule also 2006. Filing a petition for action from Executive Order 12866, is not subject to Executive Order 13045, reconsideration by the Administrator of ‘‘Regulatory Planning and Review.’’ (58 ‘‘Protection of Children from this final rule does not affect the finality FR 51735 (October 4, 1993)). This Environmental Health Risks and Safety of this rule for the purposes of judicial proposed rule is not a ‘‘significant Risks’’ (62 FR 19885, (April 23, 1997)). review nor does it extend the time energy action’’ as defined in Executive EPA interprets Executive Order 13045 within which a petition for judicial Order 13211, ‘‘Actions Concerning as applying only to those regulatory review may be filed, and shall not Regulations That Significantly Affect actions that are based on health or safety postpone the effectiveness of such rule Energy Supply, Distribution, or Use’’ (66 risks, such that the analysis required or action. This action may not be FR 28355 (May 22, 2001)), because it is under section 5–501 of the Order has challenged later in proceedings to not likely to have a significant adverse the potential to influence the regulation. enforce its requirements. (See section effect on the supply, distribution, or use This proposed rule is not subject to 307(b)(2)). of energy. This proposed action merely Executive Order 13045 because it proposes to approve state law as approves a state program. List of Subjects meeting Federal requirements and Section 12 of the National Technology 40 CFR Part 61 imposes no additional requirements Transfer and Advancement Act beyond those imposed by state law. (NTTAA) of 1995 (15 U.S.C. 272 note) Environmental protection, Air Accordingly, the Administrator certifies requires Federal agencies to evaluate pollution control, Hazardous that this proposed rule will not have a existing technical standards when substances, Reporting and significant economic impact on a developing a new regulation. To comply recordkeeping requirements. substantial number of small entities with NTTAA, EPA must consider and 40 CFR Part 63 under the Regulatory Flexibility Act (5 use ‘‘voluntary consensus standards’’ U.S.C. 601 et seq.). Because this rule (VCS) if available and applicable when Environmental protection, proposes to approve pre-existing developing programs and policies Administrative practice and procedure, requirements under state law and does unless doing so would be inconsistent Air pollution control, Hazardous not impose any additional enforceable with applicable law or otherwise substances, Intergovernmental relations, duty beyond that required by state law, impractical. In this context, in the Reporting and recordkeeping EPA has determined that this rule does absence of a prior existing requirement requirements. not contain a Federal mandate that may for the State to use voluntary consensus Authority: This action is issued under the result in expenditures of $100 million or standards (VCS), EPA has no authority authority of Sections 111 and 112 of the more for State, local, or tribal to disapprove a delegation submission Clean Air Act, as amended, 42 U.S.C. 7411 governments in the aggregate, or on the for failure to use VCS. It would thus be and 7412. private sector, in any one year. Thus, inconsistent with applicable law for Dated: November 29, 2005. today’s rule is not subject to the EPA to use VCS in place of a delegation Carl E. Edlund, requirements of sections 202 and 205 of submission that otherwise satisfies the Acting Regional Administrator, Region 6. the Unfunded Mandates Reform Act of provisions of the Clean Air Act. Thus, I 1995 (UMRA) (Pub. L. 104–4). In the requirements of section 12(d) of the 40 CFR parts 61 and 63 are amended addition, EPA has determined that this National Technology Transfer and as follows: rule contains no regulatory Advancement Act of 1995 (15 U.S.C. PART 61—[AMENDED] requirements that might significantly or 272 note) do not apply. This rule does uniquely affect small governments in not impose an information collection I 1. The authority citation for part 61 accordance with section 203 of UMRA. burden under the provisions of the continues to read as follows: This proposed rule also does not have Paperwork Reduction Act of 1995 (44 Authority: 42 U.S.C. 7401 et seq. tribal implications because it will not U.S.C. 3501 et seq.). have a substantial direct effect on one or The Congressional Review Act, 5 Subpart A—General Provisions more Indian tribes, on the relationship U.S.C. 801 et seq., as added by the Small between the Federal Government and Business Regulatory Enforcement I 2. Section 61.04 is amended by: Indian tribes, or on the distribution of Fairness Act of 1996, generally provides I A. Revising paragraph (b)(LL) power and responsibilities between the that before a rule may take effect, the introductory text; and Federal Government and Indian tribes, agency promulgating the rule must I B. Revising paragraph (c)(6)(iv) and as specified by Executive Order 13175, submit a rule report, which includes a reserving paragraph (c)(6)(v) to read as ‘‘Consultation and Coordination with copy of the rule, to each House of the follows: Indian Tribal Governments’’ (65 FR Congress and to the Comptroller General 67249, (November 9, 2000)). This action of the United States. EPA will submit a § 61.04 Address. also does not have federalism report containing this rule and other (b) * * *
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(LL) State of Oklahoma, Oklahoma (excluding Indian country), see (iv) The Oklahoma Department of Department of Environmental Quality, paragraph (c)(6) of this section. Environmental Quality has been Air Quality Division, P.O. Box 1677, * * * * * delegated the following part 61 Oklahoma City, OK 73101–1677. For a standards promulgated by EPA, as (c) * * * list of delegated standards for Oklahoma amended in the Federal Register (6) * * * through September 1, 2004. The (X) * * * * * symbol is used to indicate each subpart that has been delegated.
DELEGATION STATUS FOR NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS (PART 61 STANDARDS) FOR OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY [Excluding Indian Country] 1
Subpart Source category ODEQ
A ...... General Provisions ...... X B ...... Radon Emissions From Underground Uranium Mines ...... C ...... Beryllium ...... X D ...... Beryllium Rocket Motor Firing ...... X E ...... Mercury ...... X F ...... Vinyl Chloride ...... X G ...... (Reserved) ...... H ...... Emissions of Radionuclides Other Than Radon From Department of Energy Facilities ...... I ...... Radionuclide Emissions From Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not ...... Covered by Subpart H. J ...... Equipment Leaks (Fugitive Emission Sources) of Benzene ...... X K ...... Radionuclide Emissions From Elemental Phosphorus Plants ...... L ...... Benzene Emissions From Coke By-Product Recovery Plants ...... X M ...... Asbestos ...... X N ...... Inorganic Arsenic Emissions From Glass Manufacturing Plants ...... X O ...... Inorganic Arsenic Emissions From Primary Copper Smelters ...... X P ...... Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities ...... X Q ...... Radon Emissions From Department of Energy Facilities ...... R ...... Radon Emissions From Phosphogypsum Stacks ...... S ...... (Reserved) ...... T ...... Radon Emissions From the Disposal of Uranium Mill Tailings ...... U ...... (Reserved) ...... V ...... Equipment Leaks (Fugitive Emission Sources) ...... X W ...... Radon Emissions From Operating Mill Tailings ...... X ...... (Reserved) ...... Y ...... Benzene Emissions From Benzene Storage Vessels ...... X Z–AA ...... (Reserved) ...... BB ...... Benzene Emissions From Benzene Transfer Operations ...... X CC–EE ...... (Reserved) ...... FF ...... Benzene Waste Operations ...... X 1 Program delegated to Oklahoma Department of Environmental Quality (ODEQ).
(v) [Reserved.] Subpart E—Approval of State Quality for all sources. The ‘‘X’’ symbol * * * * * Programs and Delegation of Federal is used to indicate each subpart that has Authorities been delegated. The delegations are PART 63—[AMENDED] subject to all of the conditions and I 2. Section 63.99 is amended by limitations set forth in Federal law, I The authority citation for part 63 revising paragraph (a)(36)(i) to read as regulations, policy, guidance, and continues to read as follows: follows: determinations. Some authorities cannot Authority: 42 U.S.C. 7401, et seq. § 63.99 Delegated Federal authorities. be delegated and are retained by EPA. (a) * * * These include certain General (36) * * * Provisions authorities and specific parts (i) The following table lists the of some standards. Any amendments specific part 63 standards that have made to these rules after this effective been delegated unchanged to the date are not delegated. Oklahoma Department of Environmental
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DELEGATION STATUS FOR PART 63 STANDARDS—STATE OF OKLAHOMA [Excluding Indian Country]
Subpart Source category Order 12
A ...... General Provisions 2 ...... X F ...... Hazardous Organic NESHAP (HON)—Synthetic Organic Chemical Manufacturing Industry (SOCMI) ...... X G ...... HON—SOCMI Process Vents, Storage Vessels, Transfer Operations and Wastewater ...... X H ...... HON—Equipment Leaks ...... X I ...... HON—Certain Processes Negotiated Equipment Leak Regulation ...... X J ...... Polyvinyl Chloride and Copolymers Production ...... (3) K ...... (Reserved) ...... L ...... Coke Oven Batteries ...... X M ...... Perchloroethylene Dry Cleaning ...... X N ...... Chromium Electroplating and Chromium Anodizing Tanks ...... X O ...... Ethylene Oxide Sterilizers ...... X P ...... (Reserved) ...... Q ...... Industrial Process Cooling Towers ...... X R ...... Gasoline Distribution ...... X S ...... Pulp and Paper Industry ...... X T ...... Halogenated Solvent Cleaning ...... X U ...... Group I Polymers and Resins ...... X V ...... (Reserved) ...... W ...... Epoxy Resins Production and Non-Nylon Polyamides Production ...... X X ...... Secondary Lead Smelting ...... X Y ...... Marine Tank Vessel Loading ...... X Z ...... (Reserved) ...... AA ...... Phosphoric Acid Manufacturing Plants ...... X BB ...... Phosphate Fertilizers Production Plants ...... X CC ...... Petroleum Refineries ...... X DD ...... Off-Site Waste and Recovery Operations ...... X EE ...... Magnetic Tape Manufacturing ...... X FF ...... (Reserved) ...... GG ...... Aerospace Manufacturing and Rework Facilities ...... X HH ...... Oil and Natural Gas Production Facilities ...... X II ...... Shipbuilding and Ship Repair Facilities ...... X JJ ...... Wood Furniture Manufacturing Operations ...... X KK ...... Printing and Publishing Industry ...... X LL ...... Primary Aluminum Reduction Plants ...... X MM ...... Chemical Recovery Combustion Sources at Kraft, Soda, Sulfide, and Stand-Alone Semichemical Pulp Mills ...... X NN ...... (Reserved) ...... OO ...... Tanks—Level 1 ...... X PP ...... Containers ...... X QQ ...... Surface Impoundments ...... X RR ...... Individual Drain Systems ...... X SS ...... Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process ...... X TT ...... Equipment Leaks—Control Level 1 ...... X UU ...... Equipment Leaks—Control Level 2 Standards ...... X VV ...... Oil-Water Separators and Organic-Water Separators ...... X WW ...... Storage Vessels (Tanks)—Control Level 2 ...... X XX ...... (Reserved) ...... YY ...... Generic Maximum Achievable Control Technology Standards ...... X ZZ-BBB ...... (Reserved) ...... CCC ...... Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration ...... X DDD ...... Mineral Wool Production ...... X EEE ...... Hazardous Waste Combustors ...... X FFF ...... (Reserved) ...... GGG ...... Pharmaceuticals Production ...... X HHH ...... Natural Gas Transmission and Storage Facilities ...... X III ...... Flexible Polyurethane Foam Production ...... X JJJ ...... Group IV Polymers and Resins ...... X KKK ...... (Reserved) ...... LLL ...... Portland Cement Manufacturing ...... X MMM ...... Pesticide Active Ingredient Production ...... X NNN ...... Wool Fiberglass Manufacturing ...... X OOO ...... Amino/Phenolic Resins ...... X PPP ...... Polyether Polyols Production ...... X QQQ ...... Primary Copper Smelting ...... X RRR ...... Secondary Aluminum Production ...... X SSS ...... (Reserved) ...... TTT ...... Primary Lead Smelting ...... X UUU ...... Petroleum Refineries—Catalytic Cracking Units, Catalytic Reforming Units and Sulfur Recovery Plants ...... X VVV ...... Publicly Owned Treatment Works (POTW) ...... X WWW ...... (Reserved) ...... XXX ...... Ferroalloys Production: Ferromanganese and Silicomanganese ...... X AAAA ...... Municipal Solid Waste Landfills ...... X
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DELEGATION STATUS FOR PART 63 STANDARDS—STATE OF OKLAHOMA—Continued [Excluding Indian Country]
Subpart Source category Order 12
CCCC ...... Nutritional Yeast Manufacturing ...... X DDDD ...... Plywood and Composite Wood Products ...... X EEEE ...... Organic Liquids Distribution ...... X FFFF ...... Miscellaneous Organic Chemical Production and Processes (MON) ...... X GGGG ...... Solvent Extraction for Vegetable Oil Production ...... X HHHH ...... Wet Formed Fiberglass Mat Production ...... X IIII ...... Auto & Light Duty Truck ...... X JJJJ ...... Paper and other Web (Surface Coating) ...... X KKKK ...... Metal Can (Surface Coating) ...... X MMMM ...... Surface Coating of Miscellaneous Metal Parts and Products ...... X NNNN ...... Surface Coating of Large Appliances ...... X OOOO ...... Fabric Printing Coating and Dyeing ...... X PPPP ...... Plastic Parts (Surface Coating) ...... X QQQQ ...... Surface Coating of Wood Building Products ...... X RRRR ...... Surface Coating of Metal Furniture ...... X SSSS ...... Surface Coating for Metal Coil ...... X TTTT ...... Leather Finishing Operations ...... X UUUU ...... Cellulose Production Manufacture ...... X VVVV ...... Boat Manufacturing ...... X WWWW ...... Reinforced Plastic Composites Production ...... X XXXX ...... Tire Manufacturing ...... X YYYY ...... Combustion Turbines ...... X ZZZZ ...... Reciprocating Internal Combustion Engines (RICE) ...... X AAAAA ...... Lime Manufacturing Plants ...... X BBBBB ...... Semiconductor Manufacturing ...... X CCCCC ...... Coke Ovens: Pushing, Quenching and Battery Stacks ...... X DDDDD ...... Industrial/Commerical/Institutional Boilers and Process Heaters ...... EEEEE ...... Iron Foundries ...... X FFFFF ...... Integrated Iron and Steel ...... X GGGGG ...... Site Remediation ...... X HHHHH ...... Miscellaneous Coating Manufacturing ...... X IIIII ...... Mercury Cell Chlor-Alkali Plants ...... X JJJJJ ...... Brick and Structural Clay Products Manufacturing ...... X KKKKK ...... Clay Ceramics Manufacturing ...... X LLLLL ...... Asphalt Roofing and Processing ...... X MMMMM ...... Flexible Polyurethane Foam Fabrication Operation ...... X NNNNN ...... Hydrochloric Acid Production, Fumed Silica Production ...... X PPPPP ...... Engine Test Facilities ...... X QQQQQ ...... Friction Products Manufacturing ...... X RRRRR ...... Taconite Iron Ore Processing ...... X SSSSS ...... Refractory Products Manufacture ...... X TTTTT ...... Primary Magnesium Refining ...... X 1 Program delegated to Oklahoma Department of Environmental Quality (ODEQ), as amended in the Federal Register through September 1, 2004. 2 Authorities that cannot be delegated include § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. In addition, all authorities identified in the certain subparts that EPA has designated that cannot be delegated. 3 The ODEQ has adopted the subpart unchanged and applied for delegation of the standard. The standard was vacated and remanded to EPA by the United States Court of Appeals for the District of Columbia Circuit. See, Mossville Environmental Action Network v. EPA, 370 F. 3d 1232 (D.C. Cir. 2004). Because of the D.C. Circuit Court’s holding this standard is not being delegated to ODEQ at this time.
[FR Doc. 05–23970 Filed 12–12–05; 8:45 am] ENVIRONMENTAL PROTECTION SUMMARY: With this action EPA is BILLING CODE 6560–50–P AGENCY authorizing the use of 610,665 kilograms of methyl bromide for supplemental 40 CFR Part 82 critical uses in 2005 through the [FRL–8007–9] allocation of additional critical stock allowances (CSAs). This allocation RIN 2060–AN13 supplements the critical use allowances Protection of Stratospheric Ozone; (CUAs) and CSAs previously allocated Process for Exempting Critical Uses of for 2005, as published in the Federal Methyl Bromide for the 2005 Register on December 23, 2004 (69 FR Supplemental Request 76982). Further, EPA is amending the existing list of exempted critical uses to AGENCY: Environmental Protection add uses authorized by the Parties to the Agency (EPA). Montreal Protocol at their Sixteenth ACTION: Final rule. Meeting in November 2004. Today’s
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action is authorized under the Clean Air from stocks and new production or D. Unfunded Mandates Reform Act Act (CAA or the Act) and is in import to meet approved critical uses. E. Executive Order No. 13132: accordance with the Montreal Protocol As part of that rule, EPA issued critical Federalism on Substances that Deplete the Ozone use allowances (CUAs) for new F. Executive Order No. 13175: Layer (Protocol). production and import and critical stock Consultation and Coordination DATES: Effective Date: This final rule is allowances (CSAs) for sale of methyl With Indian Tribal Governments effective on December 9, 2005. bromide stocks. G. Executive Order No. 13045: Protection of Children From ADDRESSES: EPA has established a On August 30, 2005, EPA issued a Environmental Health & Safety docket for this action under Docket ID direct final rule and parallel proposal to Risks No. OAR–2004–0506. All documents in add additional uses of methyl bromide to the list of approved critical uses and H. Executive Order No. 13211: the docket are listed in the EDOCKET Actions That Significantly Affect index at http://www.epa.gov/edocket. to issue additional CSAs for the 2005 control period (70 FR 51270). These Energy Supply, Distribution, or Use Although listed in the index, some I. National Technology Transfer information is not publicly available, actions were taken to reflect a decision by the Parties to the Montreal Protocol Advancement Act i.e, CBI or other information whose J. Congressional Review Act disclosure is restricted by statute. at their sixteenth meeting to authorize Certain other material, such as supplemental critical uses and amounts. I. Background on the Montreal Protocol copyrighted material, is not placed on Due to the receipt of adverse comment, and the Critical Use Exemption the Internet and will be publicly EPA withdrew the direct final rule, and The Montreal Protocol on Substances available, only in hard copy form. it did not go into effect (70 FR 60443). that Deplete the Ozone Layer (Protocol) Publicly available docket materials are Today EPA is taking final action based is an international agreement aimed at available either electronically in on the August 30, 2005 proposal. reducing and eliminating the EDOCKET or in hard copy at the Air Today’s final action is in accordance production and consumption of Docket, EPA/DC, EPA West, Room with Decision XVI/2 taken by the stratospheric ozone depleting B102, 1301 Constitution Ave., NW., Montreal Protocol Parties at their substances (ODS).1 The elimination of Washington, DC. This Docket Facility is November 2004 meeting and with prior production and consumption of ODSs is open from 8:30 a.m. to 4:30 p.m., decisions of the parties on critical uses. accomplished through adherence to Monday through Friday, excluding legal Section 533(d) of the Administrative phase-out schedules for specific class I holidays. The Public Reading Room is Procedure Act (APA), 5 U.S.C., Chapter ODSs 2, including: chlorofluorocarbons open from 8:30 a.m. to 4:30 p.m., 5, generally provides that rules may not (CFCs), halons, carbon tetrachloride, Monday through Friday, excluding legal take effect earlier than 30 days after they and methyl chloroform. The Clean Air holidays. The telephone number for the are published in the Federal Register. Act, as amended in 1990 and 1998, Public Reading Room is (202) 566–1744, Today’s final rule is issued under requires EPA to promulgate regulations and the telephone number for the Air section 307(d) of the CAA, which states: implementing the Protocol’s phaseout Docket is (202) 566–1742. ‘‘The provisions of section 553 through schedules in the United States. Those FOR FURTHER INFORMATION CONTACT: 557 * * * of Title 5 shall not, except as regulations are codified at 40 CFR Part Hodayah Finman, U.S. Environmental expressly provided in this subsection, 82. As of January 1, 1996, production Protection Agency, Office of Air and apply to actions to which this and import of most class I ODSs were Radiation, Stratospheric Protection subsection applies.’’ CAA section phased out in developed countries, Division (6205J), 1200 Pennsylvania 307(d)(1). Thus, section 553(d) of the including the United States. Production Avenue, NW., Washington, DC 20460; APA does not apply to this rule. EPA and import of methyl bromide were telephone number: (202) 343–9246; fax nevertheless is acting consistently with phased out in those countries as of number: (202) 343–2338; the policies underlying APA section January 1, 2005. However, the Protocol [email protected]. You may also 553(d) in making this rule effective on provides exemptions that allow for the visit the EPA’s Ozone Depletion Web December 9, 2005. APA section 553(d) continued import and/or production of site at http://www.epa.gov/ozone for provides an exception for any action ODSs, including methyl bromide. further information about EPA’s that grants or recognizes an exemption Methyl bromide was added to the Stratospheric Ozone Protection or relieves a restriction. Today’s final Protocol as an ODS in 1992 through the regulations, the science of ozone layer rule grants an exemption from the Copenhagen amendment to the Protocol. depletion, and other related topics. phaseout of methyl bromide. Because The Parties agreed that each SUPPLEMENTARY INFORMATION: This the allowances issued through this industrialized country’s level of methyl action concerns regulation of methyl action will expire at the end of 2005, bromide production and consumption bromide, a class I, Group VI ozone- EPA is making this rule effective in 1991 should be the baseline for depleting substance. Under the Clean immediately to provide allowance establishing a freeze in the level of Air Act, as amended in 1990 and 1998, holders an opportunity to expend the methyl bromide production and methyl bromide production and allowances before they expire. consumption for industrialized consumption (defined as production Table of Contents countries. EPA published a final rule in plus imports minus exports) were the Federal Register on December 10, I. Background on the Montreal Protocol phased out on January 1, 2005, apart 1993 (58 FR 65018), listing methyl and the Critical Use Exemption from certain exemptions, including the II. Background on the Critical Use critical use exemption which is the 1 ‘‘Consumption’’ is defined as the amount of a Exemption Process substance produced in the United States, plus the subject of today’s rule. In a final rule III. Today’s Action amount imported into the United States, minus the published December 23, 2004 (69 FR IV. Statutory and Executive Order amount exported to Parties to the Montreal Protocol 76982), EPA established the framework Reviews (see Section 601(6) of the Clean Air Act). Stockpiles for the critical use exemption; set forth of class I ODSs produced or improted prior to the A. Executive Order No. 12866: 1996 phase out may be used for purposes not a list of approved critical uses for 2005; Regulatory Planning and Review expressly banned at 40 CFR part 82. and specified the amount of methyl B. Paperwork Reduction Act 2 Class I ozone depleting substances are listed at bromide that could be supplied in 2005 C. Regulatory Flexibility Act 40 CFR Part 82 subpart A, appendix A.
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bromide as a class I, Group VI phaseout schedule for methyl bromide Federal, State, or Local laws or controlled substance, freezing U.S. and extend the complete phaseout of regulations governing actions including, production and consumption at this production and consumption to 2005 but not limited to, the sale, distribution, 1991 level, and, in Section 82.7 of the (65 FR 70795). transfer, and use of methyl bromide. All rule, setting forth the percentage of On December 23, 2004 (69 FR 76982), entities that would be affected by baseline allowances for methyl bromide EPA published a final rule in the provisions of this final rule must granted to companies in each control Federal Register that established the continue to comply with FIFRA and period (each calendar year) until the framework for the critical use other pertinent statutory and regulatory year 2001, when the complete phaseout exemption, set forth a list of approved requirements for pesticides (including, would occur (58 FR 65018). critical uses for 2005, and specified the but not limited to, requirements The 2001 phaseout date was amount of methyl bromide that could be pertaining to restricted use pesticides) established in response to a petition supplied in 2005 from available stocks when importing, exporting, acquiring, filed in 1991 under sections 602 (c)(3) and new production or import to meet selling, distributing, transferring, or and 606 (b) of the Clean Air Act approved critical uses. Today, EPA is using methyl bromide for critical uses. Amendments (CAAA) of 1990, authorizing sale of additional amounts The regulations in today’s action are requesting that EPA list methyl bromide of methyl bromide from inventory for intended only to implement the critical as a class I substance and phase out its critical uses in the 2005 control period. use exemption under the CAA. production and consumption. This date In addition, EPA is amending the was consistent with section 602(d) of existing list of approved critical uses to II. Background on the Critical Use the CAAA of 1990, which for newly- add uses authorized by the Parties at Exemption Process listed class I ODSs provides that ‘‘no their sixteenth meeting in Prague under Starting in 2002, EPA began informing extension [of the phaseout schedule in Decision XVI/2. applicants of the availability of an section 604] under this subsection may In accordance with Article 2H(5), the application process for a critical use extend the date for termination of Parties have issued several Decisions exemption to the methyl bromide production of any class I substance to a pertaining to the critical use exemption. phaseout. The Agency published a date more than 7 years after January 1 These include Decision IX/6, which set notice in the Federal Register (68 FR of the year after the year in which the forth criteria for review of proposed 24737) announcing the deadline to substance is added to the list of class I critical uses; Decision Ex. I/3, which apply, and directing applicants to substances.’’ EPA based its action on addressed agreed critical uses, critical- announcements posted on EPA’s methyl scientific assessments and actions by use exemption levels, and allowable bromide Web site at http:// the Parties to the Montreal Protocol at levels of new production and www.epa.gov/ozone/mbr. On May 8, their 1992 Meeting in Copenhagen to consumption for critical uses in 2005; 2003 (68 FR 24737), EPA published a freeze the level of methyl bromide and Decision XVI/2, which, in part, notice in the Federal Register production and consumption for supplements the critical use categories announcing the August 6, 2003, industrialized countries. and exemption levels discussed in deadline for applications for 2005. At their 1995 meeting, the Parties Decision Ex. I/3. Applicants were told they may apply as made adjustments to the methyl For a discussion of the relationship individuals or as part of a group of users bromide control measures and agreed to between the relevant provisions of the (a ‘‘consortium’’) who face the same reduction steps and a 2010 phaseout CAA, as amended in 1990 and 1998, limiting critical conditions (i.e. specific date for industrialized countries along and Article 2H of the Protocol, and the conditions which establish a critical with certain allowable exemptions such extent to which EPA takes into account need for methyl bromide). This process as the critical use exemption. At the Decisions of the Parties that interpret has been repeated annually since 2002. time the Parties adopted this Article 2H, refer to the December 23, In response to the yearly requests for phasedown schedule for methyl 2004, final rule (69 FR 76984–76985). critical use exemption applications bromide, the U.S. continued to have a Briefly, EPA regards certain provisions published in the Federal Register, 2001 phaseout date in accordance with of Decisions IX/6, Ex. I/3, and XVI/2 as applicants have provided information the language of the 1990 CAAA. At their subsequent consensus agreements of the supporting their position that they have 1997 meeting, the Parties agreed to Parties that address the interpretation no technically and economically further adjustments to the phaseout and application of the critical use feasible alternatives to methyl bromide schedule for methyl bromide in provision in Article 2H(5) of the available to them. Applicants for the industrialized countries, with reduction Protocol. In today’s action, EPA is exemption have submitted information steps leading to a 2005 phaseout for following the terms of these Decisions. on their use of methyl bromide, on industrialized countries. In October This will ensure consistency with the research into the use of alternatives to 1998, the U.S. Congress amended the Montreal Protocol, 42 U.S.C. methyl bromide, on efforts to minimize CAA to prohibit the termination of 7671c(d)(6). use of methyl bromide and efforts to production of methyl bromide prior to Because it is a pesticide, methyl reduce emissions and on the specific January 1, 2005; to require EPA to bring bromide is also regulated by EPA under technical and economic research results the U.S. phaseout of methyl bromide in the Federal Insecticide, Fungicide, and of testing alternatives to methyl line with the schedule specified under Rodenticide Act (FIFRA) and other bromide. the Protocol; and to authorize EPA to statutes and regulatory authority and by The CAA, as amended in 1990 and provide exemptions for critical uses. States under their own statutes and 1998, allows the Agency to create an These amendments were contained in regulatory authority. Under FIFRA, exemption for critical uses to the extent Section 764 of the 1999 Omnibus methyl bromide is a restricted use consistent with the Protocol. The Consolidated and Emergency pesticide and therefore subject to certain critical use exemption process is Supplemental Appropriations Act (Pub. Federal and State requirements designed to meet the needs of methyl L. 105–277, October 21, 1998) and were governing its sale, distribution, and use. bromide users who do not have codified in Section 604 of the CAA, 42 Nothing in this final rule implementing technically and economically feasible U.S.C. 7671c. On November 28, 2000, the Clean Air Act is intended to alternatives available. EPA’s December EPA issued regulations to amend the derogate from provisions in any other 23, 2004, final rule describing the
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operational framework for the critical California Tomato Commission, The additional kilograms were use exemption (69 FR 76982) National Pest Management Association, recommended for the following sectors: established the majority of critical uses Michigan Pepper Growers, Michigan dried fruit and nuts (dates); dry for the 2005 calendar year. In today’s Eggplant Growers, Burley & Dark commodities/structures (cocoa beans); action, EPA is establishing Tobacco USA—transplant trays, Burley dry commodities/structures (processed supplemental critical uses available in & Dark Tobacco USA—field grown, foods, herbs and spices, dried milk and the U.S. for the 2005 calendar year. Virginia Tobacco Growers—transplant cheese processing facilities); eggplant; A detailed explanation of the trays, Michigan Herbaceous Perennials, ornamentals; peppers; smokehouse ham; development of the nomination, Ozark Country Hams, Nahunta Pork strawberry fruit; and tomatoes. including the criteria used by expert Center and, American Association of Based on the recommendations from reviewers, is available in a memo titled Meat Processors. Subsequent to the the advisory bodies, the Parties ‘‘2003 Nomination Process: submission of the supplemental authorized 610,655 kilograms of methyl Development of 2003 Nomination for a nomination, all of the tobacco bromide for 2005 supplemental uses in Critical Use Exemption for Methyl applicants withdrew their CUE requests the U.S., in Decision XVI/2. The Bromide from the United States of for the 2005 control period and beyond. authorization adds 26,562 kilograms to America’’ on E-Docket OAR–2003–0230 In addition, the U.S. requested the TEAP recommendation by restoring (document 104) and E-Docket OAR– correction to the amounts for two other the full amount of the U.S. request for 2004–0506. The process described in sectors. dry commodities/structures (cocoa this memo applies equally to the 2004 The Ozone Secretariat referred the beans). The Parties approved the above- nomination process. The 2004 U.S. nomination to the Technical and mentioned uses referenced in the nomination included the supplemental Economic Assessment Panel (TEAP) and MBTOC/TEAP report. request for 2005 critical uses which are its subsidiary body, the Methyl Bromide More information on each of the the subject of today’s action. Technical Options Committee (MBTOC) nominated sectors, including All critical use exemption for review. The TEAP and the MBTOC calculations of production losses and applications, including those described reviewed the nominations, asked other technical data, can be found in the in the supplemental request for 2005, clarifying questions of the U.S. annual nomination on E-docket OAR– underwent a rigorous review by highly Government, and provided 2004–0506. qualified technical experts. The CUE recommendations on the requested I. Today’s Action applications (except to the extent exemptions to the Parties to the claimed confidential) are available on E- Montreal Protocol for their With today’s action, EPA has Docket OAR–2004–0506. Data from the consideration at the Sixteenth Meeting determined that an additional 610,665 applications served as the basis for the of the Parties. kg of methyl bromide are required to nomination and was augmented by In June 2004, the MBTOC sent satisfy critical uses for the 2005. EPA is multiple other sources, including but questions to the U.S. Government allocating an additional 610,665 critical not limited to the National Agricultural concerning technical and economic stock allowances (CSAs) to companies Statistics Service of the U.S. Department issues in the nomination. These that hold pre-phaseout inventories of of Agriculture, the State of California questions, as well as the U.S. methyl bromide. These allowances, Department of Pesticide Regulation, Government’s response, can be accessed consistent with the CUE framework rule peer-reviewed articles, and crop on E-docket OAR–2004–0506. The U.S. published on December 23, 2004, allow budgets. Government’s response was transmitted the holder to sell pre-phaseout After submission of the first U.S. on August 13, 2005. When responding inventories of methyl bromide to critical Nomination for a Critical Use to these questions, the U.S. Government uses. In addition, with today’s action, Exemption for Methyl Bromide, in explained that critical use exemptions EPA is amending the list of approved February 2003, the U.S. Government were being sought only in areas with critical uses found at 40 CFR 82 decided to request additional critical moderate-to-severe pest pressure, where appendix L to include new critical uses uses for 2005 in the second nomination the use of alternatives would result in authorized by the Parties at their sent to the Ozone Secretariat in substantial yield losses, or where sixteenth meeting in November 2004. February 2004. The U.S. decided to do regulatory restrictions or geophysical Consistent with the framework for the so, in part, because certain sectors were conditions prohibit the adoption of critical use exemption established in the not able to apply for an exemption in alternatives. There were questions on all December rulemaking, each CSA is time for the 2003 nomination. of the sectors described in today’s equivalent to one kilogram of methyl With the second nomination action; however, many questions bromide and all allowances expire at the submitted to the Ozone Secretariat in focused on alternatives in the overall end of the control period. Therefore, the February 2004, most of which referred sector instead of the specific supplemental allowances allocated in to uses for the 2006 control period, the supplemental requested amount. today’s rule expire at the end of 2005. U.S. Government included some limited In October, 2004, the MBTOC and the The methodology for calculating the supplemental requests for 2005. These TEAP issued a final report on critical amount of CSAs allocated to each entity requests may be found in Appendix B use nominations for methyl bromide. is explained in a memorandum titled of each chapter of the U.S. nomination This report, issued by the United ‘‘CSA Description Memo,’’ available on and are available on E-docket OAR– Nations Environment Programme E-docket OAR–2004–0506. In summary, 2004–0506 and http://www.epa.gov/ (UNEP) and TEAP, is titled ‘‘Critical Use EPA has used its authority under mbr/nomination_2006.html. Nominations for Methyl Bromide: Final Section 114 of the CAA to require that The U.S. originally nominated the Report’’ and can be accessed at http:// certain regulated entities provide the following applicants for supplemental www.unep.ch/ozone/teap/Reports/ Agency with information about their 2005 consideration: California Cut MBTOC or on E-docket OAR–2004– holdings of methyl bromide. Flower Commission, National Country 0506. In Annex I of the report, the EPA is allocating CSAs in this rule on Ham Association, Wayco Ham advisory bodies recommended an a pro-rated basis, calculated as an Company, California Date Commission, additional 584,093 kilograms of methyl average of the entities’ December 31, California Strawberry Commission, bromide for U.S. critical uses in 2005. 2003, and August 25, 2004, holdings of
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pre-phaseout methyl bromide. This allocations of CSAs are only available in and the ability of users to access non- same baseline was also used to calculate the confidential portion of the docket critical-use methyl bromide for non- CSAs in the framework rule (69 FR for this rulemaking and do not appear critical uses. The commenter raised 76982). However, EPA notes that due to in this Federal Register document. EPA substantially the same issues in its a slight baseline reporting error, one has determined that the aggregate stock comments on the CUE framework rule entity was granted fewer CSAs in the information is not CBI but is currently proposed on August 25, 2004, and December 2004 framework rule than it withholding that information due to the finalized on December 23, 2004 (69 FR would have been allocated had this filing of complaints seeking to enjoin 76982). EPA addressed these comments reporting error not occurred because its the Agency from its release. as part of that rulemaking and refers the relative share of the entire stockpile was EPA received comments on the public to E-docket OAR–2003–0230 to underreported. The entity has since previously published direct final and view specific responses to those clarified the data submitted to EPA. concurrent proposed rule from four comments contained in the response to Based on the new data, EPA was able to entities. EPA received one comment comment document for the framework correctly apportion the ownership of the requesting the Agency to finalize the rule. These issues are further addressed total stockpile to each company to rule before October 31, 2005, because in briefs filed in NRDC v. EPA, D.C. Cir reflect actual holdings of methyl even though the supplemental critical No. 04–1438, which have also been bromide as of an average of the uses and amounts will not be available placed in E-docket OAR–2004–0506. December 31, 2003, and August 25, until close to the end of the control The supplemental critical use amount 2004, data. Therefore, EPA is granting period, it is better to have them late in that we are authorizing today, in the this entity sufficient CSAs from the the year than not at all. EPA form of additional critical stock 610,665-kg supplemental amount to understands the concerns of the allowances, is based on the information make up the quantity of CSAs it would regulated community and is making described in this notice and in the have received had the data been every effort to publish the final rule August 30, 2005, notice of proposed reported correctly, and is distributing expeditiously. rulemaking. This includes information the remaining allowances using the One commenter suggested that EPA received from applicants as well as baselines as previously established but must account for language in Decision other data sources noted above. The reflecting the correct percentage Ex. II/1 in making critical uses available approach to assessing critical need ownership of the total stockpile. in 2005. Decision Ex. II/1 refers to discussed in the December 23, 2004 EPA is allocating CSAs to the critical uses for the year 2006. EPA framework rule and in the response to following companies for the 2005 addressed language in the Decision the comments document for the framework supplemental authorized amounts of notice of proposed rulemaking for 2006 rule was used for this supplemental critical use methyl bromide. critical uses (70 FR 62030), published amount. Those documents also explain on October 27, 2005. the limitations of the 2003 use estimate Company This commenter further questioned to which the commenter refers. Albemarle the process the Agency has established The commenter further stated that Ameribrom, Inc. to make critical uses available in the EPA should not establish additional Bill Clark Pest Control, Inc. U.S. and contested EPA’s interpretation uses as ‘‘critical’’ because the Agency Blair Soil Fumigation of decisions related to the critical use did not find, pursuant to Decision IX/6, Burnside Services, Inc. exemption. The commenter referred paragraph 1(a), that the lack of methyl Cardinal Professional Products repeatedly to Decision IX/6, paragraph bromide for those uses ‘‘would result in Carolina Eastern, Inc. 1(b), which states in part that a significant market disruption.’’ Degesch America, Inc. ‘‘production and consumption, if any, of However, the Agency did make such a Dodson Bros. methyl bromide for critical uses should finding, as noted in the preamble to the Great Lakes Chemical Corporation be permitted only if * * * [a]ll direct final rule on August 30, 2005 (70 Harvey Fertilizer and Gas technically and economically feasible FR 51277). In addition, EPA’s Helena Chemical Co. steps have been taken to minimize the interpretation of the phrase ‘‘significant Hendrix and Dail critical use and any associated market disruption’’ appears in the Hy Yield Bromine emissions.’’ The commenter referred to memorandum entitled ‘‘2003 Industrial Fumigation Company additional Decisions in stating what it Nomination Process: Development of J.C. Ehrlich Co. believes EPA should consider ‘‘in 2003 Nomination for a Critical use Pacific Ag deciding how much new production Exemption for Methyl Bromide from the Pest Fog Sales Corporation and importation to allow after 2004.’’ United States of America’’ which ProSource One EPA’s interpretation of the cited appears in docket OAR–2004–0506 and Reddick Fumigants Decisions differs from the commenter’s. was referenced at 70 FR 51274. As Royster-Clark, Inc. However, EPA is not responding in previously noted, that memorandum Southern State Cooperative, Inc. detail to these comments because they applied equally to the supplemental Trical, Inc. are not relevant to today’s action. EPA request for 2005. Specific discussions of Trident Agricultural Products is not authorizing any additional the economic feasibility of alternatives UAP Southeast (NC) production or import in this final rule; for each of the uses addressed in today’s UAP Southeast (SC) it is only authorizing the sale of action appear in the corresponding Univar additional amounts of methyl bromide chapters of the 2004 U.S. Nomination, Vanguard Fumigation Co. from pre-phaseout inventories. available on E-docket OAR–2004–0506. Western Fumigation In addition, EPA has already The commenter states that a TOTAL 610,665 KILOGRAMS responded to many of the points raised ‘‘significant market disruption’’ refers to EPA has determined that the by the commenter. In particular, the ‘‘a decrease or delay in supply or individual holdings of methyl bromide commenter does not agree with EPA’s increase in price of a commodity stocks are Confidential Business accounting of stocks, evaluation of the produced with methyl bromide.’’ EPA Information (CBI). Therefore, individual amount of methyl bromide needed to understands the commenter to suggest baseline data and individual company meet critical uses, levels of critical use, that market disruption is a disruption
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where consumers are unable to obtain a additional amounts of methyl bromide the August 30, 2005, Federal Register commodity, are delayed in obtaining a for critical uses from pre-phaseout notice should be altered. commodity, or must pay more for that inventories and is not authorizing new EPA did receive one comment that commodity. EPA does not disagree with production or import. In the December states that there are ‘‘no critical uses’’ the commenter that the outcome 23, 2004, framework rule, EPA allocated for methyl bromide. The CAA does described by the commenter could 1,283,214 CSAs to satisfy critical uses. allow for critical uses and EPA has used constitute a significant market Consistent with the framework the criteria in Decision IX/6—which disruption. However, in the established in the framework rule and include such factors as the lack of aforementioned memorandum available with Decisions Ex. I/3 and XVI/2, EPA technically and economically feasible in E-docket OAR–2004–0506, EPA is allocating an additional 610,665 CSAs alternatives—to assess whether a given outlined additional circumstances in today’s rule. use qualifies as critical. The Agency, which could result in a significant In Decision XVI/2, taken in November through the nomination process, market disruption. EPA stated that 2004, the Parties to the Protocol agreed established that certain uses met these ‘‘markets are partially defined by the to add the following uses to the list of criteria. The commenter did not provide interaction between supply and approved critical uses for 2005: Dried any technical data to substantiate a demand, which determines the price fruit and nuts; eggplant, field; peppers, claim that there are ‘‘no critical uses’’ and quantity of a good traded in a field; tomato, field; dry commodities— based on the availability of alternatives, market. EPA’s position is that a structures (cocoa); dry commodities— thus the Agency is not changing its disruption to either side of a commodity processed foods, herbs, spices, dried proposed determination. milk; ornamentals; smokehouse ham; market, demand or supply, would result Another commenter stated that strawberry fruit. Some of these uses, in market disruption.’’ Therefore, a methyl bromide can cause acute health such as strawberry fruit, were significant market disruption could be problems and that her family may be previously authorized by the Parties in experienced on the demand side, as suffering from methyl bromide Decision Ex. I/3, however, in Decision explained by the commenter, or on the exposure. Statutory authority to address XVI/2 the Parties allowed for new supply side, should agricultural issues of exposure and health effects lies portions of the strawberry fruit industry producers be economically harmed as a under FIFRA and other programs run by to qualify for the critical use exemption. result of the loss of methyl bromide. For pesticide licensing agencies at the Other uses, such as herbs, spices, and example, if the loss of methyl bromide Federal, State, and local level. The dried milk, are new categories of critical in strawberry production would mean commenter further states that there are that no strawberry farmers in the U.S. use altogether. EPA has determined that the uses alternatives to methyl bromide and that would be able to continue to produce an exemption is therefore not necessary. this crop, the EPA would likely find that identified in Decision XVI/2 are critical such a situation constitutes a significant uses and is amending Appendix L to 40 EPA does not dispute that there are market disruption even if consumers CFR Part 82 to reflect the new uses, alternatives to methyl bromide for many could still buy supplies of strawberries locations of use, and limiting critical uses of this fumigant. However, in some from Central and South America. conditions. The August 30, 2005, cases the alternative may not be Lastly, the commenter has filed a Federal Register notice contained registered or otherwise available for use; Freedom of Information Act (FOIA) summaries of the technical and or in other instances, the alternative may request as part of its comment economic basis for the Agency’s not be technically feasible under certain submission for data on 2004 levels of proposed determination that these uses circumstances; last, an alternative may methyl bromide use. EPA is responding are critical uses. More extensive not be economically feasible for certain to this FOIA request through the discussions of the technical and uses. EPA conducts a detailed analysis standard Agency process. economic basis can be found in the U.S. of these and other factors to determine As described in the direct final rule Government’s 2004 nomination and whether a particular use should be (70 FR 51276), EPA is finalizing an responses to questions from MBTOC. In designated a critical use. The uses amendment to the reporting and instances where the Agency believes the proposed by the agency in the August recordkeeping requirements at 40 CFR circumstances of the use have 30, 2005, notice are uses that EPA 82.13 to require that entities report the changed—for example, the registration believes, based on extensive analysis, do amount of pre-phaseout methyl bromide of a new alternative—EPA would also not have feasible alternatives in the inventory, held for sale or transfer to take such developments into account in circumstances of the use. EPA solicited another entity, to the Agency on an developing a proposed determination on comments on the specific proposed uses annual basis. Entities will be required to critical uses. and did not receive any information that differentiate between the amounts EPA solicited comments from the would change this technical analysis. owned by them and those owned by public on the proposed critical use Therefore, in today’s action, EPA is other entities. Pre-phaseout refers to determination and did not receive any finalizing the proposed amendments to inventories of methyl bromide produced comments that a change in circumstance Appendix L of 40 CFR Part 82 and or imported prior to January 1, 2005. has occurred in a particular critical use adding several new uses to the list of This additional requirement will allow category. In addition, the Agency did approved critical uses for 2005 as EPA to track the drawdown of pre- not receive any comments on the follows: technical and economic evaluation that phaseout inventories. The Agency did Amendments to 40 CFR Part 82, led to EPA’s critical use determination. not receive any comments on this Subpart A, Appendix L amendment to the reporting Therefore, EPA does not have new requirements. information which leads the Agency to The following table shows the For the reasons stated in the direct conclude that the proposed additions to Appendix L of 40 CFR Part final rule, EPA is authorizing the sale of determination reached by the Agency in 82, Subpart A.
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Column A Column B Column C
Approved Critical Approved Critical User and Location of Limiting Critical Conditions. Uses. Use.
Pre-plant uses
Eggplant ...... Michigan growers ...... With a reasonable expectation that moderate to severe fungal pathogen infes- tation either already exists or could occur without methyl bromide fumigation. Ornamentals (Cut California Cut Flower Commission and With a reasonable expectation that moderate to severe pest pressure either al- flowers). Florida growers. ready exists or could occur without methyl bromide fumigation, or with rea- sonable expectation that the user may be prohibited from using 1,3- dichloropropene products because local township limits for this alternative have been reached. Peppers (field) ...... Michigan growers ...... With a reasonable expectation that moderate to severe fungal pathogen infes- tation either already exists or could occur without methyl bromide fumigation. Strawberry fruit ...... California growers ...... With a reasonable expectation that one or more of the following limiting critical conditions already either exists or could occur without methyl bromide fumi- gation: moderate to severe black root rot or crown rot, moderate to severe yellow or purple nutsedge infestation, a prohibition of the use of 1,3- dichloropropene products because local township limits for this alternative have been reached, time to transition to an alternative, hilly terrain that pre- vents the distribution of alternative. Tomatoes ...... California growers in San Diego and With a reasonable expectation that moderate to severe pest pressure either al- Ventura Counties. ready exists or could occur or where alternatives are ineffective because of hilly terrain.
Post-harvest uses
Food processing ..... Members of the National Pest Manage- With reasonable expectation that one or more of the following limiting critical ment Association associated with dry conditions exists: Older facilities that cannot be properly sealed to use an al- commodity structure fumigation ternative to methyl bromide, or the presence of sensitive electronic equip- (cocoa) and dry commodity fumiga- ment subject to corrosivity, or where heat treatment would cause rancidity to tion (processed food, herbs, spices, commodities, time to transition to an alternative. and dried milk). Dried Fruit and Nuts Growers and packers who are mem- With a reasonable expectation that one or more of the following limiting critical (dates only). bers of the California Date Commis- conditions exists: Rapid fumigation is required to meet a critical market win- sion, whose facilities are located only dow such as during the holiday season, rapid fumigation is required when a in Riverside County. buyer provides short (2 days or less) notification for a purchase, or there is a short period after harvest in which to fumigate and there is limited silo avail- ability for using alternatives. Dry Cured Pork (A) Members of the National Country Pork products facilities owned by companies that are members of the Associa- Products. Ham Association. tion. (B) Members of the American Associa- Pork product facilities owned by companies that are members of the Associa- tion of Meat Processors. tion. (C) Nahunta Pork Center (North Caro- lina).
Lastly, in today’s rule EPA is approved critical users as a result of this use * * * unless a local township cap finalizing a clarification to 40 CFR supplemental rulemaking. Such a result limit now prevents me from using 82.4(p)(2) proposed in the August 30, would deprive those end users of the methyl bromide alternatives, or I have 2005, notice (70 FR 51270). In the CUE benefit of the exemption solely as a now become an approved critical user rule published on December 23, 2004 result of the timing of the rule. Thus, as a result of rulemaking.’’ (69 FR 76982), EPA created a EPA is adding the following exception EPA received one comment on this prohibition as follows. Paragraph to paragraph (p)(2)(vi): ‘‘or unless, clarification. The commenter stated that (p)(2)(vi) states that, with some subsequent to that person’s use of the he did not support the approach exceptions: ‘‘No person who purchases non-critical use methyl bromide, that outlined above because it would allow critical use methyl bromide during the person * * * (b) becomes an approved for ‘‘double dipping’’ and he was control period shall use that methyl critical user as a result of rulemaking.’’ concerned that critical users would be bromide on a field or structure for EPA is also making a corresponding allowed to use more methyl bromide which that person has used non-critical change to § 82.13, paragraph (2)(dd), than is set forth in Decisions Ex 1/3 and use methyl bromide for the same use (as which describes the self-certification XVI/2. EPA disagrees with the defined in Columns A and B of process for approved critical users: commenter’s assumptions and notes Appendix L) in the same control ‘‘ * * * I am aware that any agricultural that the comment inappropriately period.’’ However, EPA did not intend commodity within a treatment chamber, focuses on ‘‘users’’ as opposed to this prohibition to prevent end users facility, or field I fumigate with critical ‘‘uses.’’ Under the framework rule, EPA who have been using non-critical use use methyl bromide cannot established a system where there are methyl bromide during the first part of subsequently be fumigated with non- two types of use: critical uses and non- 2005 from using critical use methyl critical use methyl bromide during the critical uses. A single entity may have bromide on the same field or structure same control period, excepting a QPS both critical and non-critical uses. For for the same use if they became treatment or a treatment for a different example, a particular walnut producer
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may have some silos that require rapid narrow exception: a partial restriction (2) Create a serious inconsistency or fumigation (a limiting critical condition) on access to stocks for critical uses as a otherwise interfere with an action taken and therefore have a critical need for condition of new production. The issue or planned by another agency; methyl bromide, and other silos that do of not affecting a ban on all non-exempt (3) Materially alter the budgetary not require rapid fumigation and whose uses has been addressed by the Agency impact of entitlements, grants, user fees, fumigation therefore does not qualify as in the framework rule and briefs filed by or loan programs or the rights and a critical use. In addition, an entity may the government in NRDC vs. EPA, D.C. obligations of recipients thereof; or become subject to a prohibition on the Cir No. 04–1438. EPA refers the public (4) Raise novel legal or policy issues use of methyl bromide alternatives due to the response to comment document arising out of legal mandates, the to the reaching of a local township limit, for the framework rule and the briefs President’s priorities, or the principles as provided in Appendix L, Column C. that are available in E-docket OAR– set forth in the Executive Order. There would then be a critical need for 2004–0560. Pursuant to the terms of Executive Order 12866, OMB has notified EPA methyl bromide later in the year that Fumigations may already have that it considers this a ‘‘significant did not occur at the onset of the year. occurred in 2005 for uses that today’s regulatory action’’ within the meaning As a result, a use that was formerly non- final rule are determining, for the first of the Executive Order. EPA has critical may become critical. Because a time, to be critical. In fact, since the submitted this action to OMB for single entity may have both non-critical control period is close to ending, that is review. Changes made in response to and critical uses and because the likely case. At the time the OMB suggestions will be documented in circumstances of use may change fumigations occurred, however, the uses throughout the year causing the same the public record. did not qualify as approved critical site to either be critical or non-critical This final action will likely have a uses, and thus any methyl bromide used within the same control period, EPA minor cost savings associated with its in those fumigations did not count created a framework that controls not implementation, but the Agency did not against the total critical use exemption the user but rather the individual use. conduct a formal analysis of savings The commenter contends that if a user level. As of December 9, 2005 these uses given that such an analysis would have can have both non-critical and critical may now qualify for the critical use resulted in negligible savings. This uses that more methyl bromide could be exemption. Based on the architecture of action represents the authorization of used in the U.S. than is set forth in the the exemption program as set forth in only 2.5 percent of the 1991 decisions on critical uses. However, the the framework rule, these uses are no consumption baseline of methyl critical use exemption level contained different, for example, than uses that bromide to be made available for critical in the decisions applies to critical uses may be non-critical at one point during uses. only; use of methyl bromide for non- the control period and critical at a later critical uses does not count against this point due to reaching of a local B. Paperwork Reduction Act cap. In addition, there is no township cap on the use of methyl The information collection corresponding cap on use of methyl bromide alternatives. Therefore, EPA is requirements in this rule have been bromide by non-critical uses. In the treating these uses consistently with the submitted for approval to the Office of U.S., use of methyl bromide for critical Agency’s treatment under 40 CFR Management and Budget (OMB) under uses is limited through an allowance 82.4(p)(2)(vi) of uses affected by the the Paperwork Reduction Act, 44 U.S.C. system that limits the supply of methyl reaching of a local township cap. Again, 3501 et seq. The Information Collection bromide for these uses. Therefore, the question of whether non-critical Request (ICR) document prepared by methyl bromide use for critical uses will uses should be able to use methyl EPA has been assigned EPA ICR number not exceed the critical use exemption bromide after the date when the U.S. 2179.03. This rule supplements the rule level. was obligated to cease production and published in the Federal Register on The commenter states that non- import of the chemical is a separate December 23, 2004 (69 FR 76982). The critical uses should not have any access issue and one previously addressed in information collection under this rule is to methyl bromide whatsoever. EPA the framework rule. authorized under Sections 603(b), understands that the commenter IV. Statutory and Executive Order 603(d) and 614(b) of the Clean Air Act disagrees with EPA’s approach of Reviews (CAA). allowing non-critical users to have The mandatory reporting access to methyl bromide after 2005, A. Executive Order 12866: Regulatory requirements included in this rule are which is a separate issue and one that Planning and Review intended to: the Agency previously addressed in the (1) Satisfy U.S. obligations under The Under Executive Order 12866 (58 FR framework rule. The Agency has not Montreal Protocol on Substances that 51735 (October 4, 1993)), the Agency typically banned the use of Class I Deplete the Ozone Layer (Protocol), to must determine whether the regulatory ozone-depleting substances at the same report data under Article 7; time as production and import but action is ‘‘significant’’ and therefore (2) Fulfill statutory obligations under rather has allowed use of these subject to OMB review and the Section 603(b) of the Clean Air Act substances to decline gradually over a requirements of the Executive Order. mendments of 1990 (CAAA) for period of time as the supply diminishes. The Order defines ‘‘significant reporting and monitoring; This approach was taken, for example, regulatory action’’ as one that is likely (3) Provide information to report to in the phaseout of chlorofluorocarbons to result in a rule that may: Congress on the production, use and (CFCs) and halons, two powerful ozone (1) Have an annual effect on the consumption of class I controlled depleting substances. A period of economy of $100 million or more or substances as statutorily required in continued use of previously produced adversely affect in a material way the Section 603(d) of the CAAA. or imported quantities generally helps economy, a sector of the economy, In this rule, EPA is amending the to ensure a smooth transition to productivity, competition, jobs, the reporting and recordkeeping alternatives. This same approach has environment, public health or safety, or Requirements in 40 CFR part 82 to been taken by the Agency in the State, local, or tribal governments or require that entities report the amount phaseout of methyl bromide, with one communities; of pre-phaseout methyl bromide
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inventory, held for sale or for transfer to or imported prior to January 1, 2005. burden associated with the new another entity, to the Agency on an This additional requirement will allow recordkeeping and reporting annual basis. Pre-phaseout refers to EPA to track the drawdown of pre- requirements is summarized in the table inventories of methyl bromide produced phaseout inventories. The additional below.
Total number Collection activity Number of of Hours per Total hours respondents responses response
Rule Familiarization ...... 54 54 .5 27 Data Compilation (annual basis) ...... 54 54 .5 27 Data Reporting (annual basis) ...... 54 54 .5 27
Total Burden Hours ...... 162 ...... 81
EPA informs respondents that they acquire, install, and utilize technology C. Regulatory Flexibility Act may assert claims of business and systems for the purposes of confidentiality for any of the collecting, validating, and verifying EPA has determined that it is not information they submit. Information information; process and maintain necessary to prepare a regulatory claimed confidential will be treated in information; disclose and provide flexibility analysis in connection with accordance with the procedures for information; adjust the existing ways to this final rule. For purposes of assessing handling information claimed as comply with any previously applicable the impacts of today’s rule on small confidential under 40 CFR Part 2, instructions and requirements; train entities, small entity is defined as: (1) A Subpart B, and will be disclosed only to personnel to be able to respond to a small business that is identified by the the extent, and by means of the collection of information; search data North American Industry Classification procedures, set forth in that subpart. If sources; complete and review the System (NAICS) Code in the Table no claim of confidentiality is asserted collection of information; and transmit below; (2) a small governmental when the information is received by or otherwise disclose the information. jurisdiction that is a government of a EPA, it may be made available to the city, county, town, school district or An Agency may not conduct or public without further notice to the special district with a population of less sponsor, and a person is not required to respondents (40 CFR 2.203). than 50,000; and (3) a small Burden means the total time, effort, or respond to, a collection of information organization that is any not-for-profit financial resources expended by persons unless it displays a currently valid OMB enterprise which is independently to generate, maintain, retain, or disclose control number. The OMB control or provide information to or for a numbers for EPA’s regulations are listed owned and operated and is not Federal agency. This includes the time in 40 CFR Part 9 and 48 CFR Chapter dominant in its field. needed to review instructions; develop, 15.
NAICS small business size standard (in Category NAICS code SIC code number of em- ployees or mil- lions of dollars)
Agricultural production ... 1112—Vegetable and Melon farming ...... 0171—Berry ...... $0.75 million. 0171—Berry Crops ...... 1114—Greenhouse, Nursery, and Floriculture 0181—Ornamental Floriculture and Nursery Production. products. Storage Uses ...... 115114—Postharvest crop activities (except 4221—Farm Product Warehousing and Storage 21.5 million. Cotton Ginning). 493110—General Warehousing and Storage ..... 4225—General Warehousing and Storage. 493130—Farm Product Warehousing Storage ...
Agricultural producers of minor crops many applicants did not provide entities. The small entities directly and entities that store agricultural information on the distribution of sizes regulated by this rule are primarily commodities are categories of affected of entities covered in their applications, agricultural entities, producers, entities that contain small entities. This EPA estimated that between one-fourth importers, and distributors of methyl rule only affects entities that applied to and one-third of the entities may be bromide, as well as any entities holding EPA for a de-regulatory exemption. In small businesses based on the definition inventory of methyl bromide. most cases, EPA received aggregated given above. In addition, other In determining whether a rule has a requests for exemptions from industry categories of affected entities do not significant economic impact on a consortia. On the exemption contain small businesses based on the substantial number of small entities, the application, EPA asked consortia to above description. impact of concern is any significant describe the number and size After considering the economic adverse economic impact on small distribution of entities their application impacts of today’s rule on small entities, entities, since the primary purpose of covered. Based on the data provided, EPA has concluded that this action will the regulatory flexibility analyses is to EPA estimates that 3,218 entities not have a significant economic impact identify and address regulatory petitioned EPA for an exemption. Since on a substantial number of small alternatives ‘‘which minimize any
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significant economic impact of the rule the development of EPA regulatory regulatory policies that have tribal on small entities.’’ (5 U.S.C. 603–604). proposals with significant Federal implications.’’ This final rule does not Thus, an Agency may conclude that a intergovernmental mandates, and have tribal implications, as specified in rule will not have a significant informing, educating, and advising Executive Order No. 13175. Today’s economic impact on a substantial small governments on compliance with final rule does not significantly or number of small entities if the rule the regulatory requirements. uniquely affect the communities of relieves a regulatory burden, or EPA has determined that this rule Indian tribal governments. The final otherwise has a positive economic effect does not contain a Federal mandate that rule does not impose any enforceable on all of the small entities subject to the may result in expenditures of $100 duties on communities of Indian tribal rule. Since this rule will make million or more for State, local, and governments. Thus, Executive Order No. additional methyl bromide available for tribal governments, in the aggregate, or 13175 does not apply to this final rule. approved critical uses after the phaseout the private sector in any one year. G. Executive Order No. 13045: date of January 1, 2005, this is a de- Today’s rule creates a recordkeeping Protection of Children From regulatory action which will confer a and reporting burden on the private Environmental Health & Safety Risks benefit to users of methyl bromide. EPA sector that is estimated to be under believes the estimated de-regulatory $200,000 on an annual basis. Thus, Executive Order No. 13045: value for users of methyl bromide is today’s rule is not subject to the ‘‘Protection of Children from between $20 million to $30 million requirements of sections 202 and 205 of Environmental Health Risks and Safety annually, as a result of the entire critical the UMRA. Further, EPA has Risks’’ (62 FR 19885, April 23, 1997) use exemption program over its determined that this rule contains no applies to any rule that: (1) Is projected duration. We have therefore regulatory requirements that might determined to be ‘‘economically concluded that today’s final rule will significantly or uniquely affect small significant’’ as defined under Executive relieve regulatory burden for all small governments because it does not create Order 12866, and (2) concerns an entities. any requirements on any State, local, or environmental health or safety risk that tribal government. EPA has reason to believe may have a D. Unfunded Mandates Reform Act disproportionate effect on children. If E. Executive Order No. 13132: Title II of the Unfunded Mandates the regulatory action meets both criteria, Federalism Reform Act of 1995 (UMRA), Public the Agency must evaluate the Law 104–4, establishes requirements for Executive Order 13132, entitled environmental health or safety effects of Federal agencies to assess the effects of ‘‘Federalism’’ (64 FR 43255, August 10, the planned rule on children, and their regulatory actions on State, local, 1999), requires EPA to develop an explain why the planned regulation is and tribal governments and the private accountable process to ensure preferable to other potentially effective sector. Under section 202 of the UMRA, ‘‘meaningful and timely input by State and reasonably feasible alternatives EPA generally must prepare a written and local officials in the development of considered by the Agency. statement, including a cost-benefit regulatory policies that have federalism EPA interprets Executive Order 13045 analysis, for proposed and final rules implications.’’ ‘‘Policies that have as applying only to those regulatory with ‘‘Federal mandates’’ that may federalism implications’’ is defined in actions that are based on health or safety result in expenditures to State, local, the Executive Order to include risks, such that the analysis required and tribal governments, in the aggregate, regulations that have ‘‘substantial direct under Section 5–501 of the Order has or to the private sector, of $100 million effects on the States, on the relationship the potential to influence the regulation. or more in any one year. Before between the National Government and This final rule is not subject to promulgating an EPA rule for which a the States, or on the distribution of Executive Order 13045 because it does written statement is needed, section 205 power and responsibilities among the not establish an environmental standard of the UMRA generally requires EPA to various levels of government.’’ intended to mitigate health or safety identify and consider a reasonable This final rule does not have risks. number of regulatory alternatives and federalism implications. It will not have adopt the least costly, most cost- substantial direct effects on the States, H. Executive Order No. 13211: Actions effective, or least burdensome on the relationship between the That Significantly Affect Energy Supply, alternative that achieves the objectives National Government and the States, or Distribution, or Use of the rule. The provisions of section on the distribution of power and This rule is not a ‘‘significant energy 205 do not apply when they are responsibilities among the various action’’ as defined in Executive Order inconsistent with applicable law. levels of government, as specified in No. 13211, ‘‘Actions Concerning Moreover, section 205 allows EPA to Executive Order 13132. Today’s rule is Regulations That Significantly Affect adopt an alternative other than the least expected to primarily affect producers, Energy Supply, Distribution, or Use’’ (66 costly, most cost-effective, or least suppliers, importers and exporters and FR 28355 (May 22, 2001)) because it is burdensome alternative if the users of methyl bromide. Thus, not likely to have a significant adverse Administrator publishes with the final Executive Order 13132 does not apply effect on the supply, distribution, or use rule an explanation why that alternative to this rule. of energy. This rule does not pertain to was not adopted. Before EPA establishes any segment of the energy production F. Executive Order No. 13175: any regulatory requirements that may economy nor does it regulate any Consultation and Coordination With significantly or uniquely affect small manner of energy use. Therefore, we Indian Tribal Governments governments, including tribal have concluded that this rule is not governments, it must have developed Executive Order No. 13175, entitled likely to have any adverse energy under section 203 of the UMRA a small ‘‘Consultation and Coordination with effects. government agency plan. The plan must Indian Tribal Governments’’ (65 FR provide for notifying potentially 67249, November 9, 2000), requires EPA I. National Technology Transfer affected small governments, enabling to develop an accountable process to Advancement Act officials of affected small governments ensure ‘‘meaningful and timely input by As noted in the proposed rule, to have meaningful and timely input in tribal officials in the development of Section 12(d) of the National
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Technology Transfer and Advancement § 82.4 Prohibitions for class I controlled TOTAL 1,893,879 KILOGRAMS Act of 1995 (‘‘NTTAA’’), Public Law. substances. I 4.Section 82.13 is amended as 104–113, Section 12(d) (15 U.S.C. 272 * * * * * follows: note) directs EPA to use voluntary (p) * * * I a. By revising paragraphs (f)(3) consensus standards in its regulatory (2) * * * introductory text, (f)(3)(xvii) and by activities unless to do so would be (vi) No person who purchases critical adding (f)(3)(xviii). inconsistent with applicable law or use methyl bromide during the control I b. By revising paragraph (g)(4) otherwise impractical. Voluntary period shall use that methyl bromide on introductory text. consensus standards are technical a field or structure for which that person I c. By adding paragraph (g)(4)(xix). standards (e.g., materials specifications, has used non-critical use methyl I d. By revising paragraph (bb)(2)(iv) test methods, sampling procedures, and bromide for the same use (as defined in and adding paragraph (b)(2)(v). business practices) that are developed or Columns A and B of Appendix L) in the I e. By revising paragraph (cc)(2)(iv) adopted by voluntary consensus same control period, excepting methyl and adding paragraph (cc)(2)(v). standards bodies. The NTTAA directs bromide used under the quarantine and I f. By revising paragraph (dd). EPA to provide Congress, through OMB, pre-shipment exemption, unless, explanations when the Agency decides subsequent to that person’s use of the § 82.13 Recordkeeping and Reporting not to use available and applicable non-critical use methyl bromide, that Requirements for class I controlled substances. voluntary consensus standards. This person becomes subject to a prohibition action does not involve technical on the use of methyl bromide * * * * * standards. Therefore, EPA did not alternatives due to the reaching of a (f) * * * consider the use of any voluntary local township limit described in (3) Reporting Requirements— consensus standards. Appendix L of this part, or becomes an Producers. For each quarter, except as approved critical user as a result of specified below, each producer of a J. Congressional Review Act rulemaking. class I controlled substance must The Congressional Review Act, 5 * * * * * provide the Administrator with a report containing the following information: U.S.C. 801 et seq., as added by the Small I 3. Section 82.8 is amended by revising Business Regulatory Enforcement paragraph (c)(2) to read as follows: * * * * * Fairness Act of 1996, generally provides (xvii) A list of the quantities of class that before a rule may take effect, the § 82.8 Grant of essential use allowances I, Group VI controlled substances agency promulgating the rule must and critical use allowances. produced by the producer and exported submit a rule report, which includes a * * * * * by the producer and/or by other U.S. copy of the rule, to each House of the (c) * * * companies in that control period, solely Congress and to the Comptroller General (2) Allocated critical stock allowances to satisfy the critical uses authorized by of the United States. EPA will submit a granted for specified control period. The the Parties for that control period; and report containing this rule and other following companies are allocated (xviii) On an annual basis, the amount required information to the U.S. Senate, critical stock allowances for 2005 on a of methyl bromide produced or the U.S. House of Representatives, and pro-rata basis in relation to the stocks imported prior to the January 1, 2005, the Comptroller General of the United held by each. phaseout date owned by the reporting entity, as well as quantities held by the States prior to publication of the rule in Company the Federal Register. A Major rule reporting entity on behalf of another cannot take effect until 60 days after it Albemarle entity, specifying the name of the entity is published in the Federal Register. Ameribrom, Inc. on whose behalf the material is held. This action is not a ‘‘major rule’’ as Bill Clark Pest Control, Inc. (g) * * * defined by 5 U.S.C. 804(2). This rule Blair Soil Fumigation (4) Reporting Requirements— will be effective on December 9, 2005. Burnside Services, Inc. Importers. For each quarter, except as Cardinal Professional Products specified below, every importer of a List of Subjects in 40 CFR Part 82 Carolina Eastern, Inc. class I controlled substance (including Environmental protection, Degesch America, Inc. importers of used, recycled or reclaimed Administrative practice and procedures, Dodson Bros. controlled substances) must submit to Air pollution control, Chemicals, Great Lakes Chemical Corporation the Administrator a report containing Exports, Imports, Ozone, Production, Harvey Fertilizer and Gas the following information: Helena Chemical Co. Reporting and recordkeeping * * * * * Hendrix and Dail requirements, and Treaties. (xix) Importers shall report annually Hy Yield Bromine Dated: December 7, 2005. Industrial Fumigation Company the amount of methyl bromide produced Stephen L. Johnson, J.C. Ehrlich Co. or imported prior to the January 1, 2005, Administrator. Pacific Ag phaseout date owned by the reporting entity, as well as quantities held by the I 40 CFR Part 82 is amended as follows: Pest Fog Sales Corporation ProSource One reporting entity on behalf of another Reddick Fumigants entity, specifying the name of the entity PART 82—PROTECTION OF on whose behalf the material is held. STRATOSPHERIC OZONE Royster-Clark, Inc. Southern State Cooperative, Inc. * * * * * I 1. The authority citation for part 82 Trical, Inc. (bb) * * * continues to read as follows: Trident Agricultural Products (2) * * * Authority: 42 U.S.C. 7414, 7601, 7671– UAP Southeast (NC) (iv) The number of unexpended and 7671q. UAP Southeast (SC) expended critical stock allowances; Univar (v) The amount of methyl bromide I 2. Section 82.4 is amended by revising Vanguard Fumigation Co. produced or imported prior to the paragraph (p)(2)(vi) to read as follows: Western Fumigation January 1, 2005, phaseout date owned
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by the reporting entity, as well as certify that it is an approved critical control period, excepting a QPS quantities held by the reporting entity user. The approved critical user treatment or a treatment for a different on behalf of another entity, specifying certification will state, in part: ‘‘I certify, use (e.g., a different crop or commodity), the name of the entity on whose behalf under penalty of law, that I am an unless a local township limit now the material is held. approved critical user and I will use this prevents me from using methyl bromide * * * * * quantity of methyl bromide for an alternatives or I have now become an (cc) * * * approved critical use. My action approved critical user as a result of (2) * * * conforms to the requirements associated rulemaking.’’ The certification will also (iv) The number of unexpended and with the critical use exemption indicate the type of critical use methyl expended critical stock allowances; published in 40 CFR part 82. I am aware bromide purchased, the location of the (v) The amount of methyl bromide that any agricultural commodity within treatment, the crop or commodity produced or imported prior to the a treatment chamber, facility, or field I January 1, 2005 phaseout date owned by fumigate with critical use methyl treated, the quantity of critical use the reporting entity, as well as bromide cannot subsequently or methyl bromide purchased, and the quantities held by the reporting entity concurrently be fumigated with non- acreage/square footage treated, and will on behalf of another entity, specifying critical use methyl bromide during the be signed and dated by the approved the name of the entity on whose behalf same control period, excepting a QPS critical user. the material is held. treatment or a treatment for a different I 5. Appendix L is revised to read as (dd) Every approved critical user use (e.g., a different crop or commodity). follows: purchasing an amount of critical use I will not use this quantity of methyl methyl bromide or purchasing bromide for a treatment chamber, Appendix L to Subpart A of Part 82— fumigation services with critical use facility, or field that I previously Approved Critical Uses, and Limiting methyl bromide must, for each request, fumigated with non-critical use methyl Critical Conditions for Those Uses for identify the use as a critical use and bromide purchased during the same the 2005 Control Period
Column A Column B Column C
Approved Critical Approved Critical User and Location of Limiting Critical Conditions. Uses. Use.
Pre-plant uses
Cucurbits ...... (a) Michigan growers ...... With a reasonable expectation that moderate to severe fungal pathogen infes- tation either already exists or could occur without methyl bromide fumigation. (b) Alabama, Arkansas, Georgia, North With a reasonable expectation that moderate to severe yellow or purple Carolina, South Carolina, Tennessee, nutsedge infestation either already exists or could occur without methyl bro- and Virginia growers. mide fumigation. Eggplant ...... (a) Georgia growers ...... With a reasonable expectation that moderate to severe yellow or purple nutsedge infestation either already exists or could occur without methyl bro- mide fumigation. (b) Florida growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe yellow or purple nutsedge infestation, or karst to- pography. (c) Michigan Growers ...... With a reasonable expectation that moderate to severe fungal pathogen infes- tation either already exists or could occur without methyl bromide fumigation. Forest Seedlings ..... (a) Members of the Southern Forest With a reasonable expectation that one or more of the following imiting critical Nursery Management Cooperative conditions either already exists or could occur without methyl bromide fumi- limited to growing locations in Ala- gation: moderate to severe yellow or purple nutsedge infestation, or mod- bama, Arkansas, Florida, Georgia, erate to severe disease infestation. Louisiana, Mississippi, North Caro- lina, Oklahoma, South Carolina, Ten- nessee, Texas, and Virginia. (b) International Paper and its subsidi- With a reasonable expectation that one or more of the following limiting critical aries limited to growing locations in conditions either already exists or could occur without methyl bromide fumi- Alabama, Arkansas, Georgia, South gation: moderate to severe yellow or purple nutsedge infestation, or mod- Carolina, and Texas. erate to severe disease infestation. (c) Weyerhaeuser Company and its With a reasonable expectation that one or more of the following limiting critical subsidiaries limited to growing loca- conditions either already exists or could occur without methyl bromide fumi- tions in Alabama, Arkansas, North gation: moderate to severe yellow or purple nutsedge infestation, or mod- Carolina, South Carolina, Oregon, erate to severe disease infestation. and Washington. (d) Public (government-owned) seedling With a reasonable expectation that one or more of the following limiting critical nurseries in the states of California, conditions either already exists or could occur without methyl bromide fumi- Idaho, Illinois, Indiana, Kansas, Ken- gation: moderate to severe yellow or purple nutsedge infestation, or mod- tucky, Maryland, Missouri, Nebraska, erate to severe disease infestation. New Jersey, Ohio, Oregon, Pennsyl- vania, Utah, Washington, West Vir- ginia, Wisconsin. (e) Members of the Nursery Technology With a reasonable expectation that one or more of the following limiting critical Cooperative limited to growing loca- conditions either already exists or could occur without methyl bromide fumi- tions in Oregon and Washington. gation: moderate to severe yellow or purple nutsedge infestation, or mod- erate to severe disease infestation.
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Column A Column B Column C
(f) Michigan seedling nurseries ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe yellow or purple nutsedge infestation, or mod- erate to severe disease infestation. Ginger ...... Hawaii growers ...... With a reasonable expectation that moderate to severe bacterial wilt infestation either already exists or could occur without methyl bromide fumigation. Orchard Nursery (a) Members of the Western Raspberry With a reasonable expectation that one or more of the following limiting critical Seedlings. Nursery Consortium limited to grow- conditions either already exists or could occur without methyl bromide fumi- ing locations in California and Wash- gation: moderate to severe nematode infestation, medium to heavy clay soils, ington (Driscoll’s raspberries and or a prohibition on the use of 1,3-dichloropropene products because local their contract growers in California township limits on this alternative have been reached. and Washington). (b) Members of the California Associa- With a reasonable expectation that one or more of the following limiting critical tion of Nurserymen-Deciduous Fruit conditions either already exists or could occur without methyl bromide fumi- and Nut Tree Growers. gation: moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition on the use of 1,3-dichloropropene products because local township limits on this alternative have been reached. (c) Members of the California Associa- With a reasonable expectation that one or more of the following limiting critical tion of Nurserymen—Citrus and Avo- conditions either already exists or could occur without methyl bromide fumi- cado Growers. gation: moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition on the use of 1,3-dichloropropene products because local township limits on this alternative have been reached. Orchard Replant ..... (a) California stone fruit growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: replanted (non-virgin) orchard soils to prevent orchard replant dis- ease, medium to heavy soils, or a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached. (b) California table and raisin grape With a reasonable expectation that one or more of the following limiting critical growers. conditions either already exists or could occur without methyl bromide fumi- gation: replanted (non-virgin) orchard soils to prevent orchard replant dis- ease, medium to heavy soils, or a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached. (c) California walnut growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: replanted (non-virgin) orchard soils to prevent orchard replant dis- ease, medium to heavy soils, or a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached. (d) California almond growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: replanted (non-virgin) orchard soils to prevent orchard replant dis- ease, medium to heavy soils, or a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached. Ornamentals ...... (a) Yoder Brothers Inc. in Florida ...... For use in all chrysanthemum production. (b) California rose nurseries ...... With a reasonable expectation that the user may be prohibited from using 1,3- dichloropropene products because local township limits for this alternative have been reached. (c) California Cut Flower Commission With a reasonable expectation that the user may be prohibited from using 1,3- growers and Florida growers. dichloropropene products because local township limits for this alternative have been reached. Peppers ...... (a) California growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe disease infestation, moderate to severe yellow or purple nutsedge infestation, or a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached. (b) Alabama, Arkansas, Georgia, North With a reasonable expectation that one or more of the following limiting critical Carolina, South Carolina, Tennessee conditions either already exists or could occur without methyl bromide fumi- and Virginia growers. gation: moderate to severe yellow or purple nutsedge infestation, or the pres- ence of an occupied structure within 100 feet of a grower’s field the size of 100 acres or less. (c) Florida growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe yellow or purple nutsedge infestation, or karst to- pography. (d) Michigan growers ...... With a reasonable expectation that moderate to severe fungal pathogen infes- tation either already exists or could occur without methyl bromide fumigation.
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Column A Column B Column C
Strawberry Nurs- (a) California growers ...... With a reasonable expectation that one or more of the following limiting critical eries. conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe black root rot or crown rot, or moderate to severe yellow or purple nutsedge infestation. (b) North Carolina and Tennessee With a reasonable expectation that the use will occur in the presence of an oc- growers. cupied structure within 100 feet of a grower’s field the size of 100 acres or less. Strawberry Fruit ...... (a) California growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe black root rot or crown rot, moderate to severe yellow or purple nutsedge infestation, a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative have been reached, or time to transition to an alternative. (b) Florida growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe yellow or purple nutsedge, or karst topography. (c) Alabama, Arkansas, Georgia, New With a reasonable expectation that one or more of the following limiting critical Jersey, North Carolina, Ohio, South conditions either already exists or could occur without methyl bromide fumi- Carolina, Tennessee, and Virginia gation: moderate to severe yellow or purple nutsedge, or the presence of an growers. occupied structure within 100 feet of a grower’s field the size of 100 acres or less. Sweet Potatoes ...... California growers ...... With a reasonable expectation that the user may be prohibited from using 1,3- dichloropropene products because local township limits for this alternative have been reached. Tomatoes ...... (a) Michigan growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe disease infestation, or fungal pathogen infesta- tion. (b) Alabama, Arkansas, Georgia, North With a reasonable expectation that one or more of the following limiting critical Carolina, South Carolina, Tennessee, conditions either already exists or could occur without methyl bromide fumi- and Virginia growers. gation: moderate to severe yellow or purple nutsedge infestation, or the pres- ence of an occupied structure within 100 feet of a grower’s field the size of 100 acres or less. (c) Florida growers ...... With a reasonable expectation that one or more of the following limiting critical conditions either already exists or could occur without methyl bromide fumi- gation: moderate to severe yellow or purple nutsedge infestation, or karst to- pography. (d) California growers in San Diego and With a reasonable expectation that moderate to severe pest pressure exists Ventura counties. and where alternatives are ineffective because of hilly terrain. Turfgrass ...... (a) U.S. turfgrass sod nursery pro- For the production of industry-certified pure sod. ducers who are members of Turfgrass Producers International (TPI). (b) U.S. golf courses ...... For establishing sod in the construction of new golf courses or the renovation of putting greens, tees, and fairways.
Post-harvest uses
Food Processing ..... (a) Rice millers in all locations in the With a reasonable expectation that one or more of the following limiting critical U.S. who are members of the USA conditions exists: older structures that cannot be properly sealed to use an Rice Millers Association. alternative to methyl bromide, the presence of sensitive electronic equipment subject to corrosivity, or time to transition to an alternative. (b) Pet food manufacturing facilities in With a reasonable expectation that one or more of the following limiting critical the U.S. who are active members of conditions exists; older structures that cannot be properly sealed to use an the Pet Food Institute. (For today’s alternative to methyl bromide, the presence of sensitive electronic equipment rule, ‘‘pet food’’ refers to domestic subject to corrosivity, or time to transition to an alternative. dog and cat food). (c) Kraft Foods in the U.S...... With a reasonable expectation that one or more of the following limiting critical conditions exists: older structures that cannot be properly sealed to use an alternative to methyl bromide, the presence of sensitive electronic equipment subject to corrosivity, or time to transition to an alternative. (d) Members of the North American Mil- With a reasonable expectation that one or more of the following limiting critical lers’ Association in the U.S. conditions either already exists or could occur without methyl bromide fumi- gation: older structures that cannot be properly sealed to use an alternative to methyl bromide, the presence of sensitive electronic equipment subject to corrosivity, or time to transition to an alternative. (e) Members of the National Pest Man- With a reasonable expectation that one or more of the following limiting critical agement Association (associated with conditions either already exists or could occur without methyl bromide fumi- dry commodity structure fumigation gation: older structures that cannot be properly sealed in order to use an al- (cocoa) and dry commodity fumiga- ternative to methyl bromide, the presence of electronic equipment that is sub- tion (processed food, herbs, spices, ject to corrosivity, where heat treatment would cause rancidity to a particular and dried milk)). commodity, or time to transition to an alternative is needed. Commodity Storage (a) Gwaltney of Smithfield in the U.S .... For smokehouse ham curing facilities owned by the company.
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Column A Column B Column C
(b) Dry cured pork products: Members Pork product facilities who are members of the Association. of the National Country Ham Asso- ciation. (c) Dry cured pork products: Members Pork product facilities who are members of the Association. of the American Association of Meat Processors. (d) Dry cured pork products: Nahunta For facilities owned by the company. Pork Center. (e) California entities storing walnuts, With a reasonable expectation that one or more of the following limiting critical beans, dried plums, figs, raisins, and conditions exists: rapid fumigation is required to meet a critical market win- pistachios in California. dow, such as during the holiday season; when a buyer provides short (2 days or less) notification for a purchase; or there is a short period after har- vest in which to fumigate and there is limited silo availability for using alter- natives. (f) Growers and packers who are mem- With a reasonable expectation that one or more of the following limiting critical bers of the California Date Commis- conditions exists: rapid fumigation is required to meet a critical market win- sion, whose facilities are located in dow, such as during the holiday season, when a buyer provides short (2 Riverside County. days or less) notification for a purchase, or there is a short period after har- vest in which to fumigate and there is limited silo availability for using alter- natives.
[FR Doc. 05–23971 Filed 12–12–05; 8:45 am] limitations applicable to the total mass Certain other material, such as BILLING CODE 6560–50–P of a pollutant discharged from more copyrighted material, is not placed on than one outfall—a ‘‘water bubble.’’ The the Internet and will be publicly effect of such a water bubble was to available only in hard copy form. ENVIRONMENTAL PROTECTION allow a greater or lesser quantity of a Publicly available docket materials are AGENCY particular pollutant to be discharged available either electronically through from any single outfall so long as the www.regulations.gov or in hard copy at 40 CFR Part 420 total quantity discharged from the the Water Docket, EPA Docket Center, [Docket Number EPA–OW–2002–0027; FRL– combined outfalls did not exceed the EPA West Building, Room B102, 1301 8007–8] allowed mass limitation. Among the Constitution Avenue, NW., Washington, changes adopted in the 2002 DC, 20460. The Public Reading Room is RIN 2040–AE78 amendments was a provision that open from 8:30 a.m. to 4:30 p.m., prohibited establishment of a water Monday through Friday, excluding legal Effluent Limitations Guidelines, bubble for oil and grease effluent holidays. The telephone number for the Pretreatment Standards, and New limitations. Based on consideration of Public Reading Room is (202) 566–1744, Source Performance Standards for the new information and analysis, EPA is and the telephone number for the Water Iron and Steel Manufacturing Point reinstating the provision authorizing Docket is (202) 566–2426. Source Category alternative oil and grease limitations FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection with certain restrictions. Today’s final Elwood H. Forsht, Engineering and Agency. rule also corrects errors in the effective Analysis Division, Office of Water, Mail date of new source performance ACTION: Final rule. code 4303T, 1200 Pennsylvania Avenue, standards for direct and indirect NW., Washington, DC 20460; telephone SUMMARY: The Environmental Protection discharges of pollutants. number: 202–566–1025; fax number: Agency (EPA) is amending certain DATES: This final rule is effective on 202–566–1053; and e-mail address: provisions of the regulations January 12, 2006. [email protected]. establishing effluent limitations ADDRESSES: EPA has established a SUPPLEMENTARY INFORMATION: guidelines, pretreatment standards and docket for this action under Docket ID new source performance standards for No. EPA–OW–2002–0027. All I. General Information the Iron and Steel Manufacturing Point documents in the docket are listed on A. Does This Action Apply to Me? Source Category. In 2002, EPA also the http://www.regulations.gov Web promulgated amendments to these site. Although listed in the index, some Entities potentially regulated by this regulations. The earlier regulations information is not publicly available, action include facilities of the following authorized for direct discharges of e.g., CBI or other information whose types that discharge pollutants directly pollutants the establishment of disclosure is restricted by statute. or indirectly to waters of the U.S.:
NAICS Category Examples of regulated entities codes
Industry .. Discharges from existing and new facilities engaged in metallurgical cokemaking, sintering, ironmaking, steelmaking, 3311, 3312 direct reduced ironmaking, briquetting, and forging.
This table is not intended to be the types of entities that EPA is now regulated. To determine whether your exhaustive, but rather provides a guide aware could potentially be regulated by facility is regulated by this action, you for readers regarding entities likely to be this action. Other types of entities not should carefully examine the definitions regulated by this action. This table lists listed in the table could also be and applicability criteria in §§ 420.01,
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420.10, 420.20, 420.30, 420.40, 420.50, II. Legal Authority B. Overview of 1982 Rule and 1984 420.60, 420.70, 420.80, 420.90, 420.100, Amendment The U.S. Environmental Protection 420.110, 420.120, and 420.130 of title 40 EPA promulgated effluent limitations of the Code of Federal Regulations. If Agency is promulgating these regulations under the authorities of guidelines and pretreatment standards you have questions about the for the Iron and Steel Point Source sections 301, 304, 306, 308, 402 and 501 applicability of this action to a Category on May 27, 1982 (47 FR of the Clean Water Act (CWA), 33 U.S.C. particular entity, consult the person 23258), at 40 CFR part 420, and listed in the preceding FOR FURTHER 1311, 1314, 1316, 1318, 1342 and 1361. amended these regulations on May 17, INFORMATION CONTACT section. III. Overview of Effluent Limitations 1984 (49 FR 21024). These actions B. How Can I Get Copies of This Guidelines and Standards for the Iron established limitations and standards Document and Other Related and Steel Manufacturing Industry for three types of steel-making Information? operations: Cokemaking, hot-end and A. Legislative Background finishing operations. Regulations at 1. Docket. EPA has established an subpart A of part 420 cover cokemaking Congress adopted the Clean Water Act official public docket for this action operations. Regulations at subpart B (CWA) to Arestore and maintain the under Docket ID No. EPA–OW–2002– (sintering), subpart C (ironmaking), chemical, physical, and biological 0027. The official public docket consists subpart D (steelmaking), subpart E of the documents specifically referenced integrity of the Nation’s waters’’ (section (vacuum degassing), subpart F in this action, any public comments 101(a), 33 U.S.C. 1251(a)). To achieve (continuous casting) and subpart G (hot received, and other information related this, the CWA prohibits the discharge of forming) cover hot-end operations. to this action. Publicly available docket pollutants into navigable waters except Subpart H (salt bath descaling), subpart materials are available either in compliance with the statute. The I (acid pickling), subpart J (cold electronically through CWA confronts the problem of water forming), subpart K (alkaline cleaning) www.regulations.gov or in hard copy at pollution on a number of different and subpart L (hot coating) cover the Water Docket in the EPA Docket fronts. It relies primarily, however, on finishing operations. Center, (EPA/DC) EPA West, Room establishing restrictions on the types The 1984 amendment (49 FR 21028; B102, 1301 Constitution Ave., NW., and amounts of pollutants discharged May 17, 1984) also included a provision Washington, DC. The EPA Docket from various industrial, commercial, that would allow existing direct Center Public Reading Room is open and public sources of wastewater. dischargers to qualify for ‘‘alternative from 8:30 a.m. to 4:30 p.m., Monday Congress recognized that regulating effluent limitations’’ for a particular pollutant that was different from the through Friday, excluding legal only those sources that discharge otherwise applicable effluent limitation. holidays. The telephone number for the effluent directly into the Nation’s waters Public Reading Room is (202) 566–1744, These ‘‘alternative’’ limitations would not achieve the CWA’s goals. represented a mass limitation that and the telephone number for the Water Consequently, the CWA requires EPA to Docket is (202) 566–2426. To view these would apply to a combination of set nationally-applicable pretreatment outfalls. Thus, a facility with more than docket materials, please call ahead to standards that restrict pollutant schedule an appointment. Every user is one outfall would be subject to a discharges from those who discharge entitled to copy 266 pages per day combined mass limitation for the wastewater into sewers flowing to before incurring a charge. The Docket grouped outfalls rather than subject to publicly-owned treatment works may charge 15 cents a page for each mass limitations for each individual page over the 266-page limit plus an (POTWs) (section 307(b) and (c)). outfall. This provision allowed for in- administrative fee of $25.00. National pretreatment standards are plant trading under a ‘‘water bubble.’’ established for those pollutants in The effect of this provision was to allow 2. Electronic Access. You may access wastewater from indirect dischargers a facility to exceed the otherwise this Federal Register document which may pass through, interfere with, applicable effluent mass limitation for a electronically through the EPA Internet or are otherwise incompatible with the particular outfall within a group of under the ‘‘Federal Register’’ listings at operation of POTWs. Generally, outfalls so long as the facility did not http://www.epa.gov/fedrgstr/. pretreatment standards are designed to exceed the allowed mass limitations for C. What Process Governs Judicial ensure that wastewater from direct and the grouped outfalls. The provision Review for Today’s Final Rule? indirect industrial dischargers are prohibited establishing alternative subject to similar levels of treatment. effluent limitations for cokemaking In accordance with 40 CFR 23.2, The General Pretreatment Regulations, (subpart A) and cold forming (subpart J) today’s rule is considered promulgated which set forth the framework for the process wastewaters. See 40 CFR for the purposes of judicial review as of implementation of national 420.03(b) (2001 ed.). The water bubble 1 p.m. Eastern Daylight Time, December pretreatment standards, are found at 40 is a regulatory flexibility mechanism 27, 2005. Under section 509(b)(1) of the CFR part 403. that allows trading of identical Clean Water Act (CWA), judicial review pollutants at any existing, direct of today’s effluent limitations guidelines Direct dischargers must comply with discharging steel facility with multiple and standards may be obtained by filing effluent limitations in National compliance points. a petition in the United States Circuit Pollutant Discharge Elimination System Court of Appeals for review within 120 (NPDES) permits; indirect dischargers C. The Water Bubble Provisions in the days from the date of promulgation of must comply with pretreatment 2002 Rule these guidelines and standards. Under standards. These limitations and On October 17, 2002, EPA section 509(b)(2) of the CWA, the standards are established by regulation promulgated amendments to the iron requirements of this regulation may not for categories of industrial dischargers and steel regulations (67 FR 64216). In be challenged later in civil or criminal and are based on the degree of control that action, EPA revised effluent proceedings brought by EPA to enforce that can be achieved using various limitations guidelines and standards for these requirements. levels of pollution control technology. subpart A (cokemaking), subpart B
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(sintering), subpart C (ironmaking), and concerning these facilities, EPA the source of polynuclear aromatic subpart D (steelmaking), and proposed to amend the regulation to hydrocarbons in the iron and steel promulgated new effluent limitations restore the regulatory flexibility related industry. (67 FR 64254; October 17, guidelines and standards for a new to O&G trading for direct discharges of 2002) The cokemaking restriction in the subpart, subpart M (other operations), pollutants. EPA also proposed to correct water bubble (40 CFR 420.03(f)(1)) that is also considered a hot-end typographical errors in the new source allows alternative limitations only if operation. Subparts E through L performance standards dates for direct they are more stringent than the (oil and remained unchanged. and indirect discharges of pollutants. grease) limitations in the cokemaking At that time, EPA also amended the (70 FR 46459; August 10, 2005) subcategory. In this case, use of the scope of § 420.03—the water bubble water bubble could decrease the amount IV. Public Comment and Responses provision—to allow establishment of of polynuclear aromatics discharged to alternative mass limitations for facilities EPA received four comments in the surface waters of the United States. subject to new source standards and for response to the August 10, 2005, After analysis and review of cold rolling operations. At the same proposal. One trade association and one comments received on the proposed time, EPA excluded oil and grease iron and steel company supported the amendment, EPA has determined that it (O&G) trading under the water bubble. proposal to reinstate the provision should adopt the proposed 40 CFR 420.03(c); 67 FR 64261 (October authorizing alternative oil and grease modifications to the current regulation. 17, 2002). limitations with the associated EPA allowed trades involving cold restrictions. One commenter requested V. Amendment To Restore Oil and forming operations (subpart J) because guidance on how the proposed changes Grease to the Water Bubble of process changes since promulgation would be implemented in the case of Today, EPA is amending § 420.03 to of the 1984 amendments. The original indirect dischargers. EPA notes that the reinstate O&G as a pollutant parameter prohibition of trades involving cold I&S water bubble applies only to the for which alternative effluent rolling operations was primarily based direct discharge of process wastewater. limitations may be established with one on concerns about discharges of Finally, one public interest group exception. The amendment prohibits naphthalene and tetrachloroethylene. objected to the proposal contending that sintering process O&G trades unless one Since the 1984 amendments, industry the proposal would allow excessive oil condition is met. When establishing use of chlorinated solvents for and grease discharges from single alternative O&G mass limitations for equipment cleaning has virtually been outfalls, as long as the overall permit combined outfalls that include outfalls eliminated and the use of naphthalene- limit was maintained. The commenter with sintering process wastewater, the based rolling solutions has been suggested the possibility that allocation for sintering process significantly reduced. (67 FR 64254) polynuclear aromatic hydrocarbons wastewater must be at least as stringent Consequently, EPA concluded that could accumulate in river sediment due as otherwise required by subpart B. This trading involving cold rolling operations to oil and grease loadings. restriction addresses the Agency’s could be authorized without adverse EPA disagrees that excessive amounts concern about the possibility of net consequences to receiving waters. of oil and grease could be discharged to increases in discharges of furans and Prior to the 2002 revision, described surface waters of the United States dioxins. Sinter lines may receive wastes above, part 420 authorized the through the use of the water bubble. The from all over the facility, from other establishment of a single mass effluent total discharge of oil and grease from a facilities owned by the same company, limitation for O&G for multiple outfalls. facility (i.e., total allowable oil and and, in some cases, from other There were three steel mills that had grease from all outfalls at a facility), as companies. Therefore, the sintering applied for and received alternative allowed by 40 CFR part 420, would not process O&G constituents are O&G limitations under § 420.03. In the change because of this amendment. This unpredictable and may contain solvents, 2002 rule, EPA explained that it had amendment would only authorize a likely source material for furan and decided not to allow trades of O&G facilities to discharge varying amounts dioxin formation. pollutant discharges among different of oil and grease from individual EPA anticipates no additional outfalls because of differences in the outfalls, on the condition that the total compliance costs for the three steel types of oil and grease used among iron oil and grease discharged from all of the mills that have applied for and received and steel operations. See 67 FR 64261, outfalls of the facility does not exceed alterative O&G limitations for multiple 64254 (October 17, 2002). that allowed by 40 CFR part 420. In outfalls in the past. EPA anticipates that After publication of the 2002 other words, the provision allows a today’s amendment presents amendment, representatives of steel facility to exceed the otherwise opportunities for other facilities mills affected by this change expressed applicable effluent mass limitation for a (through existing plant configurations or concern about the prohibition on particular outfall within a group of future expansions) to utilize the cost establishing alternative O&G effluent outfalls so long as the facility does not saving, regulatory flexibility provided limitations under the water bubble and exceed the allowed mass limitations for by the provisions for establishing requested that EPA revise § 420.03 to the grouped outfalls. This provides alternative O&G limitations under the reinstate O&G trading. The facilities more economic flexibility to water bubble. representatives asserted that EPA did achieve compliance with limits, without not appropriately account for increasing the amount of pollutants VI. Corrections and Edits to 40 CFR compliance costs for those facilities discharged to the environment. If there Part 420 possessing permits with alternative O&G are any site-specific issues or water EPA is correcting typographical errors limitations when the Agency decided to quality problems at one or more of these contained in the October 17, 2002, final prohibit oil and grease trading. They outfalls, the permitting authority could rule (67 FR 64216). The Code of Federal also asserted that these costs, due to the modify the application of the water Regulations (2004 ed.) contains an error loss of the treatment flexibility provided bubble as needed to address the specific for the new source performance by the water bubble, would be situation. Furthermore, the amendment standards dates at §§ 420.14(a)(1), substantial. In August 2005, having retains the trading restriction on 420.16(a)(1), 420.24(a), and 420.26(a)(1). reviewed the information provided cokemaking operations which tend to be As published, the dates used to
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determine whether a facility must alternative effluent limitations and owned and operated and is not comply with new source requirements standards under the ‘‘water bubble’’ dominant in its field. do not make sense, because the provision of the rule may be available After considering the economic ‘‘beginning date’’ was later than the and would correct a date for new source impacts of today’s rule on small entities, ‘‘ending date.’’ The first sentence in performance standards that was I certify that this action will not have a each of these citations is amended to incorrectly transcribed from the version significant economic impact on a read as follows: ‘‘Any new source signed by the Administrator. substantial number of small entities. In subject to the provisions of this section Consequently, today’s rule does not determining whether a rule has a that commenced discharging after establish any new information significant economic impact on a November 18, 1992 and before collection burden on the regulated substantial number of small entities, the November 18, 2002, must continue to community. impact of concern is any significant achieve the standards specified in Burden means the total time, effort, or adverse economic impact on small § 420.14 of title 40 of the Code of financial resources expended by persons entities, since the primary purpose of Federal Regulations, revised as of July 1, to generate, maintain, retain, or disclose the regulatory flexibility analyses is to 2001 * * *’’ The November 18, 1992 or provide information to or for a identify and address regulatory date was incorrectly published as Federal agency. This includes the time alternatives ‘‘which minimize any November 19, 2012. needed to review instructions; develop, significant economic impact of the rule In addition, the ‘‘Authority’’ citation acquire, install, and utilize technology on small entities.’’ 5 U.S.C. 603 and 604. is revised to conform to current and systems for the purposes of Thus, an agency may certify that a rule guidance from the Office of the Federal collecting, validating, and verifying will not have a significant economic Register. information, processing and impact on a substantial number of small maintaining information, and disclosing entities if the rule relieves regulatory VII. Statutory and Executive Order burden, or otherwise has a positive Reviews and providing information; adjust the existing ways to comply with any economic effect on all of the small Executive Order 12866: Regulatory previously applicable instructions and entities subject to the rule. The amendment would re-instate Planning and Review requirements; train personnel to be able O&G as a pollutant parameter for which to respond to a collection of Under Executive Order 12866 [58 FR alternative effluent limitations and information; search data sources; 51735, (October 4, 1993)], the Agency standards may be established. These complete and review the collection of must determine whether a regulatory changes may reduce the economic information; and transmit or otherwise action is ‘‘significant’’ and therefore impacts of the regulation on those disclose the information. subject to Office of Management and entities, including small entities that Budget (OMB) review and the An Agency may not conduct or have already elected or may elect to use requirements of the Executive Order. sponsor, and a person is not required to the trading provisions of the water The Order defines ‘‘significant respond to a collection of information bubble for alternative O&G effluent regulatory action’’ as one that is likely unless it displays a currently valid OMB limitations. The change in the to result in a rule that may: control number. The OMB control compliance date for new source (1) Have an annual effect on the numbers for EPA’s regulations in 40 performance standards would result in economy of $100 million or more or CFR are listed in 40 CFR part 9. no economic burden. The change would adversely affect in a material way the C. Regulatory Flexibility Act only correct a date for new source economy, a sector of the economy, performance standards that was productivity, competition, jobs, the The Regulatory Flexibility Act (RFA), incorrectly transcribed from the version environment, public health or safety, or as amended by the Small Business signed by the Administrator. EPA has State, local, or tribal governments or Regulatory Enforcement Fairness Act of therefore concluded that the rule will communities; 1996 (SBREFA), 5 U.S.C. 601 et seq., relieve regulatory burden for all affected (2) Create a serious inconsistency or generally requires an agency to prepare small entities. otherwise interfere with an action taken a regulatory flexibility analysis of any D. Unfunded Mandates Reform Act or planned by another agency; rule subject to notice and comment (3) Materially alter the budgetary rulemaking requirements under the Title II of the Unfunded Mandates impact of entitlements, grants, user fees, Administrative Procedure Act or any Reform Act of 1995 (UMRA), Public or loan programs or the rights and other statute unless the agency certifies Law 104–4, establishes requirements for obligations of recipients thereof; or that the rule will not have a significant Federal agencies to assess the effects of (4) Raise novel legal or policy issues economic impact on a substantial their regulatory actions on State, local, arising out of legal mandates, the number of small entities. Small entities and tribal governments and the private President’s priorities, or the principles include small businesses, small sector. Under section 202 of the UMRA, set forth in the Executive Order. organizations, and small governmental EPA generally must prepare a written Pursuant to the terms of Executive jurisdictions. statement, including a cost-benefit Order 12866, it has been determined For purposes of assessing the impacts analysis, for proposed and final rules that this rule is not a ‘‘significant of today’s rule on small entities, small with ‘‘Federal mandates’’ that may regulatory action’’ and is therefore not entity is defined as: (1) A small business result in expenditures to State, local, subject to OMB review. based on full time employees (FTEs) or and tribal governments, in the aggregate, annual revenues established by the or to the private sector, of $100 million B. Paperwork Reduction Act Small Business Administration; (2) a or more in any one year. Before This action would not impose an small governmental jurisdiction that is a promulgating an EPA rule for which a information collection burden under the government of a city, county, town, written statement is needed, section 205 provisions of the Paperwork Reduction school district or special district with a of the UMRA generally requires EPA to Act, 44 U.S.C. 3501 et seq. The population less than 50,000; and (3) a identify and consider a reasonable amendment would re-instate O&G as a small organization that is any not-for- number of regulatory alternatives and pollutant parameter for which profit enterprise which is independently adopt the least costly, most cost-
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effective, or least burdensome the Executive Order to include G. Executive Order 13045: Protection of alternative that achieves the objectives regulations that have ‘‘substantial direct Children From Environmental Health of the rule. The provisions of section effects on the States, on the relationship Risks and Safety Risks 205 do not apply when they are between the national government and Executive Order 13045: ‘‘Protection of inconsistent with applicable law. the States, or on the distribution of Children from Environmental Health Moreover, section 205 allows EPA to power and responsibilities among the Risks and Safety Risks’’ (62 FR 19885, adopt an alternative other than the least various levels of government.’’ April 23, 1997) applies to any rule that: costly, most cost-effective, or least This rule does not have federalism (1) Is determined to be ‘‘economically burdensome alternative if the implications. It will not have substantial significant’’ as defined under Executive Administrator publishes with the final direct effects on the States, on the Order 12866, and (2) concerns an rule an explanation why that alternative relationship between the national environmental health or safety risk that was not adopted. Before EPA establishes government and the States, or on the EPA has reason to believe may have a any regulatory requirements that may distribution of power and disproportionate effect on children. If significantly or uniquely affect small responsibilities among the various the regulatory action meets both criteria, governments, including tribal levels of government, as specified in the Agency must evaluate the governments, it must have developed, Executive Order 13132. The amendment environmental health or safety effects of under section 203 of the UMRA, a small would re-instate O&G as a pollutant the planned rule on children, and government agency plan. The plan must parameter for which alternative effluent explain why the planned regulation is provide for notifying potentially limitations and standards may be preferable to other potentially effective affected small governments, enabling established and would correct a date for and reasonably feasible alternatives officials of affected small governments new source performance standards that considered by the Agency. to have meaningful and timely input in was incorrectly transcribed from the This rule is not subject to E.O. 13045 the development of EPA regulatory version signed by the Administrator. because it is not economically proposals with significant Federal EPA has determined that there are no significant as defined under Executive intergovernmental mandates, and iron and steel facilities owned and/or Order 12866. Further, this regulation informing, educating, and advising operated by State or local governments does not concern an environmental small governments on compliance with that would be subject to today’s rule. health or safety risk that EPA has reason the regulatory requirements. Further, the rule would only to believe may have a disproportionate EPA has determined that this rule incidentally affect State and local effect on children. does not contain a Federal mandate that governments in their capacity as may result in expenditures of $100 implementers of CWA NPDES H. Executive Order 13211: Actions That million or more for State, local, and permitting programs and approved Significantly Affect Energy Supply, tribal governments, in the aggregate, or pretreatment programs. Thus, Executive Distribution, or Use the private sector in any one year. The Order 13132 does not apply to this rule. This regulation is not subject to amendment would re-instate O&G as a F. Executive Order 13175: Consultation Executive Order 13211, ‘‘Actions pollutant parameter for which and Coordination With Indian Tribal Concerning Regulations That alternative effluent limitations and Governments Significantly Affect Energy Supply, standards may be established and would Distribution, or Use’’ (66 FR 28355, May correct a date for new source Executive Order 13175, entitled 22, 2001) because it is not a significant performance standards that was ‘‘Consultation and Coordination with regulatory action under Executive Order incorrectly transcribed from the version Indian Tribal Governments’’ (65 FR 12866. signed by the Administrator. EPA has 67249, November 9, 2000), requires EPA determined that this final rule will to develop an accountable process to I. National Technology Transfer and result in no additional costs. Thus, ensure ‘‘meaningful and timely input by Advancement Act today’s rule is not subject to the tribal officials in the development of Section 12(d) of the National requirements of sections 202 and 205 of regulatory policies that have tribal Technology Transfer and Advancement the UMRA. implications.’’ Act of 1995 (‘‘NTTAA’’), Public Law For the same reason, EPA has This rule does not have tribal 104–113, section 12(d), (15 U.S.C. 272 determined that this rule contains no implications. It will not have substantial note), directs EPA to use voluntary regulatory requirements that might direct effects on tribal governments, on consensus standards in its regulatory significantly or uniquely affect small the relationship between the Federal activities unless to do so would be governments. The rule would not government and Indian tribes or on the inconsistent with applicable law or uniquely affect small governments distribution of power and otherwise impractical. Voluntary because small and large governments responsibilities between the Federal consensus standards are technical are affected in the same way. Thus, government and Indian tribes, as standards (e.g., materials specifications, today’s rule is not subject to the specified in Executive Order 13175. The test methods, sampling procedures, requirements of section 203 of the amendment would re-instate O&G as a business practices) that are developed or UMRA. pollutant parameter for which adopted by voluntary consensus alternative effluent limitations and standards bodies. The NTTAA directs E. Executive Order 13132: Federalism standards may be established and would EPA to provide Congress, through the Executive Order 13132, entitled correct a date for new source Office of Management and Budget ‘‘Federalism’’ (64 FR 43255, August 10, performance standards that was (OMB), explanations when the Agency 1999), requires EPA to develop an incorrectly transcribed from the version decides not to use available and accountable process to ensure signed by the Administrator. EPA has applicable voluntary consensus ‘‘meaningful and timely input by State not identified any iron and steel standards. and local officials in the development of facilities covered by today’s rule that are This action does not involve technical regulatory policies that have federalism owned and/or operated by Indian tribal standards. Therefore, EPA did not implications.’’ ‘‘Policies that have governments. Thus, Executive Order consider the use of any new voluntary federalism implications’’ is defined in 13175 does not apply to this rule. consensus standards.
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J. Congressional Review Act § 420.14 [Amended] provisions in the December 13, 2002 I interim final rule relating to how we The Congressional Review Act, 5 3. Section 420.14 is amended in paragraph (a)(1) by removing the date define grossly excessive or deficient U.S.C. 801 et seq., as added by the Small payment amounts and to the criteria for Business Regulatory Enforcement ‘‘November 19, 2012’’ and replacing it with the date ‘‘November 18, 1992.’’ using valid and reliable data in applying Fairness Act of 1996, generally provides the inherent reasonableness authority. that before a rule may take effect, the § 420.16 [Amended] EFFECTIVE DATE: This final rule is agency promulgating the rule must I 4. Section 420.16 is amended in effective on February 13, 2006. submit a rule report, which includes a paragraph (a)(1) by removing the date copy of the rule, to each House of the FOR FURTHER INFORMATION CONTACT: ‘‘November 19, 2012’’ and replacing it William Long, (410) 786–5655. Congress and to the Comptroller General with the date ‘‘November 18, 1992.’’ of the United States. EPA will submit a SUPPLEMENTARY INFORMATION: report containing this rule and other § 420.24 [Amended] Electronic Access required information to the U.S. Senate, I 5. Section 420.24 is amended in the U.S. House of Representatives, and paragraph (a) by removing the date This Federal Register document is the Comptroller General of the United ‘‘November 19, 2012’’ and replacing it available from the Federal Register States prior to publication of the rule in with the date ‘‘November 18, 1992.’’ online database through GPO Access, a the Federal Register. A major rule service of the U.S. Government Printing cannot take effect until 60 days after it § 420.26 [Amended] Office. Free public access is available on is published in the Federal Register. I 6. Section 420.26 is amended in a Wide Area Information Server (WAIS) This action is not a ‘‘major rule’’ as paragraph (a)(1) by removing the date through the Internet and via defined by 5 U.S.C. 804(2). This rule ‘‘November 19, 2012’’ and replacing it asynchronous dial-in. Internet users can will be effective on January 12, 2006. with the date ‘‘November 18, 1992.’’ access the database by using the World Wide Web; the Superintendent of List of Subjects in 40 CFR Part 420 [FR Doc. 05–23973 Filed 12–12–05; 8:45 am] Documents home page address is BILLING CODE 6560–50–P _ Environmental protection, Iron, Steel, http://www.access.gpo.gov/nara docs/, Waste treatment and disposal, Water by using local WAIS client software, or pollution control. by telnet to swais.access.gpo.gov, then DEPARTMENT OF HEALTH AND login as guest (no password required). Dated: December 7, 2005. HUMAN SERVICES Dial-in users should use Stephen L. Johnson, communications software and modem Administrator. Centers for Medicare & Medicaid to call (202) 512–1661; type swais, then Services login as guest (no password required). I For reasons set out in the preamble, title 40, chapter I of the Code of Federal 42 CFR Part 405 I. Background: Legislative and Regulations is amended as follows: Regulatory Authority [CMS–1908–F] Title XVIII of the Social Security Act PART 420—IRON AND STEEL RIN 0938–AN81 MANUFACTURING POINT SOURCE (the Act) contains various CATEGORY Medicare Program; Application of methodologies for making payment Inherent Reasonableness Payment under Part B of the Medicare program. I 1. The authority citation for part 420 Policy to Medicare Part B Services These payment methodologies vary is revised to read as follows: (Other Than Physician Services) among the different categories of items and services covered under Medicare Authority: 33 U.S.C. 1311, 1314, 1316, AGENCY: Centers for Medicare & Part B. 1317, 1318, 1342, and 1361. Medicaid Services (CMS), HHS. A. The Consolidated Omnibus Budget I 2. Section 420.03 is amended by ACTION: Final rule. Reconciliation Act of 1985 removing and reserving paragraph (c), SUMMARY: Section 9304(a) of the Consolidated by removing the ‘‘; and’’ at the end of This final rule finalizes the Omnibus Budget Reconciliation Act of paragraph (f)(1) and adding a period in process that was set forth in an interim 1985 (COBRA of 1985), Public Law 99– its place, and by adding paragraph (f)(3) final rule published on December 13, 272, effective September 10, 1986, to read as follows: 2002, for establishing a realistic and equitable payment amount for Medicare added section 1842(b)(8) to the Act, § 420.03 Alternative effluent limitations Part B services (other than physicians’ which expressly authorizes the representing the degree of effluent services) when the existing payment Secretary to deviate from the payment reduction attainable by the application of amounts are inherently unreasonable methodologies prescribed in the Act if best practicable control technology because they are either grossly excessive their application results in a payment currently available, best available or grossly deficient. This process does amount for a particular service or group technology economically achievable, best available demonstrated control technology, not apply to services paid under a of services that is determined to be and best conventional pollutant control prospective payment system, such as grossly excessive or deficient and, technology (the ‘‘water bubble’’). outpatient hospital services or home therefore, is not inherently reasonable. health services. The December 2002 The statute also requires the Secretary to * * * * * interim final rule also described the describe in regulations the factors to be (f) * * * factors we (or our carriers) will consider considered in determining an amount (3) There shall be no alternate effluent and the procedures we will follow in that is realistic and equitable. The limitations for O&G in sintering process establishing realistic and equitable Secretary has always taken the position wastewater unless the alternative payment amounts for Medicare Part B that the authority to regulate limitations are more stringent than the services. unreasonable payment amounts is otherwise applicable limitations in In addition, this final rule responds to inherent in his or her authority to subpart B of this part. public comments we received on two determine reasonable charges according
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to section 1842 of the Act, and, since their application results in a payment determination and a proposed payment January 1, 1991, has taken the position amount that, because it is determined to adjustment and for announcing the final that this authority applies to other Part be grossly excessive or deficient, is not payment adjustment determination. B payment methodologies, not just those inherently reasonable. Sections On January 7, 1998, we published in payment methodologies under section 1842(b)(8) and (b)(9) of the Act, as the Federal Register (63 FR 687) an 1842 of the Act. amended, also require the Secretary to interim final rule that implemented On August 11, 1986, we published a describe the factors to be considered in sections 1842(b)(8) and (b)(9) of the Act, final rule with comment period in the determining an amount that is realistic as amended by section 4316 of the BBA. Federal Register (51 FR 28710) to and equitable. Specifically, section 4316 In the January 7, 1998 interim final rule, implement the provisions of section of the BBA amended section 1842(b)(8) we revised § 405.502(g) and (h) to 1842(b)(8) of the Act, as added by of the Act to— exclude references to physicians’ section 9304(a) of the COBRA of 1985, • Exclude physicians’ services from services from the application of the under regulations at 42 CFR 405.502(g) application of the inherent inherent reasonableness policy. We also and (h). These regulations described the reasonableness payment policy; deleted specific references to the factors to be used in determining if the • Extend the authority to establish reasonable charge payment application of the reasonable charge special payment limits to Medicare methodology because the inherent methodology results in a charge that is carriers, regardless of the methodology reasonableness provisions apply to all grossly excessive or grossly deficient. for determining payment; Part B services, except physicians’ The regulations also described the • Simplify the inherent services, irrespective of the payment factors to be considered in establishing reasonableness process for adjustments methodology. However, we specified a reasonable charge that is realistic and to payment amounts that are 15 percent that the rule did not apply to services equitable. When we implemented or less. Specifically, section 4316 of the paid under a prospective payment section 1842(b)(8) of the Act, as added BBA amended section 1842(b)(8) by system, such as outpatient hospital by section 9304(a) of the COBRA of adding provisions that apply if a services or home health services. We 1985, we interpreted the statute as reduction or increase would vary the also reflected the change in the statute applying not only to the Secretary’s payment amount by 15 percent or less that permitted us to simplify the process authority to establish national ‘‘during any year.’’ (Other provisions for making adjustments to payment reasonable charge limits, but also to the apply to larger increases and decreases.) amounts for a category of items or Medicare carriers’ authority to establish Under this authority, we (or a carrier) services when the increase or decrease carrier-level reasonable charge limits on may determine that more than a 15- in the payment amount is no more than grossly excessive or deficient charges. percent adjustment is warranted, but we 15 percent per year. (For purposes of may choose to apply only a 15-percent § 405.502(g) and (h), a ‘‘category of B. The Omnibus Budget Reconciliation adjustment in any given year and use items or services’’ may consist of a Act of 1986 the ‘‘15-percent’’ methodology. For single item or service or any number of Section 9333 of the Omnibus Budget example, we (or a carrier) may items or services.) Reconciliation Act of 1986 (OBRA)(Pub. determine that a 25-percent reduction is Although the BBA gave the Secretary L. 99–509) amended section 1842(b)(8) warranted. However, the adjustment discretion to reduce the number of of the Act and added new paragraphs could be accomplished over 2 years—15 factors that are used to make inherent (b)(9) and (b)(10). These amendments percent applied the first year, and 10 reasonableness determinations, in the specified the distinct procedures under percent applied the following year. January 1998 interim final rule, we which the Secretary may establish • Require the Secretary to consider retained four of the five factors that special reasonable charge limits for the following factors in making inherent appeared in § 405.502(g)(1) because they physicians’ services and provided for a reasonableness determinations remain as appropriate factors for limitation on the amount that concerning payment for Part B services determining deficient or excessive nonparticipating physicians may charge (other than physicians’ services) and payment amounts. We removed the for a service if a special reasonable permit the Secretary to consider any factor related to the use of new charge limit is established for that additional factors determined to be technology for which an extensive physician service. appropriate: charge history does not exist because On July 11, 1988, we issued a final (1) Medicare and Medicaid are the there was already in place an alternative rule in the Federal Register (53 FR sole or primary sources of payment for process for establishing payment 26067) that conformed the regulations to a category of items or services. amounts for new items or services for the provisions of section 1842(b)(8) of (2) The payment amount for a which an extensive charge history does the Act, as amended by the OBRA, and category of items or services does not not exist. (We note that we reinserted sections 1842(b)(9) and (b)(10) of the reflect changing technology, increased this example of a factor in the December Act, as added by the OBRA. That final facility with that technology, or changes 13, 2002 interim final rule discussed in rule also responded to comments in acquisition, production, or supplier section I.D. of this final rule because we received on the August 11, 1986 final costs. had received requests that this example rule with comment period that (3) The payment amounts for a factor not be deleted.) We included the implemented section 9304(a) of the category of items or services are grossly following additional factors we may (but COBRA of 1985. higher or lower than the payments made we are not limited to) consider: for the same category of items or • The market place is not C. The Balanced Budget Act of 1997 services by other purchasers in the same competitive. Section 4316 of the Balanced Budget locality. • The payment amounts in a Act of 1997 (BBA), Public Law 105–33, Section 4316 of the BBA also made particular locality grossly exceed enacted on August 5, 1997, amended minor changes to section 1842(b)(9) of amounts paid in other localities for the sections 1842(b)(8) and (b)(9) of the Act, the Act relating to the process for category of items or services. which permit the Secretary to deviate formally notifying the public of, and • The payment amounts grossly from the payment methodologies obtaining public comment on, a exceed acquisition or production costs prescribed in title XVIII of the Act if proposed inherent reasonableness for the category of items or services.
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• There have been increases in more specific criteria under section II. of We note that we issued the December payment amounts that cannot be this final rule.) 13, 2002 document as an interim final explained by inflation or technology. Event 4: The Secretary had taken rule so that the public would have an We interpreted the provisions of appropriate steps to ensure the use of additional opportunity to comment section 4316 of the BBA relating to the valid and reliable data when exercising particularly on two provisions that Secretary’s authority and a Medicare the authority. (The December 13, 2002 contained further specificity than that carrier’s authority in the same manner interim final rule, discussed below in found in the January 7, 1998 interim that we had done for the COBRA of this section I.D. of this final rule, final rule. These provisions, discussed 1985. That is, we interpreted the statute addressed the use of valid and reliable below, related to (1) defining grossly as codifying both our authority and a data and provided opportunity for excessive and deficient payment carrier’s authority to establish realistic further public comment on this area. We amounts (§ 405.502(g)(1)(ii) of the and equitable payment amounts. Thus, are responding to the public comments regulations); and (2) taking appropriate in the January 7, 1998 interim final rule, received on the use of data under steps to ensure the use of valid and we described the circumstances and section II. of this final rule.) reliable data when exercising the factors our carriers and we would use in As we indicated earlier, section 223 of inherent reasonableness authority setting realistic and equitable payment the BBRA directed us to respond to the (§ 405.502(g)(4) of the regulations). We amounts if the existing payment July 2000 GAO report. In its report, the are responding to the public comments amounts are grossly excessive or GAO found that CMS’ use of the revised received on these two provisions in deficient. inherent reasonableness process was section II. of this final rule. We had D. The Balanced Budget Refinement Act generally appropriate and made four already received public comments on of 1999 specific recommendations. the other BBRA provisions that were Recommendation: In publishing the implemented when we published the Section 223 of the Balanced Budget January 7, 1998 interim final rule; these Refinement Act (BBRA) of 1999, Public final rule on the inherent comments were addressed in section V. Law 106–113, enacted on November 29, reasonableness process, CMS should of the December 13, 2002 interim final 1999, prohibited the use of the inherent define with sufficient clarity the terms rule. We also refer the readers to section reasonableness authority under section ‘‘grossly excessive’’ and ‘‘grossly IV. of the December 13, 2002 interim 1842(b) of the Act until the following deficient.’’ final rule (67 FR 76686) for a full events had occurred: Recommendation: For future inherent Event 1: The Comptroller General had reasonableness reviews based on survey discussion of CMS’ responses to the released a report regarding the impact of data, CMS or the carriers should GAO report recommendations. the Secretary’s fiscal intermediaries’ and develop and implement a more We note that the statute applies carriers’ use of the authority. (This structured survey design, including inherent reasonableness to Part B items report, entitled ‘‘Medicare Payments- sample selection, survey and services, except for physicians’ Use of Revised ‘Inherent instrumentation, and data collection services as defined and paid for under Reasonableness’ Generally Appropriate methods, and ensure that the design is section 1848 of the Act. Hospital (GAO/HEHS–OO–79),’’ was released by consistently used by all entities outpatient services are not excluded the General Accounting Office (GAO) conducting the survey. from the inherent reasonableness (now the Government Accountability Recommendation: CMS and the provisions of the law. In addition, the Office) in July 2000.) carriers should collect and analyze inherent reasonableness authority can Event 2: The Secretary had published additional information to more precisely be used in cases for which the standard a notice of final rulemaking in the estimate any payment reductions for rules for determining payment amounts Federal Register that related to the glucose test strips, albuterol sulfate, and for drugs paid under section 1842(o) of authority and that responded to the enteral formulas, as well as for the Act or laboratory services paid GAO report and to comments received additional payment reductions in under section 1842 of the Act result in in response to the Secretary’s interim subsequent years for lancets, eyeglass grossly deficient or excessive payment final regulation relating to the authority frames, latex Foley catheters, and amounts. However, we decided that we that was published on January 7, 1998. catheter insertion trays without drainage would not apply the inherent (The notice of final rulemaking was bags. reasonableness provisions to services published in the Federal Register on Recommendation: CMS should paid under a prospective payment December 13, 2002 (67 FR 76684), and monitor indicators that could signal system such as outpatient hospital is discussed below in this section I.D. of potential problems with patient access services or home health services. In this final rule. That notice also to the product groups for which it is 2002, we excluded those payment responded to the GAO report.) reducing maximum payments and act methodologies from the application of Event 3: In publishing the final quickly to rectify any problems that inherent reasonableness because we regulation, the Secretary had arise. believe they have other mechanisms to reevaluated the appropriateness of the On December 13, 2002, we published address the concerns otherwise criteria included in the interim final in the Federal Register (67 FR 76684) an appropriately addressed through an regulation for identifying payments that interim final rule that constituted a inherent reasonableness mechanism. In are excessive or deficient. (The notice of final rulemaking relating to the addition, as discussed under section II. December 13, 2002 interim final rule, inherent reasonableness authority of this preamble, because of the new discussed below in this section I.D. of provisions as required by section 223 of pricing methodology for Part B drugs this final rule, provided greater the BBRA. In the December 13, 2002 established by section 303 of the specificity of the criteria for identifying interim final rule, we responded to the Medicare Prescription Drug, grossly excessive or deficient payments recommendations of the GAO report Improvement, and Modernization Act of and provided opportunity for further and responded to the public comments 2003 (Pub. L. 108–173), we do not public comment because of that received on the January 7, 1998 interim anticipate the need to apply the specificity. We are responding to the final rule that implemented section inherent reasonableness provisions to public comments received on these 4316 of the BBA. these drugs at this time; however, we
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are retaining our authority to apply determinations (page 76692); detection inherent reasonableness authority. This inherent reasonableness to these drugs if of grossly deficient payment amounts definition does not preclude the need arises. (page 76688); and the reaction of other adjustments of less than 15 percent in payors to Medicare payment limits a given year once it is determined that II. Provisions of This Final Rule established using inherent an overall adjustment of 15 percent or As discussed in section I.D. of this reasonableness authority (page 76688). more is justified. preamble, in the interim final rule Because we addressed these issues in As directed by the statute, in the published in the Federal Register on promulgating the December 13, 2002 December 13, 2002 interim final rule, December 13, 2002, we provided an interim final rule, we refer the readers we reviewed the criteria for identifying additional opportunity for public to that document; we will not repeat our payments that are excessive or deficient comment on two provisions of that responses in this final rule except for set forth in the January 7, 1998 interim interim final rule because the two the effect on beneficiary access. As final rule and codified in provisions contained further specificity stated in our December 13, 2002 interim § 405.502(g)(1)(vii) of the regulations. than that found in the January 7, 1998 final rule, we will monitor patient While amended section 1842(b)(8)(C) of interim final rule: (1) the definition of access to items for which payment the Act does not specifically require that grossly excessive and deficient payment amounts are adjusted using the inherent we include all the factors for making amounts; and (2) criteria for the use of reasonableness process by periodically inherent reasonableness determinations valid and reliable data when exercising checking the rate at which suppliers are for a category of items or services in the inherent reasonableness authority. accepting assignment for these items regulations, it permits the Secretary to We received 189 timely pieces of and by monitoring any beneficiary consider any additional factors correspondence in response to the complaints regarding access (page determined to be appropriate. The December 13, 2002 interim final rule. A 76687). examples listed in § 405.502(g)(1)(vii) large number of these comments A discussion of the two provisions on are merely examples, and the regulation concerned issues (other than the two which we solicited additional public explicitly states that the list of examples provisions on which we particularly comments, summaries of the public is not all-inclusive. When making an invited additional public comments) comments that we received in response inherent reasonableness determination, that we had received public comments to them, and the Departmental we can use one or more of the examples on and responded to in the December responses follow. listed in the regulation or an example 13, 2002 interim final rule (67 FR that is not listed in the regulation. This A. Definition of Grossly Excessive and 76684). The comments and our approach allows us to adapt the Deficient Payment Amounts responses follow, along with a cross methodology we use to address the reference to the page in which they In the December 13, 2002 interim various specific issues that may pertain appeared in the December 13, 2002 final rule, in response to the GAO to any particular case regarding the use Federal Register. These included recommendation and in response to and availability of data as well as other comments on the use of an inherent public comments received on the factors relevant to making an inherent reasonableness appeals process (page January 1998 interim final rule, we reasonableness determination in that 76688); carriers’ use of the inherent clarified when a payment amount is case. reasonableness authority (page 76691); considered grossly excessive or In the December 13, 2002 interim the application of inherent deficient for purposes of applying the final rule, we pointed out that the reasonableness authority to laboratory inherent reasonableness authority. We criteria in § 405.502(g)(1)(vii) were services (page 76690); delaying specified in § 405.502(g)(1)(ii) that a never intended to include every set of application of the inherent payment amount will not be considered circumstances where inherent reasonableness authority to laboratory grossly excessive or grossly deficient if reasonableness would be considered services pending CMS’ response to the the overall payment adjustment is less appropriate. These same criteria had Institute of Medicine’s study on than 15 percent. This definition does also been included in the August 11, Medicare Part B laboratory services not preclude adjustments of less than 15 1986 final regulation and, therefore, (page 76688); the definition and percent in a given year once it is were not new; they had been in effect clarification of factors used to determine determined that an overall adjustment for over 10 years. These criteria were grossly excessive or deficient payment of 15 percent or more is justified. originally established by the Congress amounts (the factors are the examples The statute provides two different and were contained in section mentioned in § 405.502(g)(1)(vii) and do processes once a determination is made 1842(b)(8) of the Act until it was revised not relate to the definition of grossly that a payment amount is grossly by section 4316 of the BBA. We also excessive and deficient payment excessive or deficient. That is, the indicated that the criteria remain as amounts) (page 76689); the use of cost statute specifies a process for appropriate at the time of issuance of and charges as factors for determining adjustments of 15 percent or more in a the interim final rule as they were when grossly excessive or deficient payment given year and a simplified process for the Congress established them. Further, amounts (page 76690); the use of an all- adjustments of less than 15 percent in we indicated that we would need inclusive rather than a nonexclusive list a given year. However, the statute did compelling reasons for determining that of inherent reasonableness factors (page not define what constitutes a grossly any of the criteria were inappropriate. 76689); the use of the terms ‘‘floor’’ and excessive or deficient payment amount. These criteria are furnished as examples ‘‘ceiling’’ rather than ‘‘payment limit’’ Nevertheless, the statute placed of situations of possible grossly when referring to inherent significant importance on a 15-percent excessive or deficient payment amounts, reasonableness adjustments (page criterion. For this reason, we have and we believe they are realistic and 76690); establishing a fair and open decided that differences between continue to be relevant. inherent reasonableness process (page current and proposed payment amounts Comment: Five commenters agreed 76688); delaying implementation of the of less than 15 percent will not be with CMS’ definition of grossly inherent reasonableness authority rule considered grossly excessive or grossly excessive and grossly deficient. Seven (page 76687); establishing a petition deficient and, therefore, will not commenters stated that the regulations process for inherent reasonableness provide a sufficient basis for using failed to provide a complete or adequate
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definition of the terms. The commenters Comment: One commenter stated that the delivery of health care to patients were concerned that the definition set CMS’ decision to set the percentage with cancer in this country. forth in the regulations did not comply threshold definition for a grossly Response: The commenters are correct with the statutory requirement to fully excessive or deficient payment amount in stating that the statute does not describe all the factors that CMS or its at 15 percent did not appear to be define what constitutes a grossly carriers will use to determine whether a consistent with section 1842(b)(8) of the excessive payment amount. The statute payment is grossly excessive or Act and the GAO report. The applies inherent reasonableness to Part deficient. While some of the commenter stated that section B items and services other than commenters indicated their support for 1842(b)(8) of the Act appeared to physicians’ services as defined and paid using a quantitative value of 15 percent anticipate the need for grossly excessive for under section 1848 of the Act. Drugs to define a grossly excessive payment or deficient payment adjustments at are paid under section 1842(o) of the amount, they argued that the definition percentages less than 15 percent. The Act and not section 1848 of the Act. The should also incorporate the use of commenter argued that the GAO report inherent reasonableness authority can objective criteria for consistency in clearly stated that an adjustment of less and should be used in cases for which determining grossly excessive payment than 15 percent could qualify as a the standard rules for determining amounts. The commenters indicated grossly excessive or deficient payment payment amounts for drugs result in that, in the absence of a clear and amount. For these reasons, the grossly deficient or excessive payment precise definition, CMS or its carriers commenter urged CMS to lower the 15- amounts. Effective January 1, 2004, could arbitrarily establish new factors or percent threshold to be consistent with section 303 of Public Law 108–173, criteria for determining grossly section 1842(b)(8) of the Act and the enacted on December 8, 2003, excessive payment amounts. GAO report and suggested setting the established a new pricing methodology One commenter stated that CMS has threshold at 7.5 percent. for Part B drugs, including those rebuffed industry assistance in furnished by oncologists to their cancer developing a definition that Response: While the commenter is patients, that are not paid on a cost or incorporates objective benchmarks. This correct regarding the statement included prospective payment basis. Because of commenter indicated that without a in the GAO report concerning the use of this new pricing methodology, we do more precise definition, providers, a 15-percent threshold, we explained in not anticipate the need to apply the suppliers, and beneficiaries would not section IV. of the December 13, 2002 inherent reasonableness authority to receive adequate notice of program interim final rule in response to a GAO Part B drugs at this time, although we policies. recommendation our reason for not retain our authority to do so. Public Law Response: We appreciate the setting the threshold at less than 15 108–173 did not amend section 1848 of commenters’ support for CMS’ percent. As stated in that rule, the the Act to explicitly exclude Part B definition of grossly excessive and statute does not define what constitutes drugs from the inherent reasonableness grossly deficient. The statute does not a grossly excessive or deficient payment authority. Therefore, although we specifically require us to fully describe amount. Rather, the statute provides two believe we have the authority to do so, or include all the factors that may be different processes once a determination we will not exclude Part B drugs from used in making inherent reasonableness is made that a payment amount is the group of services for which we determinations. Section 1842(b)(8)(C) of grossly excessive or deficient. That is, would consider using the inherent the Act provides examples of factors the statute specifies a process for reasonableness authority. that can result in payment amounts that adjustments of 15 percent or more in a Comment: One commenter stated that are grossly excessive or grossly given year and a simplified process for deficient. The Act also provides CMS and the carriers must consider the adjustments of less than 15 percent in service components (for example, methods that can be used to establish a given year. In so doing, the statute reasonable payment amounts. We do not transportation, set-up, patient places significant importance on a 15- education, and servicing) of all Part B believe it is practical or necessary to percent criterion. For these reasons, we further describe these lists of examples therapies and items when defining the determined that differences between grossly excessive payment amounts. or to make them the only methods we current and proposed payment amounts can use. Rather, we believe it is more Response: We agree with the of less than 15 percent will not be commenter. The regulations require that appropriate to establish general factors considered grossly excessive or grossly that allow us flexibility in adapting when using wholesale costs, the cost of deficient and, therefore, do not provide services necessary to furnish a product inherent reasonableness applications to a basis for using the inherent a wide array of items of services will be taken into account in making an reasonableness authority. Our definition inherent reasonableness determination. encompassed under Medicare Part B, of grossly excessive or deficient does under different marketing conditions, However, we believe that for other types not preclude adjustments of less than 15 of comparison, for example, using a and considering the availability of data. percent in a given year once it is In addition, we believe that the retail price, that price generally includes determined that an overall adjustment the service component. Should the retail proposed use of the 15-percent of 15 percent or more is justified. threshold to define a grossly excessive price not include recognition of a or deficient payment amount is Comment: Four commenters believed service component, the service appropriate and is an objective criterion. that CMS’ interpretation and definition component will, of course, be We note that no item or service is of grossly excessive in relation to considered in making an inherent subject to a change in payment under overpayment for Medicare Part B drugs reasonableness determination. the inherent reasonableness authority is incorrect and without a factual basis. Comment: Three commenters urged until the proposed change is published The commenters indicated that the CMS to revise its definition of grossly by either CMS in the Federal Register statute does not define what constitutes excessive or grossly deficient to provide or its carriers in their own publication a grossly excessive payment amount. sufficient notice about the specific and after public comments received in Some of the commenters urged CMS to payment allowances that would be response to the proposed notice are adopt a more realistic understanding of subject to the inherent reasonableness considered. the implications of its stated policy on authority. The commenters believed that
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the 15-percent threshold should be recommendation to ensure the use of increase the threshold from 15 percent based on objective criteria that would valid and reliable data in making an to 20 percent for orthotics and measure market reality rather than inherent reasonableness determination. prosthetics. basing it on a nonexclusive list of Under this regulation, CMS and its Response: While the statute does not factors. The commenters recommended carriers must meet 11 criteria, to the define what constitutes a grossly that CMS revise the definition of grossly extent they are applicable, in excessive or deficient payment amount, excessive or grossly deficient to state determining whether a payment amount it nevertheless places significant that a Medicare payment amount for a is grossly excessive or deficient. For importance on a 15-percent criterion. category of items or services will be these reasons, the use of prices from a For this reason, we believe that it is considered grossly excessive or single payor would not be used to appropriate to adopt and apply a 15- determine Medicare’s payment deficient ‘‘only if the average amount percent criterion consistently to all amounts. paid by all non-Medicare payers for the Medicare Part B items and services, same category of items or services is at Comment: Three commenters stated including orthotics and prosthetics. least 15 percent greater or less than such that the definition of grossly excessive Medicare amount.’’ or grossly deficient must ensure that Comment: Fifteen commenters were Response: We do not believe it is Medicare’s policy of affording concerned that applying the definition necessary to revise our definition of beneficiaries choices among a wide of grossly excessive to payment amounts grossly excessive or grossly deficient to selection of services, products, and for Medicare Part B chemotherapy drugs provide notice about the specific brands is retained. administered in physicians’ offices will payment allowances. The statute applies Response: We do not believe that greatly impede beneficiaries’ access to inherent reasonableness to Part B items using the inherent reasonableness care, force physicians to abandon their and services other than physicians’ authority will limit beneficiaries’ oncology practices, and completely services as defined and paid for under choices of Medicare items and services undermine the efficacy of cancer care in section 1848 of the Act. However, we because the purpose of the authority is this country. decided not to apply this rule to to ensure that Medicare makes Response: We are aware that services paid under a prospective payments that are realistic and oncologists and cancer patients payment system such as hospital equitable, and better reflect market continue to raise concerns about access outpatient services or home health prices. If a payment amount is adjusted to chemotherapy. Effective January 1, services. As previously stated, no item upward because it is deficient, it will 2004, section 303 of Public Law 108– or service is subject to a change in benefit suppliers and beneficiaries. A 173 established a new pricing payment under the inherent more generous payment amount may methodology for drugs and biologicals reasonableness authority until the result in greater availability of items and that are not paid on a cost or proposed change is published by either services to Medicare beneficiaries. If the prospective payment system basis. It CMS in the Federal Register or its payment amount is adjusted downward, also increased the physician fee carriers in their own publications after the lower payment amount should not schedule amounts for chemotherapy public comments are received in necessarily result in a lack of drug administration services. In response to the proposed notice and are availability of items and services addition, for 2005 CMS initiated a considered. In addition, we believe that because the revised payment amount demonstration in which providers were our definition is appropriate and does would be realistic and equitable. We reimbursed for measuring and providing include an objective criterion, that is, 15 believe that a realistic and equitable data on patient outcomes in three areas percent. payment amount would ensure of concern often cited by patients Comment: Three commenters continued availability of items and undergoing chemotherapy: Controlling suggested that the definition of grossly services. Thus, we believe that the pain, minimizing nausea and vomiting, excessive or grossly deficient clearly application of an adjustment will and reducing fatigue. Following indicate that all available data sources merely serve as a vehicle for eliminating extensive discussions with various will be evaluated before we make an excessive profits. An adjustment would groups representing the interests of inherent reasonableness determination benefit the Medicare program by oncologists and advocates for patient and that a single non-Medicare payor’s reducing costs and benefit beneficiaries care, we decided to retain the payment amounts for an item would not by reducing coinsurance payments. demonstration project for 2006, but we be used to establish a Medicare payment Moreover, we will monitor all will revise the codes for reporting in amount using inherent reasonableness complaints from beneficiaries, order to take a further step toward authority. The commenters indicated suppliers, providers, and others encouraging quality care and promoting that the wide variation among the regarding patient access to items and best clinical practices that should lead various sources available for price data services for which payment amounts to improved patient outcomes. We will warrants the evaluation of all sources may be adjusted using the inherent eliminate the CY 2005 codes specific to before making any inherent reasonableness process. the assessment of patient symptoms, reasonableness determination. Comment: One commenter believed it while maintaining our focus on quality Response: We do not believe that it is was inappropriate to set the threshold at cancer care, including the management necessary to modify our definition of 15 percent to define a grossly excessive of debilitating symptoms, to assure the grossly excessive and grossly deficient or deficient payment amount for certain best possible quality of life for cancer as the commenters suggested. Section orthotics and prosthetics. The patients. At this time, we do not have 1842(b)(8) of the Act provides that commenter stated that these items are evidence to suggest that access problems comparing Medicare payments made by highly customized, vary in complexity have occurred as a result of the payment other purchasers is an appropriate way based on the patient, are priced policy changes enacted by Public Law to determine whether or not Medicare differently by manufacturers based on 108–173. Office-based chemotherapy payment amounts are reasonable. various factors, and require extensive care appears to be continuing at Section 405.502(g)(4) of the regulations labor and skill to manufacturer them. historical levels. We will continue to was added in response to a GAO The commenter suggested that CMS monitor patient access closely.
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As we stated previously, we have survey, the durable medical equipment process on payment for oncology decided not to subject Part B drugs paid regional carriers (DMERCs) did not services, we do not believe that such a under a prospective payment system finalize their September 1998 proposed delay is warranted and would be such as the hospital outpatient adjustments because the methodology beneficial. As previously mentioned, prospective payment system to the used by the carriers’ for making the because of the recent legislative changes inherent reasonableness provisions. In proposed adjustments did not reflect under Public Law 108–173 in payment addition, because of the recent our revised regulatory criteria, based on for Part B drugs not subject to a legislative changes in payment for Part recommendations by GAO, for making prospective payment system, we do not B covered drugs, including inherent reasonableness determinations. now anticipate needing to apply the chemotherapy drugs, we do not Likewise, we did not finalize the CMS inherent reasonableness authority to anticipate an immediate need to apply inherent reasonableness proposals that these drugs, although we are retaining the inherent reasonableness authority to were published in August 1999 because this authority should the need arise. Part B drugs, but we are retaining our the methodology used for making the Public Law 108–173 also increased the authority for these drugs in the future proposed adjustments also did not physician fee schedule amounts for should the need arise. reflect the revised criteria recommended chemotherapy drug administration by GAO and adopted in the December services. B. Use of Valid and Reliable Data 13, 2002 interim final rule. Comment: Some commenters In the December 2002 interim final We indicated that, in some instances, commended CMS for implementing the rule, we revised the regulation to it may be appropriate to use cost rather GAO recommendations. Other include a new section that provided a than retail or wholesale prices in commenters suggested that CMS methodology taken from the GAO report determining whether a payment amount withdraw the inherent reasonableness to ensure the use of valid and reliable is grossly excessive or deficient. In those rule until CMS sets forth valid and data in making an inherent instances in which we use cost data, we reliable data to assess reasonableness in reasonableness determination consider all costs of the supplier, that is, the establishment of Medicare payment (§ 405.502(g)(4)). Because the GAO both direct and indirect costs, as well as amounts. One commenter believed that found that the carriers did not use any service component costs. the provision of § 405.502(g)(2)(i) that consistent methods to collect and As mentioned previously, section grants CMS or its carriers the authority analyze pricing data and did not 223(b) of the BBRA required that, in to identify a ‘‘price markup’’ in the develop written guidelines for data publishing a final regulation on inherent absence of verifiable data does not collection and analysis, in the December reasonableness, the Secretary take coincide with the GAO intent and 13, 2002 interim final rule, we included appropriate steps to ensure the use of contradicts the GAO recommendation in the regulations at § 405.502(g)(4) the valid and reliable data when exercising that CMS’’ decisions should be based on following 11 steps to be completed: inherent reasonableness authority. The • valid and reliable data. Developing written guidelines for 11 criteria specified above in the Response: The regulations themselves data collection and analysis. December 13, 2002 interim final rule • do not make an inherent reasonableness Ensuring consistency in any survey define the steps we will take to ensure determination, nor do they contain data to collect and analyze pricing data. the use of valid and reliable data. We • upon which such a determination Developing a consistent set of specifically solicited public comments would be based. Rather, the regulations survey questions to use when requesting on these criteria. The comments we provide a methodology to ensure the use retail prices. received and our responses appear of valid and reliable data in making an • Ensuring that sampled prices fully below. inherent reasonableness determination. represent the range of prices nationally. With regard to the use of the valid and • Considering the geographic Comment: One commenter, reliable data criteria, these criteria were distribution of Medicare beneficiaries. representing family physicians, family • Considering relative prices in the practice residents, and medical adopted in their entirety from the GAO various localities to ensure that an students, supported CMS’ data report and, thus, properly reflect the appropriate mix of areas with high, collection methods for obtaining valid GAO’s intent and recommendations. medium, and low consumer prices was and reliable data for making inherent Comment: Several commenters stated included. reasonableness determinations. that the regulation text containing the • Considering criteria to define However, another commenter believed guidelines for data collection populous State, less populous State, that implementation of the inherent concerning retail and wholesale pricing urban area, and rural area. reasonableness regulation should be surveys is vague; the text lacks specific • Considering a consistent approach delayed until further research data are criteria (for example, parameters for in selecting retail outlets within selected produced that depict the full range of data collection and analysis) that link cities. socioeconomic and medical effects of the data collection to the determination • Considering whether the payment adjustments. The commenter of the payment adjustments. The distribution of sampled prices from believed that a full research study that commenters believed that the criterion localities surveyed is fully includes the results of these effects set forth for the data sample will not representative of the distribution of the would have a better outcome on CMS’ appropriately depict a ‘‘valid and U.S. population. implemented decisions for reliable’’ data set. Two commenters • Considering the products generally reimbursement of oncology services. pointed out that, although the inherent used by beneficiaries and collecting Response: We appreciate the reasonableness rule clearly identifies prices of these products. commenter’s support. In response to the geographic distribution in its data • When using wholesale costs, suggestion that we delay analysis, CMS failed to identify and considering the cost of the services implementation of the inherent define the measurable criteria for necessary to furnish a product to reasonableness authority until research consideration of the involved beneficiaries. study results are available that assess geographic areas. The commenters In addition, based on the GAO the impact of payment adjustments suggested that CMS consider another concerns about the carriers’ price made using the inherent reasonableness survey methodology that includes
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clearer and statistically sound discounted programs in making guarantees to suppliers and does not ask techniques for collecting the data. inherent reasonableness determinations for volume discounts, there is a Response: We believe that does not result in unreliable, flawed predictable volume of Medicare § 405.502(g)(4) of the regulations data. business, and suppliers have the appropriately sets forth the steps that The commenters believed that the VA opportunity to profit from this. To we will take to ensure the use of valid payment data are not valid or reliable suggest that Medicare’s payment be and reliable data when exercising for inherent reasonableness higher than other purchasers’ payment inherent reasonableness authority. We determinations under Medicare because in light of the large Medicare volume is believe that it is impractical to adopt in the VA payment system requires VA to unwarranted. Logically, it does not regulations the level of specificity for act as a provider and a distributor, while follow that a large purchaser such as data suggested by the commenters the Medicare payment system provides Medicare should be expected to pay because the inherent reasonableness payments to individual providers and more than other smaller purchasers. authority is applied to a wide array of suppliers for the provision of services. Comment: Several commenters who Medicare Part B items and services and Therefore, the commenter believed that supported the 11 criteria that CMS or its under an array of different marketing the VA pricing is not an appropriate contractors will use to make grossly conditions. comparison for data analysis to determine payment for drug rates. One excessive and grossly deficient inherent Comment: Several commenters stated commenter stated that the Medicaid reasonableness determinations that drug ‘‘acquisition cost’’ is not the payment system has fixed rates and suggested that ‘‘median retail pricing true estimated measurement for the percentages for certain States and that data’’ should also be a part of the inflation of chemotherapy drug cost. these prearranged payment amounts evaluating criteria; and that CMS define The commenters believed that there are would cause the data set to be skewed ‘‘retail’’ as the term relates to the 11 additional factors that CMS should take for purposes of inherent reasonableness criteria. The commenters recommended into account, such as facility overhead, determinations. The commenters that CMS consider the frequency by procurement, and production cost. One disagreed with CMS’ decision to include which patients utilize various products. commenter recommended that CMS use small businesses with small purchases The commenters pointed out that data that reflect technological advances. in the data set for volume discounts products used more frequently are The commenter pointed out that as its with large businesses with large generally lower in price than products company discovers new technological purchase volumes without CMS that are not used frequently and further advances for cancer treatment, it alters considering the difference in volume added that the use of the reduced retail the total cost of a drug therapy and that purchase commitments. The prices of products used by most under the current policy CMS would commenters believed that this is just beneficiaries would not conform to the not be able to capture these most current one of the many fundamental valid and reliable data criterion. The data set that would correlate with drug differences between the VA and commenters also suggested that CMS therapy technological advances and the Medicare that would result in drastic expand the survey to include products most current drug therapy costs. differences in the cost of items and used by non-Medicare patients in an Response: As previously stated in services. One commenter submitted data effort to eliminate a biased data set. section II.A. of this final rule, we have that compared the prices of motorized Response: We do not believe that decided not to subject Part B drugs paid wheelchairs for Medicare Part B claims median pricing data must be used to under a prospective payment system to the same products purchased by the ensure that data are valid and reliable. such as the hospital outpatient VA and the results of its research study The selection of a median may be used prospective payment system to the which, the commenter believed, prove as a measure of the reasonableness of a inherent reasonableness provisions. In that the CMS methodology is unreliable. price and, if it were used, would be addition, because of the recent Several commenters suggested that, discussed in further detail in the public legislative changes under Public Law because the purchasers’ administrative notice when CMS or its carriers elect to 108–173 in payment for Part B drugs not costs are atypical of Medicare claims, make an inherent reasonableness subject to a prospective payment CMS should either use the volume determination. ‘‘Retail’’ has the standard system, we do not now anticipate discounted data for specific categories dictionary meaning, and we see no needing to apply the inherent or use the pricing data for analyses after reason to further define it in regulation. reasonableness authority to these drugs, carefully examining the data for validity With regard to the rates at which although we are retaining our authority and eliminating invalid data. products are consumed, regulations should the need arise. Response: While the statute generally already provide that we consider the We recognize that there are costs does not give CMS the authority to rate at which the product is generally associated with procuring drugs beyond negotiate volume discounts with used by beneficiaries. the actual ingredient cost such as suppliers, it also does not permit CMS shipping. In the event that the inherent to subsidize the discounts that suppliers Further, products used less frequently reasonableness authority were applied grant to other purchasers. CMS’ charge are also considered in the regulations, to Part B drugs, we would consider is to calculate a fair and equitable which provide that prices must these costs to the extent that they are payment amount, not to underwrite represent the range of prices nationally not already reimbursed through our suppliers’ profitability. Medicare is the and that prices must consider an drug administration payments. largest volume purchaser for many appropriate mix of prices. In order to Comment: Several commenters stated medical items and services. As a payer, make like comparisons, we do not that major differences exist between the Medicare expenditures represent 17.6 believe we should compare products various health care payment programs percent of total national health used by Medicare beneficiaries to the and the Medicare program and expenditures by all payers. types of products used by non-Medicare suggested that CMS assure that the Expenditures for Part B, excluding patients. proposed use of payment data from the physicians’ services, are approximately Comment: One commenter opposed Veterans Administration (VA), the $60 billion per year. Although Medicare CMS’ and its contractors’ use of research Medicaid program, and volume does not give specific volume data from outside of the United States
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because of the difference in pricing 15-percent reduction is effective. The related public comments we addressed systems. purpose of this review is to ensure that in the December 13, 2002 interim final Response: At the present time, we do further reductions continue to be rule. not anticipate using data from outside appropriate. the United States but, if we do, we • We revised § 405.502(g)(3)(ii) to E. Adoption of December 13, 2002 would take into account legitimate clarify the procedures and the sequence Interim Final Rule as Final pricing differences. of steps a carrier will follow in making After analysis of the public comments Comment: One commenter an inherent reasonableness received, we have determined that no recommended that CMS provide and determination. further changes, other than minor make available, possibly on the Internet, In this Federal Register document, we editorial and drafting changes, are the full research study that entails the are finalizing, with minor editorial necessary to the regulations under criteria, surveys, and resulting data changes, the above revisions that were § 405.502(g) and (h) relating to inherent utilized by CMS and its contractors in included in the December 13, 2002 reasonableness determinations. These making inherent reasonableness interim final rule. changes are editorial in nature or determinations. D. Other Issues Addressed in the Public involve coding and language changes to Response: The regulations provide Comments Received conform to established CFR drafting great specificity regarding the criteria rules. The provisions of the December and data that are to be used in making Some of the timely correspondence 13, 2002 interim final rule are finalized, inherent reasonableness determinations received in response to the December effective 60 days after the publication and great specificity regarding public 13, 2002 interim final rule included date of this document in the Federal notice of such determinations. It is our public comments on issues other than Register. intention to publish all data used in the two provisions on which we III. Collection of Information making determinations in any proposed particularly invited additional public Requirements notice. In the future, we also anticipate comments. These included comments publishing data on the Internet. on application of inherent This document does not impose reasonableness authority to ambulance information collection and C. Other Provisions Addressed in the services paid on a fee schedule basis; recordkeeping requirements. December 13, 2002 Interim Final Rule application of inherent reasonableness Consequently, it does not need to be In the December 13, 2002 interim authority to oncology drugs reviewed by the Office of Management final rule, we addressed the public administered in physicians’ offices; use and Budget under the authority of the comments that we had received on the of current profit margins from oncology Paperwork Reduction Act of 1995. January 7, 1998 interim final rule. In drugs administered in physicians’ response to comments on the January 7, offices to subsidize certain oncology IV. Regulatory Impact Statement 1998 interim final rule, we made the services; impact of inherent We have examined the impacts of this following other changes in the reasonableness policy on community rule as required by Executive Order December 13, 2002 interim final rule: oncologists; impact of inherent 12866 (September 1993, Regulatory • We clarified the difference between reasonableness policy on cancer Planning and Review), the Regulatory a national determination and a carrier patients’ access to care; use of Flexibility Act (RFA) (September 16, determination (§ 405.502(g)(1)(iii)). We acquisition cost as a factor in 1980, Pub. L. 96–354), section 1102(b) of also revised § 405.502(g)(3) to provide determining inherently unreasonable the Social Security Act, the Unfunded further clarification on the terms we use oncology drug costs; application of Mandates Reform Act of 1995 (Pub. L. to distinguish between inherent inherent reasonableness policy to 104–4), and Executive Order 13132. nonpass-through drugs and biologicals reasonableness activities conducted by A. Executive Order 12866 CMS and inherent reasonableness paid under the hospital outpatient activities conducted by the carriers. prospective payment system; use of a Executive Order 12866 (as amended • We included an example of new comprehensive rather than isolated by Executive Order 13258, which technology that exists and is not approach to implementing inherent merely reassigns responsibility of reflected in the existing payment reasonableness policy changes for duties) directs agencies to assess all allowance (§ 405.502(g)(2)(vii)(H)). oncology drugs administered in costs and benefits of available regulatory • We clarified language to provide physicians’ offices; consideration of a alternatives and, if regulation is suppliers the opportunity to comment Congressionally-driven balanced necessary, to select regulatory on a carrier’s proposed inherent solution for implementing inherent approaches that maximize net benefits reasonableness payment allowances as reasonableness policy changes; seeking (including potential economic, well as the factors a carrier considered; the advice of key industry associations environmental, public health and safety and added a requirement that a carrier prior to implementing inherent effects, distributive impacts, and notify us in writing of any final limits reasonableness policy changes for equity). A regulatory impact analysis it proposes to establish oncology drugs administered in (RIA) must be prepared for major rules (§ 405.502(g)(3)(ii)). physicians’ offices; and reaction to the with economically significant effects • We added language to provide that, quality of analysis included in the GAO ($100 million or more in any 1 year). when payment adjustments of more report. Because these comments pertain This regulation has no immediate than 15 percent are spread out over to issues on which we had previously economic effect on current Medicare multiple years, subsequent adjustments received and considered public payments. However, it establishes a will be reviewed for their comment, we consider them outside the process that could be used in the future appropriateness (§ 405.502(g)(5)). As scope of the solicitation of public to set reasonable and equitable payment recommended in the GAO report, when comments on the interim final rule. amounts. Because this rule does not adjustments of more than 15 percent are Therefore, we are not addressing them include any actual inherent spread out over multiple years, we will in this final rule. We will consider them reasonableness determinations, it has no review market prices in the years in development of future policy immediate impact on Medicare payment subsequent to the year that the initial changes. We also refer the readers to the amounts. However, we believe that the
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future application of the inherent of a small entity. Because this final rule benefit beneficiaries by reducing reasonableness authority has the does not include any actual inherent coinsurance payments. In addition, this potential to have significant impact on reasonableness determinations, it will regulation only specifies the criteria and Medicare payment amounts. Therefore, not have an impact on small businesses. methodology for determining when this final rule is considered to be However, it finalizes the establishment payment for a service or item is economically significant and is a major of a process that could be used in the inherently unreasonable and does not rule. We base our belief on the June future to establish reasonable and result in any adjustments. 2002 OIG report that indicated that equitable payment amounts. If CMS initiates an inherent Medicare may be overpaying between We do not expect suppliers of Part B reasonableness determination that $130 million and $958 million per year services to be immediately affected by results in payment adjustments in for 16 items of medical equipment. In this rule because the rule will have no excess of $100 million in any 1 year, we addition, the GAO indicated that immediate impact on Medicare payment will publish in the Federal Register an Medicare may be overpaying for amounts. However, we do believe that analysis in compliance with Executive medical equipment by more than 20 use of inherent reasonableness has the Order 12866. If the CMS adjustment will percent. However, these reports were potential to significantly impact small have a significant impact on a not done to the specifications we are businesses in the future. This belief is substantial number of small entities, we finalizing in this rule and, therefore, based on a June 2002 OIG report cited will also conduct an analysis in they may not be an accurate estimate of earlier which indicated that Medicare accordance with the Regulatory the specific dollar impact that could may be overpaying between $130 Flexibility Act. In cases where one or result from the future application of million and $958 million per year for 16 more of our carriers undertake an inherent reasonableness under these items of medical equipment. In adjustment using this inherent requirements. Because we recognize the addition, the GAO indicated that reasonableness authority that either has potential for future payment Medicare may be overpaying for an impact of $100 million or more in adjustments, either upward or medical equipment by more than 20 any 1 year or has a significant effect on downward, when CMS makes percent. However, we are still unable to a substantial number of small entities, adjustments we will publish in the predict the specific dollar impact on the the carrier(s) will notify providers of the Federal Register regulatory impact future application of inherent planned adjustment and the analysis on statements that will comply with reasonableness. Because we recognize which it is based. In this way, affected Executive Order 12866 and the the potential for future payment parties would be able to comment on Regulatory Flexibility Act whenever the adjustments, either upward or the planned adjustment. dollar impact of inherent reasonableness downward, when CMS makes determinations exceed $100 million in adjustments, we will publish in the C. Impact on Rural Areas any 1 year. Federal Register impact statements that Section 1102(b) of the Act requires us At this time, we lack sufficient data to will comply with Executive Order to prepare a regulatory impact analysis conduct a quantitative analysis of the 12866 and the Regulatory Flexibility Act if a rule may have a significant impact impact of this rule. We lack such data whenever the dollar impact of inherent on the operations of a substantial because, until we are able to conduct an reasonableness determinations exceed number of small rural hospitals. This inherent reasonableness study using the $100 million in any 1 year, or when the analysis must conform to the provisions published criteria, we are unable to adjustments will have a significant of section 603 of the RFA. For purposes determine whether Medicare is impact on a substantial number of small of section 1102(b) of the Act, we define overpaying or underpaying for items or entities. a small rural hospital as a hospital that services and to what degree. We do not We do not have sufficient data to is located outside of a Metropolitan know if, or when, or for which services, predict exactly the nature of the future Statistical Area and has fewer than 100 we would make payment adjustments, impact of this rule or the magnitude of beds. We are not preparing a rural or the percentage adjustment we would the impact. Below, we discuss likely impact analysis because we have make, or even the particular industry outcomes. Should the provisions of determined that this final rule will not that would be affected. In addition, we these regulations be applied, the have a significant economic impact on do not know if these adjustments would resultant payment amounts will no the operation of a substantial number of increase or decrease Medicare payment longer be grossly excessive or deficient. small rural hospitals. amounts. As a result, we cannot If a payment amount is adjusted upward anticipate the specific dollar effect or because it is deficient, it will benefit D. Unfunded Mandates impact on suppliers and beneficiaries. suppliers and beneficiaries. A more Section 202 of the Unfunded generous payment amount may result in Mandates Reform Act of 1995 also B. Regulatory Flexibility Analysis greater availability of items and services requires that agencies assess anticipated The RFA requires agencies to analyze to Medicare beneficiaries. If the costs and benefits before issuing any options for regulatory relief of small payment amount is adjusted downward, rule that may result in expenditure in businesses. For purposes of the RFA, a lower payment amount should not any 1 year by State, local, or tribal small entities include small businesses, necessarily result in a lack of government, in the aggregate, or by the nonprofit organizations, and availability of items and services private sector of $110 million. This final government agencies. Most hospitals because the revised payment amount rule does not mandate expenditures by and most other providers and suppliers would be realistic and equitable and State, local, or tribal governments, or by are small entities either by nonprofit would better reflect market prices for the private sector. Therefore, the status or by having revenues of $6 the given item or service. We believe requirements of section 202 do not million to $29 million or less in any 1 that a realistic and equitable payment apply. year (see 65 FR 69432 for details). For amount would ensure continued purposes of the RFA, all suppliers of availability of items and services. This E. Executive Order 13132 Medicare Part B services are considered adjustment would benefit the Medicare Executive Order 13132 establishes to be small entities. Individuals and program by reducing costs, thereby certain requirements that an agency States are not included in the definition protecting the Medicare Trust Fund, and must meet when it publishes a proposed
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rule (and subsequent final rule) that produce a realistic and equitable category of items or services in the imposes substantial direct requirement payment amount. For CMS-initiated different localities. costs on State and local governments, adjustments, CMS will publish in the (E) Payment amounts for a category of preempts State law, or otherwise has Federal Register an analysis of payment items or services are grossly higher or Federalism implications. Because this adjustments that exceed $100 million lower than acquisition or production regulation does not impose any costs on per year in compliance with Executive costs for the category of items or State or local governments, the Order 12866. If CMS makes adjustments services. requirements of Executive Order 13132 that have a significant effect on a (F) There have been increases in are not applicable. substantial number of small entities, it payment amounts for a category of items will publish an analysis in compliance or services that cannot be explained by F. Executive Order 12866 with the Regulatory Flexibility Act. inflation or technology. In accordance with the provisions of (iii) If CMS or the carrier determines (G) The payment amounts for a Executive Order 12866, this final rule that the standard rules for calculating category of items or services are grossly was reviewed by the Office of payment amounts for a category of items higher or lower than the payments made Management and Budget. or services will result in grossly for the same category of items or deficient or excessive amounts, CMS, or services by other purchasers in the same List of Subjects in 42 CFR Part 405 the carrier, may establish special locality. Administrative practice and payment limits that are realistic and (H) A new technology exists which is procedure, Health facilities, Health equitable for a category of items or not reflected in the existing payment professions, Kidney diseases, Medicare, services. If CMS makes a determination, allowances. Reporting and recordkeeping it is considered a national (2) Establishing a limit. In establishing requirements, Rural areas, X-rays. determination. A carrier determination a payment limit for a category of items I For the reasons set forth in the is one made by a carrier or intermediary or services, CMS or a carrier considers preamble, 42 CFR chapter IV, part 405 or groups of carriers or intermediaries the available information that is relevant is amended as follows: even if the determination applies to to the category of items or services and payment in all States. establishes a payment amount that is PART 405—FEDERAL HEALTH (iv) The limit on the payment amount realistic and equitable. The factors CMS INSURANCE FOR THE AGED AND is either an upper limit to correct a or a carrier considers in establishing a DISABLED grossly excessive payment amount or a specific dollar amount or special lower limit to correct a grossly deficient payment method for a category of items Subpart E—Criteria for Determining payment amount. or services may include, but are not Reasonable Charges (v) The limit is either a specific dollar limited to, the following: (i) Price markup. Price markup is the I 1. The authority citation for part 405, amount or is based on a special method relationship between the retail and subpart E, continues to read as follows: to be used in determining the payment amount. wholesale prices or manufacturer’s costs Authority: Secs. 1102 and 1871 of the (vi) Except as provided in paragraph of a category of items or services. If Social Security Act (42 U.S.C. 1302 and (h) of this section, a payment limit for information on a particular category of 1395hh). a given year may not vary by more than items or services is not available, CMS I 2. Section 405.502 is amended by 15 percent from the payment amount or a carrier may consider the price revising paragraphs (g) and (h) to read established for the preceding year. markup on a similar category of items or as follows: (vii) Examples of excessive or services and information on general deficient payment amounts. Examples industry pricing trends. § 405.502 Criteria for determining of the factors that may result in grossly (ii) Differences in charges. CMS or a reasonable charges. deficient or excessive payment amounts carrier may consider the differences in * * * * * include, but are not limited to, the charges for a category of items or (g) Determination of payment following: services made to non-Medicare and amounts in special circumstances.—(1) (A) The marketplace is not Medicare patients or to institutions and General. competitive. This includes other large volume purchasers. (i) For purposes of this paragraph (g), circumstances in which the marketplace (iii) Costs. CMS or a carrier may a ‘‘category of items or services’’ may for a category of items or services is not consider resources (for example, consist of a single item or service or any truly competitive because a limited overhead, time, acquisition costs, number of items or services. number of suppliers furnish the item or production costs, and complexity) (ii) CMS or a carrier may determine service. required to produce a category of items that the standard rules for calculating (B) Medicare and Medicaid are the or services. payment amounts set forth in this sole or primary sources of payment for (iv) Use. CMS or a carrier may impute subpart for a category of items or a category of items or services. a reasonable rate of use for a category of services identified in section 1861(s) of (C) The payment amounts for a items or services and consider unit costs the Act (other than physicians’ services category of items or services do not based on efficient use. paid under section 1848 of the Act and reflect changing technology, increased (v) Payment amounts in other those items and services for which facility with that technology, or changes localities. CMS or a carrier may consider payment is made under a prospective in acquisition, production, or supplier payment amounts for a category of items payment system, such as outpatient costs. or services furnished in another locality. hospital services or home health (D) The payment amounts for a (3) Notification of limits.—(i) National services) will result in grossly deficient category of items or services in a limits. CMS publishes in the Federal or excessive amounts. A payment particular locality are grossly higher or Register proposed and final notices amount will not be considered grossly lower than payment amounts in other announcing a special payment limit excessive or deficient if it is determined comparable localities for the category of described in paragraph (g) of this that an overall payment adjustment of items or services, taking into account section before it adopts the limit. The less than 15 percent is necessary to the relative costs of furnishing the notices set forth the criteria and
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circumstances, if any, under which a (vii) Consider criteria to define (B) Specifies the proposed payment carrier may grant an exception to a populous State, less populous State, amount or methodology to be payment limit for a category of items or urban area, and rural area. established for a category of items or services. (viii) Consider a consistent approach services; (ii) Carrier-level limits. (A) A carrier in selecting retail outlets within selected (C) Explains the factors and data that proposing to establish a special payment cities. CMS considered in determining the limit for a category of items or services (ix) Consider whether the distribution payment amount or methodology, must inform the affected suppliers and of sampled prices from localities including the economic justification for Medicaid agencies of the proposed surveyed is fully representative of the a uniform fee or payment limit if it is payment amounts and the factors it distribution of the U.S. population. proposed; considered in proposing the particular (x) Consider the products generally (D) Explains the potential impacts of limit, as described in paragraphs (g)(1) used by beneficiaries and collect prices a limit on a category of items or services through (g)(4) of this section and must of these products. as described in paragraph (h)(1) of this solicit comments. The notice must also (xi) When using wholesale costs, section; and consider the following: consider the cost of the services (E) Allows no less than 60 days for (1) The effects on the Medicare necessary to furnish a product to public comment on the proposed program, including costs, savings, beneficiaries. payment limit for the category of items assignment rates, beneficiary liability, (5) Review of market prices. If CMS or or services. and quality of care. a carrier makes a payment adjustment of (ii) Final notice. The final notice— (2) What entities would be affected, more than 15 percent under this (A) Explains the factors and data that such as classes of providers or suppliers paragraph (g), CMS or the carrier will CMS considered, including the and beneficiaries. review market prices in the years economic justification for any uniform (3) How significantly would these subsequent to the year that the initial fee or payment limit established; and entities be affected. reduction is effective in order to ensure (B) Responds to the public comments. (4) How would the adjustment affect that further reductions continue to be * * * * * beneficiary access to items or services. appropriate. (h) Special payment limit adjustments (Catalog of Federal Domestic Assistance (B) Before publication of a final Program No. 93.774, Medicare— notice, the carrier must— greater than 15 percent of the payment Supplementary Medical Insurance Program). amount. In addition to applying the (1) Evaluate the comments it receives Dated: June 13, 2005. on the proposed notice. general rules under paragraphs (g)(1) Mark B. McClellan, (2) Notify CMS in writing of any final through (g)(5) of this section, CMS limits it plans to establish. CMS will applies the following rules in Administrator, Centers for Medicare & Medicaid Services. acknowledge in writing to the carrier establishing a payment adjustment that it received the carrier’s notification. greater than 15 percent of the payment Dated: December 1, 2005. (3) After receipt of CMS’ amount for a category of items or Michael O. Leavitt, acknowledgement, inform the affected services within a year: Secretary. suppliers and State Medicaid agencies (1) Potential impact of special limit. [FR Doc. 05–24020 Filed 12–12–05; 8:45 am] of any final limits it establishes. CMS considers the potential impact on BILLING CODE 4120–01–P (C) The effective date for a final quality, access, beneficiary liability, payment limit may apply to services assignment rates, and participation of furnished at least 60 days after the date suppliers. DEPARTMENT OF HOMELAND that the carrier notifies affected (2) Supplier consultation. Before SECURITY suppliers and State Medicaid agencies making a determination that a payment of the final limit. amount for a category of items or Federal Emergency Management (4) Use of valid and reliable data. In services is not inherently reasonable by Agency determining whether a payment amount reason of its grossly excessive or is grossly excessive or deficient and in deficient amount, CMS consults with 44 CFR Part 65 representatives of the supplier industry establishing an appropriate payment [Docket No. FEMA–B–7455] amount, valid and reliable data are likely to be affected by the change in the used. To ensure the use of valid and payment amount. Changes in Flood Elevation reliable data, CMS or the carrier must (3) Publication of national limits. If Determinations meet the following criteria to the extent CMS determines under this paragraph applicable: (h) to establish a special payment limit AGENCY: Federal Emergency (i) Develop written guidelines for data for a category of items or services, it Management Agency (FEMA), collection and analysis. publishes in the Federal Register the Department of Homeland Security. (ii) Ensure consistency in any survey proposed and final notices of a special ACTION: Interim rule. to collect and analyze pricing data. payment limit before it adopts the limit. (iii) Develop a consistent set of survey The notices set forth the criteria and SUMMARY: This interim rule lists questions to use when requesting retail circumstances, if any, under which a communities where modification of the prices. carrier may grant an exception to the Base (1% annual-chance) Flood (iv) Ensure that sampled prices fully limit for the category of items or Elevations (BFEs) is appropriate because represent the range of prices nationally. services. of new scientific or technical data. New (v) Consider the geographic (i) Proposed notice. The proposed flood insurance premium rates will be distribution of Medicare beneficiaries. notice— calculated from the modified BFEs for (vi) Consider relative prices in the (A) Explains the factors and data that new buildings and their contents. various localities to ensure that an CMS considered in determining that the DATES: These modified BFEs are appropriate mix of areas with high, payment amount for a category of items currently in effect on the dates listed in medium, and low consumer prices was or services is grossly excessive or the table below and revise the Flood included. deficient; Insurance Rate Maps in effect prior to
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this determination for the listed and must be used for all new policies maintain community eligibility in the communities. and renewals. NFIP. No regulatory flexibility analysis From the date of the second The modified BFEs are the basis for has been prepared. publication of these changes in a the floodplain management measures Regulatory Classification. This newspaper of local circulation, any that the community is required to either interim rule is not a significant person has ninety (90) days in which to adopt or to show evidence of being regulatory action under the criteria of request through the community that the already in effect in order to qualify or Section 3(f) of Executive Order 12866 of Mitigation Division Director reconsider to remain qualified for participation in September 30, 1993, Regulatory the changes. The modified BFEs may be the National Flood Insurance Program Planning and Review, 58 FR 51735. changed during the 90-day period. (NFIP). Executive Order 12612, Federalism. These modified BFEs, together with ADDRESSES: The modified BFEs for each This rule involves no policies that have the floodplain management criteria community are available for inspection federalism implications under Executive required by 44 CFR 60.3, are the at the office of the Chief Executive Order 12612, Federalism, dated October minimum that are required. They Officer of each community. The 26, 1987. respective addresses are listed in the should not be construed to mean that table below. the community must change any Executive Order 12778, Civil Justice Reform. This rule meets the applicable FOR FURTHER INFORMATION CONTACT: existing ordinances that are more standards of Section 2(b)(2) of Executive Doug Bellomo, P.E. Hazard stringent in their floodplain Order 12778. Identification Section, Mitigation management requirements. The Division, FEMA, 500 C Street, SW., community may at any time enact List of Subjects in 44 CFR Part 65 Washington, DC 20472, (202) 646–2903. stricter requirements of its own, or Flood insurance, Floodplains, SUPPLEMENTARY INFORMATION: The pursuant to policies established by the Reporting and recordkeeping modified BFEs are not listed for each other Federal, State, or regional entities. requirements. community in this interim rule. The changes BFEs are in accordance However, the address of the Chief with 44 CFR 65.4. I Accordingly, 44 CFR Part 65 is Executive Officer of the community National Environmental Policy Act. amended to read as follows: where the modified BFE determinations This rule is categorically excluded from are available for inspection is provided. the requirements of 44 CFR Part 10, PART 65—[AMENDED] Any request for reconsideration must Environmental Consideration. No I be based on knowledge of changed environmental impact assessment has 1. The authority citation for Part 65 conditions or new scientific or technical been prepared. continues to read as follows: data. Regulatory Flexibility Act. The Authority: 42 U.S.C. 4001 et seq.; The modifications are made pursuant Mitigation Division Director for the Reorganization Plan No. 3 of 1978, 3 CFR, to Section 201 of the Flood Disaster Emergency Preparedness and Response 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Protection Act of 1973, 42 U.S.C. 4105, Directorate certifies that this rule is 3 CFR, 1979 Comp., p. 376. and are in accordance with the National exempt from the requirements of the § 65.4 [Amended] Flood Insurance Act of 1968, 42 U.S.C. Regulatory Flexibility Act because 4001 et seq., and with 44 CFR part 65. modified BFEs are required by the Flood I 2. The tables published under the For rating purposes, the currently Disaster Protection Act of 1973, 42 authority of § 65.4 are amended as effective community number is shown U.S.C. 4105, and are required to follows:
Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Alabama: Tusca- City of Northport, November 9, 2005, No- The Honorable Harvey Fretwell, February 15, 2006 010202 loosa. (04–04–B101P). vember 16, 2005; Mayor, City of Northport, City Hall, Northport Gazette. 3500 McFarland Boulevard, Northport, Alabama 35476. Arkansas: City of Jonesboro, October 12, 2005, Octo- The Honorable Doug Forman, Mayor, January 18, 2006 050048 Craighead. (05–06–1627P). ber 19, 2005; City of Jonesboro, City Hall, 515 Jonesboro Sun. West Washington Avenue, Jonesboro, Arkansas 72401. Arkansas: Wash- City of Fayetteville, July 21, 2005, July 28, The Honorable Dan Coudy, Mayor, October 27, 2005 050216 ington. (05–06–0478P). 2005; Arkansas Demo- City of Fayetteville, 113 West crat Gazette. Mountain Street, Fayetteville, Ar- kansas 72701. Arizona: Coconino City of Flagstaff, June 9, 2005, June 16, The Honorable Joseph C. Donaldson, September 15, 040020 (04–09–1242P). 2005; Arizona Daily Sun. Mayor, City of Flagstaff, 211 West 2005. Aspen Avenue, Flagstaff, Arizona 86001. Arizona: Coconino City of Flagstaff, October 12, 2005, Octo- The Honorable Joseph C. Donaldson, January 18, 2006 040020 (04–09–0997P). ber 19, 2005; Arizona Mayor, City of Flagstaff, 211 West Daily Sun. Aspen Avenue, Flagstaff, Arizona 86001. Arizona: Coconino Unincorporated October 12, 2005, Octo- The Honorable Elizabeth Archuleta, January 18, 2006 040019 areas of ber 19, 2005; Arizona Chair, Coconino County Board of Coconino, (04– Daily Sun. Supervisors, 219 East Cherry Ave- 09–0997P). nue, Flagstaff, Arizona 86001.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Arizona: Maricopa City of Avondale, May 26, 2005, June 2, The Honorable Ronald J. Drake, May 17, 2005 ...... 040038 (04–09–0933P). 2005; Arizona Business Mayor, City of Avondale, 525 North Gazette. Central Avenue, Avondale, Arizona 85323. Arizona: Maricopa City of Fountain May 19, 2005, May 26, The Honorable Wallace Nichols, August 25, 2005 .. 040135 Hills, (03–09– 2005; The Tribune. Mayor, Town of Fountain Hills, P.O. 1143P). Box 17958, Fountain Hills, Arizona 85269. Arizona: Maricopa City of Peoria, July 7, 2005, July 14, The Honorable John Keegan, Mayor, October 12, 2005 040050 (05–09–1137P). 2005; Arizona Business City of Peoria, City of Peoria Mu- Gazette. nicipal Complex, 8401 West Mon- roe Street, Peoria, Arizona 85345. Arizona: Maricopa City of Phoenix, May 26, 2005, June 2, The Honorable Phil Gordon, Mayor, May 17, 2005 ...... 040051 (04–09–0933P). 2005; Arizona Business City of Phoenix, 200 West Wash- Gazette. ington Street, 11th Floor, Phoenix, Arizona 85003–1611. Arizona: Maricopa City of Phoenix, September 22, 2005, Sep- The Honorable Phil Gordon, Mayor, December 29, 040051 (05–09–0164P). tember 29, 2005; Ari- City of Phoenix, 200 West Wash- 2005. zona Business Gazette. ington Street, 11th Floor, Phoenix, Arizona 85003–1611. Arizona: Maricopa City of Phoenix, October 6, 2005, October The Honorable Phil Gordon, Mayor, January 12, 2006 040051 (05–09–0700P). 13, 2005; Arizona Busi- City of Phoenix, 200 West Wash- ness Gazette. ington Street, 11th Floor, Phoenix, Arizona 85003–1611. Arizona: Maricopa Unincorporated May 26, 2005, June 2, The Honorable Max W. Wilson, May 17, 2005 ...... 040037 Areas, (04–09– 2005; Arizona Business Chairman, Maricopa County Board 0933P). Gazette. of Supervisors, 301 West Jefferson Street, 10th Floor, Phoenix, Arizona 85003. Arizona: Maricopa Unincorporated July 7, 2005, July 14, The Honorable Max W. Wilson, October 12, 2005 040037 Areas, (05–09– 2005; Arizona Business Chairman, Maricopa County Board 1137P). Gazette. of Supervisors, 301 West Jefferson Street, 10th Floor, Phoenix, Arizona 85003. Arizona: Maricopa Unincorporated August 4, 2005, August The Honorable Max W. Wilson, November 10, 040037 Areas, (05–09– 11, 2005; Arizona Busi- Chairman, Maricopa County Board 2005. 0236P). ness Gazette. of Supervisors, 301 West Jefferson Street, 10th Floor, Phoenix, Arizona 85003. Arizona: Maricopa Unincorporated October 6, 2005, October The Honorable Max W. Wilson, September 27, 040037 Areas, (05–09– 13, 2005; Arizona Busi- Chairman, Maricopa County Board 2005. 0159P). ness Gazette. of Supervisors, 301 West Jefferson Street, 10th Floor, Phoenix, Arizona 85003. Arizona: Pima ...... Town of Marana, July 19, 2005, July 26, The Honorable Bobby Sutton, Mayor, October 25, 2005 040118 (05–09–0118P). 2005; The Daily Terri- Town of Marana, 13251 North Lon torial. Adams Road, Marana, Arizona 85653. Arizona: Pima ...... Unincorporated July 19, 2005, July 26, The Honorable Sharon Bronson, October 25, 2005 040073 Areas, (05–09– 2005; The Daily Terri- Chair, Pima County Board of Su- 0118P). torial. pervisors, 130 West Congress Street, 11th Floor, Tucson, Arizona 85701. Arizona: Santa City of Nogales, May 10, 2005, May 17, The Honorable Albert M. Kramer, August 16, 2005 .. 040091 Cruz. (04–09–0303P). 2005; Nogales Inter- Mayor, City of Nogales, City Hall, national. 777 North Grand Avenue, Nogales, Arizona 85621. California: Ala- City of Alameda, September 21, 2005, Sep- The Honorable Beverly Johnson, December 28, 060002 meda. (05–09–1010P). tember 28, 2005; Daily Mayor, City of Alameda, 2263 2005. Journal Alameda Times Santa Clarita Avenue, Room 320, Star. Alameda, California 94501. California: Amador City of Jackson, June 17, 2005, June 24, The Honorable RosaLee Pryor, June 7, 2005 ...... 060448 (05–09–0292P). 2005; Amador Ledger Mayor, City of Jackson, 33 Broad- Dispatch. way, Jackson, California 95642– 2301. California: San Unincorporated August 11, 2005, August The Honorable Pam Slater-Price, November 17, 060284 Diego. Areas, (05–09– 18, 2005; San Diego Chairwoman, San Diego County 2005. 0948P). Daily Transcript. Board of Supervisors, 1600 Pacific Highway, Room 335, San Diego, California 92101.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
California: Solano City of Fairfield, July 21, 2005, July 28, The Honorable Karin MacMillan, October 27, 2005 060370 (03–09–1349P). 2005; Daily Republic. Mayor, City of Fairfield, c/o City Manager’s Office, 1000 Webster Street, Fairfield, California 94533. California: Solano City of Rio Vista, June 15, 2005, June 22, The Honorable James E. Woodruff, June 7, 2005 ...... 060371 (04–09–1389P). 2005; River News-Her- Mayor, City of Rio Vista, One Main ald. Street, Rio Vista, California 94571. Colorado: Adams City of Thornton, August 5, 2005, August The Honorable Noel Busck, Mayor, November 10, 080007 (05–08–0281P). 12, 2005; Eastern Colo- City of Thornton, 9500 Civic Center 2005. rado News. Drive, Thornton, Colorado 80229. Colorado: Broom- City of Broomfield, June 15, 2005, June 22, The Honorable Karen Stuart, Mayor, June 9, 2005 ...... 085073 field. (05–08–0261P). 2005; Broomfield Enter- City and County of Broomfield, One prise. DesCombes Drive, Broomfield, Col- orado 80020. Colorado: El Paso City of Colorado September 14, 2005, Sep- The Honorable Lionel Rivera, Mayor, August 30, 2005 .. 080060 Springs, (05– tember 21, 2005; El City of Colorado Springs, P.O. Box 08–0185P). Paso County News. 1575, Colorado Springs, Colorado 80901. Colorado: El Paso Unincorporated August 24, 2005, August The Honorable Jim Bensberg, Chair- November 30, 080059 Areas, (05–08– 31, 2005; El Paso man, El Paso County Board of 2005. 0459P). County News. Commissioners, 27 East Vermijo Avenue, Colorado Springs, Colo- rado 80903–2208. Colorado: El Paso Unincorporated August 31, 2005, Sep- The Honorable Jim Bensberg, Chair- December 7, 2005 080059 Areas, (04–08– tember 7, 2005; El Paso man, El Paso County Board of 0779P). County News. Commissioners, 27 East Vermijo Avenue, Colorado Springs, Colo- rado 80903–2208. Colorado: El Paso Unincorporated September 14, 2005, Sep- The Honorable Jim Bensberg, Chair- August 30, 2005 .. 080059 Areas, (05–08– tember 21, 2005; El man, El Paso County Board of 0185P). Paso County News. Commissioners, 27 East Vermijo Avenue, Colorado Springs, Colo- rado 80903–2208. Colorado: Gilpin ... City of Black June 24, 2005, July 1, The Honorable Kathryn Eccker, September 30, 080076 Hawk, (04–08– 2005; Weekly Register- Mayor, City of Black Hawk, P.O. 2005. 0678P). Call. Box 17, Black Hawk, Colorado 80422. Colorado: Jeffer- City of Lakewood, October 6, 2005, October The Honorable Steve Burkholder, January 12, 2006 085075 son. (05–08–0227P). 13, 2005; The Golden Mayor, City of Lakewood, Lake- Transcript. wood Civic Center, South, 480 South Allison Parkway, Lakewood, Colorado 80226. Colorado: Larimer Unincorporated September 7, 2005, Sep- The Honorable Kathay Rennels, December 14, 080101 Areas, (04–08– tember 14, 2005; Fort Chair, Larimer County, Board of 2005. 0564P). Collins Coloradoan. Commissioners, P.O. Box 1190, Fort Collins, Colorado 80522–1190. Colorado: Ouray ... City of Ouray, (05– September 2, 2005, Sep- The Honorable Pam Larson, Mayor, December 9, 2005 080137 08–0297P). tember 9, 2005; Tellu- City of Ouray, P.O. Box 468, ride Watch. Ouray, Colorado 81472. Colorado: Pitkin .... Unincorporated August 28, 2005, Sep- The Honorable Patti Kay-Clapper, August 15, 2005 .. 080287 Areas, (05–08– tember 4, 2005; Aspen Chair, Pitkin County Board of Com- 0310P). Times Weekly. missioners, 530 East Main Street, Third Floor, Aspen, Colorado 81611. Colorado: San Town of Telluride, November 4, 2005, No- The Honorable John Pryor, Mayor, February 10, 2006 080168 Miguel. (05–08–0263P). vember 11, 2005; Tellu- Town of Telluride, P.O. Box 397, ride Watch. Telluride, Colorado 81435. Colorado: San Unincorporated November 4, 2005, No- The Honorable Art Goodtimes, Chair- February 10, 2006 080166 Miguel. Areas, (05–08– vember 11, 2005; Tellu- man, San Miguel County Board of 0263P). ride Watch. Commissioners, P.O. Box 1170, Telluride, Colorado 81435. Connecticut: Fair- Town of Green- June 30, 2005, July 7, The Honorable Jim Lash, First Select- June 15, 2005 ...... 090008 field. wich, (05–01– 2005; Greenwich Times. man, Town of Greenwich, Town 0060P). Hall, 101 Field Point Road, Green- wich, Connecticut 06830. Connecticut: Fair- Town of Green- October 27, 2005, Novem- The Honorable Jim Lash, First Select- October 11, 2005 090008 field. wich, (05–01– ber 3, 2005; Greenwich man, Town of Greenwich, Town 0688P). Times. Hall, 101 Field Point Road, Green- wich, Connecticut 06830.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Connecticut: New Town of Guilford, June 8, 2005, June 15, The Honorable Charles ‘‘Gene’’ May 23, 2005 ...... 090077 Haven. (05–01–0245P). 2005; The New Haven Bishop, First Selectman, Office of Register. the Board of Selectmen, Town of Guilford, 31 Park Street, Guilford, Connecticut 06437. Connecticut: New Town of Guilford, November 3, 2005, No- The Honorable Charles ‘‘Gene’’ February 9, 2006 090077 Haven. (05–01–0578P). vember 10, 2005; New Bishop, First Selectman, Town of Haven Register. Guilford, 31 Park Street, Guilford, Connecticut 06437. Delaware: New Unincorporated September 8, 2005, Sep- The Honorable Chris A. Coons, New July 25, 2005 ...... 105085 Castle. Areas, (04–03– tember 15, 2005; News Castle County Executive, New Cas- A042P). Journal. tle County Government Center, 87 Reads Way, New Castle, Delaware 19720. Florida: Duval ...... City of Jackson- October 10, 2005, Octo- The Honorable John Peyton, Mayor, January 17, 2006 120077 ville, (05–04– ber 17, 2005; Jackson- City of Jacksonville, City Hall, 3653P). ville Daily Record. Fourth Floor, 117 West Duval Street, Suite 400, Jacksonville, Florida 32202. Florida: Polk ...... Unincorporated June 23, 2005, June 30, Mr. Michael Herr, County Manager, June 13, 2005 ...... 120261 Areas, (05–04– 2005; Polk County Polk County, P.O. Box 9005, Draw- 0457P). Democrat. er BC01, Bartow, Florida 33831– 9005. Florida: Miami- City of Miami, (05– October 6, 2005, October The Honorable Manuel A. Diaz, July 22, 2005 ...... 120650 Dade. 04–1122P). 13, 2005; Miami Herald. Mayor, City of Miami, 3500 Pan American Drive, Miami, Florida 33133. Georgia: Bartow ... City of Cartersville, August 11, 2005, August The Honorable Michael G. Fields, November 17, 130209 (05–04–0630P). 18, 2005; Daily Tribune Mayor, City of Cartersville, P.O. 2005. News. Box 1390, Cartersville, Georgia 30120. Georgia: Bartow ... Unincorporated August 11, 2005, August The Honorable Clarence Brown, November 17, 130463 Areas, (05–04– 18, 2005; Daily Tribune Bartow County Commissioner, 135 2005. 0630P). News. West Cherokee Avenue, Suite 251, Cartersville, Georgia 30120. Georgia: Gwinnett City of August 18, 2005, August The Honorable Bobby J. Sikes, November 25, 130099 Lawrenceville, 25, 2005; Gwinnett Mayor, City of Lawrenceville, 70 2005. (05–04–1268P). Daily Post. South Clayton Street, Lawrenceville, Georgia 30045. Hawaii: Hawaii ..... Hawaii County, August 25, 2005, Sep- The Honorable Harry Kim, Mayor, December 1, 2005 155166 (05–09–0238P). tember 1, 2005; Hawaii Hawaii County, 25 Aupuni Street, Tribune-Herald. Hilo, Hawaii 96720. Illinois: Cook ...... Village of Inver- October 6, 2005, October The Honorable John A. Tatooles, Vil- January 12, 2006 170111 ness, (05–05– 13, 2005; Daily Herald. lage President, Village of Inver- 0378P). ness, 1400 Baldwin Road, Inver- ness, Illinois 60067. Illinois: Cook ...... Village of South October 6, 2005, October The Honorable Frank Munao, Jr., Vil- January 12, 2006 170161 Barrington, (05– 13, 2005; Daily Herald. lage President, Village of South 05–0378P). Barrington, 30 South Barrington Road, South Barrington, Illinois 60010. Illinois: Cook ...... Unincorporated October 6, 2005, October The Honorable John H. Stroger, Jr., January 12, 2006 170054 Areas, (05–05– 13, 2005; Daily Herald. President, Cook County Board of 0378P). Commissioners, 118 North Clark Street, Room 537, Chicago, Illinois 60602. Illinois: DuPage .... Village of Glendale June 16, 2005, June 23, The Honorable Linda Jackson, Village June 1, 2005 ...... 170206 Heights, (05– 2005; Daily Herald. President, Village of Glendale 05–2658P). Heights, 300 Civic Center Plaza, Glendale Heights, Illinois 60139. Illinois: Kane ...... Village of Pingree July 21, 2005, July 28, The Honorable Verne E. Wester, Vil- October 26, 2005 171078 Grove, (05–05– 2005; Elburn Herald. lage President, Village of Pingree 0119P). Grove, 14 N 042 Reinking Road, Hampshire, Illinois 60140. Illinois: Kane ...... Unincorporated July 21, 2005, July 28, The Honorable Karen October 26, 2005 170896 Areas, (05–05– 2005; Elburn Herald. McConnaughay, County Board 0119P). Chairman Kane County, 719 South Batavia Avenue, Building A, Gene- va, Illinois 60134.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Illinois: Will ...... Village of Frank- May 12, 2005, May 19, The Honorable Raymond E. Rossi, May 3, 2005 ...... 170701 fort, (05–05– 2005; Daily Southtown. Mayor, Village of Frankfort, 432 0039P). West Nebraska Street, Frankfort, Il- linois 60423. Illinois: Will ...... Village of Frank- August 11, 2005, August The Honorable Jim Holland, Mayor, July 18, 2005 ...... 170701 fort, (05–05– 18, 2005; Daily Village of Frankfort, 432 West Ne- 2646P). Southtown. braska Street, Frankfort, Illinois 60423. Illinois: Will ...... Village of Mokena, June 16, 2005, June 23, The Honorable Robert Chiszar, June 3, 2005 ...... 170705 (05–05–2180P). 2005; Daily Southtown. Mayor, Village of Moneka, Village Hall, 11004 Carpenter Street, Mokena, Illinois 60448. Illinois: Will ...... Village of Univer- November 10, 2005, No- The Honorable Alvin McCowan, October 28, 2005 170708 sity Park, (05– vember 17, 2005; Daily Mayor, Village of University Park, 05–1544P). Southtown. Village Hall, 698 Burnham Drive, University Park, Illinois 60466. Illinois: Will ...... Unincorporated October 20, 2005, Octo- The Honorable Lawrence M. Walsh, January 26, 2006 170695 Areas, (05–05– ber 27, 2005; Daily Will County Executive, Will County 3958P). Southtown. Office Building, 302 North Chicago Street, Joliet, Illinois 60432. Illinois: Winnebago Unincorporated October 6, 2005, October The Honorable Scott H. Christiansen, January 12, 2006 170720 Areas, (05–05– 13, 2005; Rockford Chairman, Winnebago County 4119P). Register Star. Board, 404 Elm Street, Room 504, Rockford, Illinois 61101. Indiana: Elkhart .... City of Goshen, November 3, 2005, No- The Honorable Allan Kauffman, November 18, 180058 (04–05–A119P). vember 10, 2005; Go- Mayor, City of Goshen, 202 South 2005. shen News. Fifth Street, Goshen, Indiana 46528. Indiana: Elkhart .... Unincorporated November 3, 2005, No- The Honorable Phil Neff, President, November 18, 180056 Areas, (04–05– vember 10, 2005; Go- Elkhart County, 117 North Second 2005. A119P). shen News. Street, Goshen, Indiana 46526. Indiana: Hamilton Town of Fisher, September 20, 2005, Sep- The Honorable Scott A. Faultless, September 9, 180423 (05–05–0633P). tember 27, 2005; Town of Council President, Town of 2005. Noblesville Ledger. Fishers, One Municipal Drive, Fish- ers, Indiana 46038. Kansas: Sedgwick City of Wichita, September 8, 2005, Sep- The Honorable Carlos Mayans, August 25, 2005 .. 200328 (04–07–A643P). tember 15, 2005; Wich- Mayor, City of Wichita, City Hall, ita Eagle. First Floor, 455 North Main, Wich- ita, Kansas 67202. Kansas: Sedgwick Unincorporated September 8, 2005, Sep- The Honorable Dave Unruh, Chair- August 25, 2005 .. 200321 Areas, (04–07– tember 15, 2005; Wich- man, Sedgwick County, Board of A643P). ita Eagle. Commissioners, 525 North Main, Room 320, Wichita, Kansas 67203. Kentucky: Daviess City of August 18, 2005, August The Honorable Tom Watson, Mayor, July 27, 2005 ...... 210063 Owensboro, 25, 2005; Messenger- City of Owensboro, P.O. Box (05–04–2200P). Inquirer. 10003, Owensboro, Kentucky 42301. Maine: Cum- Town of September 22, 2005, Sep- The Honorable Gordon L. Weil, Chair, September 9, 230169 berland. Harpswell, (05– tember 29, 2005; Port- Board of Selectmen, Town of 2005. 01–0539P). land Press Herald. Harpswell, P.O. Box 39, Harpswell, Maine 04079. Maine: Cum- City of Westbrook, August 25, 2005, Sep- The Honorable Bruce Chuluda, December 1, 2005 230054 berland. (05–01–0338P). tember 1, 2005; Port- Mayor, City of Westbrook, City Hall, land Press Herald. Two York Street, Westbrook, Maine 04092. Maryland: Carroll .. Unincorporated June 23, 2005, June 30, The Honorable Julia W. Gouge, September 29, 240015 Areas, (05–03– 2005; Carroll County President, Carroll County, Board of 2005. 0001P). Times. Commissioners, 225 North Center Street, Westminster, Maryland 21157. Maryland: Charles Unincorporated October 5, 2005, October The Honorable Wayne Cooper, Presi- January 11, 2006 240089 Areas, (05–03– 12, 2005; Maryland dent, Charles County Commis- 0093P). Independent. sioners, P.O. Box 2150, La Plata, Maryland 20646. Maryland: Harford Unincorporated August 31, 2005, Sep- The Honorable David R. Craig, Coun- December 7, 2005 240040 Areas, (05–03– tember 7, 2005; The ty Executive, Harford County, 220 0153P). Aegis. South Main Street, Bel Air, Mary- land 21014. Massachusetts: Town of Falmouth, August 25, 2005, Sep- The Honorable Kevin Murphy, Chair- December 1, 2005 255211 Barnstable. (05–01–0294P). tember 1, 2005; Cape man, Board of Selectmen, Town of Cod Times. Falmouth, Town Hall, 59 Town Hall Square, Falmouth, Massachusetts 02540.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Massachusetts: Town of Nan- August 25, 2005, Sep- The Honorable Michael Glowacki, December 1, 2005 250230 Nantucket. tucket, (05–01– tember 1, 2005; Cape Chairman, Board of Selectmen, 0428P). Cod Times. Town of Nantucket, Town Building, 16 Broad Street, First Floor, Nan- tucket, Massachusetts 02554. Michigan: Macomb Charter Township August 26, 2005, Sep- The Honorable Robert J. Cannon, December 2, 2005 260121 of Clinton, (04– tember 2, 2005; Supervisor, Charter Township of 05–A079P). Macomb County Legal Clinton, 40700 Romeo Plank Road, News. Clinton Township, Michigan 48038. Michigan: Macomb Township of July 15, 2005, July 22, The Honorable John D. Brennan, Su- July 5, 2005 ...... 260445 Macomb, (05– 2005; Macomb County pervisor, Macomb Township, 54111 05–1849P). Legal News. Broughton Road, Macomb, Michi- gan 48042. Michigan: Macomb Township of August 26, 2005, Sep- The Honorable John D. Brennan, Su- December 2, 2005 260445 Macomb. (04– tember 2, 2005; pervisor, Township of Macomb, 05–A079P). Macomb County Legal 54111 Broughton Road, Macomb, News. Michigan 48042. Michigan: Macomb Township of June 1, 2005, June 8, The Honorable Gary Kirsh, Super- September 7, 260447 Washington, 2005; The Romeo Ob- visor, Township of Washington, 2005. (05–05–0637P). server. P.O. Box 94067, Washington, Michigan 48094–4067. Michigan: Macomb Township of July 15, 2005, July 22, The Honorable Gary Kirsh, Super- July 29, 2005 ...... 260447 Washington, 2005; Macomb County visor, Township of Washington, (05–05–0277P). Legal News. P.O. Box 94067, Washington, Michigan 48094–4067. Michigan: Oakland City of Troy, (05– November 3, 2005, No- The Honorable Louise Schilling, October 18, 2005 260180 05–1312P). vember 10, 2005; Ob- Mayor, City of Troy, 500 West Big server & Eccentric. Beaver, Troy, Michigan 48084. Michigan: Wayne Charter Township July 20, 2005, July 27, The Honorable Arthur F. Wright, Su- October 26, 2005 260218 fo Brownstown, 2005; News Herald. pervisor, Charter Township of (05–05–2504P). Brownstown, 21313 Telegraph Road, Brownstown, Michigan 48183. Minnesota: Anoka City of Blaine, October 14, 2005, Octo- The Honorable Thomas Ryan, Mayor, October 4, 2005 ... 270007 (05–05–1909P). ber 21, 2005; Blaine- City of Blaine, 10801 Town Square Spring Lake Park Life. Drive, Northeast Blaine, Minnesota 55449. Minnesota: City of Rochester, June 16, 2005, June 23, The Honorable Ardell F. Brede, September 22, 275246 Olmsted. (05–05–1180P). 2005; Post-Bulletin. Mayor, City of Rochester, City Hall, 2005. 201 Fourth Street, Southeast Roch- ester, Minnesota 55904. Minnesota: Unincorporated June 16, 2005, June 23, Mr. Richard G. Devlin, County Admin- September 22, 270626 Olmsted. Areas, (05–05– 2005; Post Bulletin. istrator, Olmsted County, 151 2005. 1180P). Fourth Street Southeast, Roch- ester, Minnesota 55904. Missouri: Boone ... City of Centralia, September 22, 2005, Sep- The Honorable Jerry Parmeley, March 13, 2006 .... 290035 (04–07–A458P). tember 29, 2005; Co- Mayor, City of Centralia, 114 South lumbia Missourian. Rollins, Centralia, Missouri 65240. Missouri: Boone ... Unincorporated September 22, 2005, Sep- The Honorable Keith Schnarre, Pre- September 14, 290034 Areas, (04–07– tember 29, 2005; Co- siding Commissioner, Boone Coun- 2005. 458P). lumbia Missourian. ty, 801 East Walnut, Room 245, Columbia, Missouri 65201–7732. Missouri: Jefferson City of Byrnes Mill, October 26, 2005, Novem- The Honorable Timothy Checkett, February 1, 2006 290891 (04–07–A561P). ber 2, 2005; Meramec Mayor, City of Byrnes Mill, 127 Suburban Journal. Osage Executive Circle, Byrnes Mill, Missouri 63051. Missouri: St. Town of Dardenne June 8, 2005, June 15, The Honorable Pam Fogarty, Mayor, September 14, 290889 Charles. Prairie, (04–07– 2005; St. Charles Jour- Town of Dardenne Prairie, 2032 2005. A555P). nals. Hanley Road, Dardenne Prairies, Missouri 63366. Missouri: St. City of O’Fallon, June 8, 2005, June 15, The Honorable Donna Morrow, September 14, 290316 Charles. (04–07–A555P). 2005; St. Charles Jour- Mayor, City of O’Fallon, 100 North 2005. nals. Main Street, O’Fallon, Missouri 63366. Missouri: St. City of O’Fallon, August 24, 2005, August The Honorable Donna Morrow, August 10, 2005 .. 290316 Charles. (05–07–0504P). 31, 2005; St. Charles Mayor, City of O’Fallon, 100 North Journals. Main Street, O’Fallon, Missouri 63366. Missouri: St. City of O’Fallon, October 19, 2005, Octo- The Honorable Donna Morrow, January 18, 2006 290316 Charles. (04–07–A375P). ber 26, 2005; St. Mayor, City of O’Fallon, 100 North Charles Journals. Main Street, O’Fallon, Missouri 63366.
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Missouri: St. City of St. Peters, August 24, 2005, August The Honorable Shawn Brown, Mayor, August 10, 2005 .. 290319 Charles. (05–07–0504P). 31, 2005; St. Charles City of St. Peters, P.O. Box 9, St. Journals. Peters, Missouri 63376. Missouri: St. Unincorporated June 8, 2005, June 15, The Honorable Joe Ortwerth, County September 14, 290315 Charles. Areas, (04–07– 2005; St. Charles Jour- Executive, St. Charles County, 100 2005. A555P). nals. North Third Street, St. Charles, Missouri 63301. Missouri: St. Unincorporated August 24, 2005, August The Honorable Joe Ortwerth, County August 10, 2005 .. 290315 Charles. Areas, (05–07– 31, 2005; St. Charles Executive, St. Charles County, 100 0504P). Journals. North Third Street, St. Charles, Missouri 63301. Missouri: St. Unincorporated October 19, 2005, Octo- The Honorable Joe Ortwerth, County January 18, 2006 290315 Charles. Areas, (04–07– ber 26, 2005; St. Executive, St. Charles County, 100 A375P). Charles Journal. North Third Street, St. Charles, Missouri 63301. Missouri: St. Unincorporated October 26, 2005, Novem- The Honorable Joe Ortwerth, County February 1, 2006 290315 Charles. Areas, (05–07– ber 2, 2005; St. Charles Executive, St. Charles County, 100 0760P). Journal. North Third Street, St. Charles, Missouri 63301. Missouri: St. City of Weldon October 19, 2005, Octo- The Honorable Donald D. Licklider, January 18, 2006 290901 Charles. Spring, (04–07– ber 26, 2005; St. Mayor, City of Weldon Spring, 5401 A375P). Charles Journal. Independence Road, Weldon Spring, Missouri 63304. Missouri: St. City of Wentzville, October 26, 2005, Novem- The Honorable Paul Lambi, Mayor, February 1, 2006 290320 Charles. (05–07–0760P). ber 2, 2005; Wentzville City of Wentzville, Wentzville City Suburban Journal. Hall, 310 West Pearce Boulevard, Wentzville, Missouri 63385. Nebraska: Douglas City of Omaha, October 6, 2005, October The Honorable Mike Fahey, Mayor, January 12, 2006 315274 (04–07–A438P). 13, 2005; Omaha World City of Omaha, 1819 Farnam Herald. Street, Suite 300, Omaha, Ne- braska 68183. Nebraska: Douglas City of Omaha, October 20, 2005, Octo- The Honorable Mike Fahey, Mayor, December 3, 2005 315274 (05–07–0345P). ber 27, 2005; Omaha City of Omaha, 1819 Farnam World Herald. Street, Suite 300, Omaha, Ne- braska 68183. Nevada: Clark ...... City of Las Vegas, October 6, 2005, October The Honorable Oscar B. Goodman, January 12, 2006 325276 (05–09–0073P). 13, 2005; Las Vegas Mayor, City of Las Vegas, 400 Review-Journal. Stewart Avenue, Las Vegas, Ne- vada 89101. Nevada: Clark ...... Unincorporated May 26, 2005, June 2, The Honorable Rory Reid, Chair, September 1, 320003 Areas, (04–09– 2005; Las Vegas Re- Clark County Board of Commis- 2005. 0462P). view-Journal. sioners, 500 South Grand Central Parkway, Las Vegas, Nevada 89155. Nevada: Clark ...... Unincorporated August 25, 2005, Sep- The Honorable Rory Reid, Chair, December 1, 2005 320003 Areas, (05–09– tember 1, 2005; Las Clark County Board of Commis- 0285P). Vegas Review-Journal. sioners, 500 South Grand Central Parkway, Las Vegas, Nevada 89155. Nevada: Clark ...... Unincorporated November 3, 2005, No- The Honorable Rory Reid, Chair, February 9, 2006 320003 Areas, (05–09– vember 10, 2005; Las Clark County Board of Commis- 1034P). Vegas Review-Journal. sioners, 500 South Grand Central Parkway, Las Vegas, Nevada 89155. Nevada: Clark ...... Unincorporated November 10, 2005, No- The Honorable Rory Reid, Chair, February 16, 2006 320003 Areas, (05–09– vember 17, 2005; Las Clark County Board of Commis- 0913P). Vegas Review-Journal. sioners, 500 South Grand Central Parkway, Las Vegas, Nevada 89155. Nevada: Washoe City of Sparks, August 11, 2005, August The Honorable Geno Martini, Mayor, July 21, 2005 ...... 320021 (05–09–0144P). 18, 2005; Reno Gazette City of Sparks, Sparks City Hall, Journal. 431 Prater Way, Sparks, Nevada 89432–0857. Nevada: Washoe Unincorporated April 14, 2005, April 21, The Honorable Bonnie Weber, Com- July 21, 2005 ...... 320019 Areas, (04–09– 2005; Reno Gazette- mission Chair, Washoe County 1534P). Journal. Commission, 1001 East Ninth Street, Reno, Nevada 89512. New Jersey: Mon- Borough of Mon- May 24, 2005, May 31, The Honorable James P. McConville May 12, 2005 ...... 340315 mouth. mouth Beach, 2005; Asbury Park III, Mayor, Borough of Monmouth (05–02–0298P). Press. Beach, Borough Hall, 22 Beach Road, Monmouth Beach, New Jer- sey 07750.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
New York: Town of Beekman, August 4, 2005, August The Honorable John Adams, Town January 18, 2006 361333 Dutchess. (05–02–0303P). 11, 2005; The Voice Supervisor, Town of Beekman, Ledger. Four Main Street, Poughquag, New York 12570. North Carolina: City of Durham, May 26, 2005, June 2, The Honorable William V. Bell, September 1, 370086 Durham. (04–04–A570P). 2005; The Herald-Sun. Mayor, City of Durham, City Hall, 2005. 101 City Hall Plaza, Durham, North Carolina 27701. North Carolina: Unincorporated September 29, 2005, Oc- Mr. Harry Jones, County Manager, January 5, 2006 ... 370158 Mecklenburg. Areas, (04–04– tober 6, 2005; Charlotte Mecklenburg County, 600 East B009P). Observer. Fourth Street, 11th Floor, Charlotte, North Carolina 28202. New Mexico: City of Albu- October 13, 2005, Octo- The Honorable Martin Chavez, September 30, 350002 Bernalillo. querque, (50– ber 20, 2005; The Albu- Mayor, City of Allbuquerque, P.O. 2005. 06–0440P). querque Journal. Box 1293, Albuquerque, New Mex- ico 87103. Ohio: Hocking ...... Unincorporated September 15, 2005, Sep- The Honorable Gary Starner, County December 22, 390272 Areas, (05–05– tember 22, 2005; Logan Commissioner, Hocking County, 2005. 3596P). Daily News. One East Main Street, Logan, Ohio 43138. Ohio: Lucas ...... City of Toledo, June 2, 2005, June 9, The Honorable Jack Ford, Mayor, September 8, 395373 (05–05–0485P). 2005; Toledo Legal City of Toledo, One Government 2005. News. Center, Suite 2200, Toledo, Ohio 43604. Ohio: Medina ...... City of Brunswick, May 19, 2005, May 26, The Honorable Dale Strasser, Mayor, August 26, 2005 .. 390380 (04–05–A934P). 2005; Brunswick Sun City of Brunswick, 4095 Center Times. Road, Brunswick, Ohio 44212. Ohio: Montgomery City of Englewood, May 4, 2005, May 11, The Honorable Michael Bowers, April 21, 2005 ...... 390828 (04–05–B063P). 2005; Englewood Inde- Ph.D., Mayor, City of Englewood, pendent, May 11, 2005, 333 West National Road, Engle- May 18, 2005; Dayton wood, Ohio 45322. Daily News. Ohio: Warren ...... City of Mason, August 11, 2005, August The Honorable Peter A. Beck, Mayor, July 18, 2005 ...... 390559 (05–05–3134P). 18, 2005; Pulse Journal. City of Mason, 6000 Mason-Mont- gomery Road, Mason, Ohio 45040. Oklahoma: Okla- City of Oklahoma September 14, 2005, Sep- The Honorable Mick Cornett, Mayor, August 30, 2005 .. 405378 homa. City, (05–06– tember 21, 2005; Jour- City of Oklahoma City, 200 North 0390P). nal Record. Walker, Third Floor, Oklahoma City, Oklahoma 73102. Oklahoma: Okla- City of Oklahoma September 15, 2005, Sep- The Honorable Mick Cornett, Mayor, August 23, 2005 .. 405378 homa. City, (05–06– tember 22, 2005; Jour- City of Oklahoma City, 200 North 1527P). nal Record. Walker, Third Floor, Oklahoma City, Oklahoma 73102. Oregon: Coos ...... City of Bandon, June 23, 2005, June 30, The Honorable Mary Schamehorn, June 16, 2005 ...... 410043 (05–10–0355P). 2005; Bandon Mayor, City of Bandon, P.O. Box Westernworld or The 67, Bandon, Oregon 97411. World. Oregon: Marion .... City of Aumsville, October 13, 2005, Octo- The Honorable Harold White, Mayor, January 19, 2006 410155 (03–10–0210P). ber 20, 2005; States- City of Aumsville, Aumsville City man Journal. Hall, 595 Main Street, Aumsville, Oregon 97325. Oregon: Marion .... Unincorporated October 13, 2005, Octo- The Honorable Sam Brentano, Chair, January 19, 2006 410154 Areas, (03–12– ber 20, 2005; States- Marion County, Board of Commis- 0210P). man Journal. sioners, P.O. Box 14500, Salem, Oregon 97309. Oregon: City of Portland, August 11, 2005, August The Honorable Tom Potter, Mayor, July 20, 2005 ...... 410183 Clackamas, (05–10–0477P). 18, 2005; The City of Portland, 1221 Southwest Multnomah Oregonain. Fourth Avenue, Room 340, Port- Washington. land, Oregon 97204. Pennsylvania: Township of July 13, 2005, July 20, The Honorable Michael L. Geyer, October 19, 2005 420327 Clinton. Lamar, (05–03– 2005; Renovo Record. Chairman, Board of Supervisors, 0397P). Township of Lamar, 148 Beagle Road, Mill Hall, Pennsylvania 17751. Tennessee: David- Metropolitan Gov- November 10, 2005, No- The Honorable Bill Purcell, Mayor, October 27, 2005 470040 son. ernment of vember 17, 2005; Nash- Metropolitan Government of Nash- Nashville, (05– ville Record. ville and Davidson County,107 Met- 04–3100P). ropolitan Courthouse, 225 Polk Av- enue, Nashville, Tennessee 37201.
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Tennessee: Sevier City of Pigeon October 27, 2005, Novem- Ms. Earlene M. Teaster, City Man- February 2, 2006 475442 Forge, (05–04– ber 3, 2005; The Moun- ager, City of Pigeon Forge, P.O. 0672P). tain Press. Box 1350, Pigeon Forge, Ten- nessee 37868. Tennessee: Shel- City of German- July 21, 2005, July 28, The Honorable Sharon Goldsworthy, October 27, 2005 470353 by. town, (04–04– 2005; The Daily News. Mayor, City of Germantown, P.O. A700P). Box 38809, Germantown, Ten- nessee 38183–0809. Texas: Bexar ...... City of Converse, September 7, 2005, Sep- The Honorable Craig Martin, Mayor, December 14, 480038 (05–06–1186P). tember 14, 2005; Daily City of Converse, City Hall, 403 2005. Commercial Recorder. South Seguin, Converse, Texas 78109. Texas: Bexar ...... City of San Anto- June 30, 2005, July 6, The Honorable Edward D. Garza, June 7, 2005 ...... 480035 nio, (05–06– 2005; San Antonio Ex- Mayor, City of San Antonio, City 0027P). press-News. Hall Office, P.O. Box 839966, San Antonio, Texas 78283–3966. Texas: Collin ...... City of Frisco, (05– July 22, 2005, July 29, The Honorable Mike Simpson, Mayor, October 27, 2005 480134 06–0046P). 2005; Frisco Enterprise. City of Frisco, City Hall, P.O. Box 1100, Frisco, Texas 75034–1100. Texas: Collin ...... City of Plano, (05– June 4, 2005, June 9, The Honorable Pat Evans, Mayor, May 24, 2005 ...... 480140 06–0506P). 2005; Plano Star Cou- City of Plano, P.O. Box 860358, rier. Plano, Texas 75086–0358. Texas: Collin ...... City of Plano, (05– August 11, 2005, August The Honorable Pat Evans, Mayor, November 17, 480140 06–0249P). 18, 2005; Plano Star City of Plano, P.O. Box 860358, 2005. Courier. Plano, Texas 75086–0358. Texas: Collin ...... Unincorporated May 11, 2005, May 18, The Honorable Ron Harris, Collin August 17, 2005 .. 480130 Areas, (04–06– 2005; The Wylie News. County Judge, 210 South McDon- A195P). ald Street, McKinney, Texas 75069. Texas: Collin ...... Unincorporated May 11, 2005, May 18, The Honorable John Mondy, Mayor, August 17, 2005 .. 480759 Areas, (04–06– 2005; The Wylie News. City of Wylie, 2000 State Highway A195P). 78 North, Wylie, Texas 75098. Texas: Dallas ...... Town of Addison, November 17, 2005, No- The Honorable Joe Chow, Mayor, February 23, 2006 481089 (05–06–0244P). vember 24, 2005; Dal- Town of Addison, P.O. Box 9010, las Morning News. Addison, Texas 75001. Texas: Dallas ...... City of Dallas, May 26, 2005, June 2, The Honorable Laura Miller, Mayor, May 12, 2006 ...... 480171 (04–06–A316P). 2005; Daily Commercial City of Dallas, 1500 Marilla Street, Record. Room 5EN, Dallas, Texas 75201– 6390. Texas: Dallas ...... City of Farmer November 17, 2005, No- The Honorable Bob Phelps, Mayor, February 23, 2006 480174 Branch, (05–06– vember 24, 2005; Dal- City of Farmers Branch, 12705 0244P). las Morning News. Epps Field, Farmers Branch, Texas 75234. Texas: Dallas ...... City of Garland, June 30, 2005, July 7, The Honorable Bob Day, Mayor, City October 5, 2005 ... 485471 (04–06–A117P). 2005; Daily Commercial of Garland, P.O. Box 469002, Gar- Record. land, Texas 75046–9002. Texas: Dallas ...... City of Irving, (04– October 6, 2005, October The Honorable Herbert A. Gears, September 20, 480180 06–A212P). 13, 2005; Dallas Morn- Mayor, City of Irving, 825 West Ir- 2005. ing News. ving Boulevard, Irving, TX 75060. Texas: Dallas ...... City of Mesquite, June 23, 2005, June 30, The Honorable Mike Anderson, September 29, 485490 (05–06–0938P). 2005; Mesquite News. Mayor, City of Mesquite, P.O. Box 2005. 850137, Mesquite, TX 75185–0137. Texas: Dallas ...... City of Mesquite, August 4, 2005, August The Honorable Mike Anderson, November 10, 485490 (05–06–0527P). 11, 2005; Mesquite Mayor, City of Mesquite, P.O. Box 2005. News. 850137, Mesquite, Texas 75185– 0137. Texas: Dallas ...... City of Rowlett, September 23, 2005, Sep- The Honorable C. Shane Johnson, December 30, 480185 (05–06–0921P). tember 30, 2005; Mayor, City of Rowlett, 4000 Main 2005. Rowlett Lakeshore Street, Rowlett, Texas 75088. Times. Texas: Denton ...... Town of Copper April 14, 2005, April 21, The Honorable Lawrence Johnson, July 21, 2005 ...... 481508 Canyon, (04– 2005; Denton Record- Mayor, Town of Copper Canyon, 06–A302P). Chronicle. 400 Woodland Drive, Copper Can- yon, Texas 75077. Texas: Denton ...... Town of Flower November 2, 2005, No- The Honorable Jody A. Smith, Mayor, February 8, 2006 480777 Mound, (05–06– vember 9, 2005; Flower Town of Flower Mound, 2121 1432P). Mound Leader. Cross Timbers Road, Flower Mound, Texas 75028. Texas: Denton ...... City of Lewisville, July 6, 2005, July 13, The Honorable Gene Cary, Mayor, October 12, 2005 480195 (05–06–0171P). 2005; Lewisville Leader. City of Lewisville, P.O. Box 299002, Lewisville, Texas 75029– 9002.
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Date and name of State and county Location and case newspaper where notice Chief executive officer of community Effective date of Community number was published modification number
Texas: Denton ...... City of Lewisville, October 5, 2005, October The Honorable Gene Cary, Mayor, September 9, 480195 (05–06–0576P). 12, 2005; Lewisville City of Lewisville, P.O. Box 2005. Leader. 299002, Lewisville, Texas 75029– 9002. Texas: El Paso ..... City of El Paso, July 30, 2005, August 6, The Honorable Joe D. Wardy, Mayor, July 18, 2005 ...... 480214 (05–06–0356P). 2005; El Paso Times. City of El Paso, Two Civic Center Plaza, El Paso, Texas 79901–1196. Texas: Harris ...... Unincorporated August 11, 2005, August The Honorable Robert Eckels, Harris July 29, 2005 ...... 480287 Areas, (05–06– 18, 2005; Houston County Judge, 1001 Preston 0569P). Chronicle. Street, Suite 911, Houston, Texas 77002. Texas: Johnson .... City of Burleson, September 14, 2005, Sep- The Honorable Kenneth Shetter, September 7, 485459 (05–06–0320P). tember 21, 2005; Mayor, City of Burleson, 141 West 2005. Burleson Star. Renfro Street, Burleson, TX 76028. Texas: San City of Ingleside, May 19, 2005, May 26, The Honorable Gene Stewart, Mayor, May 16, 2005 ...... 485480 Patricio. (05–06–0918P), 2005; Ingleside Index. City of Ingleside, P.O. Drawer 400, (05–06–1433X). Ingleside, Texas 78362. Texas: Tarrant ...... City of Benbrook, May 19, 2005, May 26, The Honorable Felix T. Hebert, May 5, 2005 ...... 480586 (05–06–0681P). 2005; Benbrook News. Mayor, City of Benbrook, P.O. Box 26569, Benbrook, Texas 76126. Texas: Tarrant ...... City of Fort Worth, May 12, 2005, May 19, The Honorable Michael J. Moncrief, August 18, 2005 .. 480596 (04–06–A210P). 2005; Fort Worth Tele- Mayor, City of Forth Worth, 1000 gram Star. Throckmorton Street, Fort Worth, Texas 76102. Texas: Tarrant ...... City of Fort Worth, July 21, 2005, July 28, The Honorable Michael J. Moncrief, July 5, 2005 ...... 480596 (04–06–A325P). 2005; Fort Worth Tele- Mayor, City of Forth Worth, 1000 gram Star. Throckmorton Street, Fort Worth, Texas 76102. Texas: Tarrant ...... City of Fort Worth, August 25, 2005, Sep- The Honorable Michael J. Moncrief, December 1, 2005 480596 (05–06–0480P). tember 1, 2005; The Mayor, City of Forth Worth, 1000 Star-Telegram. Throckmorton Street, Fort Worth, Texas 76102. Texas: Tarrant ...... City of Fort Worth, September 3, 2005, Sep- The Honorable Michael J. Moncrief, September 22, 480596 (05–06–0707P). tember 8, 2005; Fort Mayor, City of Fort Worth, 1000 2005. Worth Star-Telegram. Throckmorton Street, Fort Worth, Texas 76102. Texas: Tarrant ...... City of Fort Worth, October 20, 2005, Octo- The Honorable Michael J. Moncrief, January 26, 2006 480596 (05–06–0209P). ber 27, 2005; Fort Mayor, City of Fort Worth, 1000 Worth Star-Telegram. Throckmorton Street, Fort Worth, Texas 76102. Texas: Tarrant ...... City of Grapevine, May 19, 2005, May 26, The Honorable William D. Tate, May 11, 2005 ...... 480598 (05–06–0048P). 2005; Northeast Tarrant Mayor, City of Grapevine, P.O. Box Star Telegram. 95104, Grapevine, Texas 76099. Texas: Tarrant ...... City of Grapevine, September 1, 2005, Sep- The Honorable William D. Tate, September 9, 480598 (05–06–0423P). tember 8, 2005; Grape- Mayor, City of Grapevine, P.O. Box 2005. vine Sun. 95104, Grapevine, Texas 76099. Texas: Tarrant ...... City of North Rich- June 30, 2005, July 7, The Honorable T. Oscar Trevino, Jr., October 6, 2005 ... 480607 land Hills, (05– 2005; Dallas Morning P.E. Mayor, City of North Richland 06–0481P). News. Hills, 7301 Northeast Loop 820, North Richland Hills, Texas 76180. Texas: Tarrant ...... City of North Rich- November 3, 2005, No- The Honorable T. Oscar Trevino, Jr., February 9, 2006 480607 land Hills, (05– vember 10, 2005; Dal- P.E. Mayor, City of North Richland 06–1126P). las Morning News. Hills, 7301 Northeast Loop 820, North Richland Hills, Texas 76180. Texas: Travis ...... City of Pflugerville, September 1, 2005, Sep- The Honorable Catherine T. Callen, December 8, 2005 481028 (04–06–A208P). tember 8, 2005; Austin Mayor, City of Pflugerville, 100 American-Statesman. East Main Street, Suite 300, Pflugerville, Texas 78660. Virginia: Prince City of Manassas, October 6, 2005, October The Honorable Douglas S. Waldron, January 12, 2006 510122 William Inde- (04–03–111P). 13, 2005; Manassas Mayor, City of Manassas, City Hall, pendent City. Journal Messenger. 9027 Center Street, Manassas, Vir- ginia 20110.
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(Catalog of Federal Domestic Assistance No. Dated: December 5, 2005. 83.100, ‘‘Flood Insurance.’’) David I. Maurstad, Acting Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. 05–23950 Filed 12–12–05; 8:45 am] BILLING CODE 9110–12–P
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Proposed Rules Federal Register Vol. 70, No. 238
Tuesday, December 13, 2005
This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: The administer the Administrative Law contains notices to the public of the proposed administrative law judge function was Judge Program. In section 930.201, we issuance of rules and regulations. The established by the Administrative describe OPM’s authority and purpose of these notices is to give interested Procedure Act (APA) (Act of June 11, responsibility, according to the APA, as persons an opportunity to participate in the 1946, 60 Stat. 237, as amended) and assuring that administrative law judges rule making prior to the adoption of the final rules. codified in title 5, United States Code are independent in matters of (U.S.C.), sections 556, 557, 1305, 3105, appointment, pay, and tenure. 3344, 4301(2)(D), 5372, and 7521. Proposed section 930.201(e)(3) states OFFICE OF PERSONNEL Administrative law judges preside at that OPM has the authority to establish MANAGEMENT formal hearings and make or classification and qualification recommend decisions on the basis of the standards for administrative law judge 5 CFR Parts 337 and 930 record. The APA requires that this positions. OPM’s authority to establish function be carried out in an impartial classification standards for RIN 3206–AK86 manner. To assure objectivity of administrative law judge positions is 5 administrative law judges and to U.S.C. 5372(b)(2). Section 104 of Public Examining System and Programs for insulate them from improper pressure, Law 101–509 removed administrative Specific Positions and Examinations the law made these positions law judge positions from coverage under (Miscellaneous) independent of the employing agencies 5 U.S.C. 5104 and amended 5 U.S.C. AGENCY: Office of Personnel in matters of tenure and compensation. 5372(b)(2) to authorize OPM to classify Management. The goal of this revision is to administrative law judge positions streamline the current administrative outside the General Schedule. Under 5 ACTION: Proposed rule. law judge regulations as prescribed in 5 U.S.C. 1305, OPM may use its SUMMARY: The Office of Personnel CFR part 930, subpart B. Therefore, rulemaking authority to implement this Management (OPM) is issuing proposed OPM is proposing a substantive rewrite classification authority for regulations to revise the Administrative of the administrative law judge administrative law judge positions. Law Judge Program. The purpose of regulations to eliminate procedures that OPM’s authority to establish these revisions is to remove procedures appear in other parts of this chapter, administrative law judge qualifications that appear in other parts of this remove the internal examination as an adjunct to competitive chapter, update outdated information, process, and remove obsolete examination is Civil Service Rule II, 5 and remove the internal examining instructions for implementing the CFR 2.1(a), which authorizes OPM ‘‘to processes from the regulations. current pay system authorized by the establish standards with respect to Additionally, these revisions describe Federal Employees Pay Comparability citizenship, age, education, training and OPM and agency responsibilities Act of 1990; to add clarifying language; experience, suitability, and physical and concerning the Administrative Law to include OPM and agency mental fitness, and for residence or Judge Program. This proposed responsibilities under the program; to other requirements which applicants regulation continues the basic intent of emphasize components of the must meet to be admitted to or rated in making administrative law judges Administrative Law Judge Program; to examinations.’’ independent in matters of tenure and organize information into new sections The legislative history of 5 U.S.C. compensation. for emphasis and clarity; and to revise 3105, formerly section 11 (1st sentence) the language to improve readability. of the APA, governing administrative DATES: Comments must be received on We propose in section 930.201, law judge appointments, confirms the or before February 13, 2006. ‘‘Coverage,’’ to clarify that clear intent of Congress to give OPM the ADDRESSES: Send, deliver, or fax written administrative law judge positions are authority to establish qualification comments to: Mr. Mark Doboga, Deputy in the competitive service, and standards for administrative law judges Associate Director for Talent and competitive examining procedures as an adjunct to competitive Capacity Policy, U.S. Office of apply. In addition, we propose to move examination. OPM may utilize its Personnel Management, Room 6551, sections 930.203b, ‘‘Title of rulemaking authority in 5 U.S.C. 1305 to 1900 E Street, NW., Washington, DC administrative law judge,’’ and 930.212, authorize qualification standards for 20415–9700; e-mail: [email protected]; ‘‘Rotation of administrative law judges,’’ administrative law judges. fax: (202) 606–2329. to section 930.201 because this An agency employing administrative Comments may also be sent through information applies to the general law judges is responsible for appointing the Federal eRulemaking Portal at: coverage of the Administrative Law as many administrative law judges as http://www.regulations.gov. All Judge Program. needed and to assign cases to submissions received through the Portal We also propose to add the authorities administrative law judges on a must include the agency name and and responsibilities of OPM and rotational basis so far as practicable. docket number or Regulation Identifier agencies that employ administrative law We propose to move paragraph (c) of Number (RIN) for this rulemaking. judges in section 930.201. Currently, the the current section 930.201, ‘‘Coverage,’’ FOR FURTHER INFORMATION CONTACT: Ms. regulations do not identify these to section 930.203, ‘‘Cost of competitive Linda Watson by telephone at (202) authorities and responsibilities. examination.’’ Paragraph (c) discusses 606–0830; by fax at (202) 606–2329; by Although OPM does not employ the financial responsibility for the TTY at (202) 418–3134; or by e-mail at administrative law judges for the Administrative Law Judge Program. By [email protected]. Federal Government, OPM does adding paragraph (c) to section 930.203,
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we are highlighting agencies’ adopt such changes, as appropriate. We remove these terms from the regulations responsibility for the cost of the propose to remove the detailed language and replace them with terms used in the examination. Currently, under 5 U.S.C. describing internal examining and competitive service, ‘‘competitive 1104(a)(2), agencies employing program processes and procedures from status’’ and ‘‘career appointment.’’ To be administrative law judges are required the regulations, such as the language a career employee in the competitive to reimburse OPM for its examining concerning periodic open competition, service, an employee must serve 3 years services. Reimbursement is currently minimum qualifications, supplemental of substantially continuous creditable based on the agency’s relative number of qualifications, participation in service and is subject to a 1-year administrative law judge positions as of examination procedures, final rating, probationary period. However, section March 31 of the preceding fiscal year. preparation of certificates, and appeal of 315.201(c), ‘‘Exceptions from service To ensure an accurate count of rating. The appropriate mechanism to requirement,’’ includes an exception administrative law judges, we also address this type of information is the from the 3-year service requirement propose to change the time period from vacancy announcement. This when an appointment to a position is March 31 of the preceding fiscal year to information is prescribed in 5 U.S.C. required by law to be filled on a the current fiscal year. The cost is 3330 and 5 CFR 300.104(b), 330.102(b) permanent basis. The APA provides calculated by OPM and each employing and 330.707, and is required in all administrative law judges protection agency is notified of its share. vacancy announcements. As from improper influences and ensures We propose to remove the definition appropriate, OPM will continue to work independence when carrying out their of ‘‘Promotion’’ from section 930.202, with employing agencies to review the duties by conferring competitive status ‘‘Definitions.’’ This term uses a common Administrative Law Judge Program for at the time of appointment. Therefore, definition throughout the Federal effectiveness and efficiency consistent the requirements for probationary and Government and is defined in 5 CFR with statutory requirements. career-conditional periods do not apply 210.102(b)(11). Standardizing We propose to redesignate section to administrative law judges. An definitions of common terms ensures 930.203a, ‘‘Appointment,’’ as section administrative law judge appointment their consistent application. We propose 930.204, ‘‘Appointments and conditions confers competitive status, places the to add and define two significant terms of employment.’’ We also propose to employee in tenure group I, and does to the regulations and clarify their move paragraphs (b), (c), and (e) of not require a probationary period. specific use in this subpart: senior section 930.203a, ‘‘Appointment,’’ and Currently section 930.203a(c)(3), administrative law judge and superior sections 930.204, ‘‘Promotion,’’ 930.205, ‘‘Appointment of incumbents of newly qualifications. ‘‘Reassignment,’’ 930.206, ‘‘Transfer,’’ classified administrative law judge We propose to change the title of and 930.207, ‘‘Reinstatement,’’ to positions,’’ addresses the appointment section 930.203, ‘‘Examination,’’ to section 930.204. The purpose is to of employees whose positions are ‘‘Cost of competitive examination.’’ highlight the prohibition of a classified as an administrative law judge OPM has great discretion to design and probationary period for administrative position on the basis of legislation, administer competitive examinations law judges and to consolidate the Executive order, or decision of the (See 5 U.S.C. 1104, 1302, 3301, 3304.) various types of appointments under court. An agency has 6 months after the OPM must be able to incorporate one section. With the consolidation, we classification to recommend to OPM the advances in the state of the art of propose to remove the internal appointment of an administrative law examination methodology in the design examining processes and procedures judge. We propose to delete the 6-month of each administrative law judge involved in appointing an individual to requirement and rely on the terms of the examination. Consequently, OPM an administrative law judge position; legislation, Executive order, or court proposes to remove the examination revise the language to clarify that decision for any time frames for scoring process currently published in agencies must obtain OPM’s approval appointments. Paragraph (c)(4) of the section 930.203, and to state in section before making any promotion, transfer, current regulations states that in an 930.201(e)(1) that use of the reinstatement, reassignment, pay emergency situation OPM may examination scoring process published adjustments or senior administrative authorize a conditional appointment of in 5 CFR 337.101(a) is not required in law judge appointments to an an employee to an administrative law scoring administrative law judge administrative law judge position; and judge position pending final decision on examinations. OPM is proposing a include information related to the type the employee’s eligibility for career conforming revision in part 337. The of appointment and tenure group. appointment. We propose to delete this current examination covered by OPM Because provisions of the Ramspeck Act provision because it is inconsistent with Examination Announcement No. 318 is formerly codified at 5 U.S.C. 3304(c) the intent of the APA that closed and will be replaced by a new were repealed by Public Law 104–65 on administrative law judges serve without administrative law judge examination; December 19, 1997, we are removing condition. therefore, we propose to remove all paragraph (d) of section 930.203a which The function of an administrative law references to Announcement No. 318 involves the appointment of legislative judge is to prepare for and preside at from this subpart. When the new and judicial employees to an formal hearings in accordance with the examination is available, OPM will administrative law judge position. APA. Administrative law judges must announce the examinations as These individuals now must compete be held to a high standard of conduct so prescribed in 5 U.S.C. 3330. with other outside candidates and meet that the integrity and independence of A lengthy description of the the qualification and examination the administrative judiciary can be administrative law judge examination requirements for an administrative law maintained. Similar to the attorneys and its procedures is contained in the judge position. employed by the Federal Government existing section 930.203 of this subpart. Currently, the administrative law who are required to maintain an The method by which examinations are judge regulations contain two terms, ‘‘active’’ status to practice law, conducted and administered is subject ‘‘absolute status’’ and ‘‘career absolute administrative law judges are expected to periodic changes; therefore, removing appointment,’’ that are not defined in to meet professional licensing these procedures from the regulations either the United States Code or Code of requirements as attorneys. Presently, an will provide OPM with the flexibility to Federal Regulations. We propose to applicant who wishes to be an
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administrative law judge must have to clarify that an agency may reduce the positions only through the OPM priority been duly licensed and authorized to pay level or rate of basic pay of an referral list. We propose to add a hiring practice law as an attorney under the administrative law judge for good cause flexibility allowing agencies to fill their laws of a State, the District of Columbia, either after the Merit Systems Protection vacant administrative law judge the Commonwealth of Puerto Rico, or Board orders the action, as provided in positions by reassigning administrative any territorial court established under section 930.211 (as redesignated), or if law judges within their workforce. This the United States Constitution. We agreed upon by the administrative law flexibility allows agencies to manage propose to clarify that a professional judge and with OPM’s approval. their administrative law judge license requirement continues as a We propose to redesignate the workforce by providing the flexibility to condition of employment for any existing section 930.211 as section make reassignments within their agency individual serving as an administrative 930.206, ‘‘Performance rating and and will assure that adversely affected law judge. A professional license to awards,’’ and to move paragraph (b) of administrative law judges retain priority practice law is required while serving as existing section 930.210, ‘‘Pay,’’ to when the agency seeks to fill from an administrative law judge. This section 930.206. This change outside its workforce. OPM will requirement applies to eligibles on the consolidates the information on continue to retain the authority to grant Administrative Law Judge register, performance rating and awards into one exceptions to the order of selection. incumbent administrative law judges, section. We propose to redesignate section former administrative law judges We propose to redesignate section 930.214, ‘‘Actions against applying for reinstatement or 930.209 as section 930.207, and to administrative law judges,’’ as section reemployment, and retired change its title from ‘‘Detail and 930.211. We also propose to revise this administrative law judges applying assignment to other duties’’ to ‘‘Details section to improve clarity and under the Senior Administrative Law and assignments to other duties within readability. This section continues to Judge Program. An administrative law the same agency.’’ The new title recognize that administrative law judge judge must maintain an ‘‘active’’ status emphasizes the movement of an applicants and appointees, like other to practice law under the laws of a State, administrative law judge within the applicants and appointees to the the District of Columbia, the agency. competitive service, are subject to Commonwealth of Puerto Rico, or any We propose to redesignate section suitability investigations and territorial court established under the 930.213, ‘‘Use of administrative law determinations. United States Constitution. In lieu of judges on detail from other agencies,’’ as maintaining an ‘‘active’’ status to section 930.208, ‘‘Administrative law Derivative Table Comparing New practice law, judicial status is judge loan program—detail to other Section Numbers in Part 930, Subpart acceptable in States that prohibit sitting agencies.’’ The title change echoes the B With Old Section Numbers judges from maintaining ‘‘active’’ status term commonly used by the To assist readers in comparing OPM’s to practice law. Being in ‘‘good administrative law judge community for proposed rule to 5 CFR part 930, subpart standing’’ is also acceptable in lieu of the process of detailing administrative B with the regulation as it is currently ‘‘active’’ status in States where the law judges to other agencies. We also published, we have prepared the licensing authority considers ‘‘good propose to clarify OPM’s current following derivation table. standing’’ as having a current license to practice of detailing an administrative practice law. law judge for a period within the DERIVATION TABLE FOR 5 CFR 930 For clarity, we propose to redesignate current fiscal year with the possibility of SUBPART B section 930.210, ‘‘Pay’’ as section an extension into the next fiscal year. 930.205, ‘‘Administrative law judge pay OPM approves extensions on a case-by- New section Old section system.’’ case basis. Section 930.208 gives We propose to delete paragraphs (j) agencies the flexibility to meet unusual 930.201 ...... 930.201. through (m) of current section 930.210, work circumstances requiring an 930.201(a) ...... 930.201(a). which contain instructions for administrative law judge to stay beyond 930.201(b) ...... 930.201(b). converting GS employees to the the initial 1-year period. 930.201(c) ...... 930.203b. We propose to redesignate section 930.201(d) ...... New. administrative law judge pay system on 930.201(e)(1) through New. the first day of the first pay period 930.216, ‘‘Temporary reemployment: (9). beginning on or after February 10, 1991. senior administrative law judges,’’ as 930.201(f)(1) and (2) New. Because all administrative law judges section 930.209, ‘‘Senior administrative 930.201(f)(2)(i) ...... 930.212. have been converted to the current pay law judge program,’’ to echo the term 930.202 ...... 930.202. system, these paragraphs are obsolete. commonly used by the administrative Administrative Law 930.202(c). Currently, with OPM approval, an law judge community for the process of Judge Position. agency may pay a higher minimum rate employing retired administrative law Agency ...... 930.202(a). Detail ...... 930.202(b). to a candidate with superior judges. The title distinguishes this 930.202(d) (Re- qualifications who is appointed from an program from the loan program moved). OPM certificate of eligibles to an described in section 930.208 (as 930.202(e) (Re- administrative law judge position at redesignated). We also are clarifying the moved). level AL–3. Under section 930.205(f)(2), employment limitation for reemployed Removal ...... 930.202(f). we propose to expand coverage under administrative law judges to be either a Senior Administrative 930.216(a)(2). this authority to include an specified period not to exceed 1 year or Law Judge. administrative law judge applicant with such periods as may be necessary to Superior Qualifica- 930.210(g)(2). superior qualifications as well as a conduct and complete the hearing of tions. 930.203 ...... 930.201(c). former administrative law judge with one or more specified cases. 930.204 ...... 930.203a. superior qualifications who is eligible We propose to redesignate section 930.204(a) ...... 930.203a(a) and (b). for reinstatement. 930.215, ‘‘Reduction in force,’’ as 930.204(b) ...... New We propose to add a new paragraph section 930.210. At the present time, 930.204(c) ...... 930.203a(c). (i) to section 930.205 (as redesignated) agencies are allowed to fill vacant 930.204(c)(1) ...... 930.203a(c)(1).
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DERIVATION TABLE FOR 5 CFR 930 Subpart A—General Provisions methodology in the design of each SUBPART B—Continued administrative law judge examination. 2. Revise § 337.101(a) to read as (e) OPM does not hire administrative New section Old section follows: law judges for other agencies but has § 337.101 Rating applicants. authority to: 930.204(c)(2) ...... 930.203a(c)(2). (1) Recruit and examine applicants for 930.204(c)(3) ...... 930.203a(c)(3) (Re- (a) OPM shall prescribe the relative administrative law judge positions, vised). weights to be given subjects in an including developing and administering 930.204(c)(4) ...... 930.203a(c)(4) (Re- examination, and shall assign numerical the administrative law judge vised). ratings on a scale of 100. Except as examinations under 5 U.S.C. 1104(a)(2), 930.203a(d) (Re- otherwise provided in this chapter, each except OPM is not required to use the moved). applicant who meets the minimum examination scoring process in 5 CFR 930.204(d) ...... 930.203a(e). requirements for entrance to an 930.204(e) ...... 930.204 (Revised). 337.101(a); examination and is rated 70 or more in (2) Assure that decisions concerning 930.204(f) ...... 930.205 (Revised). the examination is eligible for 930.204(g) ...... 930.207 (Revised). the appointment, pay, and tenure of 930.204(h) ...... 930.206 (Revised). appointment. administrative law judges in Federal 930.208 (Removed). * * * * * agencies are consistent with applicable 930.205 ...... 930.210 laws and regulations; 930.205(f)(2) ...... 930.210(g)(2) PART 930—PROGRAMS FOR (3) Establish classification and 930.205(i) ...... New SPECIFIC POSITIONS AND qualification standards for 930.210(j) through EXAMINATIONS (MISCELLANEOUS) administrative law judge positions in (m) (Removed). Federal agencies; 930.206 ...... New title. 3. Revise Subpart B to read as follows: (4) Approve noncompetitive 930.206(a) ...... 930.211. Subpart B—Administrative Law Judge personnel actions for administrative law 930.206(b) ...... 930.210(b). Program judges, including but not limited to 930.207 ...... 930.209. promotions, transfers, reinstatements, 930.208 ...... 930.213. Sec. 930.201 Coverage. restorations, reassignments, and pay 930.209 ...... 930.216. 930.202 Definitions. 930.210 ...... 930.215. adjustments; 930.203 Cost of competitive examination. 930.211 ...... 930.214. (5) Approve an intra-agency detail or 930.204 Appointments and conditions of assignment of an administrative law employment. judge to a non-administrative law judge Executive Order 12866, Regulatory 930.205 Administrative law judge pay position that lasts more than 120 days Review system. 930.206 Performance rating and awards. or when an administrative law judge This proposed rule has been reviewed 930.207 Details and assignments to other cumulates a total of more than 120 days by the Office of Management and duties within the same agency. for more than one detail or assignment Budget in accordance with Executive 930.208 Administrative Law Judge Loan within the preceding 12 months; Order 12866. Program—detail to other agencies. (6) Arrange the temporary detail 930.209 Senior Administrative Law Judge (loan) of an administrative law judge Regulatory Flexibility Act Program. from one agency to another under the 930.210 Reduction in force. provisions of the administrative law I certify that these regulations would 930.211 Actions against administrative law not have a significant economic impact judge loan program in § 930.208; judges. (7) Arrange temporary reemployment on a substantial number of small entities Authority: 5 U.S.C. 1104(a)(2), 1302(a), of retired administrative law judges to (including small businesses, small 1305, 3105, 3323(b), 3344, 4301(2)(D), 5372, meet changing agency workloads under organizational units, and small 7521, and E.O. 10577, 3 CFR, 1954–1958 the provisions of the senior governmental jurisdictions) because Comp., p. 219. administrative law judge program in they would affect only some Federal Subpart B—Administrative Law Judge § 930.209; agencies and employees. (8) Maintain and administer the Program List of Subjects in 5 CFR Parts 337 and administrative law judge priority 930 § 930.201 Coverage. referral program; and (9) Comply with 5 U.S.C. 1305 for (a) This subpart applies to individuals Administrative practice and purposes of sections 3105, 3344, appointed under 5 U.S.C. 3105 for procedure, Computer technology, 4301(2)(D) and 5372 of title 5 U.S.C. and proceedings required to be conducted in Government employees, Motor vehicles. the provisions of section 5335(a)(B) of 5 accordance with 5 U.S.C. 556 and 557 U.S.C. that relate to administrative law U.S. Office of Personnel Management. and to administrative law judge Linda M. Springer, judges. positions. (f) An agency employing Director. (b) Administrative law judge positions administrative law judges under 5 Accordingly, OPM is proposing to are in the competitive service. Except as U.S.C. 3105 has: amend 5 CFR parts 337 and 930 as otherwise stated in this subpart, the (1) Authority to appoint as many follows: rules and regulations applicable to administrative law judges as necessary positions in the competitive service for proceedings conducted under 5 PART 337—EXAMINING SYSTEM apply to administrative law judge U.S.C. 556 and 557; and positions. (2) Responsibility for: 1. The authority citation for part 337 (c) The title ‘‘administrative law (i) Assigning an administrative law continues to read as follows: judge’’ is the official title for an judge to cases in rotation so far as is Authority: 5 U.S.C. 1104(a)(2), 1302, 2302, administrative law judge position. Each practicable; 3301, 3302, 3304, 3319, 5364, E.O. 10577, 3 agency must use only this title for (ii) Obtaining OPM’s approval before CFR 1954–1958 Comp., p. 218; 33 FR 12423, personnel, budget, and fiscal purposes. making any promotion, transfer, detail Sept. 4, 1968; and 45 FR 18365, Mar. 21, (d) The Director of OPM, or designee, in excess of 120 days, reinstatement, 1980. shall prescribe the examination reassignment, or restoration
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appointments to an administrative law administrative law judge position only (1) The rate of basic pay for AL–3, rate judge position, employment of senior with prior approval of OPM, except A, may not be less than 65 percent of administrative law judges, or pay when it makes its selection from the list the rate of basic pay for level IV of the adjustments as required under of eligibles provided by OPM. An Executive Schedule. The rate of basic § 930.205; and administrative law judge receives a pay for AL–1 may not exceed the rate (iii) Ensuring the independence of the career appointment and is exempt from for level IV of the Executive Schedule. administrative law judge. the probationary period requirements. (2) The President determines the § 930.202 Definitions. (b) Licensure. At the time of appropriate adjustment for each level in In this subpart: application and any new appointment the administrative law judge pay Administrative law judge position and while serving as an administrative system, subject to paragraph (a)(1) of means a position in which any portion law judge, the individual must possess this section. Such adjustments take of the duties requires the appointment a professional license to practice law effect on the first day of the first pay of an administrative law judge under 5 under the laws of a State, the District of period beginning on or after the first day U.S.C. 3105. Columbia, the Commonwealth of Puerto of the month in which adjustments in Agency has the same meaning given Rico, or any territorial court established the General Schedule rates of basic pay in 5 U.S.C. 551(1). under the United States Constitution. under 5 U.S.C. 5303 take effect. Detail means the temporary Judicial status is acceptable in lieu of assignment of an administrative law ‘‘active’’ status in States that prohibit (3) An agency must use the following judge from one position to another sitting judges from maintaining ‘‘active’’ procedures to convert an administrative administrative law judge position status to practice law. Being in ‘‘good law judge’s annual rate of basic pay to without change in civil service or pay standing’’ is also acceptable in lieu of an hourly, daily, weekly, or biweekly status. ‘‘active’’ status in States where the rate: Reinstatement means reemployment licensing authority considers ‘‘good (i) To derive an hourly rate, divide the of a former administrative law judge standing’’ as having a current license to annual rate of pay by 2,087 and round who has served under 5 U.S.C. 3105, practice law. to the nearest cent, counting one-half meets the qualification requirements, (c) Appointment of incumbents of cent and over as the next higher cent. and passes the current examination for newly classified administrative law (ii) To derive a daily rate, multiply the an admininstrative law judge position. judge positions. An agency may give an hourly rate by the number of daily hours Removal means the involuntary incumbent employee an administrative separation of an administrative law of service required by the administrative law judge career appointment if that law judge’s basic daily tour of duty. judge from employment as an employee is serving in the position administrative law judge or employment when it is classified as an (iii) To derive a weekly or biweekly with an agency. administrative law judge position on the rate, multiply the hourly rate by 40 or Senior administrative law judge basis of legislation, Executive order, or 80, respectively. means a retired administrative law a decision of a court and if: (b) Pay level AL–3 is the basic pay judge who is reemployed under a (1) The employee has competitive level for administrative law judge temporary appointment under 5 U.S.C. status or is serving in an excepted positions filled through a competitive 3323(b)(2) and § 930.209. examination. Superior qualifications means an position under a permanent appointment made at a rate above the appointment; (c) Subject to OPM approval, agencies (2) The employee is serving in an minimum rate based on such may establish administrative law judge administrative law judge position on the qualifications that may include, but are positions in pay levels AL–2 and AL–1. day the legislation, Executive order, or not restricted to, experience practicing Administrative law judge positions are decision of the court on which the law before the hiring agency; experience placed at these levels when they involve classification of the position is based practicing before another forum in a significant administrative and becomes effective; field of law relevant to the hiring managerial responsibilities. (3) OPM receives a recommendation agency; outstanding reputation among (d) Administrative law judges must for the employee’s appointment from others in a field of law relevant to the serve at least 1 year in each AL pay the agency concerned; and hiring agency; or special skills that will level, or in an equivalent or higher level (4) OPM determines the employee meet a demonstrated need of the hiring in positions in the Federal service, meets the qualification requirements agency. before advancing to the next higher and has passed the current examination level and may advance only one level at § 930.203 Cost of competitive examination. for an administrative law judge position. a time. Each agency employing (d) Appointment of incumbents of (e) Except as provided in paragraph (f) administrative law judges must non-administrative law judge positions. of this section, upon appointment to an reimburse OPM for the cost of Except as provided for in paragraph (c) administrative law judge position developing, examining, and of this section, an agency may not placed in level AL–3, an administrative administering the administrative law appoint an employee who is serving in law judge is paid at the minimum rate judge examinations. Each agency is a position other than an administrative A of AL–3. He or she is automatically charged a pro rata share of the law judge position to an administrative advanced successively to rates B, C, and examination cost, based on the actual law judge position. D of that level upon completion of 52 number of administrative law judges the § 930.205 Administrative law judge pay weeks of service in the next lower rate, agency employs. OPM computes the system. and to rates E and F of that level upon cost of the examination program on an (a) OPM assigns each administrative completion of 104 weeks of service in annual basis and notifies the employing law judge position in one of the three the next lower rate. Time in a non-pay agencies of their respective shares after grades or levels of basic pay, AL–3, AL– status is generally creditable service the calculations are made. 2 or AL–1, of the administrative law when computing the 52-week period as § 930.204 Appointments and conditions of judge pay system established under 5 long as it does not exceed 2 weeks per employment. U.S.C. 5372 in accordance with this year for each 52 weeks of service. (a) Appointment. An agency may section. Pay level AL–3 has six rates of However, absence due to uniformed appoint an individual to an basic pay, A, B, C, D, E, and F. service or compensable injury is fully
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creditable upon reemployment as another administrative law judge this program is responsible for provided in part 353 of this chapter. position within the same agency in reimbursing the agency that employs the (f) Upon appointment to a position at accordance with 5 U.S.C. 3341. administrative law judge for the cost of AL–3, an administrative law judge may (b) An agency may not detail an the service. be paid at the minimum rate A, unless employee who is not an administrative the administrative law judge is eligible law judge to an administrative law judge § 930.209 Senior Administrative Law Judge Program. for a higher rate B, C, D, E, or F because position. of prior service or superior (c) An agency may assign an (a) OPM administers a Senior qualifications, as provided in administrative law judge to perform Administrative Law Judge Program in paragraphs (f)(1) and (f)(2) of this non-administrative law judge duties accordance with 5 U.S.C. 3323(b)(2). section. only when: The Senior Administrative Law Judge (1) An agency may offer an (1) The other duties are consistent Program is subject to the requirements administrative law judge applicant with with administrative law judge duties and limitations in this section. (b) A senior administrative law judge prior Federal service a higher than and responsibilities; (2) The assignment is to last no longer must meet the: minimum rate up to the lowest rate of (1) Annuitant requirements under 5 than 120 days; and basic pay that equals or exceeds the U.S.C. 3323; applicant’s highest previous Federal rate (3) The administrative law judge has (2) Professional license requirement of basic pay, not to exceed the not had a total of more than 120 days in § 930.204(b); and maximum rate F. of such assignments or details within (3) Suitability requirements in 5 CFR (2) With prior OPM approval, an the preceding 12 months. parts 5 and 731. agency may pay the rate of pay that is (d) OPM may authorize a waiver of (c) Under the Senior Administrative next above the applicant’s existing pay paragraphs (c)(2) and (c)(3) of this Law Judge Program, OPM authorizes or earnings up to the maximum rate F. section if an agency shows that it is in agencies that have temporary, irregular The agency may offer a higher than the public interest to do so. In workload requirements for conducting minimum rate to: determining whether a waiver is proceedings in accordance with 5 U.S.C. (i) An administrative law judge justified, OPM may consider, but is not 556 and 557 to temporarily reemploy applicant with superior qualifications restricted to considering, such factors as administrative law judge annuitants. If (as defined in § 930.202) who is within unusual case load or special expertise of OPM is unable to identify an reach for appointment from an the detailee. administrative law judge under administrative law judge certificate of § 930.208 Administrative Law Judge Loan § 930.208 who meets the agency’s eligibles; or Program ‘‘ detail to other agencies. qualification requirements, OPM will (ii) A former administrative law judge approve the agency’s request. (a) In accordance with 5 U.S.C. 3344, with superior qualifications who is (d) An agency wishing to temporarily eligible for reinstatement. OPM administers an Administrative reemploy an administrative law judge (g) With prior OPM approval, an Law Judge Loan Program that must submit a written request to OPM. agency, on a one-time basis, may coordinates the loan/detail of an The request must: advance an administrative law judge in administrative law judge from one (1) Identify the statutory authority an AL–3 position with added agency to another. An agency may under which the administrative law administrative and managerial duties request from OPM the services of an judge is expected to conduct and responsibilities one rate above the administrative law judge if the agency is proceedings; administrative law judge’s current AL– occasionally or temporarily (2) Demonstrate the agency’s 3 pay rate, up to the maximum rate F. insufficiently staffed with temporary or irregular workload (h) Upon appointment to an administrative law judges, or an agency requirements for conducting administrative law judge position may loan the services of its proceedings; placed at AL–2 or AL–1, an administrative law judges to other (3) Specify the tour of duty, location, administrative law judge is paid at the agencies if there is insufficient work to period of time, or particular cases(s) for established rates for those levels. fully occupy the administrative law the requested reemployment; and (i) An employing agency may reduce judges’ work schedule. (4) Describe any special qualifications the level or rate of basic pay of an (b) An agency’s request to OPM for the retired administrative law judge administrative law judge under the services of an administrative law possesses that are required of the § 930.211 or if the administrative law judge must: position, such as experience in a judge voluntarily consents in writing to (1) Identify and briefly describe the particular field, agency, or substantive the reduction and with prior OPM nature of the cases(s) to be heard; area of law. (2) Specify the legal authority for approval. (e) OPM establishes the terms of the which the use of an administrative law appointment for a senior administrative § 930.206 Performance rating and awards. judge is required; and law judge. The senior administrative (a) An agency may not rate the job (3) Demonstrate, as appropriate, that law judge may be reemployed either for performance of an administrative law the agency has no administrative law a specified period not to exceed 1 year judge. judge available to hear the case(s). or for such time as may be necessary for (b) An agency may not grant any (c) The services of an administrative the senior administrative law judge to award or financial incentives under 5 law judge under this program are made conduct and complete the hearing and U.S.C. 4502, 4503, or 4504 to an from the starting date of the detail until issue decisions for one or more administrative law judge. the end of the current fiscal year, but specified cases. Upon agency request, may be extended into the next fiscal OPM may reduce or extend such period § 930.207 Details and assignments to year with OPM’s approval. Decisions for of reemployment, as necessary, to other duties within the same agency. an extension are made by OPM on a coincide with changing staffing (a) An agency may detail an case-by-case basis. requirements. administrative law judge from one (d) The agency requesting the services (f) A senior administrative law judge administrative law judge position to of an administrative law judge under serves subject to the same limitations as
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any other administrative law judge (iii) Referral and selection of absent for reasons not originating with employed under this subpart and 5 administrative law judges are made the agency; or U.S.C. 3105. without regard to selective certification (4) If the alternatives in paragraphs (g) A senior law judge is paid the rate or special qualification procedures. (b)(1) through (b)(3) of this section are of basic pay for the pay level at which (iv) Termination of eligibility on the not available, the agency may consider the position has been classified. If the OPM priority referral list takes place placing the administrative law judge in position is classified at pay level AL–3, when an administrative law judge a paid non-duty or administrative leave the senior administrative law judge is submits a written request to terminate status. paid the lowest rate of basic pay in AL– eligibility, accepts a permanent full-time (c) Exceptions from procedures. The 3 that equals or exceeds the highest administrative law judge position, or procedures in paragraphs (a) and (b) of previous rate of basic pay attained by declines one full-time employment offer this section do not apply: the individual as an administrative law as an administrative law judge at or (1) In making dismissals or taking judge immediately before retirement, up above the level held when reached for other actions under 5 CFR parts 5 and to the maximum rate F. reduction in force at geographic 731; locations previously indicated as (2) In making dismissals or other § 930.210 Reduction in force. acceptable. actions made by agencies in the interest (a) Retention preference regulations. (3) With OPM’s prior approval, when of national security under 5 U.S.C. 7532; Except as modified by this section, the there is no administrative law judge (3) To reduction in force actions taken reduction in force regulations in part available on the agency’s reemployment by agencies under 5 U.S.C. 3502; or 351 of this chapter apply to priority list, an agency may fill a vacant (4) In any action initiated by the administrative law judges. administrative law judge position Office of Special Counsel under 5 U.S.C. (b) Determination of retention through any of the following methods: 1215. standing. In determining retention (i) OPM’s administrative law judge standing in a reduction in force, each priority referral list; [FR Doc. 05–23930 Filed 12–12–05; 8:45 am] agency lists its administrative law (ii) Reassignment from within the BILLING CODE 6325–39–P judges by group and subgroups agency; or according to tenure of employment, (iii) Competitive examining, veterans’ preference, and service date as promotion, transfer, or reinstatement FEDERAL DEPOSIT INSURANCE outlined in part 351 of this chapter. procedures; provided that the proposed CORPORATION Because administrative law judges are candidate possesses experience and not given performance ratings (see qualifications superior to an available 12 CFR Chapter III § 930.206), the provisions in part 351 of displaced administrative law judge(s) on RIN 3064–AC98 this chapter referring to the effect of OPM’s priority referral list. performance ratings on retention Large-Bank Deposit Insurance standing are not applicable to § 930.211 Actions against administrative Determination Modernization Proposal administrative law judges. law judges. (c) Placement assistance. (1) An (a) Procedures. An agency may AGENCY: Federal Deposit Insurance administrative law judge who is reached remove, suspend, reduce in level, Corporation (‘‘FDIC’’). in an agency’s reduction in force and reduce in pay, or furlough for 30 days ACTION: Advance notice of proposed receives a notification of separation is or less an administrative law judge only rulemaking. eligible for placement assistance under for good cause established and the agency’s reemployment priority list determined by the Merit Systems SUMMARY: In view of the significant established and maintained in Protection Board on the record and after industry consolidation in recent years, accordance with subpart B of part 330 opportunity for a hearing before the the FDIC is exploring new methods to of this chapter. Board as prescribed in 5 U.S.C. 7521 modernize its deposit insurance (2) An administrative law judge who and 5 CFR part 1201. Procedures for determination process, whereby the is reached by an agency in a reduction adverse actions by agencies under part insurance status of each depositor is in force and who is notified of being 752 of this chapter do not apply to determined in the event of failure. separated, furloughed for more than 30 actions against administrative law Procedures currently used by the FDIC days, or demoted, is entitled to have his judges. to determine deposit insurance coverage or her name placed on OPM’s (b) Status during removal may result in unacceptable delays if administrative law judge priority proceedings. In exceptional cases when used for an FDIC-insured institution referral list for the level in which last there are circumstances in which the with a large number of deposit accounts. served and for all lower levels. retention of an administrative law judge In developing a new system to (i) To have his or her name placed on in his or her position, pending determine insurance coverage, the the OPM priority referral list, a adjudication of the existence of good FDIC’s goals are to minimize disruption displaced administrative law judge must cause for his or her removal, is to depositors and communities, and provide OPM with a request for priority detrimental to the interests of the maximize recoveries for the deposit referral placement, a resume or Federal Government, the agency may: insurance fund in the event one of the equivalent, and a copy of the reduction (1) Assign the administrative law largest insured institutions should fail. in force notice at any time after the judge to duties consistent with his or The FDIC is seeking comment on the receipt of the specific reduction in force her normal duties in which these best means to accomplish these notice, but not later than 90 days after conditions would not exist; objectives, and is offering three possible the date of separation, furlough for more (2) Place the administrative law judge options for comment. The focus of this than 30 days, or demotion. on leave with his or her consent; Advance Notice of Proposed (ii) Eligibility on the OPM priority (3) Carry the administrative law judge Rulemaking (‘‘ANPR’’) is on FDIC- referral list expires 2 years after the on annual leave, sick leave, leave insured institutions with the largest effective date of the reduction in force without pay, or absence without leave, number of deposit accounts, currently action. as appropriate, if he or she is voluntarily expected to include only the 145
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insured institutions with total number necessary, depending on the results of information and has in place strict of deposit accounts over 250,000 and the FDIC’s insurance determination. The safeguards to protect these data. total domestic deposits of at least $2 insurance determination would be The FDIC operates under a mandate billion (‘‘Covered institutions’’). None of facilitated by the institution providing when handling a failing institution to these options require that insured the FDIC, in the event of failure, with structure the least costly of all possible institutions transmit deposit data to the depositor data (name, address, tax resolution transactions,1 except in the FDIC unless the institution is in danger identification number, etc.) in a event of systemic risk 2 and even in of failing. standard format, including a unique those cases the FDIC must conserve DATES: Comments must be submitted on identifier for each depositor and the costs. Since the introduction of the or before March 13, 2006. insurance category of each account. systemic risk exception in 1991 no • Option 2 is similar to Option 1, exceptions to the least-cost requirement ADDRESSES: You may submit comments except the standard data set would have been granted. The FDIC’s least-cost by any of the following methods: • Agency Web site: http:// include only information the institution requirement was intended to reduce www.FDIC.gov/regulations/laws/ currently possesses. This option would resolution cost and instill a greater federal/propose.html. Follow the not require a unique identity for each degree of market discipline by requiring instructions for submitting comments. depositor or that the institution supply that losses be borne by uninsured • the insurance category for each account. depositors and non-deposit creditors. E-mail: [email protected]. • • Mail: Robert E. Feldman, Executive Option 3 would require that, in The FDIC’s claims process clearly plays Secretary, Attention: Comments/Legal addition to Option 1 or Option 2, the a central role in this area. ESS, Federal Deposit Insurance largest 10 or 20 Covered institutions (in When an insured institution fails the Corporation, 550 17th Street, NW., terms of the number of deposit FDIC may pay insured depositors up to Washington, DC 20429. accounts) know the insurance status of the insurance limit (a ‘‘pay-off’’) or the • Hand Delivered/Courier: The guard their depositors at any given point in FDIC may sell the failed institution to station at the rear of the 550 17th Street time and have the capability to another FDIC-insured institution (a Building (located on F Street), on automate the placement of hard holds ‘‘purchase and assumption and debit uninsured funds as specified transaction’’). Another option is to business days between 7 a.m. and 5 p.m. 3 • Public Inspection: Comments may by the FDIC upon failure. establish a bridge bank or a The FDIC is interested in improving be inspected and photocopied in the conservatorship and transfer deposits to its ability to make insurance FDIC Public Information Center, Room that institution. Preservation of the determinations in the insured 100, 801 17th Street, NW., Washington, deposit franchise of a failed institution institutions with the largest number of DC, between 9 a.m. and 4:30 p.m. on is an important facet of minimizing deposit accounts, which currently business days. resolution costs. As a consequence, the • Internet Posting: Comments would include insured institutions with FDIC is most likely to use a bridge bank over 250,000 deposit accounts and total received will be posted without change structure in the resolution of a Covered domestic deposits over $2 billion. As of to http://www.FDIC.gov/regulations/ institution, although a pay-off or a June 30, 2005 that would include 145 laws/federal/propose.html, including purchase and assumption transaction institutions. any personal information provided. remain possibilities. Establishing a Historically the FDIC has taken bridge bank should contribute greatly to FOR FURTHER INFORMATION CONTACT: responsibility for making an insurance customer retention and minimize James Marino, Project Manager, Division determination at the time of failure potential operational difficulties, which of Resolutions and Receiverships, (202) based on the failed institution’s records. will enhance the sales premium when 898–7151 or [email protected] or A precise deposit insurance the bridge bank is privatized as part of Christopher Hencke, Counsel, Legal determination requires a specialty the final resolution transaction.4 Division, (202) 898–8839 or system to analyze depositor data and The FDIC also has a legal mandate to [email protected]. apply the insurance rules. Under pay insured deposits ‘‘as soon as SUPPLEMENTARY INFORMATION: current law an insured depository possible’’ 5 after an institution’s closure. institution is not required to calculate Although the FDIC has no statutory I. Introduction by depositor the amount of funds requirement to provide access to The FDIC seeks comment on the best exceeding the $100,000 insurance limit insured deposits within a specified time way to improve the deposit insurance (by depositor and insurance category). determination process. Three options As part of its normal practice, the 1 Section 13(c)(4)(A)(ii) of the Federal Deposit are presented for comment. FDIC obtains depositor data only at the Insurance Act (‘‘FDI Act’’), 12 U.S.C. • Option 1 would require Covered time an insured institution is in danger 1823(c)(4)(A)(ii). 2 Section 13(c)(4)(G)(i) of the FDI Act, 12 U.S.C. institutions to have installed on their of failing. These data are received in the 1823(c)(4)(G)(i). computer systems a routine that, in the weeks or months prior to failure, and 3 A bridge bank is a national bank chartered for event of failure, would automatically are obtained for the sole purpose of the purpose of temporarily carrying on the banking place a temporary hold on a portion of determining the insurance status of operations of a failed institution until a permanent solution can be crafted. See 12 U.S.C. 1821(n). The the balances in large deposit accounts. individual depositors and estimating the FDIC’s bridge bank authority applies only to the The percentage hold amount would be total amount of insured funds in the failure of a bank. In the event of the failure of an determined by the FDIC at the time of institution. The receipt of such insured savings association the FDIC could seek a failure, depending mainly on estimated depositor data is necessary for the FDIC federal thrift charter that would be operated as a conservatorship. As with a bridge bank, the new losses to uninsured depositors. These to carry out its insurance function. The thrift institution would be a temporary mechanism holds would be placed immediately options provided in this ANPR do not to facilitate a permanent resolution structure. prior to the institution reopening for alter the FDIC policy regarding the 4 Bovenzi, John F., ‘‘An FDIC Approach to business as a bridge bank, generally receipt of depositor information in Resolving a Large Bank,’’ Financial Market Behavior expected to be the next business day. preparation for the resolution of a and Appropriate Regulation Over the Business Cycle, Chicago: Federal Reserve Bank of Chicago, The institution also would need to be failing insured institution. The FDIC is May 2002, pages 56–61. able to automatically remove these aware of the potential privacy issues 5 Section 11(f)(1) of the FDI Act, 12 U.S.C. holds and debit the account, if surrounding the holding of depositor 1821(f)(1).
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after failure it places a high priority on • Retain, where feasible, the franchise adoption of new technologies and providing access to deposits promptly value of the failed institution (and thus business processes that could greatly to: minimize the FDIC’s resolution costs). increase the efficiency and timeliness of • Maintain public confidence in the Historically, most insured institution resolving a failed institution and getting banking industry and the FDIC. closures have occurred on a Thursday or depositors access to their funds. Friday. In recent years, the FDIC has • Industry consolidation raises practical Provide the best possible service to made funds available to the majority of insured depositors by minimizing depositors by the next business day, concerns about the FDIC’s current uncertainty about their status and usually the Monday following a Friday business model for conducting a deposit avoiding costly disruptions such as closing. insurance determination. Larger returned checks and a limit on their All of the insured institution failures institutions—especially those initiating ability to meet financial obligations. of the past 10 years have been of modest recent merger activity—are considerably • Mitigate the spillover effects of a size, the largest being Superior Bank, more complex, have more deposit failure, which may include risks to the FSB with total deposits at the time of accounts, greater geographic dispersion, payments system, problems stemming closure of about $2 billion and roughly more diversity of systems and data from depositor illiquidity and a 90,000 deposit accounts. This failure consistency issues arising from mergers substantial reduction in credit pattern does not overshadow the FDIC’s than has been the case historically. availability. For large failures the mandate to handle the failure of an Implications of industry consolidation potential spillover effects can be insured institution of any size. over the past 10 years can be seen in the magnified, underscoring the importance Continued industry consolidation has following table. Should such trends of a rapid resolution. Effectively caused the FDIC to reexamine its continue, deposits will become even addressing spillover effects minimizes approach to conducting a deposit more concentrated in the foreseeable the likelihood of systemic risk. insurance determination, including the future.
TABLE 1.—TOP TEN INSTITUTIONS, BY NUMBER OF DEPOSIT ACCOUNTS [In millions]
Rank 1995 2000 2005
1 ...... 11.0 36.4 47.8 2 ...... 6.5 10.9 29.1 3 ...... 3.8 9.0 22.7 4 ...... 3.6 7.9 17.4 5 ...... 3.5 7.8 16.3 6 ...... 3.3 7.2 10.3 7 ...... 3.3 6.5 9.0 8 ...... 3.2 5.5 8.7 9 ...... 3.1 5.1 6.1 10 ...... 3.0 5.0 5.0
Total ...... 44.3 101.3 172.5 Source: FDIC.
This ANPR discusses regulatory objectives of the current claims The options outlined here cannot be options for a new business model for modernization process. The deposit implemented without some regulatory insurance determinations where software vendors/servicers were asked and financial burden. The FDIC is Covered institutions would be required to consider the feasibility of the options, seeking to minimize these costs while at to facilitate the calculation of the including potential costs. Each vendor the same time ensuring that it can insurance coverage of deposit accounts. expressed a strong preference among effectively carry out its mandates to Prior to developing the options these options for Option 2 (described in make insured funds available quickly to discussed below and as part of its more detail below). The FDIC’s depositors and provide a least-cost ongoing work to improve the efficiency impression from these meetings was resolution for Covered institutions. The of the claims process, the FDIC held that Option 2 could be incorporated into FDIC would like comment on the meetings with senior examiners from the vendor’s deposit systems. Based on potential industry costs and feasibility the FDIC and other Federal banking discussions with these vendors, staff of of implementing the options (described agencies. Further, the FDIC solicited the FDIC believes the costs for Option below in more detail). The FDIC also is advice and opinions from the staff of 2 likely would be fairly modest. interested in comments on whether four large insured depository These vendor visits were followed by there are other ways to accomplish its institutions and a deposit servicer of meetings with the other Federal banking goals that might be more effective or less large institutions. agencies: The Board of Governors of the costly or burdensome. In other words, After the basic options discussed in Federal Reserve, the Office of the what approach or combination of this ANPR were developed the FDIC Comptroller of the Currency and the approaches (which may include new held meetings with four large providers Office of Thrift Supervision. Visits also alternatives) most effectively meets this of deposit software or servicing to were made to several banking trade cost/benefit tradeoff? Covered institutions. During these organizations to discuss the options and Implementation of these or similar meetings FDIC staff presented the solicit feedback. Lastly, the options options will require that the FDIC options along with substantial were presented for comment to the four amend its regulations. If changes in the background on its insurance large insured depository institutions regulations are proposed, the FDIC will determination process and the visited earlier in the process. publish a Notice of Proposed
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Rulemaking and afford the opportunity depending on the institution’s for each account. This process is part of for additional public comment before characteristics (primarily the number of the insurance determination performed any final decision is made. deposit accounts and deposit systems). on the depositor data received from a Closing out the day’s business. failed institution. II. Background Generally, on the day of an institution’s FDIC holds/debits based on insurance FDIC Insurance Coverage failure, all of the day’s check processing determination results. Accounts and deposit transactions are completed The basic insurance limit is $100,000 definitely uninsured are debited for the (not including the overdraft decision- per depositor, per insured institution. uninsured amount. Holds are placed on making process that occurs the Depositors eligible to receive insurance accounts that are deemed potentially following morning). The length of this coverage include natural persons, legal uninsured for amounts over the process can vary across institutions. For entities such as corporations, insurance limit and the account owner larger institutions this process can run partnerships and unincorporated is contacted. If additional information is into the early morning hours possibly associations, and public units. required from the depositor, a meeting ending at 4 a.m. or later. is scheduled. These meetings afford the Insurance coverage is based on the Obtain deposit data. A data file is concept of ownership rights and opportunity to collect information obtained from the institution or its necessary to finalize the insurance capacities. Deposits maintained by a servicer. Obtaining usable requisite data person or entity in different ownership determination on the possibly from the institution or its servicer uninsured depositors. rights and capacities at one institution frequently is a time-consuming process. The typical institution resolved by the are separately insured up to the The FDIC will provide the institution or FDIC does not have the capability to insurance limit. Deposits maintained in its servicer with a standard data request. post a large volume of holds the same ownership rights and The standard data request requires the capacities are added together to institution to provide approximately 45 electronically by batch. In these cases determine the insurance coverage. The data fields for each deposit account holds are placed manually usually FDIC’s rules and regulations for deposit along with electronic copies of trial through the on-line system. In two insurance coverage describe the balances and deposit application failures in the recent past the FDIC has categories of ownership rights and reconciliations. FDIC technical staff had the ability to work with capacities eligible for separate insurance works with the insured institution until programmers prior to the closing to coverage. FDIC refers to these as the standard data set requirements are create an automated method. This ‘‘ownership categories’’ (see Appendix met and the files transmitted to the required a significant amount of time A for a description of the primary FDIC can be processed properly. and availability of staff prior to the ownership categories).6 Generally, the FDIC has at least 30 failure. Automatically processing a large All types of deposits (for example, days advance warning to plan and number of holds at closing without pre- checking accounts, savings accounts, prepare for failures. Data are requested failure preparations and testing may certificates of deposit, interest checks in advance to ensure delivery result in significant operational and cashier’s checks 7) that a depositor capabilities, prove the balancing and difficulties during and after opening the has at an institution in the same reconciliation processes and make new institution for business. In one ownership category are added together certain all required fields have been instance the FDIC discovered after the before the FDIC applies the insurance included. In instances in the past, where fact that the programmed holds could limit for that category. A depositor a large depository institution not be removed by tellers under the cannot increase insurance coverage by experienced financial difficulties, direction of FDIC staff. These holds dividing funds into different accounts in liquidity pressures forced the closing of could only be removed by another the same ownership category at the the institution before it became capital program that ran in batch mode. This same institution. Similarly, in the case insolvent. As a consequence, the FDIC caused a delay in releasing funds to of joint accounts, using different co- is concerned that lengthy advanced insured customers. owner Social Security numbers on warning and early access may not be FDIC System Upgrades different accounts does not increase possible or practical for a Covered insurance coverage. In a deposit institution that becomes financially As part of its claims process review, insurance determination, the FDIC relies troubled. More limited access combined the FDIC will streamline the business upon the deposit account records of the with complexities inherent in large- processes it uses to facilitate a deposit failed institution to determine the institution deposit systems—including insurance determination. This will ownership of an account and thus the multiple deposit systems and significant involve developing a new deposit amount of insurance coverage available. data volumes—could materially delay insurance claims processing system the process of obtaining data necessary incorporating more advanced Current Deposit Insurance to conduct a deposit insurance technologies to enhance automation. Determination Process determination. These changes will improve the FDIC’s Background. The deposit insurance Process deposit data. Data are ability to process efficiently a large determination process has several steps. received and validated (including number of accounts and provide timely Each step varies in time and complexity, reconciliation to the actual trial customer support to uninsured balance). Using its Receivership depositors. In the case of a Covered 6 See also Financial Institution Employee’s Guide Liability System (‘‘RLS’’) the FDIC institution that is in danger of failing, to Deposit Insurance, Federal Deposit Insurance determines which accounts are fully enhancements to the FDIC’s claims Corporation, 2004. This publication as well as additional information on insurance coverage is insured, which are definitely uninsured system would be complemented by the available at http://www.fdic.gov/deposit/deposits/ and which are possibly uninsured options proposed in this ANPR. In index.html. (pending the collection of further particular, the FDIC is focusing on the 7 Cashiers’ checks, money orders, officers’ checks, information). The RLS automatically collection and validation of deposit data interest checks, loan checks or expense checks constitute official items. Official items are included groups accounts based on the estimated and the capability of automatically in the deposit insurance determination only if they ownership category and the name(s), debiting or placing holds on uninsured are drawn on the failed bank. address, and tax identification number or potentially uninsured accounts.
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The Banking Landscape From the the volume of daily transactions also suggest the need for different claims Claims Perspective can be important. For the purpose of approaches and methodologies. claims process planning the FDIC has Complexity: Large institutions Industry segmentation. Insured divided the industry into two segments typically have more accounts and more depository institutions can be divided as shown in Table 2. complex deposit systems. With Covered into two general categories, depending This segmentation does not result in institutions the speed of the claims on the unique issues posed during a two homogenous groups. There are process could be greatly enhanced by potential resolution. The single most profound differences among institutions the FDIC obtaining a timely data important facet determining the in each group. From the deposit claims download and improving the capability complexity of the claims process is the perspective the varying characteristics to automatically post holds or debit number of deposit accounts, although of Covered and Excluded institutions uninsured funds.
TABLE 2.—INDUSTRY SEGMENTATION.
Total Percent of domestic Percent of Segment Definition Number total deposit total (billions)
Covered ...... Total number of deposit accounts over 145 1.6 $3,982 67.1 250,000 and total domestic deposits over $2 billion. Excluded ...... All insured institutions not covered ...... 8,735 98.4 1,950 32.9
Total ...... 8,880 100.0 5,932 100.0 Source: FDIC. Note: Data are as of June 30, 2005.
Resolution structure: The resolution concerned about both the size and what the FDIC is calling a ‘‘provisional of a Covered institution is likely to complexity of the deposit operations of hold’’ on certain large deposit accounts. unfold differently compared to one of Covered institutions and the speed at The capability to post provisional holds smaller size. These differences generally which a claims process must be is not a current feature of deposit relate to the expected nature of the conducted to make funds available processing systems and would have to failure. In today’s environment a quickly to depositors and maximize the be specifically created for this purpose. critically undercapitalized institution institution’s franchise value. The provisional hold is a calculated amount based on the account type and will receive a supervisory letter III. Proposed Deposit Insurance balance. Accounts below a certain indicating it has 90 days to improve its Determination Timeline capital position, otherwise it will be threshold (for example, $50,000) would closed (capital insolvency). If the General Process be exempt from a provisional hold. institution’s capital level is not This ANPR presents three options for Based upon an initial analysis of improved during this time, a failure will discussion. Each of these options would potential losses from the failed occur, typically on a Friday. This require modifications to the deposit institution, a specified percent (for process affords the FDIC substantial systems of Covered institutions to example, 10 percent) of each account advance warning and the opportunity to facilitate the insurance determination above this size threshold would be prepare by obtaining deposit data up to process. The third option would require subject to a provisional hold. The actual 90 days in advance of failure and by the larger Covered institutions to threshold account size and hold having the opportunity to work with the determine the insurance status of each percentage would be provided by the failing institution’s information depositor. In this case the FDIC would FDIC the night the institution is closed, technology staff. rely upon institution-generated results based primarily on estimated institution Covered institutions are more likely to in the event of failure. Alternatively, the losses. The threshold size and hold fail due to liquidity reasons prior to first two options imply a process similar percentage may vary by account type becoming critically undercapitalized to that currently undertaken by the (for example, demand and NOW (liquidity insolvency). Most likely, this FDIC, but with important distinctions. accounts, savings deposits, time will be a less orderly event. Institutions The general timeline of the insurance deposits and IRAs). Once the financial more susceptible to a liquidity determination process under Options 1 institution calculates the provisional insolvency pose greater problems for the and 2 is outlined below. hold amounts, holds must be placed on FDIC. Such institutions have a less Step 1. The institution is closed, each affected account. The Hold Code predictable failure date; the failure typically at the end of the business day. legend should read ‘‘FDIC Provisional could occur on any day of the week; and Step 2. The institution’s nightly Hold.’’ The provisional holds would pre-failure access to the institution may deposit cycle is completed, a process remain in place until the insurance be limited because the institution’s which may run into the early morning determination results are determined by insolvency is difficult to anticipate. hours. This process posts the day’s the FDIC. The FDIC provisional holds Covered insured depository deposit transactions, ending with the would be removed en masse once institutions present unique challenges account balance used for deposit insurance determinations have been in the event of failure. For the smaller, insurance purposes. made by the FDIC. The FDIC will direct less-complex Covered institutions these Step 3. After the nightly deposit cycle the institution’s Operations/IT staff to challenges may be only modest; for the is processed and the ending balance reverse all provisional holds. It is larger, more complex members of the obtained for each account, the insured anticipated this will be done by using group they are more severe. The FDIC is institution’s deposit system would post the original provisional holds file and
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changing it to reverse the provisional The FDIC intends to forward percentage will be fairly modest in the holds. The FDIC provisional holds insurance results to be incorporated into failure of most Covered institutions. should be of a nature that they can be the institution’s deposit systems as soon IV. Options overridden only by IT personnel at the as possible, perhaps as quickly as the direction of the FDIC if the need arises day following the receipt of the standard The FDIC has preliminarily identified that individual provisional holds must data set. The results will dictate debits three options, each of which is be removed prior to the en masse and holds to be placed by batch in an discussed below. The FDIC invites removal. automated fashion on deposit accounts. comments on these options, as well as Step 4. After the provisional holds are The processing stream would be as other suggestions to achieve the in place the institution (most likely a follows: FDIC will notify Operations/IT objectives identified in this document. bridge bank) is ready to open for that results are available. This In addition, the FDIC seeks comments business. Posting of provisional holds notification will trigger a process on several related issues. These options must occur prior to the start of the whereby all provisional holds are are being considered only for Covered business day following failure and removed en masse using the original file institutions. appear on hold reports and the on-line to create the removal transactions. After The definition of a Covered system. The ‘‘available balance’’ must provisional holds have been removed institution is being actively considered. show the customer balance after the debit transactions and bank holds will At this point the definition includes provisional hold has been posted. be placed on accounts as determined in insured institutions with at least Step 5. The Covered institution also the process described above in items 1 250,000 deposit accounts and more than must have the capability to generate a through 3. $2 billion in domestic deposits. These standard data set of deposit account thresholds are subject to further fields necessary for the FDIC to conduct Provisional Holds research and consideration. A limited the deposit insurance determination. The steps described above would number of large insured institutions Except as discussed below for Option 1, require new features for the deposit (total assets over $20 billion) would not the standard data set would be systems of Covered institutions. These fall under this definition because they comprised of information the bank features are: (1) The creation of a have fewer than 250,000 deposit already has on hand. Principal balances, standard data set reconciled to the accounts. Inclusion of these institutions accrued interest, and record counts institution’s actual trial balance; (2) the captured as part of this process must be in the definition of ‘‘Covered’’ is being calculation of provisional holds on the considered. Further, a multi-bank reconciled to the institution’s actual basis of FDIC-specified criteria and trial balance reports or summary totals holding company could have at least placement of provisional holds after the one Covered institution while other reports. A mechanism would need to be regular deposit processing is complete in place to transmit these data quickly members do not meet the definition. for the day; (3) the capability to remove Consideration is being given to defining to the FDIC or its designated processing the provisional holds en masse and (4) vendor. as Covered other members of a multi- the ability to place bank holds by batch, Step 6. Upon receipt of the bank holding company as long as at electronically. institution’s standard data set the FDIC least one of its members meets the size will process the information to Since provisional holds enhance the thresholds listed above.10 FDIC’s ability to open a bridge bank determine the insurance status of each Option 1 account. The FDIC will generate one of quickly, it substantially increases the three possible outcomes for each potential resale value of the institution. Option 1 would require each Covered account. These holds are necessary to stop the institution (except those to which 1. Account is fully insured: remove potential outflow of uninsured funds Option 3 would apply) to have in place the provisional hold. No further action subject to risk during the first business on an ongoing basis the ability to: is required. day(s) of the bridge bank’s operations. • Identify the owner(s) of each 2. Account is definitely uninsured: At the same time depositors are account by using a unique identifier. remove the provisional hold and debit provided access to the majority of their • Identify the deposit insurance the account in the amount specified by funds. ownership category of each deposit the FDIC. Potential difficulties could arise from account. 3. Account is possibly uninsured but provisional holds, including • Supply to the FDIC a standard data further information is required by the acceleration in the number of returned set mapped and formatted to FDIC FDIC to make the final determination: items. There is a tradeoff between specifications and reconciled to the remove the provisional hold and place holding uninsured funds potentially institution’s actual trial balance. (See 8 a regular bank hold in the amount subject to loss and quickly making Appendix B for a preliminary list of 9 specified by the FDIC. funds available to depositors. The FDIC data to be included in the standard data must strike a balance in this decision- set.) 8 Bank holds should have a legend stating ‘‘FDIC making process. As a part of this • Calculate and place provisional Hold’’ and are placed for an unlimited number of balance, the FDIC could require that the holds automatically according to the days. percentage of the provisional hold differ 9 Certain trust accounts and accounts eligible for FDIC’s specifications at the end of between account type. pass-through coverage will require additional processing on any given business day. information to determine insurance status. The Historically losses on large insured • Remove provisional holds FDIC must obtain this information from the institutions have been lower as a automatically according to the FDIC’s depositor. This process may take several weeks in percent of assets compared to the the case of a relatively large Covered institution. specifications at the end of processing smaller, more typical failure. Large The bank hold with the ‘‘FDIC Hold’’ legend will on any given business day. remain in place until results are obtained. The institutions also tend to hold more results of the insurance determination on these subordinated debt and other general accounts will be passed to the institution (bridge 10 Some members of a multi-bank holding bank or assuming institution) as they become creditor claims compared to smaller company hold only a limited number of deposit available. When these accounts are processed, the institutions. These facts suggest the accounts, perhaps dictating exclusion from the deposit insurance determination will be complete. possibility that the provisional hold definition of covered.
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• Add and remove automatically the reflecting the collection of loan owners. This would be more complex FDIC-supplied holds/debits on an as- payments from borrowers. These than a standard data set that only needed basis. collected funds represent income. They included items from the deposit To ensure compliance the FDIC do not represent insured ‘‘deposits’’ systems, but it would yield substantial would test periodically a Covered because the depository institution is not benefits to the FDIC. Once the systems institution’s ability to produce the obligated to make repayment. All such had been developed and tested, how required processes.11 The testing ‘‘bank-owned accounts’’ must be much longer would it take for an process would focus on data quality and identified in the standard data set. institution to prepare a standard data set accuracy, the ability to produce quickly The volume of data to be provided in that included CIF and deposit system a standard data set meeting the FDIC’s deposit/CIF files of Covered institutions items, compared to one that included criteria, the ability to effectively submit can create time delays. In the event a only deposit system items? data and the viability of the hold Covered institution is viewed as in The FDIC would require transmitted processes. The FDIC recognizes the danger of failing, the institution would deposit balances to reconcile to the sensitivity of depositor data and the be required to quickly send or transmit actual trial balance, both balance dollar privacy issues that may arise. The FDIC data to secure FDIC sites. amounts and the record count. How believes it is possible to conduct an Questions. What would be the overall does reconciliation affect timeliness? effective testing process while on-site, cost to a Covered institution for Can the process be developed in without the need for sensitive depositor developing the capability to advance and automated? data to leave the institution’s premises. automatically post provisional holds, What is the most effective way of As each covered institution’s system remove provisional holds and transmitting data to the FDIC? would be tested periodically, the FDIC automatically process account debits Option 2 should be able to rely upon the unique and holds based on the insurance owner identifier and the insurance determination results? What would be Option 2 would require each Covered category of each account. Reliance upon the overall cost to a Covered institution institution to have in place on an these data would accelerate the for developing the capability to produce ongoing basis the ability to: insurance determination process. a formatted standard data file, link CIF • Supply to the FDIC a standard data Without these data the FDIC would have files to deposit files and prepare set mapped and formatted to FDIC to identify account owners and each balancing and reconciliation schedules? specifications and reconciled to the account’s insurance category based How expensive would it be for Covered institution’s actual trial balance. (See primarily on the name and address institutions to supply a unique Appendix B for a preliminary list of fields and tax identification numbers, as identifier for each depositor? What data to be included in the standard data is the case with the current process. would be the cost of supplying the set.) The FDIC would require certain fields insurance category for each account? • Calculate and place provisional from the customer information file How reliable would be the data holds automatically according to the (‘‘CIF’’) system such as CIF number, identifying each depositor and account FDIC’s specifications at the end of name, address, taxpayer identification insurance category? Would Covered processing on any given business day. • number and certain fields from the institutions have difficulty supplying Remove provisional holds deposit system such as account number, reliable data for any of the items listed automatically according to the FDIC’s account name, address, and principal in Appendix B, such as for bank owned specifications at the end of processing balance. The data from the CIF file and accounts? If so, which ones? Are on any given business day. • the deposit systems must be linked. Covered institutions able to identify Add and remove automatically the These data elements will be used to account owners (as opposed to trustees, FDIC-supplied holds/debits on an as- determine account owners and to managers, beneficiaries, etc.) from their needed basis. perform insurance determinations. It is files? The primary difference between proposed that Covered institutions have The deposit systems on many Covered Options 1 and 2 rests with the omission the data elements mapped and institutions use software purchased in Option 2 of the requirements to formatted to the FDIC specifications and from a small group of vendors. To what supply a unique identifier for each available to run on short notice. Further, extent would vendor-based software depositor and identify the insurance the Covered institutions would have changes help mitigate the overall category of each deposit account. The available a method to reconcile the file implementation costs of this program? data elements included in the standard to actual trial balances to ensure all Could a vendor develop the standard data set also may vary somewhat from deposit accounts were captured. Proof data set and program to pull the data those in Appendix B. Question: What is the likely cost of of reconciliation would be required. into the specified format for multiple One of the elements of the standard institutions or does each institution Option 2? What are the potential cost data set (as set forth in Appendix B) is have unique details that would prevent savings to Covered institutions from ‘‘product type.’’ In connection with this this from occurring? Option 2 compared to Option 1? Are element, an insured depository Some Covered institutions may use a there any likely operational difficulties institution must identify ‘‘accounts servicer to process deposit accounts, in implementing Option 2? and some Covered institutions may owned by bank’’ or ‘‘bank-owned Option 3 share the same deposit servicer. To what accounts.’’ This term means an account Option 3 would require the very that does not qualify as a ‘‘deposit’’ extent would implementation changes made by the servicer mitigate the costs largest of the Covered institutions to account as defined in the Federal know the insurance status of deposit Deposit Insurance Act. See 12 U.S.C. of this program? To meet the proposed standard data accounts at any given point in time.12 1813(l). For example, a depository set requirement, institutions may have institution might establish an account to link records from the CIF and the 12 This requirement would not include deposit accounts for which the Covered institution does not 11 Options 2 and 3 also would involve a testing deposit systems or provide the key or ordinarily possess the information to make the process to determine the overall quality of the linking elements so data from the CIF determination, such as accounts with pass-through results. can be linked to individual account coverage (brokered deposit accounts and trust
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Upon failure, the institution must be benefits. Depositors could benefit from Do the additional benefits merit the able to place debits/holds automatically the institutions’ ability to provide additional cost? Are there other reasons for uninsured deposits in an amount information about insurance status. If an why this approach should be preferred specified by the FDIC, so that the institution were to fail, this option or rejected? How extensive would the institution can be operational the provides that the insurance status of FDIC audit have to be to determine following business day. The FDIC is most depositors would be known at the whether institutions are correctly considering this option only for the point of failure. As a consequence, some calculating insurance coverage? largest 10 or 20 Covered institutions depositors could receive a larger portion while, if used, the remaining Covered of their funds more quickly under this Other Potential Options institutions would meet requirements option compared to the provisional hold The FDIC invites comments on all similar to those outlined under Options process contemplated in Options 1 and aspects of this proposal. In addition, the 1 or 2. Limiting the scope of this option 2. FDIC solicits suggestions on alternative to the largest Covered institutions As with Options 1 and 2, the FDIC means of meeting the objective of would help mitigate implementation would test the accuracy of systems put conducting a timely insurance costs as well as speed the insurance in place if this Option is adopted. Under determination process for the largest, these circumstances the FDIC should be determination on Covered insured most complex of the Covered able to rely upon the results generated institutions. institutions. by the insured institution for the initial Question. Is there a different approach This option would be more expensive deposit insurance determination. that would accomplish the same for Covered institutions than Options 1 Questions. How expensive would this objective at a lower financial and or 2, but it could yield additional option be compared to Options 1 or 2? regulatory cost?
APPENDIX A.—PRIMARY FDIC DEPOSIT INSURANCE CATEGORIES
Insurance category Description
1. Single Ownership ...... Funds owned by a natural person including those held by an agent or custodian, sole proprietorship accounts and accounts that fail to qualify in any other category below. Coverage extends to $100,000 per depositor. 2. Joint Ownership ...... Accounts jointly owned as joint tenants with the right of survivorship, as tenants in common or as tenants by the entirety. Coverage extends to $100,000 per co-owner. • The account title generally must be in the form of a joint account (‘‘Jane Smith & John Smith’’). • Each of the co-owners must sign the account signature card. (This requirement has exceptions, including cer- tificates of deposit.) • The withdrawal rights of the co-owners must be equal. 3. Revocable Trust ...... Accounts whereby the owner evidences an intention that upon his or her death the funds shall belong to one or more qualifying beneficiaries. For each owner, coverage extends to $100,000 per beneficiary. • The title of the account must include ‘‘POD’’ (payable-on-death) or ‘‘trust’’ or some similar term. • The beneficiaries must be specifically named in the account records. (This requirement applies to informal ‘‘POD’’ accounts but does not apply to formal ‘‘living trust’’ accounts.) • The beneficiaries must be the owner’s spouse, children, grandchildren, parents or siblings. 4. Irrevocable Trust ...... Accounts established pursuant to an irrevocable trust agreement. Coverage extends to $100,000 per beneficiary. • The account records must indicate that the funds are held by the trustee pursuant to a fiduciary relationship. • The account must be supported by a valid irrevocable trust agreement. • Under the trust agreement, the grantor of the trust must retain no interest in the trust funds. • For ‘‘per beneficiary’’ coverage, the interest of the beneficiary must be ‘‘non-contingent.’’ 5. Self-Directed Retirement .. Individual retirement accounts under 26 U.S.C. § Retirement 408(a), eligible deferred compensation plans under 26 U.S.C. § 457, self-directed individual account plans under 29 U.S.C. § 1002 and self-directed Keogh plans under 26 U.S.C. § 401(d). Coverage extends to $100,000 per owner or participant. • The account records must indicate that the account is a retirement account. • The account must be an actual retirement account under the cited sections of the Tax Code. 6. Corporation, Partnership Accounts of a corporation, partnership or unincorporated association. Coverage extends to Unincorporated or Unincorporated Asso- $100,000 per entity. ciation. • The account records must indicate that the entity is the owner of the funds or that the nominal accountholder is merely an agent or custodian (with the entity’s ownership interest reflected by the custodian’s records). • The entity must be engaged in an ‘‘independent activity.’’ • The entity must not be a sole proprietorship (which is treated as a single ownership account). 7. Employee Benefit Plan .... Deposits of an employee benefit plan as defined at 29 U.S.C. 1002, including any plan described at 26 U.S.C. 401(d), and also deposits of an eligible deferred compensation plan described at 26 U.S.C. 457. Coverage ex- tends to $100,000 per participant. • The account records must indicate that the funds are held by the plan administrator pursuant to a fiduciary re- lationship. • The account must be supported by a valid employee benefit plan agreement. • For ‘‘per participant’’ coverage: Æ The interests of the participants must be ascertainable and non-contingent. Æ The institution must have been well capitalized (or adequately capitalized in some cases) when the initial and subsequent deposits were made.
accounts, for example) and certain informal trust death’’ or ‘‘in-trust-for’’ accounts) where information on beneficiaries may be necessary for accounts (also referred to as either ‘‘payable-on- the determination.
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APPENDIX A.—PRIMARY FDIC DEPOSIT INSURANCE CATEGORIES—Continued
Insurance category Description
8. Public Unit ...... Funds of ‘‘public units’’ or ‘‘political subdivisions’’ thereof. Coverage extends to $100,000 for interest bearing de- posits and $100,000 for non interest bearing deposits for each official custodian of the public unit or subdivi- sion. • For separate coverage for the non interest bearing deposits, the insured financial institution must be located (including branch locations) in the same state as the public unit. • The account records must indicate that the funds are held by the custodian in a custodial capacity. • For ‘‘per custodian’’ coverage, the custodian must be a separate ‘‘official custodian.’’ • For ‘‘per subdivision’’ coverage, the governmental entity must be a separate ‘‘political subdivision.’’
Appendix B. Data Elements Included in one file but, if necessary due to system requested. The fields are listed in the the Standard Data Set constraints, multiple files might be order they would appear in the file. used. For identification purposes the Header Record This appendix presents a standard Header record in each file must be data request containing proposed data created. If data or information are not The Header Record provides fields to be used by the FDIC to maintained or do not apply, a null value information specific to the institution, determine the insured status of each in the appropriate field should be the effective date of the data and the account. The proposed file is divided indicated. date and time the file was created. The into four record types: Header, Deposit, The following is a list of the data Header Record must be at the beginning Hold, and Customer. It would be fields proposed to be included in the of each file if multiple files are preferred that all data are included in file with explanations of the data being submitted.
Field name FDIC field description
1. HD_Record_ID ...... Record ID Enter ‘‘1’’ in this field. 1. HD_Acct_Numb ...... Header Account Number Enter ‘‘0000000000000000’’ in this field. 1. HD_File_Date ...... File Date—This field identifies the ‘‘as-of-date’’ of the file. Enter the effective date of the data being supplied in this request. Must be entered in MMDDYYYY format. 1. HD_FI_Name ...... Financial Institution Name—Enter the institution’s name as it appears on the FDIC Certificate. 1. HD_FI_Number ...... Financial Institution Number—Enter the institution’s FDIC certificate/institution number. 1. HD_Dt_Created ...... Date & Time Created—Enter the date and time in MMDDYYYYHHmmSS format.
Deposit Record relate to the account name and address may simply provide multiple lines for information. Some systems provide for name, address, city, state, ZIP, with no The Deposit Record provides separate fields for account title/name, distinction. Populate fields that best fit information specific to deposit account address, city, state, ZIP, and country, all system data—either fields 14–21 or balances and account data. Fields 14–27 of which are parsed out. Other systems fields 22–27.
Field name FDIC field description
0. DP_Record_ID ...... Record ID—Enter ‘‘2’’ in this field. 0. DP_Acct_Numb ...... Account Number—The unique number assigned by the institution to this account. 0. DP_Acct_Numb_ID ...... Account Number ID—Account number field that further identifies the account. May be used to identify separate deposits tied to this account where there are different processing parameters, i.e. interest rates, maturity dates, but all owners are the same. 0. DP_Tax_ID ...... Tax ID—Provide the tax ID number maintained on the account. For consumer accounts, typically, this would be the primary account holder’s Social Security number. For business accounts it would be the Federal tax identi- fication number. 0. DP_Tax_Code ...... Tax ID Code—This field should identify the type of the tax ID number. Valid values are: • S = Social Security number. • T = Federal tax identification number. • O = Other. 0. DP_Branch ...... Branch—This field should identify the branch associated with the account. It may be where the account was origi- nally opened. 0. DP_Cost_Center ...... Cost Center—Identifier used for organization reporting or ownership of the account. It may be the same as the Branch number. 0. DP_Owner_Ind ...... Customer Owner Indicator—This field is used to identify the type of ownership. This information will assist the FDIC to further categorize the account into the FDIC insurance categories. Valid values are: • S = Single or primary owner • J = Joint or secondary owner (also include DBA’s in this code) • T = Trust account • P = Partnership account • C = Corporation. • B = Brokered deposits • O = Other
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Field name FDIC field description
0. DP_Prod_Type ...... Product Type—This field is used to identify the type of the product from a customer perspective. This information will assist the FDIC to properly categorize the account into the FDIC insurance categories. Valid values in the field are: • CON = Personal or consumer accounts. • BUS = Business. • NPR = Non-profit accounts. • GOV = Accounts held by government entities (city, state, political subdivisions). • FIN = Accounts held by other financial institutions. • INT = Internal accounts or bank-owned accounts. • OTH = Other. 0. DP_Prod_Cat ...... Product Category—This is a broad classification of products and accounts. Valid values in the field are: • DDA = Non-interest bearing checking accounts. • NOW = Interest bearing checking accounts. • MMA = Money market accounts. • SAV = Savings accounts and money market savings accounts. This includes any interest bearing accounts with regulated withdrawal requirements. • CDS = Time deposit accounts and certificate of deposit accounts. Include any accounts with specified maturity dates that may or may not be renewable. • REP = Repurchase agreements. Include any accounts supported by an agreement to repurchase the deposit at a specified date and interest rate, and is secured by designated securities owned by the institution. • IRA = Individual retirement accounts. • OTH = Other. 0. DP_Ret_Ind ...... Retirement Indicator—This field is used to identify whether the account is considered any type of retirement prod- uct. Valid values are: • Y = Yes, the account is a retirement account. • N = No, the account is not a retirement account. 0. DP_Stat_Code ...... Status Code—Include only the following status or condition of the account. Valid values are: • O = Open. • C = Closed. • D = Dormant. • I = Inactive 0. DP_Short_Name ...... Short Name—This field will assist in creating an alpha list of accounts. The format preference for personal ac- counts is last name or partial last name followed by first name. For business accounts enter the name of the account. Variances to this should be explained in a Mapping document. If a similar field does not exist, create a ‘‘Short Name’’ by concatenating data using related fields. 0.DP_Acct_Title_1 ...... Account Title Line 1—Two lines (fields 14 & 15) are provided to enter account styling or titling of the account. These data will be used to identify the owners of the account. 0. DP_Acct_Title_2 ...... Account Title Line 2—Additional account title line. 0. DP_Address_Line_1 ...... Address Line 1—Two lines (fields 16 & 17) are provided to enter the street, PO box, suite number, etc. of the ad- dress. 0. DP_Address_Line_1 ...... Address Line 2—Additional address line. 0. DP_City ...... City—Enter the city associated with the mailing address. 0. DP_State ...... State—Enter the state abbreviation associated with the mailing address. 0. DP_ZIP ...... ZIP—This field allows for the ZIP+4 code associated with the mailing address. 0. DP_Country ...... Country—This field should identify the country associated with the mailing address. Provide the name of the country or the standard country code. 0. DP_NA_Line_1 ...... Name or Address Line 1—Six lines (fields 22–27) are provided to enter the name and/or the account mailing ad- dress if your system does not distinguish particular address lines. 0. DP_NA_Line_2 ...... Name & Address Line 2—Additional name and/or address line. 0. DP_NA_Line_3 ...... Name & Address Line 3—Additional address line. 0. DP_NA_Line_4 ...... Name & Address Line 4—Additional address line. 0. DP_NA_Line_5 ...... Name & Address Line 5—Additional address line. 0. DP_NA_Line_6 ...... Name & Address Line 6—Additional address line. 0. DP_Cur_Bal ...... Current Balance—This amount represents the current balance in the account at the end of business on the effec- tive date of this file. This balance should not be reduced by float or holds. For CDs and time deposits, it should reflect the principal balance plus any interest paid and available for withdrawal that is not already included in the principal. The total of all Current Balances in this file should reconcile to the total liabilities on the financial institutions general ledger. 0. DP_Int_Rate ...... Interest Rate—The current interest rate in effect for interest bearing accounts. 0. DP_Bas_Days ...... Basis Days—Indicates the basis on which interest is to be paid. Valid values are: • 1 = 30/360. • 2 = 30/365. • 3 = 365/365 (actual/actual). 0. DP_Int_Type ...... Interest Type—Indicates the type of interest to be paid. Valid values are: • S = Simple. • D = Daily compounding. • C = Continuous compounding. • O = Other. 0. DP_Int_Factor ...... Interest Rate Daily Factor—This field should reflect the daily interest rate factor for generating interest. 0. DP_Acc_Int ...... Accrued Interest—This amount should reflect the amount of interest that has been earned but not yet paid to the account as of the date of the file. 0. DP_Lst_Int_Pd ...... Date Last Interest Paid—This should indicate the date thru which interest was last paid to the account. Must be entered in MMDDYYYY format.
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Field name FDIC field description
0. DP_Int_Pd_YTD ...... Interest Paid YTD—The amount of interest that has been paid to the account this year. Must be entered in MMDDYYYY format. 0. DP_Nxt_Mat ...... Date Next Maturity—For CD and time deposit accounts, this is the next date the account is to mature. For non- renewing CDs that have matured and are waiting to be redeemed this date may be in the past. Must be en- tered in MMDDYYYY format. 0. DP_Res_Acct_Ind ...... Reserve Account Indicator—Identifies accounts with a reserve or overdraft protection feature tied to this account and is not identified by another account number or identifier. It is not an Overdraft Limit that allows the deposit account to be overdrawn. Rather, it is considered a ‘‘loan’’ to be advanced to the account in the event of an overdraft. 0. DP_Res_Out_Bal ...... Reserve Account Outstanding Balance—Provide the outstanding balance of a reserve or overdraft protection fea- ture. This balance is not reflected in the accounts deposit current balance. This is not an Overdraft Limit. Rath- er, in the event that proceeds are advanced to cover an overdraft, the balance that remains outstanding to be paid back to the account. This balance may include a finance charge. 0. DP_Lst_Deposit ...... Date Last Deposit—This date should reflect the last deposit transaction posted to the account. For example, a deposit that included checks and/or cash. Must be entered in MMDDYYYY format. 0. DP_Open_Dt ...... Account Open Date—This date should reflect the date the account was opened. If the account had previously been closed and re-opened, this should reflect the most recent re-opened date. Must be entered in MMDDYYYY format.
Hold Record account. If an account has more than The Hold Record provides one hold, additional Hold Records may information related to any holds on an be provided.
Field name FDIC field description
2. HD_Record_ID ...... Record ID—Enter ‘‘3’’ in this field. 2. HD_Acct_Numb ...... Account Number—The account number associated with the hold. This should be the same as the account number in Deposit Record field #2. 2. HD_Hold_Amt ...... Hold Amount—Dollar amount of the hold. 2. HD_Hold_Reason ...... Hold Reason—Reason for the hold. Valid values are: LN = Loan collateral hold. UC = Uncollected funds hold. OT = Other—bank defined. 2. HD_Hold_Desc ...... Hold Description—Description of the hold available on the system. 2. HD_Hold_Days ...... Hold Days—The Number of days the hold was/is intended. May be used instead of an expiration date. 2. HD_Hold_Start_Dt ...... Hold Start Date—The date the hold was initiated. Must be entered in MMDDYYYY format. 8. HD_Hold_Exp_Dt ...... Hold Expiration Date—The date the hold is to expire. Must be entered in MMDDYYYY format. May be used instead of number of hold days.
Customer Record separate fields for account name: ‘‘last which are parsed out. Other systems name’’ and ‘‘first name’’ for personal may simply provide multiple lines for The Customer Record provides accounts or ‘‘company name’’ for name, address, city, state, ZIP, with no information related to each customer business accounts, all of which are distinction. Fields 14–18 are provided if associated with an account. Therefore, parsed out. Other systems simply your systems do not distinguish multiple customer records associated provide one line for a name. Populate with each deposit account number between the different elements fields that best fit system data. associated with a name and address. found in the Deposit Record should be Fields 12–17 relate to customer indicated. Populate fields that best fit system address information. Some systems data—either fields 12–17 or fields 14– Fields 8–11 relate to the customer provide for separate fields for address, 18. name. Some systems provide for city, state, ZIP, and country, all of
Field name FDIC field description
1. CS_Record_ID ...... Record ID—Enter ‘‘4’’ in this field. 2. CS_Acct_Numb ...... Account Number—The deposit account number. Should be the same as the account number in Deposit Record field #2. 3. CS_Cust_Numb ...... Customer Number—The number assigned to the customer in the customer information system. 4. CS_Tax_ID ...... Customer Tax ID Number—Provide the tax ID number on record for the customer. 5. CS_Tax_Code ...... Customer Tax ID Code—This field should identify the type of the tax ID number of the customer. Valid values are: • S = Social Security number. • T = Federal tax identification number. • F = Foreign accounts. • O = Other.
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Field name FDIC field description
6. CS_Rel_Code ...... Relationship Code—This code indicates how the customer is related to the account. Valid values are: • P = Primary owner. • S = Secondary owner. • B = Beneficiary. • T = Trustee. • O = Other. • U = Unknown. 7. CS_Bene_Code ...... Beneficiary Type Code—If the customer is considered a beneficiary, enter the type of account associated with this customer. This includes beneficiaries on retirement accounts, trust accounts, minor accounts, and payable- on-death accounts. Valid values are: • I = IRA. • T = Trust—irrevocable. • R = Trust—revocable. • M = Uniform gift to minor. • P = Payable on death. • O = Other. 8. CS_Name ...... Customer Name—The name of the customer. Provide in the Mapping document the typical format the bank prac- tices for business customers and personal/individual customers; i.e., last name first, first name last. 9. CS_Last_Name ...... Customer Last Name—The last name of the individual/personal customer. 10. CS_First_Name ...... Customer First Name—The first name of the individual/personal customer. 11. CS_Comp_Name ...... Customer Company Name—The company name of the business customer. 0. CS_Address_1 ...... Address Line 1—Two lines (fields 10 & 11) are provided to enter the street, P.O. box, suite number, etc. of the address. 0. CS_Address_2 ...... Address Line 2—Additional address field. 0. CS_City ...... City—Enter the city associated with the mailing address of the customer. 0. CS_State ...... State—Enter the state abbreviation associated with the mailing address of the customer. 0. CS_ZIP ...... ZIP—This field allows for the ZIP+4 code associated with the mailing address of the customer. 0. CS_Country ...... Country—This field should identify the country associated with the mailing address. Provide the name of the country or the standard country code. 0. CS_NA_Line_1 ...... Customer Name & Address Line 1—The name and/or address of the customer. 0. CS_NA_Line_2 ...... Customer Name & Address Line 2—Additional name and/or address line. 0. CS_NA_Line_3 ...... Customer Name & Address Line 3—Additional address line. 0. CS_NA_Line_4 ...... Customer Name & Address Line 4—Additional address line. 0. CS_NA_Line_5 ...... Customer Name & Address Line 5—Additional address line. 0. CS_Birth_Dt ...... Customer Birth Date—The birth date on record for the customer. Must be entered in MMDDYYYY format. 0. CS_Telephone Customer Telephone Number—The telephone number on record for the customer. 0. CS_Email ...... Customer Email Address—The email address on record for the customer.
* * * * * SUMMARY: The FAA proposes to adopt a instructions for sending your comments Dated at Washington, DC, this 5th day of new airworthiness directive (AD) for electronically. December, 2005. certain Boeing Model 757–200 and –300 • Government-wide rulemaking Web By order of the Board of Directors. series airplanes. This proposed AD site: Go to http://www.regulations.gov Federal Deposit Insurance Corporation. would require installing clamps on and follow the instructions for sending certain end caps of the overhead your comments electronically. Robert E. Feldman, distribution ducts, and doing other • Mail: Docket Management Facility, Executive Secretary. specified and related investigative U.S. Department of Transportation, 400 [FR Doc. 05–23986 Filed 12–12–05; 8:45 am] actions as necessary. This proposed AD Seventh Street SW., Nassif Building, BILLING CODE 6714–01–P results from finding that the end caps of room PL–401, Washington, DC 20590. the overhead distribution ducts for the • Fax: (202) 493–2251. air conditioning system were not • Hand Delivery: Room PL–401 on DEPARTMENT OF TRANSPORTATION bonded to the ducts with an adhesive. the plaza level of the Nassif Building, We are proposing this AD to detect and 400 Seventh Street, SW., Washington, Federal Aviation Administration correct loosened end caps, which could DC, between 9 a.m. and 5 p.m., Monday change the air flow balance in the through Friday, except Federal holidays. 14 CFR Part 39 airplane. During a smoke event in the Contact Boeing Commercial [Docket No. FAA–2005–23282; Directorate cargo or main electronics compartments, Airplanes, P.O. Box 3707, Seattle, Identifier 2005–NM–210–AD] the incorrect balance of air flow could Washington 98124–2207, for the service change the smoke clearance air capacity RIN 2120–AA64 information identified in this proposed and result in smoke and toxic fumes AD. Airworthiness Directives; Boeing penetrating the flight deck and main FOR FURTHER INFORMATION CONTACT: Model 757–200 and –300 Series cabin. Barbara Mudrovich, Aerospace Airplanes DATES: We must receive comments on Engineer, Cabin Safety and this proposed AD by January 27, 2006. Environmental Systems Branch, ANM– AGENCY: Federal Aviation 150S, FAA, Seattle Aircraft Certification Administration (FAA), Department of ADDRESSES: Use one of the following Office, 1601 Lind Avenue, SW., Renton, Transportation (DOT). addresses to submit comments on this proposed AD. Washington 98055–4056; telephone ACTION: Notice of proposed rulemaking • DOT Docket Web site: Go to (425) 917–6477; fax (425) 917–6590. (NPRM). http://dms.dot.gov and follow the SUPPLEMENTARY INFORMATION:
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Comments Invited specified on the overhead duct assembly Clarification of Compliance Time We invite you to submit any relevant drawing. The bead on the end of ducts The service bulletins specify written data, views, or arguments alone will not keep the end caps from installing the clamps in 36 months or regarding this proposed AD. Send your loosening. A loosened end cap could less, or 12,000 flight hours or less from comments to an address listed in the change the air flow balance in the the release date of the service bulletin. ADDRESSES section. Include the docket airplane. This condition, if not However, the proposed AD would number ‘‘FAA–2005–23282; Directorate corrected, could change the smoke require installing the clamps within Identifier 2005–NM–210–AD’’ at the clearance air capacity during a smoke 12,000 total flight hours or within 36 beginning of your comments. We event in the cargo compartment or main months after the effective date of this specifically invite comments on the electronics compartments and result in AD, whichever is first. smoke and toxic fumes penetrating the overall regulatory, economic, Clarification of Inspection Terminology environmental, and energy aspects of flight deck and main cabin. Figure 1 of both service bulletins the proposed AD. We will consider all Relevant Service Information specifies to inspect the end caps comments received by the closing date We have reviewed Boeing Special and may amend the proposed AD in ‘‘visually.’’ This proposed AD, however, Attention Service Bulletins 757–21– would require doing a general visual light of those comments. 0106 (for Model 757–200 series We will post all comments we inspection of the end caps. Paragraph airplanes) and 757–21–0107 (for Model 3.A. of the service bulletin includes the receive, without change, to http:// 757–300 series airplanes), both dated dms.dot.gov, including any personal definition for a general visual March 24, 2005. Boeing Special inspection. information you provide. We will also Attention Service Bulletin 757–21–0106 post a report summarizing each describes procedures for installing Costs of Compliance substantive verbal contact with FAA clamps on the end caps of the overhead There are about 63 airplanes of the personnel concerning this proposed AD. distribution ducts at stations 864.9, affected design in the worldwide fleet. Using the search function of that Web 866.6, and 875. Boeing Special This proposed AD would affect about 37 site, anyone can find and read the Attention Service Bulletin 757–21–0107 airplanes of U.S. registry. The proposed comments in any of our dockets, describes procedures for installing actions would take about 1 work hour including the name of the individual clamps on the end caps of the overhead per airplane, at an average labor rate of who sent the comment (or signed the distribution ducts at stations 864.88 and $65 per work hour. Required parts comment on behalf of an association, 875. The service bulletins also describe would cost between $20 and $40 per business, labor union, etc.). You may procedures for doing other specified and airplane, depending on airplane review DOT’s complete Privacy Act related investigative actions if configuration. Based on these figures, Statement in the Federal Register necessary. The other specified actions the estimated cost of the proposed AD published on April 11, 2000 (65 FR include the following: for U.S. operators is between $3,145 and 19477–78), or you may visit http:// • Removing any tie straps, if $3,885, or between $85 and $105 per dms.dot.gov. installed, from the end caps of the airplane, depending on airplane Examining the Docket overhead distribution ducts. configuration. • Pushing each end cap against the Authority for this Rulemaking You may examine the AD docket on end of the overhead duct all the way the Internet at http://dms.dot.gov, or in around. Title 49 of the United States Code person at the Docket Management • Torquing the clamps. specifies the FAA’s authority to issue Facility office between 9 a.m. and 5 The related investigative actions rules on aviation safety. Subtitle I, p.m., Monday through Friday, except include the following: section 106, describes the authority of Federal holidays. The Docket • Visually inspecting the end caps to the FAA Administrator. Subtitle VII, Management Facility office (telephone ensure that each end cap has been Aviation Programs, describes in more (800) 647–5227) is located on the plaza pushed against the overhead duct all the detail the scope of the Agency’s level of the Nassif Building at the DOT way around. authority. street address stated in the ADDRESSES • Ensuring that there is no air leakage We are issuing this rulemaking under section. Comments will be available in from the end caps of the overhead ducts the authority described in subtitle VII, the AD docket shortly after the Docket in the flight and passenger part A, subpart III, section 44701, Management System receives them. compartments in accordance with ‘‘General requirements.’’ Under that Discussion certain chapters of the Boeing 757 section, Congress charges the FAA with Airplane Maintenance Manual. promoting safe flight of civil aircraft in We have received a report indicating Accomplishing the actions specified air commerce by prescribing regulations that the airplane manufacturer found in the service information is intended to for practices, methods, and procedures that the end caps of the overhead adequately address the unsafe the Administrator finds necessary for distribution ducts of the air condition. safety in air commerce. This regulation conditioning system were not bonded to is within the scope of that authority FAA’s Determination and Requirements the ducts with an adhesive. The parts because it addresses an unsafe condition of the Proposed AD manufacturer determined from a records that is likely to exist or develop on check that none of the overhead duct We have evaluated all pertinent products identified in this rulemaking assemblies had end caps bonded to the information and identified an unsafe action. ducts. Instead, the overhead duct condition that is likely to exist or assemblies had been delivered with develop on other airplanes of this same Regulatory Findings plastic tie straps to hold the end caps type design. For this reason, we are We have determined that this onto the ducts. In some cases, the proposing this AD, which would require proposed AD would not have federalism airplane manufacturer’s mechanics accomplishing the actions specified in implications under Executive Order removed the plastic tie straps from the the service information described 13132. This proposed AD would not end caps because the tie straps are not previously. have a substantial direct effect on the
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States, on the relationship between the for the air conditioning system were not DEPARTMENT OF TRANSPORTATION national Government and the States, or bonded to the ducts with an adhesive. We are on the distribution of power and issuing this AD to detect and correct Federal Aviation Administration responsibilities among the various loosened end caps, which could change the levels of government. air flow balance in the airplane. During a 14 CFR Part 39 smoke event in the cargo or main electronics For the reasons discussed above, I [Docket No. FAA–2005–23284; Directorate compartments, the incorrect balance of air certify that the proposed regulation: Identifier 2005–NM–163–AD] 1. Is not a ‘‘significant regulatory flow could change the smoke clearance air action’’ under Executive Order 12866; capacity and result in smoke and toxic fumes RIN 2120–AA64 2. Is not a ‘‘significant rule’’ under the penetrating the flight deck and main cabin. DOT Regulatory Policies and Procedures Airworthiness Directives; BAE Compliance (44 FR 11034, February 26, 1979); and Systems (Operations) Limited Model 3. Will not have a significant (e) You are responsible for having the BAe 146 and Avro 146–RJ Airplanes actions required by this AD performed within economic impact, positive or negative, AGENCY: Federal Aviation on a substantial number of small entities the compliance times specified, unless the actions have already been done. Administration (FAA), Department of under the criteria of the Regulatory Transportation (DOT). Flexibility Act. Service Bulletin References ACTION: We prepared a regulatory evaluation Notice of proposed rulemaking of the estimated costs to comply with (f) The term ‘‘service bulletin,’’ as used in (NPRM). this proposed AD and placed it in the this AD, means the Accomplishment Instructions of the following service SUMMARY: The FAA proposes to AD docket. See the ADDRESSES section bulletins, as applicable: supersede an existing airworthiness for a location to examine the regulatory (1) For Model 757–200 series airplanes: directive (AD) that applies to certain evaluation. Boeing Special Attention Service Bulletin BAE Systems (Operations) Limited List of Subjects in 14 CFR Part 39 757–21–0106, dated March 24, 2005; and Model BAe 146 and Avro 146–RJ airplanes. The existing AD requires one- Air transportation, Aircraft, Aviation (2) For Model 757–300 series airplanes: time inspections of the inner webs and safety, Safety. Boeing Special Attention Service Bulletin 757–21–0107, dated March 24, 2005. flanges at frames 15, 18, 41, and 43 for The Proposed Amendment evidence of corrosion or cracking; and Install Clamps Accordingly, under the authority corrective actions if necessary. This delegated to me by the Administrator, (g) Within 12,000 flight hours or 36 months proposed AD would instead require new after the effective date of this AD, whichever the FAA proposes to amend 14 CFR part repetitive inspections and expand the is first: Install clamps on the end caps of the 39 as follows: area to be inspected. This proposed AD overhead distribution ducts of the air would also expand the applicability and PART 39—AIRWORTHINESS conditioning system at stations 864.88, 864.9, provide an optional action that would DIRECTIVES 866.6, and 875, as applicable, and before extend the repetitive inspection further flight do any other specified and interval. This proposed AD results from 1. The authority citation for part 39 related investigative actions as applicable, by a report indicating that in some cases continues to read as follows: doing all of the applicable actions specified the inspections required by the existing Authority: 49 U.S.C. 106(g), 40113, 44701. in the applicable service bulletin. AD revealed no damage, yet frame Alternative Methods of Compliance corrosion and cracking were later found § 39.13 [Amended] (AMOCs) during scheduled maintenance in the 2. The Federal Aviation (h)(1) The Manager, Seattle Aircraft two forward fuselage frames 15 and 18. Administration (FAA) amends § 39.13 Certification Office, FAA, has the authority to We are proposing this AD to prevent by adding the following new approve AMOCs for this AD, if requested in reduced structural integrity of the airworthiness directive (AD): accordance with the procedures found in 14 airplane. Boeing: Docket No. FAA–2005–23282; CFR 39.19. DATES: We must receive comments on Directorate Identifier 2005–NM–210–AD. (2) Before using any AMOC approved in this proposed AD by January 12, 2006. Comments Due Date accordance with § 39.19 on any airplane to ADDRESSES: Use one of the following which the AMOC applies, notify the (a) The FAA must receive comments on addresses to submit comments on this appropriate principal inspector in the FAA this AD action by January 27, 2006. proposed AD. Flight Standards Certificate Holding District • DOT Docket Web site: Go to Affected ADs Office. http://dms.dot.gov and follow the (b) None. Issued in Renton, Washington, on instructions for sending your comments Applicability December 6, 2005. electronically. • (c) This AD applies to airplanes identified Kevin M. Mullin, Government-wide rulemaking Web site: Go to http://www.regulations.gov in paragraphs (c)(1) and (c)(2) of this AD, Acting Manager, Transport Airplane certificated in any category. Directorate, Aircraft Certification Service. and follow the instructions for sending (1) Boeing Model 757–200 series airplanes, your comments electronically. [FR Doc. 05–23956 Filed 12–12–05; 8:45 am] having certain variable numbers as identified • Mail: Docket Management Facility; in Boeing Special Attention Service Bulletin BILLING CODE 4910–13–P U.S. Department of Transportation, 400 757–21–0106, dated March 24, 2005. Seventh Street SW., Nassif Building, (2) Boeing Model 757–300 series airplanes, room PL–401, Washington, DC 20590. having certain variable numbers as identified • Fax: (202) 493–2251. in Boeing Special Attention Service Bulletin • Hand Delivery: Room PL–401 on 757–21–0107, dated March 24, 2005. the plaza level of the Nassif Building, Unsafe Condition 400 Seventh Street SW., Washington, (d) This AD results from finding that the DC, between 9 a.m. and 5 p.m., Monday end caps of the overhead distribution ducts through Friday, except Federal holidays.
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Contact British Aerospace Regional BAE Systems (Operations) Limited in the structural repair manual (SRM), Aircraft American Support, 13850 Model BAe 146 and Avro 146–RJ and reprotecting all base metals to SRM Mclearen Road, Herndon, Virginia airplanes. That AD requires one-time specifications. The service bulletin 20171, for service information identified inspections of the inner webs and provides for an optional corrosion- in this proposed AD. flanges at frames 15, 18, 41, and 43 for preventive treatment, which would FOR FURTHER INFORMATION CONTACT: Dan evidence of corrosion or cracking; and extend the repetitive inspection Rodina, Aerospace Engineer, corrective actions if necessary. That AD interval. International Branch, ANM–116, FAA, resulted from a report of cracking The service bulletin recommends that Transport Airplane Directorate, 1601 discovered at the inner webs and flanges the oldest airplanes be inspected within Lind Avenue, SW., Renton, Washington at frame 18, caused by an ingress of 6 months, and newer airplanes within 98055–4056; telephone (425) 227–2125; moisture and subsequent corrosion. We 12 or 24 months, depending on fax (425) 227–1149. issued that AD to detect and correct specified criteria. The service bulletin SUPPLEMENTARY INFORMATION: corrosion and cracking of the inner provides additional time to complete webs and flanges at frames 15, 18, 41, the inspections for operators with more Comments Invited and 43, which could result in reduced than 6 airplanes over 180 months in We invite you to submit any relevant structural integrity of the airplane. their fleet. The repetitive intervals range written data, views, or arguments Actions Since Existing AD Was Issued from 12 to 48 months, depending on regarding this proposed AD. Send your specified criteria. Since we issued AD 2004–01–07, we comments to an address listed in the Accomplishing the actions specified have learned that in some cases the ADDRESSES section. Include the docket in the service information is intended to required inspections revealed no number ‘‘Docket No. FAA–2005–23284; adequately address the unsafe damage, yet frame corrosion and Directorate Identifier 2005–NM–163– condition. The CAA mandated the cracking were later found during AD’’ at the beginning of your comments. service information and issued British scheduled maintenance in the two We specifically invite comments on the airworthiness directive G–2005–0019, forward fuselage frames 15 and 18. overall regulatory, economic, dated July 6, 2005, to ensure the Consequently, BAe Systems developed environmental, and energy aspects of continued airworthiness of these the new inspections described below. the proposed AD. We will consider all airplanes in the United Kingdom. comments received by the closing date Relevant Service Information and may amend the proposed AD in FAA’s Determination and Requirements light of those comments. The manufacturer has issued BAE of the Proposed AD We will post all comments we Systems (Operations) Limited Inspection Service Bulletin ISB.53–182, These airplane models are receive, without change, to http:// manufactured in the United Kingdom dms.dot.gov, including any personal dated March 16, 2005. In contrast to and are type certificated for operation in information you provide. We will also BAE Systems (Operations) Limited the United States under the provisions post a report summarizing each Inspection Service Bulletin ISB.53–165, of section 21.29 of the Federal Aviation substantive verbal contact with FAA dated December 11, 2001 (cited in AD Regulations (14 CFR 21.29) and the personnel concerning this proposed AD. 2004–01–07), this new service bulletin applicable bilateral airworthiness Using the search function of that Web provides a more rigorous inspection of agreement. Pursuant to this bilateral site, anyone can find and read the the frame flanges and an overall airworthiness agreement, the CAA has comments in any of our dockets, inspection of the frames; expands the kept the FAA informed of the situation including the name of the individual inspection area to the full circumference described above. We have examined the who sent the comment (or signed the of the frame; and includes the optional comment on behalf of an association, application of improved corrosion- CAA’s findings, evaluated all pertinent business, labor union, etc.). You may preventive treatment, which would information, and determined that AD review the DOT’s complete Privacy Act extend the repetitive inspection action is necessary for airplanes of this Statement in the Federal Register interval. The service bulletin describes type design that are certificated for published on April 11, 2000 (65 FR procedures for repetitive inspections of operation in the United States. 19477–78), or you may visit http:// frames 15, 18, 41, and 43 to detect signs This proposed AD would supersede dms.dot.gov. of corrosion (including cracks, AD 2004–01–07. This proposed AD blistering, or flaking paint). would require accomplishing the Examining the Docket • Inspection 1 involves a high- actions specified in Service Bulletin You may examine the AD docket on frequency eddy current (HFEC) ISB.53–182, described previously, the Internet at http://dms.dot.gov, or in inspection of the frame inner flange and except as discussed below. person at the Docket Management a detailed visual inspection of all visible Difference Between the Proposed AD Facility office between 9 a.m. and 5 surfaces of the frame below the floor. and Service Information p.m., Monday through Friday, except • Inspection 2 involves an HFEC Federal holidays. The Docket inspection of the frame inner flange and The service bulletin specifies Management Facility office (telephone a detailed visual inspection of all visible compliance times relative to the date of (800) 647–5227) is located on the plaza surfaces of the frame at the floor level issuance of the service bulletin; level of the Nassif Building at the DOT and above. however, this proposed AD would street address stated in the ADDRESSES • Inspection 3 involves a detailed require compliance before the specified section. Comments will be available in visual inspection of all accessible frame compliance time after the effective date the AD docket shortly after the Docket surfaces at the floor level to 6 inches of this AD. Management System receives them. above the floor level. If Inspection 3 is Clarification of Inspection Terminology done in lieu of Inspection 2, Inspection Discussion 2 must eventually be done within 2 The ‘‘detailed visual inspection’’ On December 29, 2003, we issued AD years. specified in the service bulletin is 2004–01–07, amendment 39–13421 (69 Corrective actions for corrosion referred to as a ‘‘detailed inspection’’ in FR 869, January 7, 2004), for certain include blending to the limits specified this proposed AD. Note 1 of this
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proposed AD defines this type of Costs of Compliance inspection. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
ESTIMATED COSTS
Number of Action Work Average labor Parts cost Cost per U.S.-registered Fleet cost hours rate per hour airplaine airplanes
HFEC inspection, per inspection 5 $65 None...... $325 55 $17,875 cycle. Detailed inspection, per inspection 3 65 None...... 195 55 10,725 cycle.
Authority for This Rulemaking for a location to examine the regulatory Compliance Title 49 of the United States Code evaluation. (e) You are responsible for having the actions required by this AD performed within specifies the FAA’s authority to issue List of Subjects in 14 CFR Part 39 rules on aviation safety. Subtitle I, the compliance times specified, unless the Air transportation, Aircraft, Aviation actions have already been done. section 106, describes the authority of safety, Safety. the FAA Administrator. Subtitle VII, Inspections Aviation Programs, describes in more The Proposed Amendment (f) Use high-frequency eddy current and detail the scope of the Agency’s Accordingly, under the authority detailed methods to inspect for signs of authority. delegated to me by the Administrator, corrosion of frames 15, 18, 41, and 43, in accordance with the Accomplishment We are issuing this rulemaking under the FAA proposes to amend 14 CFR part the authority described in subtitle VII, Instructions of BAE Systems (Operations) 39 as follows: Limited Inspection Service Bulletin ISB.53– part A, subpart III, section 44701, 182, dated March 16, 2005. Inspect at the ‘‘General requirements.’’ Under that PART 39—AIRWORTHINESS applicable time specified in 1.D. section, Congress charges the FAA with DIRECTIVES ‘‘Compliance’’ of the service bulletin. promoting safe flight of civil aircraft in 1. The authority citation for part 39 Application of corrosion-preventive air commerce by prescribing regulations treatment, in accordance with the service for practices, methods, and procedures continues to read as follows: bulletin, extends the repetitive inspection the Administrator finds necessary for Authority: 49 U.S.C. 106(g), 40113, 44701. interval, as specified in Table 2 in 1.D. safety in air commerce. This regulation ‘‘Compliance’’ of the service bulletin. is within the scope of that authority § 39.13 [Amended] Note 1: For the purposes of this AD, a because it addresses an unsafe condition 2. The Federal Aviation detailed inspection is: ‘‘An intensive that is likely to exist or develop on Administration (FAA) amends § 39.13 examination of a specific item, installation, products identified in this rulemaking by removing amendment 39–13421 (69 or assembly to detect damage, failure, or action. FR 869, January 7, 2004) and adding the irregularity. Available lighting is normally following new airworthiness directive supplemented with a direct source of good Regulatory Findings lighting at an intensity deemed appropriate. (AD): Inspection aids such as mirror, magnifying We have determined that this BAE Systems (Operations) Limited lenses, etc., may be necessary. Surface proposed AD would not have federalism (Formerly British Aerospace Regional cleaning and elaborate procedures may be implications under Executive Order Aircraft): Docket No. FAA–2005–23284; required.’’ 13132. This proposed AD would not Directorate Identifier 2005–NM–163–AD. Corrective Action have a substantial direct effect on the Comments Due Date States, on the relationship between the (g) If any discrepancy is found during any national Government and the States, or (a) The FAA must receive comments on inspection required by paragraph (f) of this this AD action by January 12, 2006. on the distribution of power and AD: Before further flight, perform applicable responsibilities among the various Affected ADs related investigative/corrective actions in accordance with the Accomplishment levels of government. (b) This AD supersedes AD 2004–01–07. For the reasons discussed above, I Instructions of BAE Systems (Operations) Applicability Limited Inspection Service Bulletin ISB.53– certify that the proposed regulation: (c) This AD applies to all BAE Systems 182, dated March 16, 2005, except as 1. Is not a ‘‘significant regulatory required by paragraph (h) of this AD. action’’ under Executive Order 12866; (Operations) Limited Model BAe 146–100A, –200A, and –300A series airplanes; and Exceptions to Service Bulletin Specifications 2. Is not a ‘‘significant rule’’ under the Model Avro 146–RJ70A, 146–RJ85A, and DOT Regulatory Policies and Procedures 146–RJ100A airplanes; certificated in any (h) If the service bulletin referenced in this (44 FR 11034, February 26, 1979); and category. AD specifies to contact the manufacturer for 3. Will not have a significant appropriate action, before further flight, economic impact, positive or negative, Unsafe Condition repair per a method approved by the on a substantial number of small entities (d) This AD results from a report indicating Manager, International Branch, ANM–116, under the criteria of the Regulatory that in some cases the inspections required FAA, Transport Airplane Directorate; or the by AD 2004–01–07 revealed no damage, yet Civil Aviation Authority (or its delegated Flexibility Act. frame corrosion and cracking were later agent). We prepared a regulatory evaluation found during scheduled maintenance in the (i) Although the service bulletin referenced of the estimated costs to comply with two forward fuselage frames 15 and 18. We in this AD specifies to submit information to this proposed AD and placed it in the are issuing this AD to prevent reduced the manufacturer, this AD does not include AD docket. See the ADDRESSES section structural integrity of the airplane. such a requirement.
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(j) Where the service bulletin specifies a airplanes. This proposed AD would Identifier 2005–NM–185–AD’’ at the compliance time after the issuance of the require repetitive inspections of the beginning of your comments. We service bulletin, this AD requires compliance pitot static heating relay K0057 for specifically invite comments on the within the specified compliance time after damage to the pin-type contacts, relay overall regulatory, economic, the effective date of this AD. And where the service bulletin specifies a compliance time enclosure, and finishing material and environmental, and energy aspects of ‘‘since date of construction’’ of the airplane, corrective actions if necessary. This the proposed AD. We will consider all this AD requires compliance since the date proposed AD also would require doing comments received by the closing date of issuance of the original standard a terminating modification, which ends and may amend the proposed AD in airworthiness certificate or the date of the repetitive inspections. This light of those comments. issuance of the original export certificate of proposed AD results from a report of a We will post all comments we airworthiness. burning drain hose and smoke caused receive, without change, to http:// Alternative Methods of Compliance by an overheated pitot static heating dms.dot.gov, including any personal (AMOCs) relay. We are proposing this AD to information you provide. We will also (k)(1) The Manager, International Branch, prevent overheating of a certain pitot post a report summarizing each ANM–116, Transport Airplane Directorate, static heating relay, which could result substantive verbal contact with FAA FAA, has the authority to approve AMOCs in the burning of the windowsill drain personnel concerning this proposed AD. for this AD, if requested in accordance with hoses and consequent smoke or fire in Using the search function of that Web the procedures found in 14 CFR 39.19. the airplane cockpit. site, anyone can find and read the (2) Before using any AMOC approved in accordance with § 39.19 on any airplane to DATES: We must receive comments on comments in any of our dockets, which the AMOC applies, notify the this proposed AD by January 12, 2006. including the name of the individual appropriate principal inspector in the FAA ADDRESSES: Use one of the following who sent the comment (or signed the Flight Standards Certificate Holding District addresses to submit comments on this comment on behalf of an association, Office. proposed AD. business, labor union, etc.). You may • Related Information DOT Docket Web site: Go to review the DOT’s complete Privacy Act http://dms.dot.gov and follow the Statement in the Federal Register (l) British airworthiness directive G–2005– published on April 11, 2000 (65 FR 0019, dated July 6, 2005, also addresses the instructions for sending your comments subject of this AD. electronically. 19477–78), or you may visit http:// • Government-wide rulemaking Web dms.dot.gov. Issued in Renton, Washington, on site: Go to http://www.regulations.gov December 6, 2005. Examining the Docket and follow the instructions for sending Kevin M. Mullin, your comments electronically. You may examine the AD docket on Acting Manager, Transport Airplane • Mail: Docket Management Facility, the Internet at http://dms.dot.gov, or in Directorate, Aircraft Certification Service. U.S. Department of Transportation, 400 person at the Docket Management [FR Doc. 05–23955 Filed 12–12–05; 8:45 am] Seventh Street, SW., Nassif Building, Facility office between 9 a.m. and 5 BILLING CODE 4910–13–P Room PL–401, Washington, DC 20590. p.m., Monday through Friday, except • Fax: (202) 493–2251. Federal holidays. The Docket • Hand Delivery: Room PL–401 on Management Facility office (telephone DEPARTMENT OF TRANSPORTATION the plaza level of the Nassif Building, (800) 647–5227) is located on the plaza Federal Aviation Administration 400 Seventh Street, SW., Washington, level of the Nassif Building at the DOT DC, between 9 a.m. and 5 p.m., Monday street address stated in the ADDRESSES 14 CFR Part 39 through Friday, except Federal holidays. section. Comments will be available in Contact Empresa Brasileira de the AD docket shortly after the Docket [Docket No. FAA–2005–23283; Directorate Aeronautica S.A. (EMBRAER), P.O. Box Management System receives them. Identifier 2005–NM–185–AD] 343—CEP 12.225, Sao Jose dos Discussion RIN 2120–AA64 Campos—SP, Brazil, for service information identified in this proposed The Departmento de Aviacao Civil Airworthiness Directives; Empresa AD. (DAC), which is the airworthiness Brasileira de Aeronautica S.A. FOR FURTHER INFORMATION CONTACT: Dan authority for Brazil, notified us that an (EMBRAER) Model EMB–135 Rodina, Aerospace Engineer, unsafe condition may exist on all Airplanes; and Model EMB–145, International Branch, ANM–116, Empresa Brasileira de Aeronautica S.A. –145ER, –145MR, –145LR, –145XR, Transport Airplane Directorate, FAA, (EMBRAER) Model EMB–135 airplanes; –145MP, and –145EP Airplanes 1601 Lind Avenue, SW., Renton, and Model EMB–145, –145ER, –145MR, AGENCY: Federal Aviation Washington 98055–4056; telephone –145LR, –145XR, –145MP, and –145EP Administration (FAA), Department of (425) 227–2125; fax (425) 227–1149. airplanes. The DAC advises that a pitot Transportation (DOT). SUPPLEMENTARY INFORMATION: static heating relay overheated, causing a direct-vision windowsill drain hose to ACTION: Notice of proposed rulemaking Comments Invited burn. This condition, if not corrected, (NPRM). We invite you to submit any relevant could result in smoke or fire in the SUMMARY: The FAA proposes to adopt a written data, views, or arguments airplane cockpit. new airworthiness directive (AD) for all regarding this proposed AD. Send your Relevant Service Information EMBRAER Model EMB–135 airplanes; comments to an address listed in the and Model EMB–145, –145ER, –145MR, ADDRESSES section. Include the docket EMBRAER has issued the following –145LR, –145XR, –145MP, and –145EP number ‘‘FAA–2005–23283; Directorate service information:
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EMBRAER service bulletin— Dated— Model—
145–30–0041 ...... April 20, 2005 ...... EMB–135ER, –135KE, –135KL, and –135LR airplanes; and Model EMB–145, –145ER, –145MR, –145LR, –145XR, –145MP, and –145EP airplanes. 145–30–0042 ...... April 18, 2005. 145LEG–30–0011 ...... April 20, 2005 ...... EMB–135BJ airplanes. 145LEG–30–0012 ...... April 18, 2005.
EMBRAER Service Bulletins 145–30– The modification includes the following information, and determined that we 0042 and 145LEG–30–0012 describe actions: need to issue an AD for airplanes of this procedures for doing repetitive visual • Replacing the direct-vision type design that are certificated for inspections of pitot static heating relay windowsill drain hoses and tiedown operation in the United States. K0057 for damage to the pin-type straps with new, improved drain hoses Therefore, we are proposing this AD, contacts, relay enclosure, and finishing and tiedown straps. • which would require accomplishing the material; and doing the corrective action Reworking a certain drain hose and actions specified in the service if necessary. The visual inspection installing a new hose, tube, and tiedown information described previously, includes the following actions: straps. • except as discussed under ‘‘Differences • Inspecting the sides of the silicone For Model EMB–135BJ airplanes, Between the Proposed AD and Service gasket for melted points or material the modification in EMBRAER Service Bulletins.’’ stuck to the surface of the silicone Bulletins 145LEG–30–0011 also gasket. includes rerouting the drain hoses of the Difference Between the Proposed AD • Inspecting the relay enclosure for left and right cockpit horizontal linings. and Service Bulletins Accomplishing the actions specified bellied surfaces, dents, and any crack in in the service information is intended to EMBRAER Service Bulletins 145–30– the paint of the enclosure. adequately address the unsafe 0042 and 145LEG–30–0012 specify • Inspecting the pin-type contacts for condition. The DAC mandated the contacting the manufacturer if damage discolored, loosened, or missing service information and issued Brazilian to components for the relay support is contacts. found. These service bulletins also • airworthiness directive 2005–08–04, Inspecting contact bases of the relay dated September 5, 2005, to ensure the specify returning any relay that fails an for any crack, loose material, or continued airworthiness of these inspection to the airplane manufacturer. damaged sealant. airplanes in Brazil. However, this proposed AD would not • Inspecting the pin-type contacts for require those actions. any contaminants. FAA’s Determination and Requirements Clarification of Inspection Terminology • Inspecting the relay surface where of the Proposed AD the pin-type contacts attach for any These airplane models are The ‘‘visual inspection’’ specified in stuck material or roughness on the relay manufactured in Brazil and are type the EMBRAER service bulletins is surface. certificated for operation in the United referred to as a ‘‘general visual The corrective action is to replace the States under the provisions of section inspection’’ in this proposed AD. We pitot static heating relay K0057 with a 21.29 of the Federal Aviation have included the definition for a new part if any damage to the pin-type Regulations (14 CFR 21.29) and the general visual inspection in a note in contacts, relay enclosure, and finishing applicable bilateral airworthiness the proposed AD. material is found. agreement. Pursuant to this bilateral Costs of Compliance EMBRAER Service Bulletins 145–30– airworthiness agreement, the DAC has 0041 and 145LEG–30–0011 describe kept the FAA informed of the situation The following table provides the procedures for doing a modification, described above. We have examined the estimated costs for U.S. operators to which ends the repetitive inspections. DAC’s findings, evaluated all pertinent comply with this proposed AD.
ESTIMATED COSTS
Aver- Number age of U.S.- Work labor Cost reg- Action hours rate Parts per air- istered Fleet cost per planes air- hour planes
Inspection, per inspection cycle ...... 1 ...... $65 ... None $65 ...... 651 ...... $42,315, per inspection cycle. Terminating modification ...... 2 ...... $65 ... $270 .. $400 .... 651 ...... $260,400.
Authority for This Rulemaking detail the scope of the Agency’s air commerce by prescribing regulations authority. for practices, methods, and procedures Title 49 of the United States Code the Administrator finds necessary for specifies the FAA’s authority to issue We are issuing this rulemaking under the authority described in Subtitle VII, safety in air commerce. This regulation rules on aviation safety. Subtitle I, is within the scope of that authority Section 106, describes the authority of Part A, Subpart III, Section 44701, ‘‘General requirements.’’ Under that because it addresses an unsafe condition the FAA Administrator. Subtitle VII, that is likely to exist or develop on Aviation Programs, describes in more section, Congress charges the FAA with promoting safe flight of civil aircraft in
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products identified in this rulemaking List of Subjects in 14 CFR Part 39 Applicability action. Air transportation, Aircraft, Aviation (c) This AD applies to all EMBRAER Model Regulatory Findings safety, Safety. EMB–135BJ, –135ER, –135KE, –135KL, and –135LR airplanes; and Model EMB–145, We have determined that this The Proposed Amendment –145ER, –145MR, –145LR, –145XR, –145MP, proposed AD would not have federalism Accordingly, under the authority and –145EP airplanes; certificated in any implications under Executive Order delegated to me by the Administrator, category. 13132. This proposed AD would not the FAA proposes to amend 14 CFR part Unsafe Condition have a substantial direct effect on the 39 as follows: States, on the relationship between the (d) This AD results from a report of a National Government and the States, or PART 39—AIRWORTHINESS burning drain hose and smoke caused by an on the distribution of power and DIRECTIVES overheated pitot static heating relay. We are responsibilities among the various issuing this AD to prevent overheating of a levels of government. 1. The authority citation for part 39 certain pitot static heating relay, which could For the reasons discussed above, I continues to read as follows: result in the burning of the windowsill drain certify that the proposed regulation: Authority: 49 U.S.C. 106(g), 40113, 44701. hoses and consequent smoke or fire in the 1. Is not a ‘‘significant regulatory airplane cockpit. action’’ under Executive Order 12866; § 39.13 [Amended] 2. Is not a ‘‘significant rule’’ under the 2. The Federal Aviation Compliance DOT Regulatory Policies and Procedures Administration (FAA) amends § 39.13 (e) You are responsible for having the (44 FR 11034, February 26, 1979); and by adding the following new actions required by this AD performed within 3. Will not have a significant airworthiness directive (AD): the compliance times specified, unless the economic impact, positive or negative, Empresa Brasileira de Aeronautica S.A. actions have already been done. on a substantial number of small entities (EMBRAER): Docket No. FAA–2005– Service Bulletin References under the criteria of the Regulatory 23283; Directorate Identifier 2005–NM– Flexibility Act. 185–AD. (f) The term ‘‘service bulletin,’’ as used in this AD, means the Accomplishment We prepared a regulatory evaluation Comments Due Date of the estimated costs to comply with Instructions of the service bulletins identified this proposed AD and placed it in the (a) The FAA must receive comments on in Table 1 of this AD, as applicable: this AD action by January 12, 2006. AD docket. See the ADDRESSES section for a location to examine the regulatory Affected ADs evaluation. (b) None.
TABLE 1.—SERVICE BULLETIN REFERENCES
For the actions specified For model— in— EMBRAER service bulletin—
EMB–135ER, –135KE, –135KL, and –135LR airplanes; paragraph (g) of this AD ..... 145–30–0042, dated April 18, 2005. and Model EMB–145, –145ER, –145MR, –145LR, –145XR, –145MP, –145EP airplanes. paragraph (i) of this AD ...... 145–30–0041, dated April 20, 2005. EMB–135BJ airplanes ...... paragraph (g) of this AD ..... 145LEG–30–0012, dated April 18, 2005. paragraph (i) of this AD ...... 145LEG–30–0011, dated April 20, 2005.
Repetitive Inspections of inspection is made under normally inspections required by paragraph (g) of this (g) Within 600 flight hours or 180 days available lighting conditions such as AD. after the effective date of this AD, whichever daylight, hangar lighting, flashlight, or (1) For all airplanes, replace the direct- is first: Do a general visual inspection of pitot droplight and may require removal or vision windowsill drain hoses having part static heating relay K0057 for damage to the opening of access panels or doors. Stands, number (P/N) 123–15435–401 and –403 with new, improved hoses having P/N 145– pin-type contacts, relay enclosure, and ladders, or platforms may be required to gain 13044–001 and P/N 145–13047–001, as finishing material, and do the corrective proximity to the area being checked.’’ applicable, and replace the tiedown straps action as applicable, by accomplishing all of with new tiedown straps, in accordance with the applicable actions specified in the Service Bulletin Exceptions Figure 1 of the service bulletin. applicable service bulletin; except as (h) Although EMBRAER Service Bulletin (2) For all airplanes, rework the drain hose provided by paragraph (h) of this AD. The 145–30–0042, dated April 18, 2005, and having P/N 123–15435–405, in accordance corrective actions must be done before EMBRAER Service Bulletin 145LEG–30– with Figure 1 of the service bulletin. further flight. Repeat the inspection 0012, dated April 18, 2005, specify (3) For Model EMB–135BJ airplanes, thereafter at intervals not to exceed 500 flight contacting the manufacturer if damage to reroute the drain hoses of the left and right hours, until the terminating modification components for the relay support is found cockpit horizontal linings, in accordance required by paragraph (i) of this AD is and also specify returning any relay that fails with Figure 2 of the service bulletin. accomplished. an inspection to the airplane manufacturer, Note 1: For the purposes of this AD, a this AD does not include those requirements. Alternative Methods of Compliance general visual inspection is: ‘‘A visual (AMOCs) Terminating Modification examination of an interior or exterior area, (j)(1) The Manager, International Branch, installation, or assembly to detect obvious (i) Within 6,000 flight hours or 30 months ANM–116, Transport Airplane Directorate, damage, failure, or irregularity. This level of after the effective date of this AD, whichever FAA, has the authority to approve AMOCs inspection is made from within touching is first: Do the applicable actions specified in for this AD, if requested in accordance with distance unless otherwise specified. A mirror paragraphs (i)(1), (i)(2), and (i)(3) of this AD. the procedures found in 14 CFR 39.19. may be necessary to ensure visual access to Accomplishing all the applicable actions (2) Before using any AMOC approved in all surfaces in the inspection area. This level specified in this paragraph terminates the accordance with § 39.19 on any airplane to
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which the AMOC applies, notify the DATES: We must receive comments on (65 FR 19477–78), or you may visit appropriate principal inspector in the FAA this supplemental NPRM by January 9, http://dms.dot.gov. Flight Standards Certificate Holding District 2006. Office. Examining the Docket ADDRESSES: Use one of the following Related Information addresses to submit comments on this You may examine the AD docket on (k) Brazilian airworthiness directive 2005– supplemental NPRM. the Internet at http://dms.dot.gov, or in 08–04, dated September 5, 2005, also • DOT Docket Web site: Go to http:// person at the Docket Management addresses the subject of this AD. dms.dot.gov and follow the instructions Facility office between 9 a.m. and 5 Issued in Renton, Washington, on for sending your comments p.m., Monday through Friday, except December 6, 2005. electronically. Federal holidays. The Docket Kevin M. Mullin, • Government-wide rulemaking Web Management Facility office (telephone Acting Manager, Transport Airplane site: Go to http://www.regulations.gov (800) 647–5227) is located on the plaza Directorate, Aircraft Certification Service. and follow the instructions for sending level in the Nassif Building at the DOT [FR Doc. 05–23954 Filed 12–12–05; 8:45 am] your comments electronically. street address stated in ADDRESSES. • Mail: Docket Management Facility; Comments will be available in the AD BILLING CODE 4910–13–P U.S. Department of Transportation, 400 docket shortly after the Docket Seventh Street, SW., Nassif Building, Management System receives them. Room PL–401, Washington, DC 20590. DEPARTMENT OF TRANSPORTATION Discussion • Fax: (202) 493–2251. Federal Aviation Administration • Hand Delivery: Room PL–401 on We proposed to amend 14 CFR part the plaza level of the Nassif Building, 39 with a notice of proposed rulemaking 14 CFR Part 39 400 Seventh Street SW., Washington, (NPRM) for an airworthiness directive DC, between 9 a.m. and 5 p.m., Monday [Docket No. FAA–2005–20220; Directorate (AD) (the ‘‘original NPRM’’). The Identifier 2004–NM–152–AD] through Friday, except Federal holidays. original NPRM applies to certain Contact Aerospatiale, 316 Route de Aerospatiale Model ATR42–200, –300, RIN 2120–AA64 Bayonne, 31060 Toulouse, Cedex 03, and –320 airplanes. The original NPRM France, for service information was published in the Federal Register Airworthiness Directives; Aerospatiale identified in this proposed AD. on February 1, 2005 (70 FR 5081). The Model ATR42–200, –300, and –320 FOR FURTHER INFORMATION CONTACT: Tom original NPRM proposed to require Airplanes Rodriguez, Aerospace Engineer, doing repetitive inspections of the AGENCY: Federal Aviation International Branch, ANM–116, upper arms of the main landing gear Administration (FAA), Department of Transport Airplane Directorate, FAA, (MLG) side braces for missing or Transportation (DOT). 1601 Lind Avenue, SW., Renton, inadequately bonded identification ACTION: Supplemental notice of Washington 98055–4056; telephone plates; replacing the upper arm if proposed rulemaking (NPRM); (425) 227–1137; fax (425) 227–1149. necessary; and replacing the side brace reopening of comment period. SUPPLEMENTARY INFORMATION: assembly with a modified part. Relevant Service Information SUMMARY: The FAA is revising an earlier Comments Invited NPRM for an airworthiness directive We invite you to submit any relevant Since the original NPRM was issued, (AD) that applies to certain Aerospatiale written data, views, or arguments Messier-Dowty has issued Special Model ATR42–200, –300, and –320 regarding this supplemental NPRM. Inspection Service Bulletin 631–32–181, airplanes. The original NPRM would Include the docket number ‘‘Docket No. Revision 2, dated June 3, 2005. (Messier- have required doing repetitive FAA–2005–20220; Directorate Identifier Dowty Special Inspection Service inspections of the upper arms of the 2004–NM–152–AD’’ at the beginning of Bulletin 631–32–175, dated January 7, main landing gear (MLG) side braces for your comments. We specifically invite 2004, was referenced in the original missing or inadequately bonded comments on the overall regulatory, NPRM as the appropriate source of identification plates; replacing the economic, environmental, and energy service information for doing the upper arm if necessary; and replacing aspects of this supplemental NPRM. We repetitive inspections and replacements the side brace assembly with a modified will consider all comments received by of the upper arms if necessary.) Revision part. The original NPRM resulted from the closing date and may amend this 2 of the service bulletin describes an operator who reported experiencing supplemental NPRM in light of those procedures for doing repetitive visual an unlock warning for the MLG on the comments. inspections of the upper arms of the right side of the airplane. This action We will post all comments submitted, MLG side brace assemblies for missing revises the original NPRM by proposing without change, to http://dms.dot.gov, or partially unstuck identification plates to require doing an ultrasonic including any personal information you and beads of glue. If any identification inspection of the upper arm of the MLG provide. We will also post a report plate or bead of glue is missing or side brace for any defects and related summarizing each substantive verbal partially unstuck, the service bulletin investigative/corrective actions if contact with FAA personnel concerning also describes procedures for doing an necessary, instead of replacing the this supplemental NPRM. Using the ultrasonic inspection of the upper arm upper arm if necessary. This action also search function of that Web site, anyone of the MLG side brace for any defects adds airplanes to the applicability. We can find and read the comments in any and doing related investigative and are proposing this supplemental NPRM of our dockets, including the name of corrective actions if necessary. The to prevent cracking of the upper arms of the individual who sent the comment related investigative action is a visual the side braces of the MLG, which could (or signed the comment on behalf of an inspection of the MLG side brace result in failure of the MLG during association, business, labor union, etc.). surface for any paint tears, scratches, or landing and possible damage to the You may review the DOT’s complete corrosion prior to accomplishing the airplane and injury to the flightcrew and Privacy Act Statement in the Federal ultrasonic inspection. The corrective passengers. Register published on April 11, 2000 actions include the following:
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• If any paint tear, scratch, or Clarification of Inspection Terminology assemblies to terminate the repetitive corrosion is found on the surface of the The ‘‘visual inspection’’ specified in visual inspections. However, under the upper arm, removing the contamination Revision 2 of Messier-Dowty Special provisions of paragraph (m) of the prior to doing the ultrasonic inspection. Inspection Service Bulletin 631–32–181 proposed final rule, we may consider • If the echo is less than 20%, is referred to as a ‘‘general visual requests for approval of an AMOC if sufficient data are submitted to restoring the plate areas and inspection’’ in this supplemental substantiate that such a design change reidentifying the identification plate. NPRM. We have included the definition for a general visual inspection in a note would provide an acceptable level of • If the echo is 20% or greater, in the supplemental NPRM. safety. replacing the MLG side brace with an MLG side brace equipped with an Clarification of Alternative Method of Request to Withdraw NPRM airworthy upper arm. Compliance (AMOC) Paragraph The same commenter believes that the Accomplishing the actions specified We have revised this supplemental original NPRM is an overreaction to a in Messier-Dowty Special Inspection NPRM to clarify the appropriate single event, the cause of which can still Service Bulletin 631–32–181, Revision procedure for notifying the principal be speculated upon. The commenter 2, and the replacements in Messier- inspector before using any approved also believes that any potential unsafe condition can be addressed by other Dowty Service Bulletin 631–32–176, AMOC on any airplane to which the means. We infer the commenter requests Revision 1, dated June 2, 2004, is AMOC applies. that we withdraw the original NPRM. intended to adequately address the Comments We do not agree. Although the unsafe condition. (Messier-Dowty We have considered the following original NPRM was prompted by one Service Bulletin 631–32–176, Revision comments on the original NPRM. report, we have identified an unsafe 1, was referenced in the original NPRM condition that is likely to exist or as the appropriate source of service Request to Use AMOC develop on other products of the same information for replacing a side brace One commenter requests that we type design. The affected identification assembly with a modified part.) The revise the original NPRM to allow plates are located in a high stress area Direction Generale de l’Aviation Civile operators a means for mitigating any where they could be torn down. When (DGAC), which is the airworthiness corrosion and reidentifying the upper an identification plate is torn down, the authority for France, mandated the arms of the MLG side braces, rather than protective treatment on the upper arm of service information and issued French proposing to require replacement of the the MLG side brace could be damaged airworthiness directive F–2005–106, upper arms. The commenter suggests or stripped. Damaged or stripped dated July 6, 2005, to ensure the that a combination of blending, coating, protective treatment could lead to continued airworthiness of these and a part identification method such as corrosion and consequent cracking of airplanes in France. French electro-etching would be a more the upper arms of the MLG side braces. airworthiness directive F–2005–106 appropriate solution to address the We have also considered the action supersedes French airworthiness unsafe condition of the original NPRM. taken by the authority of the state of directive F–2004–006, dated January 7, The commenter states that electro- design and the manufacturer’s 2004, which was referenced as related etching would have minimal structural recommendation. Cracking of the upper information in paragraph (l) of the impact on the upper arms, while arms of the side braces of the MLG, if original NPRM. French airworthiness providing a permanent mark that can not corrected, could result in failure of directive F–2005–106 also adds new only be removed by grinding. the MLG during landing and possible airplanes to the applicability. We have We partially agree. As stated damage to the airplane and injury to the revised the applicability of the previously, if any identification plate or flightcrew and passengers. bead of glue is missing or partially supplemental NPRM to match French FAA’s Determination and Proposed airworthiness directive F–2005–106. unstuck, this supplemental NPRM proposes to require doing an ultrasonic Requirements of the Supplemental Clarification Between the Supplemental inspection of the upper arm of an MLG NPRM NPRM and Service Bulletin side brace for any defects (and doing The changes discussed above expand related investigative and corrective the scope of the original NPRM; Where Messier-Dowty Special actions if necessary), rather than therefore, we have determined that it is Inspection Service Bulletin 631–32–181, proposing to replace the upper arm. necessary to reopen the comment period Revision 2, specifies replacing a side Although, depending on the results of to provide additional opportunity for brace with a side brace equipped with the ultrasonic inspection, operators may public comment on this supplemental an airworthy upper arm, this be required to replace the side brace NPRM. supplemental NPRM proposes to assembly with a part modified in replace it with a side brace equipped accordance with Messier-Dowty Service Costs of Compliance with an upper arm modified in Bulletin 631–32–176, Revision 1. This The following table provides the accordance with Messier-Dowty Service supplemental NPRM also proposes to estimated costs for U.S. operators to Bulletin 631–32–176, Revision 1. require modification of the side brace comply with this supplemental NPRM.
ESTIMATED COSTS
Number of Action Work hours Average labor Parts Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes
General visual inspection, per 1 ...... $65 None $65 54 $3,510, per inspec- inspection cycle. tion cycle.
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ESTIMATED COSTS—Continued
Number of Action Work hours Average labor Parts Cost per air- U.S.-registered Fleet cost rate per hour plane airplanes
Replacement of side brace as- 2 (1 hour per side 65 $0 130 54 7,020 semblies. brace).
Authority for This Rulemaking The Proposed Amendment 631–32–181, Revision 2, dated June 3, 2005; Accordingly, under the authority and Title 49 of the United States Code (2) For the replacement specified in delegated to me by the Administrator, specifies the FAA’s authority to issue paragraph (j) of this AD: Messier-Dowty rules on aviation safety. Subtitle I, the FAA proposes to amend 14 CFR part Service Bulletin 631–32–176, Revision 1, Section 106, describes the authority of 39 as follows: dated June 2, 2004. the FAA Administrator. Subtitle VII, Aviation Programs, describes in more PART 39—AIRWORTHINESS Repetitive Inspections of Identification detail the scope of the Agency’s DIRECTIVES Plates authority. 1. The authority citation for part 39 (g) Within 2 months or 500 flight hours We are issuing this rulemaking under continues to read as follows: after the effective date of this AD, whichever the authority described in Subtitle VII, is first: Do a general visual inspection of the Part A, Subpart III, Section 44701, Authority: 49 U.S.C. 106(g), 40113, 44701. upper arms of the MLG side braces for ‘‘General requirements.’’ Under that inadequately bonded identification plates having P/Ns D61565–1, D61566–1, D61567– section, Congress charges the FAA with § 39.13 [Amended] 1, and D61568–1 and for any missing bead 2. The Federal Aviation promoting safe flight of civil aircraft in of glue, in accordance with the service air commerce by prescribing regulations Administration (FAA) amends § 39.13 bulletin. Thereafter at intervals not to exceed for practices, methods, and procedures by adding the following new 2 months or 500 flight hours, whichever is the Administrator finds necessary for airworthiness directive (AD): first: Repeat the inspection of the upper arm safety in air commerce. This regulation Aerospatiale: Docket No. FAA–2005–20220; of the MLG side brace for any side brace is within the scope of that authority Directorate Identifier 2004–NM–152–AD. assembly that has not been inspected in because it addresses an unsafe condition Comments Due Date accordance with paragraph (h) of this AD or that is likely to exist or develop on replaced as required by paragraph (j) of this products identified in this rulemaking (a) The FAA must receive comments on AD. this AD action by January 9, 2006. action. Note 1: For the purposes of this AD, a Affected ADs Regulatory Findings general visual inspection is: ‘‘A visual (b) None. examination of an interior or exterior area, We have determined that this installation, or assembly to detect obvious proposed AD would not have federalism Applicability damage, failure, or irregularity. This level of implications under Executive Order (c) This AD applies to Aerospatiale Model inspection is made from within touching 13132. This proposed AD would not ATR42–200, –300, and –320 airplanes, distance unless otherwise specified. A mirror have a substantial direct effect on the certificated in any category; with main may be necessary to ensure visual access to landing gear (MLG) side brace assemblies all surfaces in the inspection area. This level States, on the relationship between the having part number (P/N) D22710000–() National Government and the States, or of inspection is made under normally except –8, equipped with upper arms having available lighting conditions such as on the distribution of power and P/N D56778–10. responsibilities among the various daylight, hangar lighting, flashlight, or levels of government. Unsafe Condition droplight and may require removal or (d) This AD results from an operator who opening of access panels or doors. Stands, For the reasons discussed above, I ladders, or platforms may be required to gain certify that the proposed regulation: reported experiencing an unlock warning for the MLG on the right side of the airplane. We proximity to the area being checked.’’ 1. Is not a ‘‘significant regulatory are issuing this AD to prevent cracking of the action’’ under Executive Order 12866; upper arms of the side braces of the MLG, Ultrasonic Inspection, if Necessary 2. Is not a ‘‘significant rule’’ under the which could result in failure of the MLG (h) If any identification plate having P/N DOT Regulatory Policies and Procedures during landing and possible damage to the D61565–1, D61566–1, D61567–1, or D61568– (44 FR 11034, February 26, 1979); and airplane and injury to the flightcrew and 1 or any bead of glue is missing or found 3. Will not have a significant passengers. inadequately bonded during any inspection economic impact, positive or negative, Compliance required by paragraph (g) of this AD: Within 25 flight hours since the most recent general on a substantial number of small entities (e) You are responsible for having the under the criteria of the Regulatory visual inspection, do an ultrasonic inspection actions required by this AD performed within of the upper arm of the MLG side brace for Flexibility Act. the compliance times specified, unless the any defects and do any related investigative We prepared a regulatory evaluation actions have already been done. and corrective actions as applicable, by doing of the estimated costs to comply with Service Bulletin References all of the applicable actions specified in Part this supplemental NPRM and placed it (f) The term ‘‘service bulletin,’’ as used in B.(3) of the service bulletin; except where the in the AD docket. See the ADDRESSES service bulletin specifies replacing the side section for a location to examine the this AD, means the Accomplishment Instructions of the following service brace with a side brace equipped with an regulatory evaluation. bulletins, as applicable: airworthy upper arm, replace it with a part List of Subjects in 14 CFR Part 39 (1) For the general visual inspection and modified in accordance with paragraph (j) of ultrasonic inspection specified in paragraphs this AD. Any corrective actions must be done Air transportation, Aircraft, Aviation (g) and (h) of this AD, respectively: Messier- before further flight after doing the ultrasonic safety, Safety. Dowty Special Inspection Service Bulletin inspection.
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Additional Ultrasonic Inspection for Certain Related Information 45020 Aviation Drive, Dulles, VA Airplanes (n) French airworthiness directive F–2005– 20166; telephone 703–471–9500; http:// (i) For airplanes on which the ultrasonic 106, dated July 6, 2005, also addresses the marriott.com/default.mi. inspection specified in paragraph (h) of this subject of this AD. You may submit written comments AD has been accomplished in accordance Issued in Renton, Washington, on (identified by Docket Number FAA– with Messier-Dowty Special Inspection December 6, 2005. 2004–17005) using any of the following Service Bulletin 631–32–181, Revision 1, Kevin M. Mullin, methods: dated March 16, 2005: Within 25 flight hours • DOT Docket Web site: Go to after the effective date of the AD, do all the Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. http://dms.dot.gov and follow the applicable actions specified in paragraph (h) [FR Doc. 05–23953 Filed 12–12–05; 8:45 am] instructions for sending your comments of this AD, in accordance with Messier- electronically. BILLING CODE 4910–13–P Dowty Special Inspection Service Bulletin • Government-wide rulemaking Web 631–32–181, Revision 2, dated June 3, 2005. site: Go to http://www.regulations.gov Replacement with a Modified Side Brace DEPARTMENT OF TRANSPORTATION and follow the instructions for sending Assembly your comments electronically. (j) At the applicable compliance time Federal Aviation Administration • Mail: Docket Management Facility; specified in paragraphs (j)(1) or (j)(2) of this U.S. Department of Transportation, 400 AD: Remove the side brace assembly and 14 CFR Part 93 Seventh Street, SW., Nassif Building, replace it with a part modified by doing all Room PL–401, Washington, DC 20590– of the actions in the service bulletin. [Docket No. FAA–2004–17005; Notice No. 05–16] 001. Replacement of a side brace assembly with a • Fax: 1–202–493–2251. modified part terminates the repetitive RIN 2120–AC84 • Hand Delivery: Room PL–401 on inspections required by paragraph (g) of this the plaza level of the Nassif Building, AD for that modified side brace assembly Washington, DC Metropolitan Area 400 Seventh Street, SW., Washington, only. If the side brace assembly of the left Special Flight Rules Area; Notice of DC, between 9 a.m. and 5 p.m., Monday and right MLG is replaced with a modified Public Meetings part, no more work is required by paragraph through Friday, except Federal holidays. (g) of this AD. AGENCY: Federal Aviation Privacy: We will post all comments (1) For airplanes on which Messier-Dowty Administration, DOT. we receive, without change, to http:// Service Bulletin 631–32–072 has not been ACTION: Notice of public meetings. dms.dot.gov, including any personal accomplished: Before the accumulation of information you provide. For more 15,000 total flight cycles on a side brace SUMMARY: The FAA announces public information, see the Privacy Act assembly since new or since last overhaul, or meetings on its proposal to codify discussion under ‘‘Comments Invited’’ 96 months on a side brace assembly since current flight restrictions for certain in the SUPPLEMENTARY INFORMATION new or since last overhaul, whichever is first. aircraft operations in the Washington, section of the FAA’s August 5, 2005 (2) For airplanes on which Messier-Dowty DC Metropolitan Area. The purpose of NPRM. Service Bulletin 631–32–072 has been the public meetings is for the FAA to Docket: To read background accomplished: Before the accumulation of hear comments and gather information documents or comments received, go to 18,000 total flight cycles on a side brace related to its Notice of Proposed http://dms.dot.gov at any time or to assembly since new or since last overhaul, or Rulemaking (NPRM) published on Room PL–401 on the plaza level of the 96 months on a side brace assembly since August 4, 2005. Nassif Building, 400 Seventh Street, new or since last overhaul, whichever is first. DATES: The public meetings will be held SW., Washington, DC, between 9 a.m. Credit for Previous Service Bulletin on the following dates. (Note that the and 5 p.m., Monday through Friday, (k) Replacements done before the effective meetings may be adjourned early if except Federal holidays. Written date of this AD in accordance with Messier- scheduled speakers complete their comments to the docket will receive the Dowty Service Bulletin 631–32–176, dated presentations in less time than is same consideration as statements made February 26, 2004, are acceptable for scheduled for the meetings.) at the public meeting. compliance with the corresponding • January 12, 2006 from 1 p.m. until FOR FURTHER INFORMATION CONTACT: requirements of paragraph (j) of this AD. no later than 4 p.m., and from 6:30 p.m. Requests to present a statement at the No Reporting Requirement until no later than 9 p.m. (The deadline public meetings and questions regarding (l) Although Messier-Dowty Special to submit a request to make an oral the logistics of the meetings should be statement is January 5, 2006.) directed to Noreen Hannigan, Office of Inspection Service Bulletin 631–32–181, • Revision 2, dated June 3, 2005, specifies to January 18, 2006 from 1 p.m. until Rulemaking (ARM–106), Federal submit certain information to the no later than 4 p.m., and from 6:30 p.m. Aviation Administration, 800 manufacturer, this AD does not include that until no later than 9 p.m. (The deadline Independence Avenue SW., requirement. to submit a request to make an oral Washington, DC 20591; telephone (202) statement is January 11, 2006.) 267–7476, facsimile (202) 267–5075. Alternative Methods of Compliance The written comment period will (AMOCs) SUPPLEMENTARY INFORMATION: close on February 6, 2006. (m)(1) The Manager, International Branch, Background ADDRESSES: The January 12, 2006 public ANM–116, Transport Airplane Directorate, meetings will be held at the Sheraton On August 4, 2005, the FAA FAA, has the authority to approve AMOCs for this AD, if requested in accordance with Colombia Hotel, 10207 Wincopin Circle, published a Notice of Proposed the procedures found in 14 CFR 39.19. Columbia, MD 21044; telephone 410– Rulemaking (NPRM) titled (2) Before using any AMOC approved in 730–3900; http:// ‘‘Washington, DC Metropolitan Area accordance with 14 CFR 39.19 on any www.starwoodhotels.com/sheraton/ Special Flight Rules Area’’ (70 FR airplane to which the AMOC applies, notify index.html. 45250; Aug. 4, 2005). The comment the appropriate principal inspector in the The January 18, 2006 public meetings period closed November 2, 2005; FAA Flight Standards Certificate Holding will be held at the Washington Dulles however, in response to public request, District Office. Airport Marriott (Salon A, B, and C), the comment period was reopened until
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February 6, 2006. In addition, the FAA The FAA will have available a transcript should contact the court also announced its intention to hold projector and a computer capable of reporter directly. Information on how to public meetings. See the Federal accommodating Word and PowerPoint purchase a transcript will be available at Register of November 7, 2005 (70 FR presentations from a compact disk (CD) the meetings. 67388; Nov. 7, 2005). or USB memory device. Persons (6) The FAA will review and consider requiring any other kind of audiovisual all material presented by participants at Purpose of the Public Meetings equipment should notify the FAA when the public meetings. Position papers or The purpose of the public meetings is requesting to be placed on the agenda. materials presenting views or for the FAA to hear the public’s views Sign and oral interpretation can be information related to the draft final and obtain information relevant to the made available at the meeting, as well rule may be accepted at the discretion final rule under consideration. The FAA as an assistive listening device, if of the presiding officer and will be will consider comments made at the requested 10 calendar days before the subsequently placed in the public public meetings before making a final meeting. docket. The FAA requests that decision on issuance of the final rule. Public Meeting Procedures presenters at the meetings provide at In the economic analysis to the least 10 copies of all materials for August 4, 2005 NPRM, the FAA A panel of representatives from the distribution to the panel members. requested information from the public. FAA and other government agencies Presenters may provide other copies to If you have not already submitted data will be present. An FAA representative the audience at their discretion. to the FAA on these areas, you may do will facilitate the meetings in (7) Each person presenting comments so at the public meetings. The FAA accordance with the following is asked to submit data to support the requests that all comments be procedures: comments. The FAA will protect from (1) The meetings are designed to accompanied by full documentation. disclosure all proprietary data facilitate the public comment process. In addition to the information sought submitted in accordance with The meetings will be informal and non- in the NPRM, the FAA seeks applicable laws. information on the following questions. adversarial. No individual will be Again, the FAA requests that all subject to cross-examination by any Issued in Washington, DC, on December 7, 2005. comments be accompanied by full other participant. Government documentation. representatives on the panel may ask Anthony F. Fazio, • What has been the effect of the questions to clarify statements and to Director, Office of Rulemaking. airspace restrictions on aircraft owners ensure an accurate record. Any [FR Doc. 05–23982 Filed 12–8–05; 12:57 pm] that relocated outside the Washington, statement made during the meetings by BILLING CODE 4910–13–P DC Air Defense Identification Zone a panel member should not be (ADIZ)? What has been the loss of construed as an official position of the income for those aircraft owners? government. ENVIRONMENTAL PROTECTION • (2) There will be no admission fees or What has been the loss in time and AGENCY revenue of pilots flying longer routes to other charges to attend or to participate avoid the DC ADIZ or curtailing their in the public meetings. The meetings 40 CFR Parts 61 and 63 flying because of the DC ADIZ? will be open to all persons, subject to • What is the percentage of reduction availability of space in the meeting [R06–OAR–2005–OK–0003; FRL–8006–8] in overall flying because of the existence room. The FAA will make every effort of the DC ADIZ? to accommodate all persons wishing to Approval of the Clean Air Section attend. The FAA asks that you sign in 112(I) Program for Hazardous Air Participation at the Public Meetings between 12–1 pm., or 5:30–6:30 p.m., on Pollutants and Delegation of Authority If you wish to present an oral the day of the meeting you are to the Oklahoma Department of statement at the January 12, 2006 public attending. The FAA will try to Environmental Quality meetings, you should submit your accommodate all speakers; however if AGENCY: request to the FAA no later than January Environmental Protection available time does not allow this, Agency (EPA). 5, 2006. speakers will be scheduled on a first- If you wish to present an oral come-first-served basis. The FAA ACTION: Proposed rule. statement at the January 18, 2006 public reserves the right to exclude some SUMMARY: The Oklahoma Department of meetings, you should submit your speakers, if necessary, to obtain Environmental Quality (ODEQ) has request to the FAA no later than January balanced viewpoints. The meetings may submitted updated regulations for 11, 2006. adjourn early if scheduled speakers Your requests should be submitted as receiving delegation of EPA authority complete their statements in less time for implementation and enforcement of described under FOR FURTHER than is scheduled for the meetings. INFORMATION CONTACT and should National Emission Standards for (3) The FAA will prepare agendas of Hazardous Air Pollutants (NESHAPs) include a written summary of oral speakers and presenters and make the remarks to be presented and an estimate for all sources (both part 70 and non- agendas available at the meetings. part 70 sources). These regulations of time needed for the presentation. (4) Speakers may be limited to 5–10- apply to certain NESHAPs promulgated Requests received after the dates minute statements. If possible, the FAA by EPA, as amended through September specified above will be scheduled if will notify speakers if additional time is 1, 2004. The delegation of authority there is time available during the available. meetings; however, the speakers’ names (5) The meetings will be recorded by under this action does not apply to may not appear on the written agendas. a court reporter. A transcript of the sources in Indian Country. EPA is To accommodate as many speakers as meetings and all material accepted by providing notice proposing to approve possible, the amount of time allocated to the panel during the meetings will be the delegation of certain NESHAPs to each speaker may be less than the included in the public docket, unless ODEQ. amount of time requested. See ‘‘Public protected from disclosure. Each person DATES: Written comments must be Meeting Procedures’’ below. interested in purchasing a copy of a received by January 12, 2006.
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ADDRESSES: Comments may be mailed to ENVIRONMENTAL PROTECTION Phase II Storm Water Permit Mr. Jeff Robinson, Air Permits Section AGENCY Requirements: (6PD–R), Environmental Protection Priority: Substantive, Significant. Agency, 1445 Ross Avenue, Suite 1200, 40 CFR Part 122 Legal Authority: CWA 402(p). Dallas, Texas 75202–2733. Comments [FRL–8007–7] may also be submitted electronically or CFR Citation: 40 CFR 122.26. through hand delivery/courier by Correction to the Fall 2005 Regulatory Legal Deadline: None. following the detailed instructions in Agenda the ADDRESSES section of the direct final Abstract: On Monday, August 8, rule located in the final rules section of AGENCY: Environmental Protection President Bush signed into law The the Federal Register. Agency. Energy Policy Act of 2005. Section 323 ACTION: Correction. of this legislation modifies section 502 FOR FURTHER INFORMATION CONTACT: Mr. of the Federal Water Pollution Control Jeff Robinson, Air Permits Section, SUMMARY: On October 31, 2005, the Act to define the term ‘‘oil and gas Multimedia Planning and Permitting Regulatory Plan and the Unified Agenda exploration, production, processing, or Division (6PD–R), U.S. Environmental of the Federal Regulatory and treatment operations, or transmission Protection Agency, Region, 6, 1445 Ross Deregulatory Actions for the facilities’’ to mean ‘‘all field activities or Avenue, Suite 700, Dallas, Texas 75202– Environmental Protection Agency was operations associated with exploration, 2733, at (214) 665–6435, or at published in the Federal Register (70 production, processing, or treatment [email protected]. FR 65206). The regulatory agenda entry operations, or transmission facilities, for sequence number 3378, ‘‘Oil and Gas SUPPLEMENTARY INFORMATION: In the including activities necessary to prepare Phase II Storm Water Permit final rules section of this Federal a site for drilling and for the movement Requirements,’’ contains erroneous Register, EPA is approving ODEQ’s and placement of drilling equipment, information. This notice corrects the request for delegation of authority to whether or not such field activities or information that was published in the implement and enforce certain operations may be considered to be Federal Register (70 FR at 65345) under NESHAPs for all sources (both Part 70 construction activities.’’ In order to the headings of Legal Authority, CFR and non-Part 70 sources). The ODEQ accommodate the changes in the new Citation, Abstract, and Timetable. has adopted certain NESHAPs into law, EPA expects to propose Oklahoma’s state regulations. In FOR FURTHER INFORMATION CONTACT: Jeff modifications to its current regulations addition, EPA is waiving its notification Smith, Office of Wastewater governing construction site storm water requirements so sources will only need Management, Office of Water, discharges for oil and gas activities to send notifications and reports to Environmental Protection Agency regulated by the Phase I and Phase II ODEQA. (4203M) Environmental Protection storm water rules. Agency, 1200 Pennsylvania Ave., NW., The EPA is taking direct final action Washington, DC 20460; telephone without prior proposal because EPA TIMETABLE number: (202) 564–0652; fax number: views this is a noncontroversial action (202) 564–6431; e-mail address: and anticipates no adverse comments. A Action Date FR cite [email protected]. detailed rationale for this approval is set NPRM ...... 12/00/05 forth in the preamble to the direct final SUPPLEMENTARY INFORMATION: The Final Action ...... 06/00/06 rule. If no adverse comments are Environmental Protection Agency (EPA) received in response to this action rule, publishes the semiannual regulatory no further activity is contemplated. If agenda to update the public about: Regulatory Flexibility Analysis EPA receives adverse comments, the Regulations and major policies currently Required: No. direct final rule will be withdrawn, and under development, Small Entities Affected: No. all public comments received will be Reviews of existing regulations and Government Levels Affected: Federal, addressed in a subsequent final rule major policies, and State. based on this proposed rule. EPA will Rules and major policymakings not institute a second comment period completed or canceled since the last Additional Information: SAN No. on this action. Any parties interested in Agenda. 4979. commenting must do so at this time. The regulatory agenda entry in the Agency Contact: Please note that if EPA receives adverse proposed rule section for sequence comment on an amendment, paragraph, number 3378, ‘‘Oil and Gas Phase II Jeff Smith, Environmental Protection or section of this rule and if that Storm Water Permit Requirements’’ (70 Agency, Water, 4203M, Washington, provision may be served from the FR 65345) contains erroneous DC 20460. Phone: 202–564–0652. Fax: remainder of the rule, EPA may adopt information. The Agency did not intend 202–564–6431. E-mail: as final those provisions of the rule that to express an interpretation of the [email protected]. are not the subject of an adverse Energy Policy Act of 2005 in advance of Deborah Nagle, Environmental comment. For additional information, the EPA publishing the proposed rule. Protection Agency, Water, 4203M, see the direct final rule which is This notice corrects the information that Washington, DC 20460. Phone: 202– published in the Rules section of this was provided under the headings of 564–1185. Fax: 202–564–6431. E- Federal Register. Legal Authority, CFR Citation, Abstract, mail: [email protected]. Authority: 42 U.S.C. 7412. and Timetable for the Oil and Gas Phase Dated: December 7, 2005. II Storm Water Permit Requirements Dated: November 27, 2005. action. The following agenda item Louise P. Wise, Carl E. Edlund, replaces in its entirety the agenda item Deputy Associate Administrator, Office of Acting Regional Administrator, Region 6. that was provided in the EPA’s Policy, Economics, and Innovation. [FR Doc. 05–23969 Filed 12–12–05; 8:45 am] Semiannual Regulatory Agenda for [FR Doc. E5–7274 Filed 12–12–05; 8:45 am] BILLING CODE 6560–50–M sequence number 3378, Oil and Gas BILLING CODE 6560–50–P
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DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: certifies that this proposed rule is SECURITY Doug Bellomo, P.E., Hazard exempt from the requirements of the Identification Section, Mitigation Regulatory Flexibility Act because Federal Emergency Management Division, Federal Emergency proposed or modified BFEs are required Agency Management Agency, 500 C Street SW., by the Flood Disaster Protection Act of Washington, DC 20472, (202) 646–2903. 1973, 42 U.S.C. 4104, and are required 44 CFR Part 67 SUPPLEMENTARY INFORMATION: FEMA to establish and maintain community proposes to make determinations of eligibility in the NFIP. No regulatory [Docket No. FEMA–B–7454] BFEs and modified BFEs for each flexibility analysis has been prepared. community listed below, in accordance Regulatory Classification. This Proposed Flood Elevation with section 110 of the Flood Disaster proposed rule is not a significant Determinations Protection Act of 1973, 42 U.S.C. 4104, regulatory action under the criteria of AGENCY: Federal Emergency and 44 CFR 67.4(a). section 3(f) of Executive Order 12866 of Management Agency (FEMA), These proposed BFEs and modified September 30, 1993, Regulatory Department of Homeland Security. BFEs, together with the floodplain Planning and Review, 58 FR 51735. Executive Order 12612, Federalism. ACTION: Proposed rule. management criteria required by 44 CFR 60.3, are the minimum that are required. This proposed rule involves no policies SUMMARY: Technical information or They should not be construed to mean that have federalism implications under comments are requested on the that the community must change any Executive Order 12612, Federalism, proposed Base (1% annual-chance) existing ordinances that are more dated October 26, 1987. Flood Elevations (BFEs) and proposed stringent in their floodplain Executive Order 12778, Civil Justice BFE modifications for the communities management requirements. The Reform. This proposed rule meets the listed below. The BFEs and modified community may at any time enact applicable standards of section 2(b)(2) of BFEs are the basis for the floodplain stricter requirements of its own, or Executive Order 12778. pursuant to policies established by other management measures that the List of Subjects in 44 CFR Part 67 community is required either to adopt Federal, State, or regional entities. or to show evidence of being already in These proposed elevations are used to Administrative practice and effect in order to qualify or remain meet the floodplain management procedure, Flood insurance, Reporting qualified for participation in the requirements of the NFIP and are also and recordkeeping requirements. National Flood Insurance Program used to calculate the appropriate flood Accordingly, 44 CFR Part 67 is (NFIP). insurance premium rates for new proposed to be amended as follows: buildings built after these elevations are DATES: The comment period is ninety made final, and for the contents in these PART 67—[AMENDED] (90) days following the second buildings. 1. The authority citation for Part 67 publication of this proposed rule in a National Environmental Policy Act. continues to read as follows: newspaper of local circulation in each This proposed rule is categorically community. excluded from the requirements of 44 Authority: 42 U.S.C. 4001 et seq.; ADDRESSES: The proposed BFEs for each CFR part 10, Environmental Reorganization Plan No. 3 of 1978, 3 CFR, community are available for inspection Consideration. No environmental 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, at the office of the Chief Executive impact assessment has been prepared. 3 CFR, 1979 Comp., p. 376, § 67.4 Officer of each community. The Regulatory Flexibility Act. The 2. The tables published under the respective addresses are listed in the Mitigation Division Director of the authority of § 67.4 are proposed to be table below. Federal Emergency Management Agency amended as follows:
*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Arizona ...... Pinal County (Unin- McClellan Wash ...... Approximately 0.61 mile west of Battagila None +1,566 corporated Drive. Areas):. Approximately 6.8 miles upstream of con- None +1,824 fluence with McClellan Wash Split. Eloy, City of ...... Santa Cruz Wash ...... Approximately 0.72 mile west of None +1,382 Ethington Road. Approximately 1,000 feet south of Shedd None +1,440 Road. Eloy, City of ...... Santa Rosa Canal ...... Approximately 400 feet west of Henness None +1,481 Road. Approximately 222 feet east of Toltec None +1,528 Highway. Casa Grande, City North Branch Santa Cruz Approximately 0.86 mile west of Wash None +1,363 of. Wash. Thornton Road. Approximately 1.85 miles east of Peart None +1,409 Road. Casa Grande, City Arizola Drain...... Approximately 0.64 mile west of Cox None +1,407 of. Road. Approximately 5.02 miles above con- None +1,453 fluence with North Branch Santa Cruz Wash.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
+North American Vertical Datum 1988 ADDRESSES: Pinal County (Unincorporated Areas): Maps are available for inspection at: 140 N. Florence Street, Florence, AZ 85232. Send comments to: The Honorable Sandie Smith, Pinal County, Chairperson of the Board of Supervisors, P.O. Box 827, Florence, AZ 85232. City of Casa Grande: Maps are available for inspection at: The City Hall, 510 E. Florence Blvd., Casa Grande, AZ 85222. Send comments to: The Honorable Chuck Walton, 510 E. Florence Blvd., Casa Grande, AZ 85222. City of Eloy: Maps are available for inspection at: City Hall, 628 N. Main St., Eloy, AZ 85231 or the City Library, 100 E. 7th St., Eloy, AZ 85231. Send comments to: The Honorable Byron Jackson, 628 North Main St. Eloy, AZ 85231.
Colorado ...... Town of Silt, Gar- Colorado River ...... Approximately 1100 feet upstream I–70 .. None *5,404 field County. Just downstream of County Road 311 ..... None *5,428 *National Geodetic Vertical Datum 1929 ADDRESSES: Town of Silt: Maps are available for inspection at the Town Hall, 231 North 7th Street, Silt, CO 81652. Send comments to The Honorable John Evan, Mayor, Town of Silt, and P.O. Box 70, Silt, CO 81652.
Kentucky ...... Bell County (Uninc. Cumberland River ...... Approximately 6,185 feet downstream of *1,011 +1,009 Areas) City of the confluence of Greasy Creek. Pineville. Approximately 770 feet upstream of the *1,102 +1,099 confluence of Burst Branch. Bell County (Uninc. Hances Creek ...... At the confluence with Cumberland River *1,043 +1,021 Areas). Approximately 5,630 feet upstream of the *1,043 +1,021 confluence with Cumberland River. Bell County (Uninc. Left Fork Straight Creek ... At the confluence with Straight Creek ...... *1,021 +1,020 Areas). Approximately 1,915 feet upstream of the *1,076 +1,075 confluence of Sims Fork. City of Middlesboro Little Yellow Creek ...... At the confluence with Yellow Creek ...... *1,132 +1,131 Approximately 275 feet upstream of the None +1,141 confluence of Davis Branch. Bell County (Uninc. Straight Creek ...... At the confluence with Cumberland River *1,022 +1,020 Areas) City of Pineville. Approximately 3,725 feet upstream of the None +1,161 confluence of Cox Branch. Bell County (Uninc. Yellow Creek ...... At confluence with Cumberland River ...... *1,038 +1,034 Areas) City of Middlesboro. Approximately 375 feet southwest of the *1,137 +1,141 intersection of Cumberland Avenue and 34th Street. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Bell County (Unincorporated Areas): Maps are available for inspection at Community Map Repository, 1 Courthouse Square, Pineville, Ken- tucky 40977. Send comments to Honorable William Kelley, County Judge-Executive, P.O. Box 339 Pineville, Kentucky 40977.
City of Middlesboro: Maps are available for inspection at Community Map Repository, 21 & Loft Avenue, Middlesboro, Kentucky 40965. Send comments to Honorable Hickman, Mayor, City of Middlesboro, Post Office Box 756, Middlesboro, Kentucky 40965. City of Pineville: Maps are available for inspection at Community Map Repository, 300 Virginia Avenue, Pineville, Kentucky 40977. Send comments to Honorable Bruce Hendrickson, Mayor, City of Pineville, P.O. Box 688, Pineville, Kentucky 40977.
Kentucky ...... Knox County Cumberland River ...... Approximately 6,410 feet southwest of None +966 (Uninc. Areas). the intersection of Goodin Creek Road and Kentucky State Highway 11. Approximately 4,495 feet upstream of the None +1,014 confluence of Elys Branch. +North American Vertical Datum 1988
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
ADDRESSES: Knox County (Unincorporated Areas): Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, KY 40906. Send comments to Honorable Raymond Smith, County Judge-Executive, P.O. Box 173, Barbourville, Kentucky 40906. City of Barbourville: Maps are available for inspection at Community Map Repository, County Courthouse, 104 Court Square, Barbourville, KY 40906. Send comments to Honorable W. Patrick Hauser, Mayor, City of Barbourville, 196 Daniel Boone Drive, Barbourville, KY 40906.
Kentucky ...... Louisville Metro ..... Anita Branch ...... At confluence with Pennsylvania Run ...... None +535 Approximately 240 feet upstream of None +614 Cedar Creek Road. Louisville Metro ..... Blue Springs Ditch ...... At confluence with Northern Ditch ...... *462 +460 Approximately 650 feet downstream of *464 +462 Fern Valley Road. Just upstream of Fern Valley Road ...... *464 +463 Approximately 80 feet downstream of *466 +465 Hanses Drive. Approximately 330 feet downstream of *471 +467 Jefferson Boulevard. Approximately 1,570 feet upstream of *473 +470 Jefferson Boulevard. Louisville Metro ..... Brownsboro Ditch ...... At confluence with Little Goose Creek ..... None +583 Approximately 70 feet upstream of Ten None +583 Broeck Way. Louisville Metro ..... Brush Run Upper ...... At confluence with Floydes Fork ...... None +597 Approximately 530 feet upstream of Polo None +655 Fields Lane. City of Shively ...... City Park Ditch ...... At confluence with Upper Mill Creek ...... *452 +448 Approximately 300 feet upstream of *452 +448 Olenda Way. Louisville Metro ..... Drews Fork ...... At confluence with Lovvorn Creek ...... None +600 Approximately 280 feet upstream of Coo- None +629 per Chapel Road. Louisville Metro ..... Durbin Branch ...... At confluence with Lovvorn Creek ...... None +595 Approximately 120 feet upstream of Coo- None +633 per Chapel Road. Louisville Metro ..... Fishpool Creek ...... At confluence with Southern Ditch ...... *464 +462 Approximately 1,570 feet upstream of *469 +467 Blue Lick Road. Approximately 950 feet downstream of *476 +472 South Park Road. Approximately 1,320 feet upstream of *573 +571 Charleswood Road. Approximately 20 feet upstream of Coo- None +582 per Chapel Road. Approximately 2,000 feet upstream of None +594 Cooper Chapel Road. Louisville Metro ..... Floyds Fork ...... Approximately 29,700 feet Metro down- *477 +475 stream of Bardstown Road. Approximately 1,600 feet upstream of *497 +496 Broad Run Road. Approximately 7,910 feet downstream of *520 +521 confluence with Cane Run. Approximately 3,400 feet upstream of *537 +534 confluence with Cane Run. Approximately 4,970 feet downstream of *549 +548 Taylorsville Lake Road. Approximately 1,930 feet downstream of *550 +552 Taylorsville Lake Road. Approximately 1,740 feet downstream of *559 +559 Taylorsville Road. Approximately 3,570 feet upstream of *567 +568 Taylorsville Road. Approximately 3,100 feet downstream of *583 +581 I–64 East. Approximately 330 feet downstream of *596 +596 Shelbyville Road. Approximately 7,700 feet upstream of *614 +612 CSX Railroad. Approximately 12,300 feet upstream of *629 +628 Aiken Road.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Louisville Metro ..... Gene Snyder Tributary ..... At confluence with Pennsylvania Run ...... None +595 Approximately 500 feet upstream of I– None +608 265 North. Louisville Metro ..... Goose Creek ...... Just upstream of Lakeland Road ...... None +661 Approximately 220 feet downstream of None +707 Cave Spring Place. Louisville Metro ..... Harrods Creek ...... At confluence with Ohio River ...... None +452 Approximately 22,400 feet upstream of None +452 Brownsboro Road. City of Shively ...... Heatherfield Ditch ...... At confluence with Upper Mill Creek ...... *448 +447 Just downstream of Heatherfield Drive .... *448 +447 Louisville Metro ..... Hite Creek ...... Approximately 2,850 feet downstream of None +599 Worthington Lane. Approximately 820 feet upstream of Col- None +734 lins Lane. Louisville Metro ..... LeFores Branch ...... At confluence with Goose Creek ...... None +668 Approximately 1,140 feet upstream of None +677 confluence with Goose Creek. Louisville Metro ..... Lilac Run ...... At confluence with Little Goose Creek ..... None +628 Approximately 1,780 feet upstream of None +667 Wynbrooke Cirle. Louisville Metro ..... Little Goose Creek ...... Approximately 580 feet downstream of I– None +548 71 South. Approximately 300 feet upstream of None +651 Westport Road. Louisville Metro ..... Long Run Creek ...... At confluence with Floyds Fork ...... None +569 Approximately 830 feet upstream of Long None +653 Run Road. Louisville Metro ..... Lovvorn Creek ...... At confluence with Pennsylvania Run ...... None +578 Approximately 170 feet upstream of Beu- None +652 lah Church Road. Louisville Metro ..... Northern Ditch ...... At confluence with Pond Creek ...... *457 +455 Approximately 1,910 feet downstream of *461 +459 Preston Highway. Approximately 1,840 feet upstream of *464 +463 Preston Highway. Approximately of 410 feet upstream of *479 +480 Shepherdsville Road. Louisville Metro ..... Pennsylvania Run ...... Approximately 900 feet downstream of None +528 Mt. Washington Road. Approximately 920 feet upstream of None +648 Outer Loop. Louisville Metro ..... Pohlmann Branch ...... At confluence with Pennsylvania Run ...... None +602 Approximately 160 feet upstream of Beu- None +657 lah Church Road. Louisville Metro ..... Pond Creek ...... Approximately 6,500 feet downstream of *431 +430 Stites Station Road. Approximately 870 feet upstream of *432 +433 Blenvins Gap Road. Approximately 1,000 feet downstream of *448 +445 Stonestreet Road. Approximately 1,800 feet upstream of *457 +455 New Cut Road. Louisville Metro ..... Rolling Hills Branch ...... At confluence with Little Goose Creek ..... None +590 Approximately 180 feet upstream of None +608 Goose Creek Road. Louisville Metro, South Fork Beargrass At pump Station ...... *434 +433 City of West Creek. Buechel, City of Jeffersontown. Approximately 50 feet upstream of Baxter *450 +449 Avenue. Approximately 170 feet upstream of *455 +456 Ellison Avenue. Approximately 6,100 feet upstream of *461 +460 Eastern Parkway. Approximately 360 feet upstream of Gold- *472 +470 smith Lane (1st crossing). Approximately 760 feet downstream of *474 +472 Bashford Manor Lane.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Approximately 240 feet upstream of *474 +472 Bashford Manor Lane. Approximately 100 feet downstream of *476 +475 Bardstown Road. Approximately 80 feet upstream of *479 +478 Bardstown Road. Approximately 40 feet downstream of *492 +491 Hikes Lane. Approximately 260 feet upstream of *510 +511 Breckenridge Lane. Approximately 3,270 feet upstream of *534 +533 Hunsinger Lane. Approximately at Brybed Reservoir ...... None +564 Approximately 1,500 feet downstream of None +564 Stony Brook Drive. Just downstream Taylorville Road ...... None +634 Louisville Metro ..... Southern Ditch ...... At confluence with Pond Creek ...... *457 +455 Approximately 960 feet downstream of *460 +459 Minors Lane. Approximately 1,620 feet downstream of *475 +472 Outer Loop (1st crossing). Approximately 490 feet downstream of *505 +506 Gayeway Drive. Approximately 310 feet upstream of *518 +517 Gayeway Drive. Approximately 30 feet upstream of *530 +531 Shepherdsville Road. Approximately 60 feet downstream of Mi- *564 +561 chael Ray Drive. Approximately 790 feet upstream of Mi- *577 +576 chael Ray Drive. Approximately 1,350 feet upstream of Mi- *584 +586 chael Ray Drive. Louisville Metro ..... Springhurst Creek ...... At confluence with Little Goose Creek ..... None +588 Approximately 350 feet upstream of Ten None +591 Broeck Way. Louisville Metro, Weicher Creek ...... At confluence with Middle Fork Beargrass *509 +508 City of Matthews. Creek. Approximately 100 feet downstream of .... *516 +517 I–264 West Ramp ...... Approximately 20 feet upstream of *521 +522 Blossomwood Drive. Approximately 600 feet upstream of *539 +537 Woodmont Drive. Approximately 190 feet upstream of *549 +545 Dannywood Road. Approximately 290 feet upstream of Lin- *553 +550 coln Road. Approximately 820 feet upstream of Lin- None +555 coln Road. Approximately 3,870 feet upstream of None +647 Limehouse Lane. Louisville Metro ..... Wet Woods Creek ...... At confluence with Southern Ditch ...... *459 +457 Just downstream of Preston Highway ...... *462 +461 Louisville Metro ..... Wilson Creek ...... At confluence with Southern Ditch ...... *457 +456 Approximately 990 feet upstream of ...... *462 +460 I–265 North ...... Approximately 3,290 feet upstream of Na- *468 +467 tional Turnpike. Approximately 2,260 feet upstream of *476 +477 Farmers Lane. Approximately 3,550 feet upstream of None +480 Farmers Lane. Approximately 4,700 feet downstream of None +524 National Turnpike. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Louisville Metro: Maps are available for inspection at Louisville/Jefferson County Metropolitan Sewer District, 700 West Liberty Street, Louisville, Kentucky 40203–1911.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Send comments to Mr. Randy Stambaugh, P.E., CFM, Floodplain Administrator, Louisville/Jefferson County Metropolitan Sewer District, 700 West Liberty Street, Louisville, Kentucky 40203–1911. City of Jeffersontown: Maps are available for inspection at Jeffersontown City Hall, 10416 Watterson Trail, Jeffersontown, Kentucky 40299. Send comments to Honorable Clay Foreman, Mayor, Jeffersontown City Hall, 10416 Watterson Trail, Jeffersontown, Kentucky 40299. City of Shively: Maps are available for inspection at Shively City Hall, 3920 Dixie Highway, Louisville, Kentucky 40216–4120. Send comments to Honorable Sherry Conner, Mayor, Shively City Hall, 3920 Dixie Highway, Louisville, Kentucky 40216–4120. City of Matthews: Maps are available for inspection at St. Matthews City Hall, 3940 Grandview Avenue, Louisville, Kentucky 40207. Send comments to Honorable Arthur Draut, Mayor, St. Matthews City Hall, 3940 Grandview Avenue, Louisville, Kentucky 40207. City of West Buechel: Maps are available for inspection at West Buechel City Hall, 3705 Bashford Avenue, Louisville, Kentucky 40218. Send comments to Honorable Sharon Fowler, Mayor, West Buechel City Hall, 3705 Bashford Avenue, Louisville, Kentucky 40218.
Kentucky ...... Whitley County Cumberland River ...... Just downstream of State Route 204 ...... *907 +906 (Uninc. Areas), City of Williams- burg. Approximately 4,570 feet upstream from None +966 Goodin Creek.
*National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Unincorporated Areas of Whitley County: Maps are available for inspection at Community Map Repository, Whitley County Courthouse, 310 Main Street, Williamsburg, Kentucky 40769. Send comments to The Honorable Michael Patrick, County Judge-Executive, Whitley County Courthouse, 310 Main Street, Williamsburg, Ken- tucky 40769. City of Williamsburg: Maps are available for inspection at Community Map Repository, Williamsburg City Hall, office of Mayor, 116 North Second Street, Williams- burg, Kentucky 40769. Send comments to The Honorable Joseph Early, Mayor, City of Williamsburg, P.O. Box 907, Williamsburg, Kentucky 40769.
Maine ...... Town of Eagle Eagle Lake ...... Entire Shoreline at Eagle Lake Within the None +581 Lake, Aroostook corporate limits. County. +North American Vertical Datum 1988 ADDRESSES: Town of Eagle Lake: Maps are available for inspection at 36 Devoe Brook Road, Eagle Lake, Maine 04739. Send comments to The Honorable James Nadeau, Town Manager, Town of Eagle Lake, 36 Devoe Brook Road, P.O. Box 287, Eagle Lake, Maine 04739.
Montana ...... Lincoln County ...... Big Cherry Creek ...... At the confluence with Libby Creek ...... *2,144 *2,152 Approximately 3,600 feet upstream of None *2,358 Granite Creek Road. Libby Creek ...... Just upstream of railroad crossing prior to *2,060 *2,065 confluence with Kootenai River. Approximately 3,500 feet upstream of None *2,773 U.S. Route 2.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
*National Geodetic Vertical Datum 1929. ADDRESSES: Unincorporated Areas of Lincoln County: Maps are available for inspection at the County Courthouse, 512 California Avenue, Libby, Montana 59923. Send comments to The Honorable John Konzen, Chairman, Lincoln County, 512 California Avenue, Libby, MT 59923.
New Hampshire ..... Town of Milan, Androscoggin River ...... Approximately 7,800 feet of Halt Road None +1,109 Coos County. extended. Approximately 1,500 feet upstream of None +1,114 Owens Road extended. +North American Vertical Datum 1988 ADDRESSES: Town of Milan: Maps are available for inspection at the Town Hall, 20 Bridge Street, Milan, NH 03588. Send comments to: The Honorable Richard Lamontagne, Chairman, Town of Milan, P.O. Box 300, Milan, NH 03588.
New Hampshire ..... Town of Wakefield, Belleau Lake ...... At Moose Road ...... *579 +584 Carroll County. Entire Shoreline of Belleau Lake above *579 +584 Woodman Lake. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Town of Wakefield: Maps are available for inspection at the Map Repository, Town of Wakefield, Assessor’s Office, 2 High Street, Sanbornville, New Hampshire 03872. Send comments to: Mr. Robin Frost, Town Administrator, Town of Wakefield, Town Office, 2 High Street, Sanbornville, New Hampshire 03872.
Pennsylvania ...... Township of Gran- Strodes Run ...... Approximately at the confluence with Ju- None +490 ville, Township of niata River. Oliver, Mifflin County (Uninc. Areas). Approximately 55 feet upstream of Fer- None +621 guson Valley Road. +North American Vertical Datum 1988 ADDRESSES: Township of Granville Maps are available for inspection at the Granville Municipal Offices, 100 Helen Street Lewistown, PA 17044. Send comments for Granville Township to The Honorable Charles Watts, III Chairman, Granville Township Supervisors 100 Helen Street, Lewistown, Pennsylvania 17044. Township of Oliver Maps are available for inspection at Municipal Offices, 274 Lockport Road, Lewistown, PA 17044. Send comments for Oliver Township to The Honorable Robert D. Smith Chairman, Oliver Township Supervisors 274 Lockport Road Lewistown, Pennsylvania 17044.
South Carolina...... Sumter County...... Beech Creek...... Approximately 1.1 miles upstream of *181 *180 Barnwell Drive. Approximately 100 feet downstream of None *225 Edgehill Road. Beech Creek ...... At the confluence with Beech Creek ...... *168 *168 Tributary 1 ...... Approximately 150 feet downstream of None *193 Raccoon Road. Brunson Branch ...... At the confluence with Mulberry Branch .. None *133 Approximately 700 feet upstream of None *144 Oswego Highway. Brunson Branch ...... At the confluence with Brunson Branch ... None *134 Tributary 1 ...... Approximately 0.6 mile upstream of the None *143 confluence of Cut Through 1. Cane Savannah Creek ..... Approximately 200 feet downstream of *138 *138 Kolb Road. Approximately 250 feet upstream of None *164 Wedgefield Highway. Cut Through 1 ...... At the confluence with Brunson Branch None *140 Tributary 1. Just downstream of Jerry Street ...... None *144 Cut Through 2 ...... At the confluence with Mulberry Branch .. None *134 Just downstream of Jerry Street ...... None *144
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
Green Swamp ...... Approximately 250 feet downstream of *169 *169 Mason Road. Approximately 50 feet downstream of None *189 Brewington Road. Hatchet Camp Beach ...... At confluence with Cane Savannah Creek None *160 Approximately 1.1 miles upstream of None *256 Bronco Road. Hope Swamp ...... At the confluence with Pudding Swamp ... None *108 Approximately 100 feet downstream of None *116 Narrow Paved Road. Horsepen Branch ...... At the confluence with Green Swamp ...... None *181 Approximately 250 feet downstream of None *203 Stamey Livestock Road. Long Branch ...... Approximately 330 feet downstream of *173 *173 Broad Street. Approximately 350 feet downstream of None *223 Frierson Road. Lynches River ...... Approximately 7.7 miles downstream of None *99 Amwell Church Road. Approximately 1000 feet downstream of None *120 Interstate 95. Mile Branch ...... At the confluence with Brunson Branch ... None *140 Approximately 0.2 mile downstream of None *143 U.S. Route 378 and 76. Mulberry Branch...... At the confluence with Rocky Bluff *133 *133 Swamp. Approximately 150 feet downstream of None *167 Main Street. Mulberry Branch ...... At the confluence with Mulberry Branch .. None *134 Tributary 1 ...... Approximately 1.3 miles upstream of the None *143 confluence with Mulberry Branch. Mush Swamp...... Approximately 850 feet downstream of *162 *162 Loring Mill Pond Road. Approximately 50 feet upstream of Eagle None *204 Road. Nasty Branch ...... At the confluence with Cane Savannah *131 *128 Creek. Approximately 250 feet downstream of None *175 Bethel Church Road. Noyts Branch ...... At the confluence of Green Swamp ...... *129 *129 Approximately 350 feet upstream of Main None *159 Street. Pocalla Creek ...... At the confluence with Pocotaligo River ... *121 *121 Approximately 250 feet downstream of None *168 South Guignard Drive. Pudding Swamp ...... Approximately 300 feet downstream of None *103 Forge Road. Approximately 200 feet downstream of None *125 Trinity Road. Rocky Bluff ...... Approximately 0.8 mile upstream of the *134 *134 confluence of Mulberry Branch. Approximately 900 feet downstream of None *168 Westbury Mill Road. Shot Pouch Branch ...... At the confluence with Green Swamp ...... *138 *138 Approximately 450 feet downstream of None *176 Jefferson Road. Sooks Branch ...... At the confluence of Green Swamp ...... *133 *133 Approximately 75 feet upstream of Coun- None *157 cil Lane. *National Geodetic Vertical Datum 1929 ADDRESSES: City of Sumter: Maps are available for inspection at 33 North Main Street, Sumter, SC, 29150. Send comments to The Honorable Joseph T. McElveen Jr., Mayor, City of Sumter, P.O. Box 1449, Sumter, SC 29151. Unincorporated Areas of Sumter County: Maps are available for inspection at 33 North Main Street, Sumter, SC 29150. Send comments to Mr. William T. Noonan, Sumter County Administrator, 13 East Canal Street, Sumter, SC 29150.
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*Elevation in feet (NGVD) State City/town/county Source of flooding Location +Elevation in feet (NAVD) Existing Modified
South Dakota ...... City of Parkston, Pony Creek ...... Approximately 1,100 feet downstream of None *1,378 Hutchinson Glynn Drive. County. Approximately 200 feet upstream of High- None *1,407 way 37. *National Geodetic Vertical Datum 1929 ADDRESSES: City of Parkston: Maps are available for inspection at the Office of the Chief Executive Officer, 207 West Main Street, Parkston, South Dakota 57366. Send comments to the Honorable David J. Hoffman, Mayor, City of Parkston, 207 West Main Street, Parkston, South Dakota 57366.
Utah ...... City of Eureka, Eureka, Gulch ...... Approximately 0.52 mile downstream of None +6,303 Juab County. Church Street. Approximately 550 feet upstream of Bulk None +6,571 Plant Road. +National American Vertical Datum 1988 ADDRESSES: City of Eureka: Maps are available for inspection at the office of the Chief Executive Officer at City Hall, 15 North Church Street, Eureka, UT 84628. Send comments to the Honorable Lloyd Conder, Mayor, City of Eureka, P.O. Box 156, Eureka, Utah 84626.
West Virginia ...... Ohio County Little Wheeling Creek ...... Approximately 475 feet upstream of Mid- None *718 (Uninc. Areas). dle Wheeling Creek Road. Approximately 158 feet upstream of U.S. None *782 Route 40. *National Geodetic Vertical Datum 1929
ADDRESSES: Unincorporated areas of Ohio County: Maps are available for inspection at the City County Building, 1500 Chapline Street, Room 215, Wheeling, WV 26003. Send comments to Mr. Greg Stewart County Administrator, 1500 Chapline Street, Room 215, Wheeling, WV 26003.
Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Larimer County, Colorado and Incorporated Areas
Big Thompson River: Approximately 150 feet upstream of Boyd Lake Outlet None +4,880 Larimer County (Uninc. Ditch. Areas), City of Loveland. Approximately 300 feet west of Lincoln Avenue and None #2 approximately 1,700 feet west of St. Louis Avenue. Just downstream of St. Louis Avenue ...... +4,920 +4,923 Just upstream of St. Louis Avenue ...... +4,921 +4,924 Just east of Taft Avenue to 900 feet west of Taft Ave- None #1 nue Garfield Avenue. South of Dry Creek and north of Rossum Drive ...... None #3 Approximately 1,400 feet upstream of confluence of None +5,046 Dry Creek. Dry Creek: Just upstream of confluence with Big Thompson River None +5,043 City of Loveland Approximately 0.4 miles upstream of confluence with None +5,065 Big Thompson River. Big Thompson River—South At confluence with Big River ...... None +4,938 Larimer County (Uninc. Spill: Areas) and City of Loveland. Just upstream of Taft Avenue ...... None +4,970 Big Thompson River— At confluence with Big Thompson River Approxi- None +4,888 Larimer County (Uninc. Grave Pit Split: mately 1,900 feet upstream of confluence with Big Areas) Thompson River...... None +4,899 Big ThompsonRiver: Approximately 800 feet upstream of Larimer-Weld None +4,812 Larimer County (Uninc. County Line. Areas) and Town Johns- town Approximately 800 feet of upstream of County Road 3 None +4,829 Just upstream of I–25 ...... None +4,852 +North American Vertical Datum
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
#Depth in feet above ground ADDRESSES: Unincorporated Areas Larimer County: Maps are available for inspection at the Larimer County Courthouse, 200 West Oak Street, Fort Collins, Colorado 80521. Send comments to the Honorable Kathay Rennels, Chair, Larimer County Board of Commissioners, P.O. Box 1190, Fort Collins, Colorado 80522–1190. City of Loveland: Maps are available for inspection at City Hall, 500 East Third Street, Loveland, Colorado 80537. Send comments to the Honorable Larry Walsh, Mayor, City of Loveland, 500 East Third Street, Loveland, Colorado 80537. Town of Johnstown: Maps are available for inspection at the Town Hall, 101 Charlotte Street, Johnstown, Colorado 80534. Send comments to the Honorable Troy D. Mellon, Mayor, Town of Johnstown, 101 Charlotte Street, Johnstown, Colorado 80534.
Henry County, Georgia and Incorporated Areas
Little Cotton Indian Creek ..... At the confluence with Big Cotton Indian Creek...... +654 +655 Henry County (Uninc. Areas). Approximately 1,000 feet upstream of the confluence +654 +655 with Big Cotton Indian Creek. +North American Vertical Datum 1988. ADDRESSES: Henry County, Georgia (Unincorporated Areas): Maps are available for inspection at the Community Map Repository, 140 Henry Parkway, McDonough, Georgia, 30253. Send comments to Mr. Rob Magnaghi, Henry County Manager, 140 Henry Parkway, McDonough, Georgia 30253.
Peoria County, Illinois and Incorporated Areas
Fargo Run ...... At the confluence with Kickapoo Creek ...... None +551 Peoria County (Uninc. Areas). At the confluence with Illinois State Highway ...... None +712 City of Peoria. Unnamed Tributary ‘A’ of At confluence with Fargo Run ...... None +617 Peoria County (Uninc. Fargo Run. Areas). West branch: Just upstream of U.S. Highway 150 ...... None +663 East branch: Just downstream of Blackbridge Road ... None +640 Unnamed Tributary ‘B’ of At the confluence with Fargo Run ...... None +618 Peoria County (Uninc. Fargo Run. Areas). Approximately 440 feet upstream of Challacomb None +630 Road. +North American Vertical Datum 1988 ADDRESSES: Unincorporated areas of Peoria County: Maps available for inspection at Peoria County Planning and Zoning Offices, Peoria County Courthouse, 324 Main Street, Peoria, Illinois 61602. Send comments to Mr. Matthew Wahl, Director, Peoria County Planning and Zoning, 324 Main Street, Room 301, Peoria, Illinois 61602. Village of Bartonville: Maps are available for inspection at the Bartonville Village Hall, 5912 S. Adams Street, Bartonville, Illinois 61607. Send comments to Ms. Cindi Stafford, Village Clerk, 5912 S. Adams Street, Bartonville, Illinois 61607. Village of Bellevue: Maps are available for inspection at the Bellevue Village Hall, 320 Main Street, Peoria, Illinois 61604. Send comments to Mr. Ralph Wilson, Village President, 320 Main Street, Peoria, Illinois 61604. City of Chillicothe: Maps are available for inspection at Chillicothe City Hall, Attn: Sharon Crabel, City Clerk, 908 N. Second Street, Chillicothe, Illinois 61602. Send comments to Mr. Ken Coulter, Chillicothe City Engineer, 908 N. Second Street, Chillicothe, Illinois 61602. City of Elmwood: Maps are available for inspection at the Elmwood City Hall, 116 W. Main Street, Elmwood, Illinois 61529. Send comments to Ms. Dotty Nauman, City Clerk, 116 W. Main Street, Elmwood, Illinois 61529. Village of Glasford: Maps are available for inspection at the Glasford City Hall, 301 S. Oak Street, Glasford, Illinois 61533. Send comments to Honorable Jack Rudd, Mayor, 301 S. Oak Street, Glasford, Illinois 61533. Village of Hanna City: Maps are available for inspection at the Hanna City Village Hall, 313 N. First Street, Hanna City, Illinois 61536. Send comments to Honorable Fred Winterroth, Mayor, 313 N. First Street, Hanna City, Illinois 61536. Village of Kingston Mines: Maps are available for inspection at Village of Kingston Mines, 209 Washington Street, Kingston Mines, Illinois 61539. Send comments to Ms. Charlette Hancock, 209 Washington Street, Kingston Mines, Illinois 61539. Village of Mapleton:
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Maps are available for inspection at Mapleton Village Hall, 8524 W. Main Street, Mapleton, Illinois 61547. Send comments to Mr. Ken Oedewaldt, Village President, 8524 W. Main Street, Mapleton, Illinois 61547. Village of Norwood: Maps are available for inspection at Norwood Village Hall, 1515 N. Norwood Boulevard, Peoria, Illinois 61604. Send comments to Mr. Jim Yocum, Village President, 1515 N. Norwood Boulevard, Peoria, Illinois 61604. City of Pekin: Maps are available for inspection at Pekin City Hall, 111 Capital Street, Pekin, Illinois 61554. Send comments to Mr. Ron Sieh, Code Enforcement Officer, 111 Capital Street, Pekin, Illinois 61554. Village of Peoria Heights: Maps are available for inspection at Peoria Heights Village Hall, 4901 N. Prospect Road, Peoria Heights, Illinois 61616. Send comments to Mr. Tom Horstmann, Village Administrator, 4901 N. Prospect Road, Peoria Heights, 61616. City of Peoria: Maps are available for inspection at the City of Peoria Public Works Department, 419 Fulton Street, Peoria, Illinois 61602. Send comments to Mr. Ken Andrejasich, Permit Engineer, City of Peoria Public Works Department, 419 Fulton Street #307, Peoria, Illinois 61602. Village of Princeville: Maps are available for inspection at the Princeville Village Hall, 206 N. Walnut Avenue, Princeville, Illinois 61559. Send comments to Mr. Sid Stahl, Village President, 206 N. Walnut Avenue, Princeville, Illinois 61559. City of West Peoria: Maps are available for inspection at the West Peoria City Hall, 2506 W. Rohmann Avenue, West Peoria, Illinois 61604. Send comments to Mr. John Carson, City Administrator, 2506 W. Rohmann Avenue, West Peoria, Illinois 61604.
Dekalb County, Indiana and Incorporated Areas
Cedar Creek ...... County Road 72 ...... None +816 DeKalb County (Uninc. Areas), City of Auburn, Town of Waterloo. Approximately 1,700 feet upstream of County Road None +905 20. St. Joe River ...... Approximately 10,400 feet downstream of County None +791 Dekalb County (Uninc. Road 68. Areas). Approximately 7,600 feet upstream of County Road None +813 Town of St. Joe 79. Little Cedar Creek...... Approximately 1,800 feet downstream of County None +818 Dekalb County (Uninc. County Road 327. Areas). Approximately 2,000 feet upstream of confluence Har- None +857 vey Guthrie Ditch. Black Creek ...... Approximately 800 feet upstream of confluence with None +830 Dekalb County (Uninc. Little Cedar Creek. Areas). Approximately 3,600 feet upstream of State Road 3 ... None +853 Fish Creek...... Approximately 5,000 feet downstream of County None +840 Dekalb County (Uninc. Road 79. Areas). Approximately 4,000 feet upstream of County Road None +884 65A. Peckhart Drain ...... Approximately at confluence with Diehl Drain ...... None +861 Dekalb County (Uninc. Areas). Approximately at County Road 40 ...... None +877 City of Auburn. Diehl Drain...... Approximately at confluence with Cedar County None +847 Dekalb County (Uninc. Creek. Areas).
Approximately 100 feet upstream of County Road 15 None +878 City of Auburn, City of Garrett. +North American Vertical Datum 1988 ADDRESSES: DeKalb County: Maps available for inspection at DeKalb County Planning Commission, 301 S. Union Street, Auburn, Indiana. Send comments to Sally Rowe, Zoning Administrator, 301 S. Union Street, Auburn, Indiana, 46706. Town of Hamilton: Maps are available for inspection at the Zoning Administrator’s Office, 7750 South Wayne Street, Hamilton, Indiana. Send comments to Keith Smith, Zoning Administrator, 7750 South Wayne Street, Hamilton, Indiana, 46742. City of Auburn: Maps available for inspection at the Building, Planning and Development Department 210 Cedar Street, Auburn, Indiana. Send comments to Bill Spohn, Administrator, Building, Planning and Development, 210 Cedar Street, Auburn, Indiana 46706. City of Butler: Maps available for inspection at Butler City Utility Office, 201 South Broadway, Butler, Indiana.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Send comments to Amy Schweitzer, City Planner, 201 South Broadway, Butler, Indiana 46721. City of Garrett: Maps available for inspection at Garrett Planning Department, 130 South Randolph Street, Garrett, Indiana. Send comments to Steve Bingham, Planning Director, City of Garrett, 130 South Randolph Street, Garrett, Indiana 46738. Town of Corunna: Maps available for inspection at Corunna Town Hall, 102 N. Bridge Street, Corunna, Indiana. Send comments to Cassandra Lynch, Clerk Treasurer, 102 N. Bridge Street, Corunna, Indiana 40730. Town of Waterloo: Maps available for inspection at Town Hall, 280 N. Wayne Street, Waterloo, Indiana. Send comments to DeWayne Nodine, 280 N. Wayne Street, Waterloo, Indiana 46793. Town of St. Joe: Maps available for inspection at St. Joe Town Hall, 102 Third Street, St. Joe, Indiana. Send comments to Laura Spuller, Clerk Treasurer, 102 Third Street, St. Joe, Indiana 46785. Town of Ashley: Maps available for inspection at Clerk-Treasurer’s Office, 500 S. Gonser Avenue, Ashley, Indiana. Send comments to Don Farrington, Superintendent, 500 S. Gonser Avenue, Ashley, Indiana, 46705. Town of Altona: Maps available for inspection at Town Clerk-Treasurer’s Office, 1202 W. Quincy Street, Garrett, Indiana. Send comments to Max Milks, Clerk-Treasurer, 1202 W. Quincy Street, Garrett, Indiana 46738.
Johnson County, Indiana and Incorporated Areas
Brewer Ditch ...... At confluence with Youngs Creek ...... None +749 Johnson County (Uninc Areas), City of Franklin, Town of Whiteland. Approximately 1,600 feet downstream of U.S. High- None +782. way 31. Brewers Ditch ...... Approximately 1,600 feet downstream of U.S. High- *780 +782 Town of Whiteland. way 31. Approximately at County Road 125 ...... *800 +802 Canary Ditch ...... At confluence with Youngs Creek ...... *742 +744 Johnson County (Uninc Areas) and City of Franklin. Approximately 1,300 feet upstream of Earlywood *768 +767 Drive. Canary Ditch...... Approximately 1,300 feet upstream of Earlywood None +767 Johnson County (Uninc Drive. Areas). Approximately 1,900 feet upstream of County Road None +784 East 400 North. East Grassy Creek ...... At confluence with Grassy Creek ...... None +781 Johnson County (Uninc Areas). Approximately at Whiteland Road ...... None +782 East Grassy Creek ...... Approximately at Whiteland Road ...... *784 +785 Johnson County (Uninc Areas), Town of New Whiteland, Town of Whiteland. Approximately at Tracy Road ...... *807 +810 East Grassy Creek ...... Approximately at Tracy Road ...... None +810 Johnson County (Uninc Areas). Approximately 300 feet upstream of County Road None +820 East 750 North. Graham Ditch ...... At confluence with Canary Ditch ...... None +761 Johnson County (Uninc Areas) and City of Franklin. Approximately 1,500 feet upstream of Earlywood None +768 Drive. Grassy Creek ...... Approximately 2,400 feet upstream of County Road None +766 Johnson County (Uninc West 200 North. Areas), City of Green- wood, Town of Whiteland, Town of New Whiteland. Approximately 750 feet downstream of Granada Drive None +809 Grassy Creek ...... Approximately 750 feet downstream of Granada Drive *809 +809 City of Greenwood. Approximately 250 feet upstream of Fiesta Drive ...... *815 +814 Grassy Creek ...... Approximately 250 feet upstream of Fiesta Drive ...... None +814 City of Greenwood. Approximately 300 feet downstream of Interstate 65 .. None +821 Hurricane Creek ...... At confluence with Youngs Creek ...... *724 +723 City of Franklin.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Approximately at Upper Shelbyville Road ...... *728 +728 Hurricane Creek ...... Approximately at Upper Shelbyville Road ...... None +728 Johnson County (Uninc Areas). Approximately at County Road 375 East ...... None +811 Tracy Ditch ...... At confluence with Grassy Creek ...... None +789 Johnson County (Uninc Areas) and City of Greenwood. Approximately 50 feet upstream of West Stop 18 None +794 Road. Youngs Creek ...... Approximately 7,500 feet upstream of U.S. Highway *712 +712 Johnson County (Uninc 31. Areas) and City of Franklin. Approximately 4,000 feet upstream of South Morton *727 +729 Street. Youngs Creek ...... Approximately 4,000 feet upstream of South Morton None +729 Johnson County (Uninc Street. Areas) and City of Franklin. At confluence with Roberts Ditch ...... None +766 * National Geodetic Vertical Datum 1929 + North American Vertical Datum 1988 ADDRESSES: Johnson County: Maps available for inspection at Johnson County Planning Zoning, 86 West Court Street, Franklin, IN. Send comments to Mr. Allen D. Kirk, PE, Planning Engineer, 86 West Court Street, Franklin, IN 46131. Town of Edinburgh: Maps available for inspection at Town Hall, 107 S. Holland Street, Edinburgh, IN. Send comments to Mr. Jim Wray, Planning & Zoning, 107 S. Holland Street, Edinburgh, IN 46124. City of Franklin: Maps available for inspection at Planning Department, 55 W. Madison Street, Franklin, IN. Send comments to Mr. David Weir, AICP, Planning Director, 55 W. Madison Street, Franklin, IN 46131. City of Greenwood: Maps available for inspection at Planning Department, 225 E. Emerson Avenue, Greenwood, IN. Send comments to Mr. Ed Ferguson, Planning Director, 225 E. Emerson Avenue, Greenwood, IN 46143. Town of New Whiteland: Maps available for inspection at Town Hall, 401 Mooreland Drive, New Whiteland, IN. Send comments to Mr. Tim Guyer, Zoning Administrator, 401 Mooreland Drive, New Whiteland, IN 46184. Town of Prince’s Lake: Maps available for inspection at Town Hall, 14 E. Lakeview Drive, Nineveh, IN. Send comments to Mr. Albert M. Cornell, Building Inspector, 14 E. Lakeview Drive, Nineveh, IN 46164. Town of Whiteland: Maps available for inspection at Whiteland Town Hall, 549 Main Street, Whiteland, IN. Send comments to Mr. Dennis Capozzi, Town Manager, 549 Main Street, Whiteland, IN 46184.
Harlan County, Kentucky and Incorporated Areas
Catron Creek ...... At the confluence of Catron Creek with Martins Fork .. +1,186 +1,188 Harlan County (Unincor- porated Areas), City of Harlan. Approximately 270 feet upstream of the confluence of *1,473 +1,472 Lower Double Branch. Clover Fork ...... At the confluence of Clover For with Cumberland *1,177 +1,178 Harlan County (Unincor- River. porated Areas). Approximately 1,140 feet upstream of the confluence None +1,722 City of Evarts, City of Har- of Breedens Creek. lan. Cloverlick Creek ...... At the confluence of Cloverlick Creek with Poor Fork. *1,427 +1,427 City of Loyall. Approximately 45 feet upstream of the confluence of None +1,453 Harlan County (Unincor- Gilley Branch. porated Areas), City of Cumberland. Cumberland River...... Apprximately 1,440 feet downstream of the con- *1,100 +1,098 Harlan County (Unincor- fluence of Jerry’s Branch. porated Areas), City of Loyall. At the confluence of Clover Fork and Poor Fork ...... *1,177 +1,178 City of Wallins Creek. Looney Creek ...... At the confluence of Looney Creek with Poor Fork ..... *1,437 +1,437 Harlan County (Unincor- porated Areas, City of Benham, City of Cum- berland, City of Lynch.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Approximately 735 feet downstream of the confluence *1,886 +1,884 of Long Rock Branch. Martins Fork ...... At the confluence of Martins Fork with Clover Fork .... *1,180 +1,181 Harlan County (Unincor- porated Areas), City of Harlan. Approximately 2,990 feet upstream of the confluence None +1,264 of Raccoon Branch. Poor Fork ...... At the confluence of Poor Fork with Cumberland *1,177 +1,178 Harlan County (Unincor- River. porated Areas), City of Cumberland, City of Loyall. Approximately 3,670 feet upstream of the confluence *1,521 +1,522 City of Cumberland, City of of Coldiron Branch. Loyall. Wallins Creek ...... At the confluence of Wallins Creek with Cumberland *1,132 +1,133 Harlan County (Unincor- River. porated Areas). Approximately 175 feet upstream of the confluence of None +1,154 City of Wallins Creek. Brock Branch. Yocum Creek ...... At the confluence of Yocum Creek with Clover Fork ... *1,297 +1,300 Harlan County (Unincor- porated Areas). Approximately 575 feet downstream of the confluence None +1,519 of Reds Creek. * National Geodetic Vertical Datum + North American Vertical Datum ADDRESSES: Unincorporated areas of Harlan County: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Joseph Grieshop, County Judge, Harlan County, Executive 210 East Central Street, Suite 111, Harlan, Ken- tucky 40831. City of Benham: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Betty Joe Howard, Mayor, City of Benham, 333 Main Street, Benham, Kentucky 40807. City of Cumberland: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable William Harrison, Mayor, City of Cumberland, 402 West Main Street, Cumberland, KY 40823. City of Evarts: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Burl Fee, Mayor, City of Evarts, Post Office Box 303, Evarts, Kentucky 40828. City of Harlan: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Daniel Howard, Mayor, City of Harlan, Post Office Box 783, Harlan, Kentucky 40828. City of Loyall: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Charles Wattenberger, Mayor, City of Loyall, Post Office Box 1060, Loyall, Kentucky 40854. City of Lynch: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Thomas Vincini, Mayor, City of Lynch, 6 East Main Street, Lynch, Kentucky 40855. City of Willins Creek: Maps are available for inspection at the County Courthouse, Harlan, Kentucky 40871. Send comments to The Honorable Freddy Burke, Mayor, City of Wallins Creek, Post Office Box 483, Evarts, Kentucky 40873.
Kent County, Michigan and Incorporated Areas
Behan-Foley Drain ...... At confluence with Buck Creek ...... None +633 City of Grandville and City of Wyoming. Approximately 1,100 feet downstream of Barcroft None +687 Drive SW. Bostwick Lake ...... None +852 Cannon Township. Brandywine Creek ...... At confluence with Indian Mill Creek ...... None +655 City of Grand Rapids and City of Walker. Approximately 1,100 feet south of Leonard Street ...... None +731 Brandywine Creek Tributary At confluence with Brandywine Creek ...... None +731 City of Walker. 1. Approximately 1,200 feet north of Hazelnut Drive ...... None +736 Brandywine Creek Tributary At confluence with Brandywine Creek ...... None +731 City of Walker. 2. Approximately 200 feet east of Kusterer Avenue ...... None +731
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Buck Creek ...... Approximately 500 feet downstream of Clyde Park *658 +658 Byron Township and City Avenue SW. of Wyoming. 100th Street SW ...... None +709 Buck Lake ...... None +770 Caledonia Township. Campau Lake ...... *763 +762 Caledonia Township. Grand River ...... City of Walker/Plainfield Township ...... *619 +619 Plainfield Township. 4 Mile Road (Plainfield Township/Ada Township cor- *626 +626 porate limits). Indian Mill Creek ...... At confluence with Grand River ...... None +616 Alpine Township, City of Grand Rapids, City of Walker. Approximately 1,500 feet south of 6 Mile Road ...... None +758 Indian Mill Creek Tributary 1 At confluence with Indian Mill Creek ...... None +758 Alpine Township. Approximately 900 feet west of Fruit Ridge Avenue ... None +784 Indian Mill Creek Tributary 2 At confluence with Indian Mill Creek ...... None +758 Alpine Township. Approximately 800 feet south of 7 Mile Road ...... None +801 Lake Bella Vista ...... None +829 Cannon Township. At confluence with Grand River ...... None +623 Algoma Township, Plain- field Township, Sparta Township, Tyrone Town- ship, City of Rockford, Village of Sparta. Approximately 1,400 feet upstream of confluence with None +606 City of Grandville and City Grand River. of Wyoming. Roys Creek ...... Approximately 700 feet upstream of Prairie ...... None +629 Silver Lake ...... None +855 Cannon Township. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Kent County: Maps available for inspection at Kent County Drain Commission, 1500 Scribner Avenue NW., Grand Rapids, MI 49504. Send comments to Mr. Doug Sporte, Drain Commissioner, Kent County Drain Commission, 1500 Scribner Avenue NW., Grand Rapids, MI 49504. Ada Township: Maps available for inspection at Ada Township Office, 7330 Thornapple River Drive, Ada, MI 49301. Send comments to Mr. James E. Ferro, Planning Director, 7330 Thornapple River Drive, Ada, MI 49301. Algoma Township: Maps available for inspection at Attn: Clerk, Algoma Township, 10531 Algoma Avenue, Rockford, MI 49341. Send comments to Mr. Don Bates, Building Official, 10531 Algoma Avenue, Rockford, MI 49341. Byron Township: Maps available for inspection at Attn: Mr. Randy Zomerlei, Byron Township Hall, 8085 Byron Center Avenue SW., Byron Center, MI 49315 Send comments to Mr. Randy Zomerlei, Building Inspector, 8085 Byron Center Avenue SW., Byron Center, MI 49315. Caledonia Township: Maps available for inspection to Mr. Ed Rusticus, Caledonia Township Town Hall, 250 Mapel Street, Caledonia, MI 49316. Send comments to Mr. Ed Rusticus, Zoning Administrator, 250 Mapel Street, Caledonia, MI 49316. Cannon Township: Maps available for inspection at Cannon Township Town Hall, 6878 Belding Road NE., Rockford, MI 49341. Send comments to Mr. Doug Hopkins—IMS Co., 6878 Belding Road NE., Rockford, MI 49341. Cascade Township: Maps available for inspection at Cascade Township Planning Department, 2865 Thornhill SE., Grand Rapids, MI 49546. Send comments to Mr. Steve Peterson, Planning Director, 2865 Thornhill SE., Grand Rapids, MI 49546. City of Cedar Springs: Maps available for inspection at City of Cedar Springs, 66 S. Main Street, Cedar Springs, MI 49319. Send comments to Professional Code Inspectors, 66 S. Main Street, Cedar Springs, MI 49319. City of East Grand Rapids: Maps available for inspection at East Grand Rapids City Hall, 750 Lakeside Drive SE., East Grand Rapids, MI 49506. Send comments to Mr. Ken Feldt, Director, City of East Grand Rapids, 750 Lakeside Drive SE., East Grand Rapids, MI 49506. City of Grand Rapids: Maps available for inspection at Bob Borek, Grand Rapids City Engineer’s Office, 300 Monroe Avenue NW., Grand Rapids, MI. Send comments to Mr. Bill Cole, Engineer, City of Grand Rapids, 300 Monroe Avenue NW., Grand Rapids, MI 49503. City of Grandville: Maps available for inspection at Attn: Dan Johnson, 3119 Wilson Avenue SW., Grandville, MI 49418. Send comments to Mr. Dan Johnson, Assistant City Manager, City of Grandville, 3195 Wilson Avenue SW., Grandville, MI 49418. City of Kentwood:
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Maps available for inspection at City of Kentwood Engineering Department, 4900 Breton Road SE., Kentwood, MI 49518. Send comments to Mr. Patrick T. Hughes, Assistant City Engineer, City of Kentwood, 4900 Breton Road, SE., Kentwood, MI 49518. City of Lowell: Maps available for inspection at City of Lowell City Hall, 301 E. Main Street, Lowell, MI 49331. Send comments to Imperial Municipal Services, 301 E. Main Street, Lowell, MI 49331. City of Rockford: Maps available for inspection at City of Rockford City Hall, 7 S. Monroe Street, Rockford, MI 49341. Send comments to Professional Code Inspectors, 7 S. Monroe Street, Rockford, MI 49341. City of Walker: Maps available for inspection at City of Walker City Hall, 4243 Remembrance Road NW., Walker, MI 49544. Send comments to Mr. Scott Conners, City Engineer, 4243 Remembrance Road NW., Walker, MI 49544. City of Wyoming: Maps available for inspection at City of Wyoming Engineering Department, 2660 Burlingame Avenue, Wyoming, MI 49509. Send comments to Mr. William Dooley, Director of Public Works, 2660 Burlingame Avenue, Wyoming, MI 49509. Gaines Township: Maps available for inspection at Attn: Jeff Gritter, 8555 Kalamazoo Avenue SE., Caledonia , MI 49316. Send comments to Mr. Jeff Gritter, Township Engineer, 8555 Kalamazoo Avenue SE., Caledonia, MI 49316. Grand Rapids Township: Maps available for inspection at Grand Rapids Township Hall, 1836 Beltline Avenue, NE., Grand Rapids, MI 49525. Send comments to Mr. Michael DeVries, Supervisor, 1836 Beltline Avenue, NE., Grand Rapids, MI 49525. Lowell Township: Maps available for inspection at Lowell Township Town Hall, 2910 Alden Nash Avenue SE., Lowell, MI 49331. Send comments to Mr. Butch Visser, Building Official, 2910 Alden Nash Avenue, SE., Lowell, MI 49331. Plainfield Township: Maps available for inspection at Plainfield Township Building Inspections Department, 6161 Belmont Avenue NE., Belmont, MI. Send comments to Mr. Robert C. Homan, Township Manager, 6161 Belmont Avenue. NE., Belmont, MI 49306. Solon Township: Maps available for inspection at Solon Township Town Hall, 2305 19 Mile Road, Cedar Springs, MI 49319. Send comments to Mr. Bob Ellick, Supervisor, 2305 19 Mile Road, Cedar Springs, MI 49319. Sparta Township: Maps available for inspection at Sparta Township, 160 E. Division Street, Sparta, MI 49345. Send comments to Mr. Casey Patterson, Building Inspector, 160 E. Division Street, Sparta, MI 49345. Tyrone Township: Maps available for inspection at Tyrone Township, 28 E. Muskegon Street, Kent City, MI 49330. Send comments to Mr. Casey Patterson, Building Inspector, 28 E. Muskegon Street, Kent City, MI 49330. Vergennes Township: Maps available for inspection at Vergennes Township Town Hall, 10381 Bailey Drive NE., Lowell, MI 49331. Send comments to Mr. Tim Wittenbach, Supervisor, 10381 Bailey Drive NE., Lowell, MI 49331. Village of Casnovia: Maps available for inspection at Village of Casnovia Town Hall, 141 N. Main Street, Casnovia, MI 49318. Send comments to Imperial Municipal Services, 141 N. Main Street, Casnovia, MI 49318. Village of Kent City: Maps available for inspection at Village of Kent City Village Office, 83 Spring Street, Kent City, MI 49330. Send comments to Mr. Steven Buckner, Village President, 83 Spring Street, Kent City, MI 49330. Village of Sparta: Maps available for inspection at Sparta Township, 160 E. Division Street, Sparta, MI 49345. Send comments to Mr. Casey Patterson, Building Inspector, 160 E. Division Street, Sparta, MI 49345.
Barry County, Missouri and Incorporated Areas
Chapel Drain At confluence with Kelly ...... None +1,328 City of Monett. Just upstream of Chapel Drive ...... None +1,336 Tributary #1 to Unnamed ...... At confluence with Unnamed Tributary ...... None +1,326 Tributary to Clear Creek ...... Approximately 750 feet upstream of confluence with None +1,333 Unnamed Tributary. Unnamed Tributary to Clear At Lawrence County—Barry County Boundary ...... None +1,285 Creek: Approximately 1075 feet upstream of Missouri ...... None +1,377 State Highway ‘‘H’’ and just downstream of Farm ...... Road 2330.. +North American Vertical Datum 1988 ADDRESS: City of Monett:
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Maps are available for inspection at City Hall, 217 Fifth Street, Monett, MO 65708. Send comments to The Honorable James Orr, Mayor, City of Monett, P.O. Box 110, Monett, MO 65708.
Blaine County, Montana and Incorporated Areas
Milk River: Approximately 2.5 river miles downstream of U.S. None +2,287 Blaine County (Uninc. Highway 2. Areas) and Fort Belknap Indian Reservation. Approximately 4.7 river miles upstream of Kennedy None +2,360 Road. Peoples Creek: At confluence with Milk River ...... None +2,297 Fort Belknap Indian Res- ervation. Approximately 11.5 miles upstream of confluence with None +2,339 Milk River (approximately 2.8 miles upstream of Road Bridge). Peoples Creek-Split Flow: Approximately 1.2 river miles upstream of confluence None +2,288 Fort Belknap Indian Res- with South Dodson Canal. ervation. Approximately 3.2 river miles upstream of Lodgepole None +2,319 Highway. +North American Vertical Datum 1988 ADDRESSES: Unincorporated Areas of Blaine County: Maps are available for inspection at the County Courthouse, 400 Ohio Street, Chinook, MT 59523. Send comments to Honorable Don Swenson, Chairman, Blaine County Board of Commissioners, 400 Ohio Street, Chinook, MT 59523. Fort Belknap Indian Reservation: Maps are available for inspection at the Tribal Office Building, Highway 2 & Route 66, Harlem, MT 59526. Send comments to Honorable Benjamin Speakthunder, Tribal Council President, Rural Route 1, Box 6, Harlem, MT 59526.
Licking County, Ohio and Incorporated Areas
Beaver Run ...... Approximately 200 feet downstream of State Route *870 +869 Licking County (Unic. 79. Areas). Approximately 400 feet downstream of Canyon Road *889 +886 Village of Hebron. Bell Run ...... Approximately 800 feet downstream of U.S. Route 40 *894 +897 Licking County (Unic. Areas). Just downstream of Refugee Road ...... *904 +903 Buckeye Lake ...... None +893 Licking County (Unic. Areas), Village of Buck- eye Lake. Clear Run...... Approximately 2,000 feet downstream of Newark- *910 +902 Licking County (Uninc. Granville Road. Areas), Village of Gran- ville. Approximately at State Route 661 ...... *972 +966 Heath Lateral B ...... Approximately 160 feet upstream of Franklin Avenue *841 +838 City of Heath, City of New- ark. Approximately 320 feet upstream of State Route 13 ... *870 +866 Heath Lateral C ...... Approximately 400 feet downstream of 30th Street ..... *843 +844 City of Heath. Approximately 6,336 feet upstream of State Route 79 *877 +876 Heath Lateral D ...... Just upstream of Irving Wick Drive East ...... *915 +908 Licking County (Uninc. Areas), City of Heath. Approximately 1,890 feet upstream of Irving Wick *935 +936 Drive East. Heath Lateral E ...... Approximately 1,250 feet downstream of Conrail Rail- *893 +894 road. Just downstream of State Route 79 ...... *863 +862 Heath Lateral EA ...... Approximately at confluence with Heath Lateral E ...... *873 +885 Licking County (Uninc. Areas), City of Heath. Approximately 3,600 feet upstream of confluence with *893 +891 Heath Lateral E. Heath Lateral F ...... Approximately 320 feet downstream of confluence *878 +877 City of Heath. with Heath Lateral FA. Approximately 1,140 feet upstream of confluence with *889 +886 Health Lateral FA. Heath Lateral FA ...... Approximately 60 feet upstream of confluence with *882 +878 City of Heath. Health Lateral F. Approximately 2,380 feet upstream of confluence with *896 +895 Heath Lateral F.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Hebron Tributary ...... Approximately 900 feet downstream of State Route *878 +877 Licking County (Uninc. 79. Areas), Village of He- bron. Just downstream of Cumberland Street ...... *887 +888 Kiber Run ...... Approximately 5,100 feet downsteam of Mink Street .. *1,048 +1,047 Licking County (Uninc. Areas), Village of Johns- town. Approximately 3,500 feet upstream of Mink Street ...... *1,078 +1,073 Muddy Fork ...... Approximately 1,450 feet downstream of State Route *982 +980 Licking County (Uninc. 310. Areas), City of Pataskala. Approximately 1,800 feet upstream of Columbia Road *1,028 +1,024 Raccoon Creek ...... Approximately 1,600 Feet downstream of CSX Rail- *817 +818 Licking County (Uninc. road. Areas), City of Newark, Village of Johnstown, Village of Alexandria, Village of Granville Approximately 1,100 feet upstream of State Route 37 *1,079 +1,080 Ramp Creek ...... Approximately 850 feet downstream of Liberty Drive .. *850 +849 Licking County (Uninc. Areas), City of Heath. Approximately 100 feet downstream of Thornwood *885 +884 Drive. Sharon Valley Run ...... Approximately at Country Club Road ...... *877 +876 Licking County (Uninc. Areas), City of Newark. Approximately 300 feet downstream of Jones Road ... *947 +940 South Fork Licking River ...... Downstream side of State Route 13 ...... *815 +816 Licking County (Uninc. Areas), City of Heath, City of Hebron, City of Newark, City of Pataskala. Approximately 2,600 feet upstream of Mink Street *1,096 +1,095 Road. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Licking County (Unincorporated Areas): Maps available for inspection at Licking County Administration Office, 20 South Second Street, Newark, Ohio 43055. Send comments to Mr. Jim Mickey, 20 South Second Street, Newark, Ohio 43055. Village of Alexandria: Maps available for inspection at Village of Alexandria, 116 Granville Street, Alexandria, Ohio 43001. Send comments to Honorable Jim Jasper, Mayor, 116 Granville Street, Alexandria, Ohio 43001. Village of Buckeye Lake: Maps availabe for inspection at Buckeye Lake Village Office, 5192 Walnut Road, Buckeye Lake, Ohio 43008. Send comments to Honorable Frank Foster, Mayor, 5192 Walnut Road, Buckeye Lake, Ohio 43008. Village of Granville: Maps available for inspection at Jerry Turner/Bird and Bull Engineers & Surveyors, 2875 Dublin Granville Road, Columbus, Ohio 43235. Send comments to Mr. Chris Strayer, Village Planner, 141 East Broadway, Granville, Ohio 43023. Village of Hanover: Maps available for inspection at Hanover Village Hall, 200 New Home Drive NE, Hanover, Ohio 43055. Send comments to Honorable Duane Flowers, Mayor, 200 New Home Drive NE, Hanover, Ohio 43055. Village of Hartford: Maps available for inspection at Hartford Village Town Hall, 2 North High Street, Croton, Ohio 43013. Send comments to Mr. Gordon Potter, 2 North High Street, Croton, Ohio 43013. City of Heath: Maps available for inspection at Heath Municipal Building, 1287 Hebron Road, Heath, Ohio 43056. Send comments to Mr. John Groff, Chief of Building/Zoning, 1287 Hebron Road, Heath, Ohio 43056. Village of Hebron: Maps available for inspection at Village of Hebron Zoning Department, Attention: Theresa Ours, 116 W. Main Street, Hebron, Ohio 43025. Send comments to Mr. Jerry Turner, Engineer, 2875 W. Dublin Granville Road, Columbus, Ohio 43235. Village of Johnstown: Maps available for inspection at Village of Johnstown, 599 South Main Street, Johnstown, Ohio 43031. Send comments to Mr. Randy Ashbrook, Street Director, 599 South Main Street, Johnstown, Ohio 43031. Village of Kirkersville: Maps available for inspection at Kirkersville Village Hall, 135 N. 5th Street, Kirkersville, Ohio 43033. Send comments to Mr. Mike Cloud, Zoning, 135 N. 5th Street, Kirkersville, Ohio 43033.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
City of Newark: Maps available for inspection at City of Newark Division of Engineering, 40 West Main Street, Newark, Ohio 43055. Send comments to Mr. Brian Morehead, City Engineer, 40 West Main Street, Newark, Ohio 43055. City of Pataskala: Maps available for inspection at City of Pataskala Administration Office, 196 East Broad Street, Pataskala, Ohio 43062. Send comments to Mr. Alison Terry, Director of Planning, 196 East Broad Street, Pataskala, Ohio 43062. City of Reynoldsburg: Maps available for inspection at City of Reynoldsburg Municipal Building, 7232 East Main Street, Reynoldsburg, Ohio 43068. Send comments to Mr. Stephen Moore, 7232 East Main Street, Reynoldsburg, Ohio 43068. Village of St. Louisville: Maps available for inspection at Village of St. Louisville, 257 South Sugar Street, St. Louisville, Ohio 43071. Send comments to Mr. Dennis Ankrum, 257 South Sugar Street, St. Louisville, Ohio 43071. Village of Utica: Maps available for inspection at Village Administration Office, 39 Spring Street, Utica, Ohio 43080. Send comments to Mr. Jud Brechler, Village Administrator, 39 Spring Street, Utica, Ohio 43080.
Salt Lake County, Utah and Incorporated Areas
Big Cottonwood Creek: Approximately 140 feet upstream of confluence with None + 4,246 Salt Lake County (Uninc. Jordan River. Areas). Approximately 60 feet upstream of Holladay Cotton- None + 4,642 wood Road. Approximately 120 feet upstream of Wasatch Boule- None + 4,896 vard. Little Cottonwood Creek: At confluence with Jordan Road ...... None + 4,252 Salt Lake County (Uninc. Areas). Just upstream of 2000 East Street ...... None + 4,593 Approximately 600 feet upstream of Route 209 ...... None + 5,384 Little Willow Creek: At confluence with Willow Creek ...... None + 4,610 City of Draper. Approximately 1500 feet upstream of Hidden Brook None + 5,094 City of Sandy. Drive. Midas Creek: At 11800 South Street ...... None + 4,562 City of Herriman, City of Riverton, Salt Lake County (Uninc. Areas). Approximately 430 feet upstream of 6000 West Street None + 4,920 + North American Vertical Datum 1988 ADDRESSES: Unincorporated Areas of Salt Lake County: Maps are available for inspection at the Public Works Department, Engineering, 451 South State Street, Suite N. 3100, Salt Lake City, UT 84190. Send comments to Honorable Peter Corroon, Salt Lake County, 2001 South State Street, Suite N 2100, Salt Lake City, UT 84190. City of Draper: Maps are available for inspection at the 12441 South 900 East, Draper, UT 84020. Send comments to Honorable Darrell H. Smith, Mayor, City of Draper, 12441 South 900 East, Draper, UT 84020. City of Herriman: Maps are available for inspection at 13011 South Pioneer Street, Herriman, UT 84065. Send comments to Honorable J. Lynn Crane, Mayor, City of Herriman, 13011 South Pioneer Street, Herriman, UT 84065. City of Riverton: Maps are available for inspection at 12765 South 1400 West, Riverton, UT 84065. Send comments to Honorable R. Mont Evans, Mayor, City of Riverton, 12765 South 1400 West, Riverton, UT 84065.
City of Sandy City: Maps are available for inspection at 10000 Centennial Parkway, Sandy, UT 84070. Send comments to Honorable Tom Dolan, Mayor, City of Sandy City, 10000 Centennial Parkway, Sandy, UT 84070.
Williamson County, Tennessee and Incorporated Areas
Aden Camp Branch ...... At the confluence of Aden Camp Branch with Little None +664 Williamson County (Uninc. Turnbull Creek. Areas). Approximately 400 feet upstream of Bethshears Road None +873 City of Fairview. Aenon Creek ...... At the confluence of West Fork Aenon Creek ...... None +704 Williamson County (Uninc. Areas). Approximately 900 feet upstream of confluence of None +707 West Fork Aenon Creek. Arkansas Creek ...... At the confluence of Arkansas Creek with South None +663 Williamson County (Uninc. Harpeth River. Areas).
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Approximately 9,460 feet upstream of confluence of None +700 Harpendene Branch. Arrington Creek ...... Approximately 4,100 feet upstream of confluence with *679 +682 Williamson County (Uninc. Harpeth River. Areas). Approximately 410 feet downstream of Sanford Road None +796 Arrington Creek Tributary 1.. At confluence Arrington Creek Tributary 1 with None +699 Williamson County (Uninc. Arrington Creek. Areas). Approximately 1,950 feet upstream of the confluence None +748 of Arrington Creek Tributary 2. Arrington Creek Tributary 2 .. At confluence of Arrington Creek Tributary 2 with None +734 Williamson County (Uninc. Arrington Creek Tributary 1. Areas). Approximately 2,930 feet upstream of the confluence None +760 with Arrington Creek Tributary 1. Arrington Creek Tributary 3 .. At confluence of Arrington Creek Tributary 3 with None +736 Williamson County (Uninc. Arrington Creek. Areas). Approximately 1,500 feet upstream of the confluence None +758 with Arrington Creek Tributary 5. Arrington Creek Tributary 4 .. At confluence of Arrington Creek Tributary 4 with None +743 Williamson County (Uninc. Arrington Creek Tributary 3. Areas). Approximately 3,310 feet upstream of the confluence None +760 with Arrington Creek. Arrington Creek Tributary 5.. At confluence Arrington Creek Tributary 5 with None +747 Williamson County (Uninc. Arrington Creek Tributary 3. Areas). Approximately 1,390 feet upstream of the confluence None +760 with Arrington Creek Tributary 3. Big Turnbull Creek ...... Approximately 2,800 feet upstream of Old Cox Pike ... None +644 Williamson County (Uninc. Areas). Approximately 2,240 feet upstream of Old Franklin None +685 Road. Brush Creek ...... Approximately 6,680 feet upstream of confluence of *676 +676 Williamson County (Uninc. Brush Creek Tributary 1. Areas). Approximately 430 feet upstream of Jones Lane S.E. None +820 City of Fairview. Brush Creek Tributary 1 ...... Approximately 40 feet upstream of confluence with *615 +616 Williamson County (Uninc. Brush Creek. Areas). Approximately 150 feet to the northwest of the inter- None +824 City of Fairview. section of Oak Tree Drive and Dody Drive. Burke Branch ...... At the confluence of Burke Branch with Mayes Creek None +700 Williamson County (Uninc. Areas). Approximately 2,240 feet upstream of Wilson Pike ..... None +748 Caney Fork Creek ...... At the confluence of Caney Fork Creek with South None +619 Williamson County (Uninc. Harpeth River. Areas). Approximately 8,300 feet upstream of confluence with None +656 South Harpeth River. Dry Branch ...... Just downstream of Mallory Station Road ...... *692 +692 Williamson County (Uninc. Areas), City of Brent- wood, City of Franklin. Approximately 80 feet upstream of Moores Lane ...... None +771 Fivemile Creek ...... At the confluence of Fivemile Creek Tributary 1 with *679 +680 Williamson County (Uninc. Fivemile Creek. Areas). Approximately 450 feet upstream of Pratt Lane ...... None +711 Fivemile Creek Tributary 1 ... At the confluence at Fivemile Creek Tributary 1 with None +680 Williamson County (Uninc. Fivemile Creek. Areas). Approximately 2,930 feet upstream of Interstate 65 .... None +746 Flat Creek ...... Approximately 2,520 feet southeast of the intersection None +707 Williamson County (Uninc. of Flat Creek Road and Reynolds Road. Areas). Approximately 1,370 feet southeast of intersection of None +741 Cross Keys Road and Flat Creek Road. Flat Rock Creek ...... Approximately 18,840 feet downstream of Horn Tav- None +567 Williamson County (Uninc. ern Road. Areas). Approximately 1,220 feet northwest of the intersection None +807 City of Fairview. of Cox Pike North and Mary Susan Lane. Flat Rock Creek Tributary 1 At the confluence of Flat Rock Creek Tributary 1 with None +718 City of Fairview. Flat Rock Creek. Approximately 1,880 feet upstream of Highway 96 ..... None +811 Goose Creek ...... Approximately 700 feet upstream of confluence with None +669 Williamson County (Uninc. Fivemile Creek. Areas). Approximately 260 feet north of the intersection of None +771 Goose Creek Bypass and Snowbird Hollow Road. Grassy Branch ...... Approximately 2,490 feet upstream of Duplex Road ... *711 +711 City of Spring Hill.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Approximately 2,280 feet upstream of the confluence None +720 of Grassy Branch Tributary 1. Grassy Branch Tributary 1 .... At the confluence of Grassy Branch Tributary 1 with None +712 City of Spring Hill. Grassy Branch. Approximately 480 feet upstream of the confluence None +717 with Grassy Branch. Harpendene Branch ...... At the confluence of Harpendene Branch with Arkan- None +638 Williamson County (Uninc. sas Creek. Areas). Approximately 7,930 feet upstream of confluence with None +695 Arkansas Creek. Harpeth River Tributary 1 ..... Approximately 3,210 feet upstream of confluence with +677 +678 Williamson County (Uninc. Harpeth River. Areas). Approximately 310 feet upstream of Murfreesboro None +709 Road. Harrison Branch Creek ...... Approximately 11,600 feet upstream of confluence ..... None +668 Williamson County (Uninc. Areas). Approximately 1,070 feet northwest of the intersection None +767 City of Fairview. of Henderson Drive and Fairview Boulevard. Hickman Branch...... At the confluence of Hickman Branch with Little None +697 Williamson County (Uninc. Turnbull Creek. Areas). Approximately 80 feet northwest of the intersection of None +831 City of Fairview. Master Shane Road & Cox Run Court. Kelley Creek ...... At the confluence of Kelley Creek with South Harpeth None +646 Williamson County (Uninc. Creek. Areas). Approximately 220 feet upstream of Taylor Cemetery None +688 Road. Liberty Creek ...... Just downstream of Eddy Lane ...... *645 +645 City of Franklin. Approximately 85 feet downstream of Hillhaven Lane None +700 Lick Creek ...... Approximately 560 feet downstream of Porter Branch None +646 Williamson County (Uninc. Road. Areas). At the confluence of South Fork Lick Creek and North None +668 Fork Lick Creek. Linton Branch ...... Approximately 14,000 feet southwest of the intersec- None +623 Williamson County (Uninc. tion of Ntchez Bend Road and Pasquo Road. Areas). Approximately 9,400 feet southwest of the intersec- None +645 tion of Natchez Bend Road and Pasquo Road. Little Harpeth River ...... Approximately 410 feet downstream of Moores Lane *708 +708 City of Brentwood. Approximately 2,250 feet upstream of Carriage Hills None +741 Drive. Little Harpeth River Tributary Approximately 840 feet upstream of confluence with *629 +629 City of Brentwood. 1. Little Harpeth River. Approximately 1,355 feet upstream of River Oaks None +654 Road. Little Harpeth River Tributary Approximately 240 feet upstream of Country Club *645 +645 City of Brentwood. 2. Drive. Approximately 30 feet downstream of Maryland Way None +710 Little Harpeth River Tributary At the confluence of Little Harpeth River ...... None +664 City of Brentwood. 3. Approximately 35 feet downstream of Centerview None +690 Drive. Little Harpeth River Tributary Approximately 1,590 feet upstream of confluence with *656 +656 City of Brentwood. 4. Little Harpeth River. Approximately 480 feet upstream of Shenandoah None +692 Drive. Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 5 None +660 City of Brentwood. 5. with Little Harpeth River Tributary 4. Approximately 85 feet downstream of Mayfield Place None +708 Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 6 None +692 City of Brentwood. 6. with Little Harpeth River Tributary 4. Approximately 1,455 feet upstream of Old Smyrna None +726 Road. Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 7 None +676 City of Brentwood. 7. and Little Harpeth River Tributary 8. Approximately 1,605 feet upstream of Wikle Road ..... None +744 Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 7 None +676 City of Brentwood. 8. and Little Harpeth River Tributary 8. Approximately 2,745 feet upstream of General Mac- None +722 arthur Drive.
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 9 None +707 City of Brentwood. 9. and Little Harpeth River Tributary 7. Approximately 850 feet upstream of Ashby Drive ...... None +890 Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 10 None +679 City of Brentwood. 10. and Little Harpeth River Tributary 7. Approximately 220 feet downstream of Vaden Drive .. None +744 Little Harpeth River Tributary At the confluence of Little Harpeth River Tributary 11 None +701 City of Brentwood. 11. and Little Harpeth River Tributary 10. Approximately 4,520 feet upstream of Interstate 65 .... None +754 Little Turnbull Creek ...... Approximately 1,720 feet downstream of Crow Cut None +599 Williamson County (Uninc. Road. Areas). Approximately 4,320 feet upstream of confluence of None +822 City of Fairview. Little Turnbull Creek Tributary 1. Little Turnbull Creek Tribu- At the confluence of Little Turnbull Creek Tributary 1 None +756 City of Fairview. tary 1. with Little Turnbull Creek. Approximately 2,360 feet upstream of confluence with None +819 Little Turnbull Creek. Mayes Creek ...... Just downstream of North Chapel Road ...... *664 +664 Williamson County (Uninc. Areas). Approximately 5,400 feet upstream of Tulloss Road ... None +753 McCanless Branch ...... At the confluence of McCanless Branch with Arrington None +734 Williamson County (Uninc. Creek. Areas). Approximately 3,480 feet upstream of Old Horton None +757 Highway. McCrory Creek ...... Just downstream of McDaniel Road ...... *682 +682 Williamson County (Uninc. Areas). Approximately 300 feet upstream of Arno-College None +733 Grove Road. McCutcheon Creek ...... Approximately 740 feet downstream of Amacher Drive *743 +743 City of Spring Hill. Approximately 1,240 feet upstream of Amacher Drive None +760 Mill Creek ...... Approximately 400 feet upstream of Rocky Fork Road *612 +612 Williamson County (Uninc. Areas). Approximately 11,080 feet upstream of Rocky Fork None +661 Town of Nolensville. Road. North Fork Lick Branch ...... At the confluence of North Fork Lick Branch with Lick None +668 Williamson County (Uninc. Creek. Areas). Approximately 5,040 feet upstream of Old Lick Creek None +688 Road. Overall Creek ...... Approximately 1,320 feet upstream of confluence with None +709 Williamson County (Uninc. Harpeth River. Areas). Approximately 720 feet upstream of Horton Highway None +769 South Fork Lick Branch ...... At the confluence of South Fork Lick Branch with Lick None +668 Williamson County (Uninc. Creek. Areas). Approximately 210 feet upstream of South Lick Creek None +677 Road. South Harpeth Creek ...... At the confluence of South Harpeth Creek with South None +633 Williamson County (Uninc. Harpeth River. Areas). At the confluence of Kelley Creek ...... None +646 South Harpeth River ...... Approximately 590 feet upstream of confluence of *619 +619 Williamson County (Uninc. Caney Fork Creek. Areas). At the confluence of South Harpeth Creek ...... None +633 Starnes Creek ...... Just downstream of Arno Road ...... *675 +675 Williamson County (Uninc. Areas). Approximately 920 feet upstream of State Route 840 None +755 Unnamed Tributary 2 to Approximately 1,200 feet upstream of Eddy Lane ...... *640 +640 City of Franklin. Harpeth River. Approximately 580 feet upstream of Jordan Road ...... None +680 Unnamed Tributary to Mill Approximately 1,270 feet upstream of confluence with *603 +603 Williamson County (Uninc. Creek. Mill Creek. Areas). Approximately 2,140 feet upstream of Clovercroft None +667 Town of Nolensville. Road. West Fork Aenon Creek ...... At the confluence of West Fork Aenon Creek with None +704 Williamson County (Uninc. Aenon Creek. Areas). Approximately 5,840 feet upstream of the confluence None +721 with Aenon Creek. *National Geodetic Vertical Datum 1929 +North American Vertical Datum 1988 ADDRESSES: Unincorporated Areas of Williamson County:
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Elevation in feet *(NGVD) Elevation in feet Flooding source(s) Location of referenced elevation +(NAVD) Communities affected Effective Modified
Maps are available for inspection at the Williamson County Complex, Planning Department, 1320 West Main Street, Suite 125, Franklin, TN 37064. Send comments to the Honorable Roger Anderson, Mayor, Williamson County, 1320 West Main Street, Suite 125, Franklin, TN 37064. City of Brentwood: Maps are available for inspection at Brentwood City Hall, 5211 Maryland Way, Brentwood, TN 37027. Send comments to the Honorable Ann Dunn, Mayor, City of Brentwood, P.O. Box 788, Brentwood, TN 37024. City of Fairview: Maps are available for inspection at Fairview City Hall, 1874 Fairview Boulevard, Fairview, TN 37062. Send comments to the Honorable Stewart Johnson, Mayor, City of Fairview, P.O. Box 69, Fairview, TN 37062. City of Franklin: Maps are available for inspection at Franklin City Hall, 109 Third Avenue South, Franklin, TN 37064. Send comments to the Honorable Thomas Miller, Mayor, City of Franklin, 109 Third Avenue South, Franklin, TN 37064. Town of Nolensville: Maps are available for inspection at Nolensville Town Hall, 7240 Nolensville Road, Suite 102, Nolensville, TN 37135. Send comments to the Honorable Charles F. Knapper, Mayor, Town of Nolensville, P.O. Box 547, Nolensville, TN 37135. City of Spring Hill: Maps are available for inspection at Spring Hill City Hall, 199 Town Center Parkway, Spring Hill, TN 37174. Send comments to the Honorable Danny Leverette, Mayor, City of Spring Hill, P.O. Box 789, Spring Hill, TN 37174.
(Catalog of Federal Domestic Assistance No. the time of listing, but are connected to Office, 6010 Hidden Valley Rd., 83.100, ‘‘Flood Insurance.’’) occupied habitat, were historically Carlsbad, CA 92011 (telephone 760– Dated: December 5, 2005. occupied, and also contain physical and 431–9440). David I. Maurstad, biological features essential to the FOR FURTHER INFORMATION CONTACT: Acting Director, Mitigation Division, Federal conservation of the species. Field Supervisor, Carlsbad Fish and Emergency Management Agency, Department DATES: We will accept comments from Wildlife Office, 6010 Hidden Valley Rd., of Homeland Security. all interested parties until February 13, Carlsbad, CA 92011, (telephone 760/ [FR Doc. 05–23949 Filed 12–12–05; 8:45 am] 2006. We must receive requests for 431–9440; facsimile 760/431–9624). BILLING CODE 9110–12–P public hearings, in writing, at the SUPPLEMENTARY INFORMATION: address shown in the ADDRESSES section by January 27, 2006. Public Comments Solicited DEPARTMENT OF THE INTERIOR ADDRESSES: If you wish to comment, We intend that any final action you may submit your comments and resulting from this proposal will be as Fish and Wildlife Service materials—identified by RIN 1018– accurate and as effective as possible. AU50—concerning this proposal by any Therefore, comments or suggestions 50 CFR Part 17 one of several methods: from the public, other concerned governmental agencies, the scientific RIN 1018–AU50 1. You may submit written comments and information to Jim Bartel, Field community, industry, or any other Endangered and Threatened Wildlife Supervisor, U.S. Fish and Wildlife interested party concerning this and Plants; Designation of Critical Service, Carlsbad Fish and Wildlife proposed rule are hereby solicited. Habitat for the Laguna Mountains Office, 6010 Hidden Valley Rd., Comments particularly are sought Skipper Carlsbad, CA 92011. concerning: 2. You may hand-deliver written (1) The reasons any habitat should or AGENCY: Fish and Wildlife Service, comments to our Office, at the above should not be determined to be critical Interior. address. habitat as provided by section 4 of the ACTION: Proposed rule. 3. You may fax your comments to Act (16 U.S.C. 1531 et seq.), including 760–431–9624. whether the benefit of designation will SUMMARY: We, the U.S. Fish and 4. You may send comments by outweigh any threats to the species due Wildlife Service (Service), propose to electronic mail (e-mail) to to designation; designate critical habitat for the Laguna [email protected]. Please see the (2) Specific information on the Mountains skipper (Pyrgus ruralis Public Comments Solicited section amount and distribution of Laguna lagunae), pursuant to the Endangered below for file format and other Mountains skipper habitat, and which Species Act of 1973, as amended (Act). information about electronic filing. areas should be included in the In total, approximately 6,662 acres (ac) 5. Federal Rulemaking Portal: http:// designations that were occupied at the (2,696 hectares (ha)) fall within the www.regulations.gov. Follow the time of listing that contain the features boundaries of the proposed critical instructions for submitting comments. that are essential for the conservation of habitat in two units that are divided into Comments and materials received, as the species and why, and which areas a total of seven subunits on Laguna and well as supporting documentation used not occupied at the listing are essential Palomar Mountains in San Diego in the preparation of this proposed rule, to the conservation of the species and County, California. Five subunits are will be available for public inspection, why; occupied. Two subunits are not known by appointment, during normal business (3) Land use designations and current to be currently occupied or occupied at hours at the Carlsbad Fish and Wildlife or planned activities in the subject areas
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and their possible impacts on proposed actions. The role that designation of analysis has been conducted that is critical habitat; critical habitat plays in protecting informed by the Director’s guidance. (4) Any foreseeable economic, habitat of listed species, however, is On the other hand, to the extent that national security, or other potential often misunderstood. As discussed in designation of critical habitat provides impacts resulting from the proposed more detail below in the discussion of protection, that protection can come at designation and, in particular, any exclusions under section 4(b)(2) of the significant social and economic cost. In impacts on small entities; and Act, there are significant limitations on addition, the mere administrative (5) Whether our approach to the regulatory effect of designation process of designation of critical habitat designating critical habitat could be under section 7(a)(2) of the Act. In brief, is expensive, time-consuming, and improved or modified in any way to (1) designation provides additional controversial. The current statutory provide for greater public participation protection to habitat only where there is framework of critical habitat, combined and understanding, or to assist us in a Federal nexus; (2) the protection is with past judicial interpretations of the accommodating public concerns and relevant only when, in the absence of statute, make critical habitat the subject comments. designation, destruction or adverse of excessive litigation. As a result, If you wish to comment, you may modification of the critical habitat critical habitat designations are driven submit your comments and materials would in fact take place (in other words, by litigation and courts rather than concerning this proposal by any one of other statutory or regulatory protections, biology, and made at a time and under several methods (see ADDRESSES). Please policies, or other factors relevant to a time frame that limits our ability to submit Internet comments to agency decision-making would not obtain and evaluate the scientific and [email protected] in ASCII file prevent the destruction or adverse other information required to make the format and avoid the use of special modification); and (3) designation of designation most meaningful. characters or any form of encryption. critical habitat triggers the prohibition In light of these circumstances, the Please also include ‘‘Attn: Laguna of destruction or adverse modification Service believes that additional agency Mountains skipper’’ in your e-mail of that habitat, but it does not require discretion would allow our focus to subject header and your name and specific actions to restore or improve return to those actions that provide the return address in the body of your habitat. greatest benefit to the species most in message. If you do not receive a Currently, only 471 species, or 37 need of protection. confirmation from the system that we percent of the 1,272 listed species in the have received your Internet message, Procedural and Resource Difficulties in United States under the jurisdiction of Designating Critical Habitat contact us directly by calling our the Service, have designated critical Carlsbad Fish and Wildlife Office at habitat. We address the habitat needs of We have been inundated with phone number 760–431–9440. Please all 1,272 listed species through lawsuits for our failure to designate note that the Internet address conservation mechanisms such as critical habitat, and we face a growing [email protected] will be closed listing, section 7 consultations, the number of lawsuits challenging critical out at the termination of the public Section 4 recovery planning process, the habitat determinations once they are comment period. Section 9 protective prohibitions of made. These lawsuits have subjected the Our practice is to make comments, unauthorized take, Section 6 funding to Service to an ever-increasing series of including names and home addresses of the States, the Section 10 incidental take court orders and court-approved respondents, available for public review permit process, and cooperative, settlement agreements, compliance with during regular business hours. nonregulatory efforts with private which now consumes nearly the entire Individual respondents may request that landowners. The Service believes that it listing program budget. This leaves the we withhold their home addresses from is these measures that may make the Service with little ability to prioritize its the rulemaking record, which we will difference between extinction and activities to direct scarce listing honor to the extent allowable by law. survival for many species. resources to the listing program actions There also may be circumstances in In considering exclusions of areas with the most biologically urgent which we would withhold from the proposed for designation, we evaluated species conservation needs. rulemaking record a respondent’s the benefits of designation in light of The consequence of the critical identity, as allowable by law. If you Gifford Pinchot Task Force v. United habitat litigation activity is that limited wish us to withhold your name and/or States Fish and Wildlife Service. In that listing funds are used to defend active address, you must state this case, the Ninth Circuit invalidated the lawsuits, to respond to Notices of Intent prominently at the beginning of your Service’s regulation defining (NOIs) to sue relative to critical habitat, comment. However, we will not ‘‘destruction or adverse modification of and to comply with the growing number consider anonymous comments. We critical habitat.’’ In response, on of adverse court orders. As a result, will make all submissions from December 9, 2004, the Director issued listing petition responses, the Service’s organizations or businesses, and from guidance to be considered in making own proposals to list critically individuals identifying themselves as section 7 adverse modification imperiled species, and final listing representatives or officials of determinations. This proposed critical determinations on existing proposals are organizations or businesses, available habitat designation does not use the all significantly delayed. for public inspection in their entirety. invalidated regulation in our The accelerated schedules of court- Comments and materials received will consideration of the benefits of ordered designations have left the be available for public inspection, by including areas in this final designation. Service with limited ability to provide appointment, during normal business The Service will carefully manage for public participation or to ensure a hours at the above address. future consultations that analyze defect-free rulemaking process before impacts to designated critical habitat, making decisions on listing and critical Role of Critical Habitat in Actual particularly those that appear to be habitat proposals, due to the risks Practice of Administering and resulting in an adverse modification associated with noncompliance with Implementing the Act determination. Such consultations will judicially imposed deadlines. This in Attention to and protection of habitat be reviewed by the Regional Office prior turn fosters a second round of litigation is paramount to successful conservation to finalizing to ensure that an adequate in which those who fear adverse
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impacts from critical habitat Habitat and black oak (Quercus kelloggii), while designations challenge those The Laguna Mountains skipper has the Palomar Mountains are dominated designations. The cycle of litigation specialized habitat requirements within by a mixed forest comprised of Jeffery appears endless, and is very expensive, a narrow geographic distribution. The pine, white fir (Abies concolor), incense thus diverting resources from Laguna Mountains skipper is known to cedar (Calocedrus decurrens), and black conservation actions that may provide occur in a matrix of pine and mixed oak. During the 1950s and 1960s, Laguna relatively more benefit to imperiled conifer/oak forests, meadows, small Mountains skippers were commonly species. forest openings, and forest edges that recorded from several locations on The costs resulting from the support larval host plants between 3,800 Laguna Mountain, including Big designation include legal costs, the cost and 6,000 feet (ft) (1,158 and 2,000 of preparation and publication of the Laguna, Boiling Springs, East Laguna, meters (m)) in elevation (Emmel and Horse Haven Springs, Laguna Lake and designation, the analysis of the Emmel 1973; Levy 1997; Mattoni and economic effects and the cost of Little Laguna Meadow (Levy 1994). Longcore 1998; Pratt 1999; Osborne Surveys conducted since 1994 have requesting and responding to public 2002). comment, and in some cases the costs detected adult Laguna Mountains Habitat has been primarily identified skippers only near Little Laguna of compliance with the National by the presence or abundance of the Environmental Policy Act (NEPA). Meadow, at the El Prado/Laguna species’ main larval host plant, Horkelia Campground (Pratt 1999). Although These costs, which are not required for clevelandii. However, habitat also many other conservation actions, historic records of the species in the consists of all resources, such as nectar- Laguna Mountains with specific directly reduce the funds available for producing plants and surface moisture, direct and tangible conservation actions. location descriptions are all in the or puddles, that provide feeding, vicinity of the greater Laguna Meadow, Background breeding and sheltering for adult this is likely an artifact of access and butterflies. One scientific study of It is our intent to discuss only those where sites were known to collectors Laguna Mountains skipper habitat has (Levy 1994). Other areas, such as Horse topics directly relevant to the been conducted. Williams and Bailey designation of critical habitat in this Meadow to the south, also contain (2004) investigated geographic variation features identified as essential for proposed rule. For more information on in presumed habitat characteristics the Laguna Mountains skipper, refer to sustaining Laguna Mountains skipper among geographic locations, and populations (Levy 1994). the final rule listing the species as differences in habitat characteristics The Laguna Mountains skipper was endangered, published in the Federal between sites with and without a known first recorded on Palomar Mountain in Register on January 16, 1997 (62 FR history of Laguna Mountains skipper 1947, at an unspecified location (San 2313). observations. Research indicates that Diego Natural History Museum, in Levy Species Description sites with a known history of Laguna 1994). In 1991 Dan Lindsley collected Mountains skipper sightings had more two specimens in ‘‘the last small The Laguna Mountains skipper is a bare ground, larger host plant patches, meadow before the Palomar member of the family Hesperiidae and larger, taller H. clevelandii plants Observatory’’ (Levy 1994). Since its (skippers), and is one of two recognized than sites where Laguna Mountains discovery, the Laguna Mountains subspecies of Pyrgus ruralis. Skippers skippers had not been seen. skipper has been recorded at several are generally small bodied with a fast, Until recently, Horkelia clevelandii Palomar Mountain locations on Federal, erratic flight pattern. Adult Laguna was thought to be the only host plant State, and private lands, but only one Mountains skippers have a wingspan of species used by the Laguna Mountains site (Mendenhall Valley) exists where approximately one inch (two and a half skipper. However, the use of Potentila adults can be reliably found (Levy 1994, centimeters) (Garth and Tilden 1986; glandulosa as a host plant in the wild 1996, 1997; Pratt 1999; Faulkner in litt. Osborne in litt. 2004) and are was first documented on Palomar 2000; Osborne 2002, 2003). New distinguished from other co-occurring Mountain by Pratt (1999). This was later sightings in 2001 in the Pine Hills area skipper species by their checkered dark confirmed in 2004 in Mendenhall (a location not known at the time of brown and white appearance (Osborne Valley (Ken Osborne, pers. comm. listing) provide the lowest elevation in. litt. 2004). The submarginal spots on 2004). Both host plant species grow in observation record of this species, the hind wing form a distinguishing ‘‘X’’ clusters low to the ground and are recorded at 3,840 ft (1,170 m) (Osborne shape, and the dark bands on the relatively small, long-lived, non-woody 2002). marginal fringe of the hind wing extend (herbaceous) plants in the rose family The listing rule (62 FR 2313) stated prominently across the fringe (Levy (Rosacae). that the Laguna Mountains skipper had 1994). been reported from four (unspecified) Adult females lay their eggs on the Status and Distribution sites on Palomar Mountain. Upon outer leaves of their hostplant (i.e., a When the Laguna Mountains skipper evaluation of GIS data available at the plant on which the larvae feed and was listed in 1997, the species was time of listing, and other data available develop). In many species of butterfly, known from Palomar and Laguna at time of listing (e.g., Levy 1994), we the hostplants are limited to one or two Mountains in San Diego County (62 FR identified these sites as lower French species. The main hostplant for the 2313). However, its primary host plant, Valley, Palomar Observatory Laguna Mountains skipper is Horkelia Horkelia clevelandii, has a much wider Campground, Palomar Observatory clevelandii (Cleveland’s horkelia). Eggs distribution, extending from the San Meadow, and Mendenhall Valley. The of the Laguna Mountains skipper Jacinto, Palomar, Cuyamaca, and Laguna more recent Observatory Trail locations develop and hatch in approximately 12 Mountains of southwestern California, are in a meadow/woodland transition to14 days (Mattoni and Longcore 1998; south to Sierra San Pedro Martir, in area at the southeastern end of Upper Pratt 1999), with some variation likely Baja, California, Mexico (Keck 1938; French Valley, and the campground due to habitat microsite conditions and Hickman 1993). Within the Laguna location is between Mendenhall Valley local weather. Development from egg to Mountains, the surrounding forests are and Upper French Valley. The pupa takes approximately 7 weeks. dominated by Jeffery pine (Pinus jefferii) campground and trail sites are small
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woodland openings that are unlikely to skippers were not known to historically Procedure Act (5 U.S.C. Subchapter II) support an isolated population long- occur. for the Service’s failure to designate term. Mark-release-recapture studies of Historically, Palomar Mountain critical habitat for the species (CBD v. a related skipper species (the grizzled populations were considered small USFWS Civ. No. 03–0058–BTM (NLS)). skipper, Pyrgus malvae) occupying compared to Laguna Mountain In a stipulated settlement agreement similar habitat recorded adult populations, with only 5 specimens dated July 29, 2003, the Service agreed movement among forest openings of reported prior to 1991 (Brown in litt. to reconsider its ‘‘not prudent’’ finding more than 0.62 mi (1 km) (M. Brereton 1991). Today, Palomar Mountain and propose critical habitat, if prudent, in Levy 1994). Therefore, small forest appears to sustain the largest known on or before November 30, 2005, and to openings create landscape connectivity population of the Laguna Mountains publish a final critical habitat rule, if (habitat the species is capable of skipper. The number of individuals prudent, on or before November 30, occupying and moving through) among occupying Mendenhall Valley has been 2006. This proposed rule complies with larger meadows. The distributions of estimated between approximately 240 the settlement agreement. We have small occupied forest openings and individuals in 1994 (Levy 1994) and reconsidered our not prudent finding, meadows (meadow complexes) indicate approximately 1,470 individuals in and now believe that identification of historic occupancy of Laguna 1998 (Mattoni and Longcore 1998). Levy primary constituent elements and Mountains skipper populations (1994) based his estimate on adult essential areas (critical habitat throughout the northern Palomar surveys and stated that his estimate of designation) may provide educational Mountains meadow system, including approximately 240 adult butterflies information to individuals, local and unsurveyed portions of Upper French could be much higher than the actual State governments, and other entities. Valley. number. Mattoni and Longcore (1998) Because this species is so limited in Based on the findings of the mark- based their estimate on the number of geographic range, most landowners and release recapture study (M. Brereton in eggs and larvae found on host plants collectors have been aware of its Levy 1994), grizzled skipper adults are within a specific area. From this they presence since listing. Unlike the Quino sedentary most of the time, rarely extrapolated to an adult population checkerspot butterfly listed in the same moving further than 20 m, but do move estimate based on the abundance of host rule, collectors have always known distances greater than 1 km. This plants, average fecundity, and equal sex where to find the Laguna Mountains movement pattern and the distribution ratios. These estimates differ skipper, however, access to the best site significantly, at least in part due to of observations among several small is restricted because it can only be differences in methodology. forest openings and meadows are reached through private land Populations in the Laguna Mountains (Mendenhall Valley). characteristic of local alpine butterfly appear to be small, and possibly populations belonging to a greater bordering on extirpation. Surveys of Critical Habitat metapopulation distribution (e.g., varying intensity and duration were Critical habitat is defined in section 3 Boughton 1999). If the Laguna conducted in 8 of the 10 years between of the Act as—(i) the specific areas Mountains skipper populations are 1994 and 2003. During this 10-year within the geographical area occupied characterized by metapopulation period, only 4 adult skippers were by a species, at the time it is listed in dynamics, habitat patches within the found: a single individual in 1995 (Levy accordance with the Act, on which are population distribution not occupied at 1997), 1 adult in 1996 (Levy 1997), and found those physical or biological any given time are still required for 2 adults in 1999 (Pratt 1999). All features (I) essential to the conservation population viability. observations of adult skippers have been of the species and (II) that may require No repeated, systematic population at the El Prado/Laguna Campground. A special management considerations or status studies of the Laguna Mountains single skipper larval shelter was found protection; and (ii) specific areas skipper have been conducted. While in 1997 at the Meadow Kiosk along the outside the geographical area occupied individuals can regularly be found in Sunrise Highway (Pratt 1999), by a species at the time it is listed, upon the Mendenhall Valley on Palomar documenting a new location of a determination that such areas are Mountain, the long-term viability of the occupied habitat. However, no adults essential for the conservation of the species on Laguna Mountain is were observed at this location. Adult species. Conservation, as defined under uncertain. Surveys suggest the species skippers have not been documented in section 3 of the Act means to use and has declined in the Laguna Mountains, the Laguna Mountains since 1999. the use of all methods and procedures although very little is known regarding which are necessary to bring any the species’ population status or Previous Federal Actions endangered species or threatened dynamics throughout its range. The For information on previous Federal species to the point at which the Laguna Mountains skipper has never actions for the Laguna Mountains measures provided pursuant to the Act been recorded outside of Laguna or skipper, refer to the final rule listing for are no longer necessary. Such methods Palomar Mountains; however, the this species and the Quino Checkerspot and procedures include, but are not species may have been more widespread Butterfly (Euphydryas editha quino) as limited to, all activities associated with historically throughout the higher endangered (62 FR 2313). At the time of scientific resources management such as elevations of San Diego County (Brown listing, the Service determined that research, census, law enforcement, in litt. 1991). The species could critical habitat was not prudent, citing habitat acquisition and maintenance, potentially occupy the Cuyamaca that the publication of precise maps and propagation, live trapping, and Mountains north of Laguna Mountain descriptions of critical habitat could transplantation, and, in the and the San Jacinto Mountains in result in additional habitat destruction extraordinary case where population Riverside County, as these areas all through trampling, discing, and grading pressures within a given ecosystem contain meadows and host plants (Keck as well as collection (62 FR 2313). On cannot be otherwise relieved, may 1938) at appropriate elevations, and are January 10, 2003, the Center for include regulated taking. proximal to occupied mountains. Biological Diversity (Center) filed a Critical habitat receives protection However, few survey data exist for lawsuit against the Service for violations under section 7 of the Act through the mountains where the Laguna Mountains under the Act and the Administrative prohibition against destruction or
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adverse modification of critical habitat use primary and original sources of regional Geographic Information System with regard to actions carried out, information as the basis for (GIS) vegetation and species coverages, funded, or authorized by a Federal recommendations to designate critical data compiled in the California Natural agency. Section 7 requires consultation habitat. When determining which areas Diversity Database (CNDDB), and survey on Federal actions that are likely to are critical habitat, a primary source of data for the Laguna Mountains skipper result in the destruction or adverse information is generally the listing from reports submitted by biologists modification of critical habitat. The package for the species. Additional holding section 10(a)(1)(A) recovery designation of critical habitat does not information sources include the permits. Based on the assessment of affect land ownership or establish a recovery plan for the species, articles in those physical and biological refuge, wilderness, reserve, preserve, or peer-reviewed journals, conservation components identified above, the other conservation area. Such plans developed by States and counties, known and historic occurrences of designation does not allow government scientific status surveys and studies, Laguna Mountains skipper, and or public access to private lands. biological assessments, or other available information on the Section 7 is a purely protective measure unpublished materials and expert distribution of H. clevelandii, we and does not require implementation of opinion or personal knowledge. All identified proposed critical habitat. restoration, recovery, or enhancement information is used in accordance with Primary Constituent Elements measures. the provisions of Section 515 of the To be included in a critical habitat Treasury and General Government In accordance with section 3(5)(A)(i) designation, the habitat within the area Appropriations Act for Fiscal Year 2001 of the Act and regulations at 50 CFR occupied by the species must first have (Pub. L. 106–554; H.R. 5658) and the 424.12, in determining which areas to features that are essential to the associated Information Quality propose as critical habitat, we are conservation of the species. Critical Guidelines issued by the Service. required to base critical habitat habitat designations identify, to the Section 4 of the Act requires that we determinations on the best scientific extent known using the best scientific designate critical habitat on the basis of and commercial data available and to data available, habitat areas that provide the best scientific data available. Habitat consider those physical and biological essential life cycle needs of the species is often dynamic, and species may move features (primary constituent elements (i.e., areas on which are found the from one area to another over time. (PCEs)) that are essential to the primary constituent elements, as Furthermore, we recognize that conservation of the species, and that defined at 50 CFR 424.12(b)). designation of critical habitat may not may require special management Habitat occupied at the time of listing include all of the habitat areas that may considerations or protection. These may be included in critical habitat when eventually be determined to be include, but are not limited to: Space for the essential features thereon may necessary for the recovery of the individual and population growth and require special management or species. For these reasons, critical for normal behavior; food, water, air, protection. Thus, we do not include habitat designations do not signal that light, minerals, or other nutritional or areas where existing management is habitat outside the designation is physiological requirements; cover or sufficient to conserve the species. (As unimportant or may not be required for shelter; sites for breeding, reproduction, discussed below, such areas may also be recovery. and rearing (or development) of excluded from critical habitat pursuant Areas that support populations, but offspring; and habitats that are protected to section 4(b)(2).) In addition, when the are outside the critical habitat from disturbance or are representative of best available scientific data do not designation, will continue to be subject the historic geographical and ecological demonstrate that the conservation needs to conservation actions implemented distributions of a species. of the species so require, we will not under section 7(a)(1) of the Act and to The specific primary constituent designate critical habitat in areas the regulatory protections afforded by elements required for the Laguna outside the geographical area occupied the section 7(a)(2) jeopardy standard, as Mountains skipper are derived from the by the species at the time of listing. determined on the basis of the best biological needs of the species as However, an area currently occupied by available information at the time of the described in the Background section of the species that was not known to be action. Federally funded or permitted this proposal and the final listing rule. occupied at the time of listing will projects affecting listed species outside Food, Water, or other Nutritional or likely, but not always, be essential to the their designated critical habitat areas Physiological Requirements conservation of the species and, may may still result in jeopardy findings in therefore, be included in the critical some cases. Similarly, critical habitat Laguna Mountain skippers require habitat designation. designations made on the basis of the sunlight provided in the open meadows, The Service’s Policy on Information best available information at the time of open woodlands, or other forest Standards Under the Endangered designation will not control the openings. Butterflies are exothermic Species Act, published in the Federal direction and substance of future and, like most insects, body temperature Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation is of overriding importance in limiting and Section 515 of the Treasury and plans, or other species conservation flight (Chapman 1982). Butterfly flight General Government Appropriations planning efforts if new information activity is limited by light intensity. Act for Fiscal Year 2001 (Pub. L. 106– available to these planning efforts calls Therefore, they require areas for basking 554; H.R. 5658) and the associated for a different outcome. in the sun in order to raise their body Information Quality Guidelines issued temperature for flight (Chapman 1982). by the Service, provide criteria, Methods Additionally, surface moisture such as establish procedures, and provide As required by section 4(b)(2) the Act puddles and seeps (not flowing water) guidance to ensure that decisions made we use the best scientific data available provide water and minerals for adults. by the Service represent the best in determining areas that contain Adult Laguna Mountains skippers need scientific data available. They require features that are essential to the annual or perennial nectar sources Service biologists to the extent conservation of the Laguna Mountains including meadow and woodland- consistent with the Act and with the use skipper. These include data from field associated herbaceous annual of the best scientific data available, to surveys for Horkelia clevelandii, wildflowers, and perennial herbs (e.g.
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Lasthenia spp. (goldfields), Pentachaeta clevelandii, and associated habitat Using infrared satellite imagery, we aurea (golden-rayed pentachaeta), containing Potenetila gandulosa, delineated the proposed critical habitat Ranunculus spp. (buttercups), and including movement areas between boundaries by outlining identified Sidalcea spp. (checkerbloom)). meadows and forest openings. The meadow complexes. In delineating specific biological and physical habitat proposed critical habitat boundaries, we Sites for Breeding and Reproduction features identified as essential for included areas within meadow The Laguna Mountains skippers sustaining Laguna Mountains skipper complexes containing relatively dense requires Horkelia clevelandii host plants populations are: Horkelia clevelandii observations. to lay eggs on and for the caterpillars to 1. The host plants, Horkelia Finally, maps were produced by fitting eat and construct pupal shelters, and clevelandii or Potentila glandulosa, in a 100 meter grid outline to the initial may also require Potentila glandulosa. meadows or forest openings needed for hand-drawn outlines. Host plant patches must be dense reproduction. When determining proposed critical enough to support breeding (provide 2. Nectar sources suitable for feeding habitat boundaries, we made every multiple and diverse sites for depositing by adult Laguna Mountains skipper, effort to avoid including within the eggs), although the exact host-plant including Lasthenia spp., Pentachaeta boundaries of the map contained within patch size and density required for aurea, Ranunculus spp., and Sidalcea this proposed rule developed areas such breeding is not known. A ‘‘patch’’ of spp. found in woodlands or meadows. as buildings, paved areas, and other host plants may consist of one to several 3. Wet soil or standing water structures that lack PCEs for the Laguna clumps of H. clevelandii or P. associated with features such as seeps, Mountains skipper. The scale of the glandulosa growing together, as well as springs, or creeks where water and maps prepared under the parameters for numerous individual plants that are minerals are obtained during the adult publication within the Code of Federal growing in close proximity. flight season. Regulations may not reflect the This proposed designation is designed exclusion of such developed areas. Any Space for Individual and Population for the conservation of PCEs necessary such structures and the land under them Growth, and for Normal Behavior to support the life history functions inadvertently left inside critical habitat Because the current geographic range which were the basis for the proposal. boundaries shown on the maps of this is fragmented and small, population Because not all life history functions proposed rule have been excluded by densities are relatively low, and the require all the PCEs, not all proposed text in the proposed rule and are not quality of most breeding habitat has critical habitat will contain all the PCEs. proposed for designation as critical been compromised to some degree by Each of the areas proposed in this rule habitat. Therefore, Federal actions grazing, recreation impacts, or exotic have been determined to contain limited to these areas would not trigger plant invasion, all landscape sufficient PCEs to provide for one or section 7 consultation, unless they affect connectivity areas among occupied more of the life history functions of the the species and/or primary constituent meadows and forest openings that adult Laguna Mountains skipper. In some elements in adjacent critical habitat. Laguna Mountains skippers can move cases, the PCEs exist as a result of We are proposing to designate critical through are required for survival of the ongoing Federal actions. As a result, habitat on lands that we have species. In order to facilitate the use of ongoing Federal actions at the time of determined were occupied at the time of connectivity areas for adult movement designation will be included in the listing and contain sufficient primary between breeding sites, it is important baseline in any consultation conducted constituent elements to support life to maintain populations of hostplants subsequent to this designation. history functions essential for the and adult nectar sources, even if they Criteria Used To Identify Critical conservation of the species. We are also are not likely to be used for breeding. Habitat proposing subunits that were not known to be occupied at the time of listing but Historic and Geographic Distribution of To delineate proposed critical habitat, have been determined to be essential for the Species we identified meadow complexes the conservation of the Laguna The occupied areas proposed for (meadows and forest openings Mountains skipper. Occupied subunits designation are representative of the connected by open forest canopy) on were designated based on sufficient historic and geographical distribution of Palomar and Laguna Mountains known PCEs being present to support Laguna the species. Areas proposed for to be occupied by the Laguna Mountains Mountains skipper life processes. All designation that are not known to be skipper at the time of listing and known subunits contain all of the PCEs and occupied were all historically occupied to be currently occupied. The species is support multiple life processes. and will restore a portion of the historic currently known to occupy only one At this time, based on the best geographic distribution of Laguna meadow complex (Laguna Meadow) on available information, we have Mountains skipper. Connectivity is Laguna Mountain, but we also identified determined that without management required for recolonization of habitat to two other meadow complexes on and protection for the habitat of the occur (e.g., after extirpation by fire) and Laguna Mountain that contain habitat Laguna Mountains skipper in the areas for genetic diversity to be maintained. with features essential to the not known to be occupied at the time of conservation of the species. These listing or known to be currently Primary Constituent Elements for the meadow complexes have not been occupied, conservation of the species Laguna Mountains skipper extensively surveyed and are not will not be possible in the foreseeable The specific primary constituent currently known to be occupied. future, and these areas are accordingly elements required for the Laguna However, Laguna Mountain as a whole essential to the conservation of the Mountains skipper are derived from the was known to be historically occupied species. biological needs as described in the by the skipper. These areas are Background section of this proposal. important for expansion and Special Management Considerations or These include all areas within Palomar enhancement of populations in Laguna Protections and Laguna Mountains that sustain the Meadow and are therefore considered As we undertake the process of main host plant of the Laguna essential to the conservation of the designating critical habitat for a species, Mountains skipper, Horkelia species. we first evaluate lands defined by those
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physical and biological features conversion due to changes in surface currently occupied (2C), and two essential to the conservation of the and groundwater availability. subunits (1B and 1C) were not known to species pursuant to section 3(5)(A) of Pursuant to a consultation with the be occupied at the time of listing and the Act. Secondly, we evaluate lands Service under section 7 of the Act, the are not known to be currently occupied, defined by those features to assess Cleveland National Forest has but are connected to occupied habitat, whether they may require special implemented some measures on their were historically occupied, and contain management considerations or land to minimize impacts to the Laguna physical and biological features protection. Threats to those essential Mountains skipper. However, no essential to the conservation of the features that define critical habitat management plan exists that addresses species and are themselves essential to (primary constituent elements) for the conservation of this species in the the conservation of the species. Laguna Mountains skipper include the Cleveland National Forest. Therefore, All subunits not currently known to direct and indirect impacts of human special management may be needed to be occupied are contiguous with development and recreation, surface minimize impacts to the skipper occupied subunits and ensure and groundwater management practices, resulting from recreation and exotic representation of the historic and grazing intensity. plant invasion. geographical distribution not otherwise Areas proposed as critical habitat are We believe areas proposed for represented by the occupied subunits. composed of 36 percent private land designation as critical habitat contain There is potential for current occupancy holdings, where habitat is subject to physical and biological features in subunits not currently known to be rural development and other land use essential for the conservation of the occupied, as survey efforts in these changes, overgrazing, potential stream Laguna Mountains skipper, and may areas have been limited. No conclusive and groundwater diversions, and require some level of management and/ evidence is available to indicate recreational activities. State and Federal or protection to address current and complete absence of Laguna Mountains landholdings (6 and 36 percent, future threats to the Laguna Mountains skipper at any of these sites; few, respectively) are also subject to grazing skipper. Subunits 2A, 2B, and 2C may incomplete, or no recent surveys have require special management due to all and recreational activities. While been conducted at sites not currently threats described above. All subunits in designation of critical habitat does not known to be occupied. Species Unit 1 may require special management impose any management requirements, detectability is generally low (e.g. Pratt due to all threats described above except particularly on State or private land, the 1999), particularly if the population diverting stream and groundwater. following are measures that could be occurs in low numbers. Surveys may Subunit 2D may require primarily undertaken to benefit the species. have missed sightings, as shown by management of recreation impacts. repeated collections near Little Laguna Grazing can cause direct mortality of Economic or fire management activities, Lake where historically there were larvae and eggs by trampling and such as logging, fuel modification, and many observations, followed by consumption. The density of cattle relatively low density grazing, should repeated reports of no occurrences, with grazed in meadow habitat should be not adversely modify habitat if carefully subsequent population ‘‘re-discovery’’ monitored and regulated, as well as managed to minimize or avoid (Pratt 1999). The current, overall levels of habitat degradation resulting destruction of host plants. population size of the Laguna from existing grazing. Adaptive Proposed Critical Habitat Designation Mountains skipper is at such a low level management may be needed to adjust that it was thought to have possibly cattle grazing intensity, and protection We are proposing 2 units made up of been extirpated in the Laguna measures may include exclosures to 7 subunits, totaling 6,662 ac (2,696 ha) Mountains at the time of listing (Levy prevent grazing. Monitoring of potential as critical habitat for the Laguna 1994; 62 FR 2313). changes in hydrology caused by stream Mountains skipper. The critical habitat While occupied subunits provide and groundwater diversions should be areas described below constitute our some habitat for current populations, undertaken as well as any necessary best assessment at this time of areas unoccupied subunits would provide management to prevent habitat determined to be occupied at the time habitat for population augmentation conversion. of listing, contain the primary either through natural means, or by re- On Palomar Mountain, commercial constituent elements and may require introduction. (Note: We believe that drinking water projects and private special management, and those given the species’ small population size stream alterations are currently additional areas that were not known to and very limited range, reintroduction diverting stream and groundwater to an be occupied at the time of listing but may be necessary for long-term unknown extent. Drying of meadows found to be essential to conservation of persistence of the species. We are not results in vegetation changes (for a the Laguna Mountains skipper. currently developing a reintroduction general discussion see Naumburg et al. Proposed critical habitat areas plan. However, we’ve identified the 2005) that could eliminate primary encompass approximately 3,887 ac potential need for a propagation and constituent elements within Laguna (1,574 ha; 58 percent) of Federal land reintroduction program as a recovery Mountains skipper habitat (e.g. host ownership, 381 ac (154 ha; 6 percent) of task in the draft recovery plan citing plants and surface moisture, PCEs 1 and State land ownership, and 2,394 ac (968 that such a program may be necessary 3). Recreational activities such as ha; 36 percent) of private land for recovery of the species, especially in camping and horseback riding increase ownership. No Tribal lands were the Laguna Mountains where the encroachment of exotic vegetation and included in this proposed designation. species has been documented to occur can cause direct mortality of Laguna The 2 units proposed as critical in one meadow area. We do not Mountains skipper larvae by trampling habitat are: (1) Palomar Mountain; and, anticipate that section 10(j) would apply (Pratt 1999). Alteration of host plant (2) Laguna Mountain. Brief descriptions to any reintroduction (or augmentation) distribution and availability, plant of the units are presented below. Four of Laguna Mountains skipper on either canopy closure, and availability of subunits (1A, 2A, 2B, 2D) were known the Palomar or Laguna Mountains since resources such as nectar and moisture to be occupied at the time of listing, one they would not be separated (all PCEs) can result from disturbance subunit was not known to be occupied geographically from the existing by cattle and humans, and habitat at the time of listing but is known to be populations.) As stated in the final rule
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listing the species as endangered (62 FR Laguna Meadow, near Little Laguna subunits containing all the primary 2313), one of several naturally occurring Lake), and is where adults could be constituent elements. Unit 2 includes events could extirpate the existing reliably found historically. The the most densely populated area in the population due to its very restricted Cleveland National Forest lands in this species’ range and encompasses the range and extremely localized unit is subject to grazing and northernmost portion of the range. distribution. The inclusion of recreational activities and may require Maintaining two widely separate units unoccupied subunits in critical habitat special management such as grazing (i.e., Laguna and Palomar Mountains) would reduce the threat that density adjustments or additional and multiple subunits limits the catastrophic naturally occurring events exclosures to protect host plants. This potential for a catastrophic event from such as the Cedar Fire that burned part subunit contains 2,724 (1,102 ha) of extirpating all remaining populations. of Laguna Mountain in 2003 (e.g., Federal land (i.e., U.S. Forest Service) Unit 2A: Mendenhall Valley and IBAERT 2003) would extirpate the and 105 ac (43 ha) of privately owned Observatory Campground population by providing additional land. available habitat that the species could Unit 1B: Filaree Flat Subunit 2A (1,092 ac (442 ha)) is expand into. Therefore, we have known to be currently occupied and determined that expansion of the Subunit 1B (388 ac (157 ha)) is not was occupied at the time of listing. species into habitat not currently known currently known to be occupied, and Subunit 2A supports the largest known to be occupied and connectivity with was not known to be occupied at the population of Laguna Mountains existing occupied habitat is necessary to time of listing, but was historically skipper and represents the best occupied. This subunit is essential conserve the species. Based on the best opportunity for the survival of this because it (1) contains habitat features available information, we have species. This unit is composed of a large essential to the conservation of determined that management and amount of private land holdings with populations known to occupy Subunit protection for the Laguna Mountains habitat potentially subject to future rural 1A, (2) provides for population skipper in areas historically occupied development and other land use expansion and enhancement, (3) and known to be currently occupied on changes, overgrazing, stream diversion, minimizes habitat fragmentation, and Laguna Mountain is necessary. and private recreational use. This (4) is representative of the historic subunit is the only meadow complex Unit Descriptions geographical and ecological distribution (i.e., Mendenhall Valley and associated of the species. Lands in this subunit are Unit 1: Laguna Mountain forest openings) where multiple adults subject to grazing and recreational have been consistently detected since Unit 1 encompasses approximately activities and may require special the time of listing. Subunit 2A (1) 3,763 ac (1,523 ha), and is management such as grazing density contains habitat features essential for approximately centered on Laguna adjustments or additional exclosures to conservation of the species; (2) Mountain peak located in south-central protect host plants. This subunit conserves at least part of the only San Diego County east of the contains 368 ac (149 ha) of Federal land relatively stable, highest density local community of Alpine. This unit is (i.e., U.S. Forest Service) and 20 ac (8 population; and (3) minimizes habitat divided into three subunits containing ha) of privately owned land. all the primary constituent elements. fragmentation. This area may require This unit is crucial to the species the Unit 1C: Agua Dulce Campground and special management such as host plant species primarily because the species Horse Meadow distribution monitoring, exclosure was first described from this unit and Subunit 1C (546 ac (221 ha)) is not maintenance, and grazing density represents the southernmost portion of currently known to be occupied and adjustments. This subunit contains 231 the species range. Maintaining two was not known to be occupied at the (94 ha) of Federal land (i.e., U.S. Forest widely separate units (i.e., Laguna and time of listing. This subunit is essential Service) and 861 (348 ha) of privately Palomar Mountains) and multiple because it (1) contains habitat features owned land. subunits limits the potential for a essential to the conservation of Unit 2B: Upper French Valley, catastrophic event from extirpating all populations known to occupy Subunit Observatory Trail, and Palomar remaining populations. Because the 1A; (2) provides for population Observatory Meadows number of known occupied sites and expansion and enhancement; (3) low population densities are not minimizes habitat fragmentation; and, Subunit 2B (998 ac (404 ha)) is known sufficient to overcome the threat of (4) is representative of the historic to be currently occupied and was extirpation, connectivity and expansion geographical and ecological distribution occupied at the time of listing. The into unoccupied meadow complexes is of the species. Habitat in this subunit is distribution of small forest openings and necessary for the conservation of the subject to grazing and recreational meadows and the five observation Laguna Mountains skipper. activities and may require special locations along the Observatory Trail Connectivity is important for management such as grazing density indicate historic occupancy of Laguna recolonization of habitat to occur (e.g. adjustments or additional exclosures to Mountains skipper populations in after extirpation by fire) and genetic protect host plants. This subunit unsurveyed portions of Upper French diversity to be maintained among local contains 417 ac (169 ha) of Federal land Valley. Subunit 2B: (1) Contains habitat populations. (i.e., U.S. Forest Service) and 129 ac (52 features essential for conservation of the ha) of privately owned land. species; (2) provides for population Unit 1A: Laguna Meadow expansion and enhancement; and, (3) Unit 1A (2,829 ac (1,145 ha)) is Unit 2: Palomar Mountain minimizes habitat fragmentation. This currently occupied and was known to Unit 2 encompasses approximately area may require special management be occupied at the time of listing. This 2,899 ac (1,173 ha), and is such as host plant distribution subunit contains habitat features approximately centered on Palomar monitoring, grazing and recreation essential to the conservation of the Mountain peak located in north-central exclosure maintenance, and grazing species and is the site where the species San Diego County near the border of density adjustments. This subunit was first described (i.e., northern Riverside County. Unit 2 consists of contains 93 (38 ha) of Federal land (i.e.,
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U.S. Forest Service) and 905 ac (366 ha) modification is determined on the basis opinion when the critical habitat is of privately owned land. of whether, with implementation of the designated, if no substantial new proposed Federal action, the affected information or changes in the action Unit 2C: Upper Doane Valley and Girl critical habitat would remain functional alter the content of the opinion (see 50 Scout Camp (or retain the current ability for the CFR 402.10(d)). As noted above, any Subunit 2C (547 ac (221 ha)) is known primary constituent elements to be conservation recommendations in a to be currently occupied, but was not functionally established) to serve the conference report or opinion are strictly known to be occupied at the time of intended conservation role for the advisory. listing. Subunit 2C is also essential to species. If a species is listed or critical habitat the conservation of this species because Section 7(a) of the Act requires is designated, section 7(a)(2) of the Act it (1) contains habitat features essential Federal agencies, including the Service, requires Federal agencies to ensure that to the conservation of populations to evaluate their actions with respect to activities they authorize, fund, or carry known to occupy Subunit 2A, (2) allows any species that is proposed or listed as out are not likely to jeopardize the population expansion and endangered or threatened and with continued existence of such a species or enhancement, and (3) minimizes habitat respect to its critical habitat, if any is to destroy or adversely modify its fragmentation. This area may require proposed or designated. Regulations critical habitat. If a Federal action may special management such as host plant implementing this interagency affect a listed species or its critical distribution monitoring, exclosure cooperation provision of the Act are habitat, the responsible Federal agency maintenance, and grazing density codified at 50 CFR part 402. (action agency) must enter into adjustments. This subunit contains 40 Section 7(a)(4) of the Act requires consultation with us. As a result of this (16 ha) of Federal land (i.e., U.S. Forest Federal agencies to confer with us on consultation, compliance with the Service), 316 ac (128 ha) of privately any action that is likely to jeopardize requirements of section 7(a)(2) will be owned land, and 191 ac (77 ha) of State the continued existence of a proposed documented through the Service’s owned land (i.e. California State Parks). species or result in destruction or issuance of: (1) A concurrence letter for adverse modification of proposed Federal actions that may affect, but are Unit 2D: Lower French Valley and Lower critical habitat. This is a procedural not likely to adversely affect, listed Doane Valley requirement only. However, once species or critical habitat; or (2) a Subunit 2D (547 ac (221 ha)) is known proposed species becomes listed, or biological opinion for Federal actions to be currently occupied and was proposed critical habitat is designated that may affect, but are likely to occupied at the time of listing. Subunit as final, the full prohibitions of section adversely affect, listed species or critical 2C (1) contains habitat features essential 7(a)(2) apply to any Federal action. The habitat. to the conservation of populations primary utility of the conference When we issue a biological opinion known to occupy Subunit 2A, (2) allows procedures is to maximize the concluding that a project is likely to population expansion and opportunity for a Federal agency to result in jeopardy to a listed species or enhancement, and (3) minimizes habitat adequately consider proposed species the destruction or adverse modification fragmentation. This area may require and critical habitat and avoid potential of critical habitat, we also provide special management such as hostplant delays in implementing their proposed reasonable and prudent alternatives to distribution monitoring, exclosure action as a result of the section 7(a)(2) the project, if any are identifiable. maintenance, and grazing density compliance process, should those ‘‘Reasonable and prudent alternatives’’ adjustments. This subunit contains 14 (6 species be listed or the critical habitat are defined at 50 CFR 402.02 as ha) of Federal land (i.e., U.S. Forest designated. alternative actions identified during Service), 58 ac (23 ha) of privately Under conference procedures, the consultation that can be implemented in owned land, and 190 ac (77 ha) of State Service may provide advisory a manner consistent with the intended owned land (i.e. California State Parks). conservation recommendations to assist purpose of the action, that are consistent the agency in eliminating conflicts that with the scope of the Federal agency’s Effects of Critical Habitat Designation may be caused by the proposed action. legal authority and jurisdiction, that are The Service may conduct either Section 7 Consultation economically and technologically informal or formal conferences. Informal feasible, and that the Director believes Section 7 of the Act requires Federal conferences are typically used if the would avoid jeopardy to the listed agencies, including the Service, to proposed action is not likely to have any species or destruction or adverse ensure that actions they fund, authorize, adverse effects to the proposed species modification of critical habitat. or carry out are not likely to destroy or or proposed critical habitat. Formal Reasonable and prudent alternatives can adversely modify critical habitat. In our conferences are typically used when the vary from slight project modifications to regulations at 50 CFR 402.02, we define Federal agency or the Service believes extensive redesign or relocation of the destruction or adverse modification as the proposed action is likely to cause project. Costs associated with ‘‘a direct or indirect alteration that adverse effects to proposed species or implementing a reasonable and prudent appreciably diminishes the value of critical habitat, inclusive of those that alternative are similarly variable. critical habitat for both the survival and may cause jeopardy or adverse Federal activities that may affect the recovery of a listed species. Such modification. Laguna Mountain skipper or their alterations include, but are not limited The results of an informal conference designated critical habitat will require to, alterations adversely modifying any are typically transmitted in a conference section 7 consultation. Activities on of those physical or biological features report; while the results of a formal private or State lands requiring a permit that were the basis for determining the conference are typically transmitted in a from a Federal agency, such as a permit habitat to be critical.’’ However, recent conference opinion. Conference from the U.S. Army Corps of Engineers decisions by the 5th and 9th Circuit opinions on proposed critical habitat are under section 404 of the Clean Water Court of Appeals have invalidated this typically prepared according to 50 CFR Act, a section 10(a)(1)(B) permit from definition. Pursuant to current national 402.14, as if the proposed critical the Service, or some other Federal policy and the statutory provisions of habitat were designated. We may adopt action, including funding (e.g., Federal the Act, destruction or adverse the conference opinion as the biological Highway Administration or Federal
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Emergency Management Agency may destroy or adversely modify such aware of any habitat conservation plans funding), will also continue to be habitat, or that may be affected by such currently being developed for Laguna subject to the section 7 consultation designation. Activities that may destroy Mountains skipper on any lands process. Federal actions not affecting or adversely modify critical habitat may included in this proposal and the listed species or critical habitat and also jeopardize the continued existence proposed designation does not include actions on non-Federal and private of the species. any Tribal lands or trust resources. lands that are not federally funded, Activities that may destroy or Therefore, we are not proposing any authorized, or permitted do not require adversely modify critical habitat are exclusion of critical habitat under section 7 consultation. those that alter the PCEs to an extent section 4(b)(2) of the Act. that the conservation value of critical Application of the Jeopardy and The Service is conducting an habitat for the Laguna Mountains economic analysis of the impacts of the Adverse Modification Standards for skipper is appreciably reduced. Actions Involving Effects to the Laguna proposed critical habitat designation Activities that, when carried out, and related factors, which will be Mountains Skipper and Its Critical funded, or authorized by a Federal Habitat available for public review and agency, may affect critical habitat and comment. Based on public comment on Jeopardy Standard therefore result in consultation for the that document, the proposed Laguna Mountains skipper include, but Prior to and following designation of designation itself, and the information are not limited to: in the final economic analysis, habitat critical habitat, the Service has applied (1) Actions that destroy Laguna an analytical framework for Laguna containing essential features for the Mountains skipper host plants and Laguna Mountains skipper may be Mountains skipper jeopardy analyses immature life stages of the species. Such that relies heavily on the importance of excluded from critical habitat by the activities could include, but are not Secretary under the provisions of core area populations to the survival limited to overgrazing by livestock, section 4(b)(2) of the Act. This is and recovery of the Laguna Mountains logging, and recreational activities. provided for in the Act, and in our skipper. The section 7(a)(2) analysis is These activities could eliminate implementing regulations at 50 CFR focused not only on these populations breeding and nectaring resources for the 242.19. but also on the habitat conditions adults, and directly destroy eggs, pupae, necessary to support them. or larvae. Economic Analysis The jeopardy analysis usually (2) Actions that would long-term or An analysis of the economic impacts expresses the survival and recovery permanently destroy habitat containing of proposing critical habitat for the needs of the Laguna Mountains skipper primary constituent elements. Such Laguna Mountains skipper is being in a qualitative fashion without making activities could include, but are not prepared. We will announce the distinctions between what is necessary limited to, removal or destruction of availability of the draft economic for survival and what is necessary for host plants and nectar sources by paving analysis as soon as it is completed, at recovery. Generally, if a proposed or piling logs; erection of permanent which time we will seek public review Federal action is incompatible with the structures or cultivation of large shrubs and comment. At that time, copies of viability of the affected core area or trees that impede adult movement; the draft economic analysis will be population(s), inclusive of associated manipulation of seeps, springs, or available for downloading from the habitat conditions, a jeopardy finding is creeks that eliminates surface moisture; Internet at http://carlsbad.fws.gov, or by considered to be warranted, because of paved road construction in occupied contacting the Carlsbad Fish and the relationship of each core area habitat; and rural development that Wildlife Office directly (see ADDRESSES population to the survival and recovery eliminates or fragments habitat. These section). of the species as a whole. activities reduce the amount of available Adverse Modification Standard habitat and directly and indirectly Peer Review increase the extirpation probability of In accordance with our joint policy The analytical framework described associated Laguna Mountains skipper published in the Federal Register on in the Director’s December 9, 2004, populations. memorandum is used to complete (3) Actions that would alter the July 1, 1994 (59 FR 34270), we will seek section 7(a)(2) analyses for Federal vegetation of meadow habitat, for the expert opinions of at least 3 actions affecting Laguna Mountains example invasion of exotic species or appropriate and independent specialists skipper critical habitat. The key factor forest encroachment. Such activities regarding this proposed rule. The related to the adverse modification could include, but are not limited to, purpose of such review is to ensure that determination is whether, with stream or groundwater diversion. These our critical habitat designation is based implementation of the proposed Federal activities could decrease the area of on scientifically sound data, action, the affected critical habitat open meadow and soil moisture content assumptions, and analyses. We will would remain functional (or retain the and eliminate suitable Laguna send these peer reviewers copies of this current ability for the primary Mountains skipper oviposition sites. proposed rule immediately following constituent elements to be functionally Economic or fire management publication in the Federal Register. We established) to serve the intended activities, such as logging, fuel will invite these peer reviewers to conservation role for the species. modification, and relatively low density comment, during the public comment Generally, the conservation role of grazing should not adversely modify period, on the specific assumptions and Laguna Mountains skipper critical habitat if carefully managed to minimize conclusions regarding the proposed habitat units is to support viable core or avoid destruction of host plants. designation of critical habitat. area populations. We will consider all comments and Section 4(b)(8) of the Act requires us Exclusions Under Section 4(b)(2) of the information received during the to briefly evaluate and describe in any Act comment period on this proposed rule proposed or final regulation that Pursuant to section 4(b)(2) of the Act, during preparation of a final designates critical habitat those we must consider relevant impacts in rulemaking. Accordingly, the final activities involving a Federal action that addition to economic ones. We are not decision may differ from this proposal.
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Public Hearings Fairness Act, and Executive Order on a substantial number of small 12630. entities. The SBREFA amended the The Act provides for one or more Further, Executive Order 12866 Regulatory Flexibility Act (RFA) to public hearings on this proposal, if directs Federal Agencies promulgating require Federal agencies to provide a requested. Requests for public hearings regulations to evaluate regulatory statement of the factual basis for must be made in writing at least 15 days alternatives (Office of Management and certifying that the rule will not have a prior to the close of the public comment Budget, Circular A–4, September 17, significant economic impact on a period. We will schedule public 2003). Under Circular A–4, once it has substantial number of small entities. hearings on this proposal, if any are been determined that the Federal requested, and announce the dates, At this time, the Service lacks the regulatory action is appropriate, the available economic information times, and places of those hearings in agency will need to consider alternative the Federal Register and local necessary to provide an adequate factual regulatory approaches. Since the basis for the required RFA finding. newspapers at least 15 days prior to the determination of critical habitat is a first hearing. Therefore, the RFA finding is deferred statutory requirement pursuant to the until completion of the draft economic Clarity of the Rule Act, we must then evaluate alternative analysis prepared pursuant to section regulatory approaches, where feasible, 4(b)(2) of the ESA and E.O. 12866. This Executive Order 12866 requires each when promulgating a designation of agency to write regulations and notices draft economic analysis will provide the critical habitat. required factual basis for the RFA that are easy to understand. We invite In developing our designations of finding. Upon completion of the draft your comments on how to make this critical habitat, we consider economic economic analysis, the Service will proposed rule easier to understand, impacts, impacts to national security, publish a notice of availability of the including answers to questions such as and other relevant impacts pursuant to draft economic analysis of the proposed the following: (1) Are the requirements section 4(b)(2) of the Act. Based on the designation and reopen the public in the proposed rule clearly stated? (2) discretion allowable under this comment period for the proposed Does the proposed rule contain provision, we may exclude any designation for an additional 60 days. technical jargon that interferes with the particular area from the designation of The Service will include with the notice clarity? (3) Does the format of the critical habitat providing that the proposed rule (grouping and order of benefits of such exclusion outweigh the of availability, as appropriate, an initial the sections, use of headings, benefits of specifying the area as critical regulatory flexibility analysis or a paragraphing, and so forth) aid or habitat and that such exclusion would certification that the rule will not have reduce its clarity? (4) Is the description not result in the extinction of the a significant economic impact on a substantial number of small entities of the notice in the SUPPLEMENTARY species. As such, we believe that the accompanied by the factual basis for INFORMATION section of the preamble evaluation of the inclusion or exclusion helpful in understanding the proposed of particular areas, or combination that determination. The Service has rule? (5) What else could we do to make thereof, in a designation constitutes our concluded that deferring the RFA this proposed rule easier to understand? regulatory alternative analysis. finding until completion of the draft economic analysis is necessary to meet Send a copy of any comments on how Within these areas, the types of the purposes and requirements of the we could make this proposed rule easier Federal actions or authorized activities RFA. Deferring the RFA finding in this to understand to: Office of Regulatory that we have identified as potential manner will ensure that the Service Affairs, Department of the Interior, concerns are listed above in the section makes a sufficiently informed Room 7229, 1849 C Street, NW., on Section 7 Consultation. The determination based on adequate Washington, DC 20240. You may e-mail availability of the draft economic economic information and provides the your comments to this address: analysis will be announced in the necessary opportunity for public [email protected]. Federal Register so that it is available for public review and comments. The comment. Required Determinations draft economic analysis can be obtained Executive Order 13211 Regulatory Planning and Review from the internet website at http:// www.fws.gov/carlsbad/ or by contacting On May 18, 2001, the President issued In accordance with Executive Order the Laguna Mountains skipper directly an Executive Order (E.O. 13211) on 12866, this document is a significant (see ADDRESSES). regulations that significantly affect rule in that it may raise novel legal and energy supply, distribution, and use. policy issues, but it is not anticipated to Regulatory Flexibility Act (5 U.S.C. 601 Executive Order 13211 requires agencies have an annual effect on the economy et seq.) to prepare Statements of Energy Effects of $100 million or more or affect the Under the Regulatory Flexibility Act when undertaking certain actions. This economy in a material way. Due to the (5 U.S.C. 601 et seq., as amended by the proposed rule to designate critical tight timeline for publication in the Small Business Regulatory Enforcement habitat for the Laguna Mountains Federal Register, the Office of Fairness Act (SBREFA) of 1996), skipper is considered a significant Management and Budget (OMB) has not whenever an agency is required to regulatory action under Executive Order formally reviewed this rule. We are publish a notice of rulemaking for any 12866 as it may raise novel legal and preparing a draft economic analysis of proposed or final rule, it must prepare policy issues. However, this designation this proposed action, which will be and make available for public comment is not expected to significantly affect available for public comment, to a regulatory flexibility analysis that energy supplies, distribution, or use. determine the economic consequences describes the effects of the rule on small Therefore, this action is not a significant of designating the specific area as entities (i.e., small businesses, small energy action and no Statement of critical habitat. This economic analysis organizations, and small government Energy Effects is required. We will, also will be used to determine jurisdictions). However, no regulatory however, further evaluate this issue as compliance with Executive Order flexibility analysis is required if the we conduct our economic analysis and, 12866, Regulatory Flexibility Act, Small head of the agency certifies the rule will as appropriate, review and revise this Business Regulatory Enforcement not have a significant economic impact assessment as warranted.
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Unfunded Mandates Reform Act (2 critical habitat rests squarely on the identification does not alter where and U.S.C. 1501 et seq.) Federal agency. Furthermore, to the what federally sponsored activities may In accordance with the Unfunded extent that non-Federal entities are occur, it may assist these local Mandates Reform Act (2 U.S.C. 1501), indirectly impacted because they governments in long-range planning the Service makes the following receive Federal assistance or participate (rather than waiting for case-by-case findings: in a voluntary Federal aid program, the section 7 consultations to occur). Unfunded Mandates Reform Act would (a) This rule will not produce a Civil Justice Reform Federal mandate. In general, a Federal not apply; nor would critical habitat In accordance with Executive Order mandate is a provision in legislation, shift the costs of the large entitlement 12988, the Office of the Solicitor has statute or regulation that would impose programs listed above on to State determined that the rule does not an enforceable duty upon State, local, governments. unduly burden the judicial system and tribal governments, or the private sector (b) We do not believe that this rule will significantly or uniquely affect meets the requirements of sections 3(a) and includes both ‘‘Federal small governments because it is a and 3(b)(2) of the Order. We have intergovernmental mandates’’ and relatively small designation on mostly proposed designating critical habitat in ‘‘Federal private sector mandates.’’ public and private land. The public accordance with the provisions of the These terms are defined in 2 U.S.C. lands being proposed for critical habitat Endangered Species Act. This proposed 658(5)–(7). ‘‘Federal intergovernmental designation are owned by the United rule uses standard property descriptions mandate’’ includes a regulation that States Forest Service and the State of and identifies the primary constituent ‘‘would impose an enforceable duty California. None of these government elements within the designated areas to upon State, local, or tribal governments’’ entities fit the definition of ‘‘small assist the public in understanding the with two exceptions. It excludes ‘‘a governmental jurisdiction.’’ As such, a habitat needs of the Laguna Mountains condition of Federal assistance.’’ It also Small Government Agency Plan is not skipper. excludes ‘‘a duty arising from required. We will, however, further participation in a voluntary Federal evaluate this issue as we conduct our Paperwork Reduction Act of 1995 (44 program,’’ unless the regulation ‘‘relates economic analysis and as appropriate, U.S.C. 3501 et seq.) to a then-existing Federal program review and revise this assessment as This rule does not contain any new under which $500,000,000 or more is warranted. collections of information that require provided annually to State, local, and approval by OMB under the Paperwork Takings tribal governments under entitlement Reduction Act. This rule will not authority,’’ if the provision would In accordance with Executive Order impose recordkeeping or reporting ‘‘increase the stringency of conditions of 12630 (‘‘Government Actions and requirements on State or local assistance’’ or ‘‘place caps upon, or Interference with Constitutionally governments, individuals, businesses, or otherwise decrease, the Federal Protected Private Property Rights’’), we organizations. An agency may not Government’s responsibility to provide have analyzed the potential takings conduct or sponsor, and a person is not funding,’’ and the State, local, or tribal implications of proposing critical required to respond to, a collection of governments ‘‘lack authority’’ to adjust habitat for the Laguna Mountains information unless it displays a accordingly. At the time of enactment, skipper in a takings implications currently valid OMB control number. these entitlement programs were: assessment. The takings implications Medicaid; AFDC work programs; Child assessment concludes that the proposed National Environmental Policy Act Nutrition; Food Stamps; Social Services designation of critical habitat will not It is our position that, outside the Block Grants; Vocational Rehabilitation result in significant takings Tenth Circuit, we do not need to State Grants; Foster Care, Adoption implications. prepare environmental analyses as Assistance, and Independent Living; defined by the NEPA in connection with Federalism Family Support Welfare Services; and designating critical habitat under the Child Support Enforcement. ‘‘Federal In accordance with Executive Order Endangered Species Act of 1973, as private sector mandate’’ includes a 13132, the rule does not have significant amended. We published a notice regulation that ‘‘would impose an Federalism effects. A Federalism outlining our reasons for this enforceable duty upon the private assessment is not required. In keeping determination in the Federal Register sector, except (i) a condition of Federal with DOI and Department of Commerce on October 25, 1983 (48 FR 49244). This assistance or (ii) a duty arising from policy, we requested information from, assertion was upheld in the courts of the participation in a voluntary Federal and coordinated development of, this Ninth Circuit (Douglas County v. program.’’ proposed critical habitat designation Babbitt, 48 F.3d 1495 (9th Cir. Ore. The designation of critical habitat with appropriate State resource agencies 1995), cert. denied 116 S. Ct. 698 (1996). does not impose a legally binding duty in California. The designation of critical on non-Federal government entities or habitat in areas currently occupied by Government-to-Government private parties. Under the Act, the only the Laguna Mountains skipper imposes Relationship With Tribes regulatory effect is that Federal agencies no additional restrictions to those In accordance with the President’s must ensure that their actions do not currently in place and, therefore, has memorandum of April 29, 1994, destroy or adversely modify critical little incremental impact on State and ‘‘Government-to-Government Relations habitat under section 7. While non- local governments and their activities. with Native American Tribal Federal entities that receive Federal The designation may have some benefit Governments’’ (59 FR 22951), Executive funding, assistance, or permits, or that to these governments in that the areas Order 13175, and the Department of otherwise require approval or essential to the conservation of the Interior’s manual at 512 DM 2, we authorization from a Federal agency for species are more clearly defined, and readily acknowledge our responsibility an action, may be indirectly impacted the primary constituent elements of the to communicate meaningfully with by the designation of critical habitat, the habitat necessary to the survival of the recognized Federal Tribes on a legally binding duty to avoid species are specifically identified. While government-to-government basis. We destruction or adverse modification of making this definition and will be working with the tribes on
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whose land where there is a possibility Carlsbad Fish and Wildlife Office (see PART 17—[AMENDED] of Laguna Mountains skipper occupancy ADDRESSES section). 1. The authority citation for part 17 to more precisely determine the Author(s) distribution of Laguna Mountains continues to read as follows: skipper habitat and occupancy, and The primary author of this package is the Carlsbad Fish and Wildlife Office. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. management options. No Laguna 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Mountains skippers have been reported List of Subjects in 50 CFR Part 17 625, 100 Stat. 3500; unless otherwise noted. from Tribal lands. Therefore, no Endangered and threatened species, designation of critical habitat for the Exports, Imports, Reporting and 2. In § 17.11(h), revise the entry for Laguna Mountains skipper has been recordkeeping requirements, ‘‘Skipper, Laguna Mountains ‘‘ under proposed on Tribal lands. Transportation. ‘‘INSECTS’’ to read as follows: References Cited Proposed Regulation Promulgation § 17.11 Endangered and threatened wildlife. Accordingly, we propose to amend A complete list of all references cited * * * * * in this rulemaking is available upon part 17, subchapter B of chapter I, title request from the Field Supervisor, 50 of the Code of Federal Regulations, (h) * * * as set forth below:
Species Historic range Vertebrate popu- lation where endan- Status When Critical Special Common name Scientific name gered or threatened listed habitat rules
******* INSECTS
******* Skipper, Laguna Pyrgus ruralis U.S.A...... Entire ...... E 604 17.95(i) NA Mountains. lagunae.
*******
3. In § 17.95(i), add the entry for Mountains skipper are the habitat (3) Critical habitat does not include Laguna Mountains Skipper (Pyrgus components that provide: man-made structures existing on the ruralis lagunae) under ‘‘INSECTS’’ to (i) The host plants, Horkelia effective date of this rule and not read as follows: clevelandii or Potentila glandulosa, in containing one or more of the primary meadows or forest openings needed for constituent elements, such as buildings, § 17.95 Critical habitat-fish and wildlife. reproduction. aqueducts, airports, and roads, and the * * * * * (ii) Nectar sources suitable for feeding land on which such structures are (i) Insects. by adult Laguna Mountains skipper, located. * * * * * including Lasthenia spp., Pentachaeta (4) Data layers defining map units Laguna Mountains Skipper (Pyrgus aurea, Ranunculus spp., and Sidalcea were created on a., on a base of USGS ruralis lagunae) spp. 1:24,000 quadrangle maps, and critical (1) Critical habitat units are depicted (iii) Wet soil or standing water habitat units were then mapped using for San Diego County, California, on the associated with features such as seeps, Universal Transverse Mercator (UTM) maps below. springs, or creeks where water and coordinates. (2) The primary constituent elements minerals are obtained during the adult (5) Note: Map 1 (index map) follows. of critical habitat for the Laguna flight season. BILLING CODE 4310–55–U
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BILLING CODE 4310–55–C (6) Unit 1: Laguna Mountain, San 1:24,000 quadrangle maps Monument Diego County, California. From USGS Peak and Mount Laguna.
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(i) Subunit 1A: lands bounded by the 3637100; 549900, 3637100; 549900, (ii) Subunit 1B: lands bounded by the following UTM NAD27 coordinates 3637600; 550200, 3637600; 550200, following UTM NAD27 coordinates (E,N): 553000, 3637800; 553000, 3637900; 550100, 3637900; 550100, (E,N): 550000, 3643000; 550200, 3638000; 553100, 3638000; 553100, 3638500; 550000, 3638500; 550000, 3643000; 550200, 3642800; 550100, 3638100; 553600, 3638100; 553600, 3638600; 549900, 3638600; 549900, 3642800; 550100, 3642700; 550000, 3638000; 553800, 3638000; 553800, 3638500; 549800, 3638500; 549800, 3642700; 550000, 3642400; 550200, 3637900; 553700, 3637900; 553700, 3638000; 549700, 3638000; 549700, 3642400; 550200, 3642200; 550000, 3637600; 553800, 3637600; 553800, 3637700; 549500, 3637700; 549500, 3642200; 550000, 3642100; 549900, 3637400; 553700, 3637400; 553700, 3638000; 549600, 3638000; 549600, 3642100; 549900, 3642000; 550100, 3637500; 553500, 3637500; 553500, 3638100; 549500, 3638100; 549500, 3642000; 550100, 3641800; 550500, 3637200; 553100, 3637200; 553100, 3638200; 549100, 3638200; 549100, 3641800; 550500, 3641600; 550400, 3637100; 553200, 3637100; 553200, 3638400; 549200, 3638400; 549200, 3641600; 550400, 3641300; 550200, 3637000; 553300, 3637000; 553300, 3638500; 549300, 3638500; 549300, 3641300; 550200, 3641200; 550100, 3636800; 553400, 3636800; 553400, 3638800; 549400, 3638800; 549400, 3641200; 550100, 3641100; 550200, 3636700; 553200, 3636700; 553200, 3638900; 549300, 3638900; 549300, 3641100; 550200, 3640900; 549600, 3636800; 553000, 3636800; 553000, 3639000; 549600, 3639000; 549600, 3640900; 549600, 3641000; 549300, 3636900; 552900, 3636900; 552900, 3638600; 549700, 3638600; 549700, 3641000; 549300, 3642000; 549200, 3637000; 552800, 3637000; 552800, 3638700; 549800, 3638700; 549800, 3642000; 549200, 3642400; 549300, 3637100; 552700, 3637100; 552700, 3638900; 549900, 3638900; 549900, 3642400; 549300, 3642300; 549400, 3637000; 552600, 3637000; 552600, 3639000; 549700, 3639000; 549700, 3642300; 549400, 3642500; 549700, 3637100; 552400, 3637100; 552400, 3639200; 549600, 3639200; 549600, 3642500; 549700, 3642600; 549800, 3637200; 552300, 3637200; 552300, 3639300; 549500, 3639300; 549500, 3642600; 549800, 3642700; 549900, 3637100; 552200, 3637100; 552200, 3639500; 549400, 3639500; 549400, 3642700; 549900, 3642900; 550000, 3637000; 552000, 3637000; 552000, 3639600; 549300, 3639600; 549300, 3642900; 550000, 3643000. 3637100; 551900, 3637100; 551900, 3639800; 549200, 3639800; 549200, (iii) Subunit 1C: lands bounded by the 3637300; 551500, 3637300; 551500, 3639900; 549100, 3639900; 549100, following UTM NAD27 coordinates 3637200; 551400, 3637200; 551400, 3640200; 549400, 3640200; 549400, (E,N): 552800, 3635600; 553100, 3637100; 551200, 3637100; 551200, 3640100; 549700, 3640100; 549700, 3635600; 553100, 3635400; 553300, 3636700; 551300, 3636700; 551300, 3640000; 549800, 3640000; 549800, 3635400; 553300, 3635300; 553400, 3636600; 551400, 3636600; 551400, 3640100; 549900, 3640100; 549900, 3635300; 553400, 3635200; 553300, 3636500; 551600, 3636500; 551600, 3640200; 549700, 3640200; 549700, 3635200; 553300, 3635100; 553200, 3636400; 551700, 3636400; 551700, 3640300; 549600, 3640300; 549600, 3635100; 553200, 3635000; 553400, 3636300; 551800, 3636300; 551800, 3640500; 549800, 3640500; 549800, 3635000; 553400, 3634800; 553600, 3636200; 552000, 3636200; 552000, 3640600; 549900, 3640600; 549900, 3634800; 553600, 3634600; 553700, 3636100; 552100, 3636100; 552100, 3640700; 550200, 3640700; 550200, 3634600; 553700, 3634200; 553600, 3636000; 552200, 3636000; 552200, 3640600; 550500, 3640600; 550500, 3634200; 553600, 3634100; 553500, 3635900; 552300, 3635900; 552300, 3640500; 550600, 3640500; 550600, 3634100; 553500, 3634000; 553400, 3635800; 552400, 3635800; 552400, 3640400; 550700, 3640400; 550700, 3634000; 553400, 3633800; 553300, 3635600; 552500, 3635600; 552500, 3640200; 550300, 3640200; 550300, 3633800; 553300, 3633600; 553200, 3635500; 552300, 3635500; 552300, 3640000; 551000, 3640000; 551000, 3633600; 553200, 3633300; 553300, 3635400; 552100, 3635400; 552100, 3639900; 551100, 3639900; 551100, 3633300; 553300, 3633200; 553500, 3635100; 552000, 3635100; 552000, 3639700; 550800, 3639700; 550800, 3633200; 553500, 3633300; 553600, 3634800; 551800, 3634800; 551800, 3639600; 550600, 3639600; 550600, 3633300; 553600, 3633000; 553700, 3635000; 551600, 3635000; 551600, 3639700; 550500, 3639700; 550500, 3633000; 553700, 3632300; 553600, 3634900; 551400, 3634900; 551400, 3639400; 550400, 3639400; 550400, 3632300; 553600, 3632200; 553300, 3635300; 551300, 3635300; 551300, 3639300; 550500, 3639300; 550500, 3632200; 553300, 3632300; 553200, 3635600; 551200, 3635600; 551200, 3639200; 550600, 3639200; 550600, 3632300; 553200, 3633000; 553100, 3635700; 551100, 3635700; 551100, 3639100; 550700, 3639100; 550700, 3633000; 553100, 3633200; 553000, 3636000; 551000, 3636000; 551000, 3639000; 550800, 3639000; 550800, 3633200; 553000, 3633300; 552900, 3636100; 550900, 3636100; 550900, 3638900; 551000, 3638900; 551000, 3633300; 552900, 3632800; 552800, 3636200; 550800, 3636200; 550800, 3639300; 551100, 3639300; 551100, 3632800; 552800, 3632600; 552700, 3636100; 550700, 3636100; 550700, 3639500; 551300, 3639500; 551300, 3632600; 552700, 3632500; 552600, 3636000; 550800, 3636000; 550800, 3639900; 551600, 3639900; 551600, 3632500; 552600, 3632400; 552500, 3635800; 550600, 3635800; 550600, 3639700; 551700, 3639700; 551700, 3632400; 552500, 3632300; 552300, 3635700; 550500, 3635700; 550500, 3639400; 551800, 3639400; 551800, 3632300; 552300, 3632600; 552400, 3635500; 550400, 3635500; 550400, 3639300; 551900, 3639300; 551900, 3632600; 552400, 3632700; 552500, 3635400; 550300, 3635400; 550300, 3639100; 551800, 3639100; 551800, 3632700; 552500, 3632800; 552600, 3635300; 550100, 3635300; 550100, 3639000; 551900, 3639000; 551900, 3632800; 552600, 3633000; 552700, 3635500; 550000, 3635500; 550000, 3638900; 552000, 3638900; 552000, 3633000; 552700, 3633400; 552800, 3635600; 549900, 3635600; 549900, 3638800; 552200, 3638800; 552200, 3633400; 552800, 3633800; 552700, 3635900; 550000, 3635900; 550000, 3638700; 552500, 3638700; 552500, 3633800; 552700, 3634300; 552800, 3636200; 549800, 3636200; 549800, 3638300; 552300, 3638300; 552300, 3634300; 552800, 3634500; 552900, 3636500; 549900, 3636500; 549900, 3638400; 552200, 3638400; 552200, 3634500; 552900, 3634900; 552800, 3636600; 549800, 3636600; 549800, 3638300; 551900, 3638300; 551900, 3634900; 552800, 3635600. 3636700; 549700, 3636700; 549700, 3637900; 552000, 3637900; 552000, (iv) Note: Unit 1 (Map 2) follows. 3637000; 549800, 3637000; 549800, 3637800; 553000, 3637800. BILLING CODE 4310–55–U
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BILLING CODE 4310–55–C (7) Unit 2: Palomar Mountain, San 1:24,000 quadrangle maps Boucher Hill Diego County, California. From USGS and Palomar Observatory.
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(i) Subunit 2A: lands bounded by the 511700, 3688800; 511500, 3688800; 3690800; 512300, 3690800; 512300, following UTM NAD27 coordinates (E, 511500, 3688900; 511400, 3688900; 3691100; 512500, 3691100; 512500, N): 511300, 3689300; 511400, 3689300; 511400, 3689000; 511300, 3689000; 3691200; 513100, 3691200; 513100, 511400, 3689200; 511600, 3689200; 511300, 3689100; 511200, 3689100; 3691300; 513200, 3691300; 513200, 511600, 3689100; 511700, 3689100; 511200, 3689200; 511300, 3689200; 3691200; 513300, 3691200; 513300, 511700, 3689000; 511800, 3689000; 511300, 3689300. 3690900; 513000, 3690900; excluding 511800, 3688900; 512300, 3688900; (ii) Subunit 2B: lands bounded by the lands bounded by the following UTM 512300, 3688800; 512400, 3688800; following UTM NAD27 coordinates NAD27 coordinates (E,N): 509900, 512400, 3689000; 512900, 3689000; (E,N): 513000, 3690900; 513000, 3691000; 510100, 3691000; 510100, 512900, 3688900; 513200, 3688900; 3690800; 513200, 3690800; 513200, 3690900; 510000, 3690900; 510000, 513200, 3688800; 513400, 3688800; 3690600; 513100, 3690600; 513100, 3690800; 509900, 3690800; 509900, 513400, 3688700; 513700, 3688700; 3690400; 513200, 3690400; 513200, 3691000; and 512800, 3691000; 513000, 513700, 3688600; 513900, 3688600; 3690300; 513300, 3690300; 513300, 3691000; 513000, 3690900; 512800, 513900, 3688500; 514000, 3688500; 3690000; 513200, 3690000; 513200, 3690900; 512800, 3691000. 514000, 3688400; 514100, 3688400; 3689900; 513300, 3689900; 513300, (iii) Subunit 2C: lands bounded by the 514100, 3688300; 514400, 3688300; 3689600; 512900, 3689600; 512900, following UTM NAD27 coordinates (E, 514400, 3688200; 514500, 3688200; 3689400; 512700, 3689400; 512700, N): 509200, 3689100; 509400, 3689100; 514500, 3688100; 515300, 3688100; 3689500; 512600, 3689500; 512600, 509400, 3689000; 509700, 3689000; 509700, 3688700; 509800, 3688700; 515300, 3688000; 515400, 3688000; 3689300; 512300, 3689300; 512300, 509800, 3688600; 510200, 3688600; 515400, 3687900; 515500, 3687900; 3689400; 512200, 3689400; 512200, 510200, 3688900; 510800, 3688900; 515500, 3687800; 515700, 3687800; 3689500; 512000, 3689500; 512000, 510800, 3688800; 511100, 3688800; 515700, 3687600; 515900, 3687600; 3689700; 511900, 3689700; 511900, 511100, 3688600; 511200, 3688600; 515900, 3687300; 515800, 3687300; 3689900; 511800, 3689900; 511800, 511200, 3688500; 511300, 3688500; 515800, 3687200; 515900, 3687200; 3690200; 511700, 3690200; 511700, 511300, 3688400; 511200, 3688400; 515900, 3687100; 516000, 3687100; 3690300; 511600, 3690300; 511600, 511200, 3688300; 511500, 3688300; 516000, 3687000; 516300, 3687000; 3690500; 511500, 3690500; 511500, 511500, 3688200; 511600, 3688200; 516300, 3686900; 516400, 3686900; 3690600; 511200, 3690600; 511200, 511600, 3687900; 511300, 3687900; 516400, 3686800; 516500, 3686800; 3690700; 511100, 3690700; 511100, 511300, 3687600; 511200, 3687600; 516500, 3686700; 516600, 3686700; 3690800; 510800, 3690800; 510800, 511200, 3687500; 511100, 3687500; 516600, 3686600; 517000, 3686600; 3690900; 510700, 3690900; 510700, 511100, 3687400; 511200, 3687400; 517000, 3686300; 517200, 3686300; 3690800; 510600, 3690800; 510600, 511200, 3687100; 511000, 3687100; 517200, 3686200; 517300, 3686200; 3690900; 510500, 3690900; 510500, 511000, 3687200; 510900, 3687200; 517300, 3686000; 517100, 3686000; 3691000; 510200, 3691000; 510200, 510900, 3687300; 510600, 3687300; 517100, 3685800; 517200, 3685800; 3690900; 510300, 3690900; 510300, 510600, 3687500; 510500, 3687500; 517200, 3685700; 516700, 3685700; 3690600; 510400, 3690600; 510400, 510500, 3687400; 510400, 3687400; 516700, 3685800; 516600, 3685800; 3690300; 510200, 3690300; 510200, 510400, 3687500; 510300, 3687500; 516600, 3686000; 516500, 3686000; 3690400; 509800, 3690400; 509800, 510300, 3687600; 510400, 3687600; 516500, 3686100; 516400, 3686100; 3690500; 509700, 3690500; 509700, 510400, 3687700; 510500, 3687700; 516400, 3686200; 516300, 3686200; 3690600; 509500, 3690600; 509500, 510500, 3687800; 510400, 3687800; 516300, 3686300; 516200, 3686300; 3690700; 509400, 3690700; 509400, 510400, 3687900; 510300, 3687900; 516200, 3686400; 516000, 3686400; 3690800; 509300, 3690800; 509300, 510300, 3687800; 510100, 3687800; 516000, 3686600; 515900, 3686600; 3690900; 509100, 3690900; 509100, 510100, 3687900; 509900, 3687900; 515900, 3686700; 515800, 3686700; 3691000; 509000, 3691000; 509000, 509900, 3688200; 509800, 3688200; 515800, 3686800; 515700, 3686800; 3691200; 509200, 3691200; 509200, 509800, 3688300; 509700, 3688300; 515700, 3686900; 515500, 3686900; 3691100; 509400, 3691100; 509400, 509700, 3688400; 509500, 3688400; 515500, 3687000; 515200, 3687000; 3691300; 509300, 3691300; 509300, 509500, 3688500; 509300, 3688500; 515200, 3687100; 514900, 3687100; 3691500; 509500, 3691500; 509500, 509300, 3688600; 509200, 3688600; 514900, 3687200; 514800, 3687200; 3691400; 510000, 3691400; 510000, 509200, 3689100. 514800, 3687300; 514500, 3687300; 3691500; 510100, 3691500; 510100, (iv) Subunit 2D: lands bounded by the 514500, 3687500; 514400, 3687500; 3691600; 510200, 3691600; 510200, following UTM NAD27 coordinates 514400, 3687600; 514300, 3687600; 3691700; 510700, 3691700; 510700, (E,N): 507700, 3690800; 508000, 514300, 3687700; 514200, 3687700; 3691600; 511000, 3691600; 511000, 3690800; 508000, 3690700; 508100, 514200, 3687800; 514100, 3687800; 3691500; 511100, 3691500; 511100, 3690700; 508100, 3690800; 508300, 514100, 3687900; 514000, 3687900; 3691400; 511400, 3691400; 511400, 3690800; 508300, 3690600; 508400, 514000, 3688000; 513700, 3688000; 3691200; 511600, 3691200; 511600, 3690600; 508400, 3690500; 508500, 513700, 3688100; 513500, 3688100; 3691100; 511700, 3691100; 511700, 3690500; 508500, 3690300; 508400, 513500, 3688000; 513400, 3688000; 3691000; 511900, 3691000; 511900, 3690300; 508400, 3690100; 508500, 513400, 3687700; 513300, 3687700; 3690900; 512000, 3690900; 512000, 3690100; 508500, 3690000; 508600, 513300, 3687400; 513200, 3687400; 3690700; 511800, 3690700; 511800, 3690000; 508600, 3689900; 508700, 513200, 3687300; 513000, 3687300; 3690600; 511900, 3690600; 511900, 3689900; 508700, 3689700; 508800, 513000, 3687600; 512900, 3687600; 3690500; 512000, 3690500; 512000, 3689700; 508800, 3689600; 508900, 512900, 3688000; 512800, 3688000; 3690400; 512100, 3690400; 512100, 3689600; 508900, 3689100; 508700, 512800, 3688100; 512500, 3688100; 3690300; 512200, 3690300; 512200, 3689100; 508700, 3689200; 508600, 512500, 3688200; 512400, 3688200; 3690200; 512500, 3690200; 512500, 3689200; 508600, 3689300; 508400, 512400, 3688400; 512300, 3688400; 3690300; 512700, 3690300; 512700, 3689300; 508400, 3689400; 508200, 512300, 3688500; 512000, 3688500; 3690400; 512600, 3690400; 512600, 3689400; 508200, 3689800; 508000, 512000, 3688600; 511900, 3688600; 3690600; 512500, 3690600; 512500, 3689800; 508000, 3690000; 507900, 511900, 3688500; 511700, 3688500; 3690700; 512400, 3690700; 512400, 3690000; 507900, 3690200; 507800,
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3690200; 507800, 3690400; 507500, 3690500; 507500, 3690700; 507700, 3690400; 507500, 3690300; 507400, 3690700; 507700, 3690800. 3690300; 507400, 3690500; 507500, (v) Note: Unit 2 (Map 3) follows.
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* * * * * ADDRESSES: Written comments should Federal regulations. NMFS began a Dated: November 30, 2005. be sent to Harold Mears, Director, State, rulemaking in response to these Craig Manson, Federal and Constituent Programs addenda, and most recently published a Office, Northeast Region, NMFS, One proposed rule on September 2, 2005 (70 Assistant Secretary for Fish and Wildlife and Parks. Blackburn Drive, Gloucester, MA 01930. FR 52346). In December 2003, the Board Comments may also be sent via e-mail approved Addendum IV which, in part, [FR Doc. 05–23691 Filed 12–12–05; 8:45 am] to [email protected], via fax (978) 281– included additional egg production BILLING CODE 4310–55–C 9117 or via the Federal e-Rulemaking measures. Addenda V and VI did not portal at www.regulations.gov. include any further measures pertinent to egg production and, therefore, are not DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Peter Burns, Fishery Management included within the scope of this National Oceanic and Atmospheric Specialist, (978) 281–9144, fax (978) advance notice of proposed rulemaking Administration 281–9117, e-mail [email protected]. (ANPR). Addendum VII, approved by the Board in November 2005, facilitates SUPPLEMENTARY INFORMATION: 50 CFR Part 697 effort control measures and constitutes Background a limited access program for the lobster [Docket No. 051129315–5315–01; I.D. trap fishery in the state waters of LCMA 112505A] Addenda II through VII are part of an overall lobster fishery management 2 based on historical participation. In RIN 0648–AU07 regime set forth in Amendment 3 to the approving Addendum VII, the Board ISFMP. The intent of Amendment 3, opted not to continue with the Atlantic Coastal Fisheries Cooperative approved by the Commission in previously adopted schedule of Management Act Provisions; American December 1997, is to achieve a healthy minimum carapace length increases in Lobster Fishery American lobster resource and to LCMA 2 (Addendum III) and voted to maintain the minimum legal carapace AGENCY: develop a management regime that National Marine Fisheries length (gauge) at 3 3/8 inches (8.57 provides for sustained harvest, Service (NMFS), National Oceanic and centimeters (cm)). This option allows maintains opportunities for Atmospheric Administration (NOAA), the Board to adjust the minimum gauge participation, and provides for the Commerce. size in the future pending new stock cooperative development of ACTION: Advance notice of proposed assessment results and changes to the conservation measures by all rulemaking. plan addenda or amendments. stakeholders. In short, Amendment 3 SUMMARY: NMFS announces that it is was envisioned to provide much of the ISFMP Measures Already Analyzed considering, and seeking public framework upon which future lobster and Proposed by NMFS comment on the implementation of management - to be set forth in later The American lobster egg production further minimum carapace length addenda - would be based. In particular, and broodstock protection measures in (gauge) increases and escape vent size Amendment 3 employed a participatory the collective addenda include annual increases in the Federal lobster fishery, management approach by creating the minimum gauge size increases, lobster consistent with recommendations for seven lobster management areas, each trap escape vent size increases, Federal action in the Atlantic States with its own lobster conservation maximum carapace size restrictions and Marine Fisheries Commission’s management team (LCMT) comprised of v-notch protection. Many of these (Commission) Interstate Fishery industry members. Amendment 3 tasked measures in the collective addenda were Management Plan for American Lobster the LCMTs with providing already analyzed and proposed for (ISFMP). NMFS would issue these recommendations for area-specific implementation by NMFS in the regulations according to its authority management measures to the September 2, 2005, proposed rule. under the Atlantic Coastal Fisheries Commission’s Lobster Management These include: maximum carapace Cooperative Management Act Board (Board) to meet the lobster egg length restrictions for LCMAs 4 and 5; (ACFCMA). While a September 2, 2005, production and effort reduction goals of mandatory v-notching of egg-bearing proposed rule considered gauge the ISFMP. NMFS has the authority female lobsters in LCMA 1 and the increases and escape vent size increases under the ACFCMA to implement portion of LCMA 3 that lies north of the as scheduled through 2004 in Addenda regulations in Federal waters that are 42°30′ N. latitude line; a zero tolerance II and III to Amendment 3 of the ISFMP, compatible with the effective definition of v-notched female lobster in the proposed rule did not address; implementation of the ISFMP and LCMA 1; minimum gauge size increases additional gauge increases scheduled consistent with the national standards to 3 3/8 inches (8.57 cm) in LCMAs 2, annually from 2005 through 2008 in of the Magnuson-Stevens Fishery 3, 4, 5 and the OCLCMA; and lobster Lobster Conservation Management Conservation and Management Act. trap escape vent size increases to 2 Areas (LCMA) 3 and the Outer Cape These Federal regulations are inches X 5 3/4 inches rectangular (5.08 Lobster Conservation Management Area promulgated pursuant to the ACFCMA cm X 14.61 cm) and 2 5/8 inches (6.67 (OCLCMA), an increase to the escape and are codified at 50 CFR part 697. cm) diameter circular in LCMAs 2, 3, 4, vent size in LCMA 3 and the OCLCMA Commission Addendum 1 to 5 and the OCLCMA. scheduled for 2008, and an escape vent Amendment 3 focused largely on effort Additional minimum gauge increases size increase for LCMA 1 scheduled for control measures. The Commission and escape vent size increases are 2007. Accordingly, NMFS is seeking approved Addendum 1 in August 1999, included in the addenda but were not written public comments on these with NMFS promulgating compatible addressed in the September 2, 2005, additional gauge and escape vent size regulations on March 27, 2003 (68 FR proposed rule because the entire gauge requirements as set forth in the ISFMP 14902). The Board approved the egg increase schedule, although included in and recommended for Federal production measures as Addenda II and the approved Commission addenda, had implementation by the Commission. III in February 2001, and February 2002, not actually occurred at the time of DATES: Comments must be received by respectively, and recommended that analysis for corresponding changes to January 12, 2006. NMFS implement complementary the Federal rules. In other words, the
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proposed rule moves to implement the Federal analysis of these measures was corresponding Federal actions that minimum gauge size and escape vent conducted. address them. size for the specified LCMAs as required Table 1 illustrates the gauge and vent through 2004 in the addenda, when the size schedule set forth in the Commission addenda and provides the BILLING CODE 3510–22–S
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Scope of This ANPR LCMA 6 (Long Island Sound). Since this changes to the Federal regulations in The Commission’s plan calls for area is comprised entirely of New York LCMA 2, subject to Addendum VII, will additional management measures that and Connecticut state waters, NMFS has be conducted in a separate rulemaking have yet to be proposed or implemented no authority to implement measures to analyze and seek public comment on by NMFS. These include four additional specific to LCMA 6. However, federally the limited access and trap 1/32 inch (0.08 cm) gauge increases that permitted lobster vessels that have New transferability measures set forth for would result in a 3 1/2 inch (8.89 cm) York or Connecticut state licenses are LCMAs 2, 3 and the OCLCMA. NMFS minimum gauge size requirement for bound to the most restrictive of state published an ANPR along with a notice LCMA 3 and the OCLCMA by July 1, and Federal regulations if the Federal of intent in the Federal Register on May 2008; escape vent size increases in permit is endorsed for trap gear in 10, 2005 (70 FR 24995) to address these LCMA 3 and the OCLCMA to 2 1/16 LCMA 6. lobster fishing effort control measures. inches X 5 3/4 inches rectangular (5.24 The Commission recently passed cm X 14.61 cm) or two circular vents at Addendum VII to the ISFMP that Classification 2 11/16 inches diameter (6.83 cm) by constitutes a limited access lobster trap This ANPR has been determined to be July 1, 2008; and an increase to the qualification program based on escape vent size in LCMA 1 to 2 inches historical participation. In Addendum not significant for the purposes of X 5 3/4 inches rectangular (5.08 cm X VII, the Commission chose to maintain Executive Order 12866. 14.61 cm) or two circular vents at 2 5/ the minimum gauge size at 3 3/8 inches Authority: 16 U.S.C. 5101 et seq. (8.57 cm) indefinitely. Therefore, the 8 inches (6.67 cm) in diameter by July Dated: December 7, 2005. 1, 2007. Consequently, NMFS is minimum gauge size for this area under requesting comments on the need for the Commission’s Plan is 3 3/8 inches James W. Balsiger, these additional measures by way of this (8.57 cm) and the escape vent size is 2 Acting Deputy Assistant Administrator for ANPR. inches X 5 3/4 inches (5.08 cm X 14.61 Regulatory Programs, National Marine cm) rectangular or two circular vents at Fisheries Service. Other ISFMP Measures Not Considered 2 5/8 inches (6.67 cm) in diameter. This [FR Doc. 05–23984 Filed 12–12–05; 8:45 am] in This ANPR is consistent with the measures BILLING CODE 3510–22–C The Commission’s plan also includes proposed for LCMA 2 in the September escape vent and gauge increases in 2, 2005, proposed rule. Any future
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Notices Federal Register Vol. 70, No. 238
Tuesday, December 13, 2005
This section of the FEDERAL REGISTER Board’s examination program for the DEPARTMENT OF AGRICULTURE contains documents other than rules or May 2006 Basic (EA–1) Examination proposed rules that are applicable to the and the May 2006 Pension (EA–2B) Submission for OMB Review; public. Notices of hearings and investigations, Examination will be discussed. Comment Request committee meetings, agency decisions and rulings, delegations of authority, filing of A determination has been made as December 7, 2005. petitions and applications and agency required by section 10(d) of the Federal The Department of Agriculture has statements of organization and functions are Advisory Committee Act, 5 U.S.C. App., submitted the following information examples of documents appearing in this that the portions of the meeting dealing collection requirement(s) to OMB for section. with the discussion of questions which review and clearance under the may appear on the Joint Board’s Paperwork Reduction Act of 1995, Public Law 104–13. Comments JOINT BOARD FOR THE examinations and review of the regarding (a) whether the collection of ENROLLMENT OF ACTUARIES November 2005 Joint Board examination fall within the exceptions to the open information is necessary for proper Meeting of the Advisory Committee; meeting requirement set forth in 5 performance of the functions of the Meeting U.S.C. 552b(c)(9)(B), and that the public agency, including whether the interest requires that such portions be information will have practical utility; AGENCY: Joint Board for the Enrollment (b) the accuracy of the agency’s estimate closed to public participation. of Actuaries. of burden including the validity of the ACTION: Notice of Federal Advisory The portion of the meeting dealing methodology and assumptions used; (c) Committee meeting. with the discussion of the other topics ways to enhance the quality, utility and will commence at 1 p.m. on January 10 clarity of the information on those who SUMMARY: The Executive Director of the and will continue for as long as are to respond, including through the Joint Board for the Enrollment of necessary to complete the discussion, use of appropriate automated, Actuaries gives notice of a meeting of but not beyond 3 p.m. Time permitting, electronic, mechanical, or other the Advisory Committee on Actuarial after the close of this discussion by technological collection techniques or Examinations (portions of which will be Committee members, interested persons other forms of information technology open to the public) in Washington, DC may make statements germane to this should be addressed to: Desk Officer for at the Office of Professional subject. Persons wishing to make oral Agriculture, Office of Information and Responsibility on January 9 and 10, statements should notify the Executive Regulatory Affairs, Office of 2006. Director in writing prior to the meeting Management and Budget (OBM), _ _ _ DATES: Monday, January 9, 2006, from 9 in order to aid in scheduling the time Pamela Beverly OIRA Submission@ a.m. to 5 p.m., and Tuesday, January 10, available and should submit the written OMB.EOP.GOV or fax (202) 395–5806 2006, from 8:30 a.m. to 5 p.m. text, or at a minimum, an outline of and to Departmental Clearance Office, ADDRESSES: The meeting will be held in comments they propose to make orally. USDA, OCIO, Mail Stop 7602, Room 6505IR, Internal Revenue Service, Such comments will be limited to 10 Washington, DC 20250–7602. Comments regarding these information 1111 Constitution Avenue, NW., minutes in length. All persons planning collections are best assured of having Washington, DC. to attend the public session should their full effect if received within 30 FOR FURTHER INFORMATION CONTACT: notify the Executive Director in writing Patrick W. McDonough, Executive days of this notification. Copies of the to obtain building entry. Notifications of submission(s) may be obtained by Director of the Joint Board for the intent to make an oral statement or to Enrollment of Actuaries, 202–622–8225. calling (202) 720–8681. attend must be faxed, no later than An agency may not conduct or SUPPLEMENTARY INFORMATION: Notice is December 31, 2005, to 202–622–8300, sponsor a collection of information hereby given that the Advisory Attn: Executive Director. Any interested unless the collection of information Committee on Actuarial Examinations person also may file a written statement displays a currently valid OMB control will meet in Room 6505IR, 1111 for consideration by the Joint Board and number and the agency informs Constitution Avenue, NW., Washington, the Committee by sending it to the potential persons who are to respond to DC on Monday, January 9, 2006, from 9 Executive Director: Joint Board for the the collection of information that such a.m. to 5 p.m., and Tuesday, January 10, Enrollment of Actuaries, c/o Internal persons are not required to respond to 2006, from 8:30 a.m. to 5 p.m. Revenue Service, Attn: Executive the collection of information unless it The purpose of the meeting is to Director SE:OPR, 1111 Constitution displays a currently valid OMB control discuss topics and questions which may Avenue, NW., Washington, DC 20224. number. be recommended for inclusion on future Joint Board examinations in actuarial Dated: December 7, 2005. Agricultural Marketing Service mathematics and methodology referred Patrick W. McDonough, Title: Domestic Origin Verification to in 29 U.S.C. 1242(a)(1)(B) and to Executive Director, Joint Board for the System Questionnaire. review the November 2005 Pension Enrollment of Actuaries. OMB Control Number: O581–NEW. (EA–2A) Joint Board Examination in [FR Doc. E5–7246 Filed 12–12–05; 8:45 am] Summary of Collection: The order to make recommendations relative Agricultural Marketing Act of 1946 (7 BILLING CODE 4830–01–P thereto, including the minimum U.S.C. 1622(h)) requires and directs the acceptable pass score. Topics for Department to promulgate rules and inclusion on the syllabus for the Joint regulations to carry out voluntary
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inspection and grading services on a fee DEPARTMENT OF AGRICULTURE discount to be provided to farmers for service basis. The collection of under the premium reduction plan. This information regarding the requirement Submission for OMB Review; program allows approved insurance for companies to ensure domestic origin Comment Request providers to apply to FCIC for authority to reduce the premium charged to of the products they deliver to the December 7, 2005. producers in accordance with Section USDA Purchase Program is provided for The Department of Agriculture has 508(e)(3) of the Act, as amended, and to in the ‘‘General Terms and Conditions submitted the following information provide limitations and procedures for Procurement of Agricultural collection requirement(s) to OMB for Commodities of Services,’’ (USDA–1). established by FCIC. review and clearance under the Need and Use of the Information: To The Domestic Origin Verification Paperwork Reduction Act of 1995, System Program (DOVS) is a voluntary ensure that the Risk Management Public Law 104–13. Comments Agency (RMA) receives complete audit and verification user-fee service regarding (a) Whether the collection of revised Plans of Operations complying available to supplies, processors, and information is necessary for the proper with twelve requirements from any financially interested party. It is performance of the functions of the approved insurance providers for the designed to provide validation of the agency, including whether the purpose of obtaining approval of applicant’s domestic origin verification information will have practical utility; premium reduction plans. An approved system prior to bidding on contracts to (b) the accuracy of the agency’s estimate insurance provider can apply to RMA supply food products to the of burden including the validity of the for authority to reduce premiums Department’s Feeding programs, and/or methodology and assumptions used; (c) payable by producers if the approved may be conducted after a contract is ways to enhance the quality, utility and insurance provider is able to provide awarded. Participation in DOVS does clarity of the information to be insurance more efficiently than the not relieve a company of its contractual collected; (d) ways to minimize the administrative and operating expense requirements to provide only domestic burden of the collection of information reimbursement paid by RMA. RMA will origin product to the USDA. on those who are to respond, including review the information submitted to through the use of appropriate Need and Use of the Information: An determine if the company can actually automated, electronic, mechanical, or produce the efficiency required to interested company requests a DOVS other technological collection questionnaire, and once completed it reduce the premium. techniques or other forms of information Description of Respondents: Business contains the applicants procedures to technology should be addressed to: Desk ensure fruit, nut or vegetable or other for-profit, farms, Federal Officer for Agriculture, Office of Government. components or products can be traced Information and Regulatory Affairs, Number of Respondents: 90. back to their domestic origin; use of a Office of Management and Budget Frequency of Responses: Reporting: segregation plan to keep all non- (OMB), _ Annually. domestic components or products OIRA [email protected] or Total Burden Hours: 1,095. separate from domestic products; for fax (202) 395–5806 and to Departmental taking corrective action on Clearance Office, USDA, OCIO, Mail Charlene Parker, nonconformities and deficiencies; for Stop 7602, Washington, DC 20250– Departmental Information Clearance Officer. checking the adequacy of their internal 7602. Comments regarding these [FR Doc. E5–7247 Filed 12–12–05; 8:45 am] system of ensuring domestic origin; information collections are best assured BILLING CODE 3410–08–P instructing employees in the domestic of having their full effect if received origin requirement and for maintaining within 30 days of this notification. records relating to the applicant’s Copies of the submission(s) may be DEPARTMENT OF AGRICULTURE domestic origin verification system. obtained by calling (202) 720–8681. An agency may not conduct or Forest Service These elements should be place whether sponsor a collection of information or not the applicant is on the DOVS unless the collection of information California Coast Province Advisory program or providing a trace-back on displays a currently valid OMB control Committee every contract. DOVS assists companies number and the agency informs to meet the domestic origin requirement AGENCY: Forest Service, USDA Forest potential persons who are to respond to Service. for the USDA Purchase Program the collection of information that such ACTION: Notice of meeting. efficiently and eliminates the persons are not required to respond to redundancy of the trace paperwork that the collection of information unless it SUMMARY: The California Coast Province is required for every USDA contract. displays a currently valid OMB control Advisory Committee (CCPAC) will meet Description of Respondents: Business number. on January 12, 2005 in Eureka, or other for-profit. Risk Management Agency California. The purpose of the meeting Number of Respondents: 100. is to discuss the issues relating to the Title: Premium Reduction Plan. implementation of the Northwest Forest Frequency of Responses: Reporting: OMB Control Number: 0563–0079. Plan (NWFP). Annually. Summary of Collection: The Federal DATES: The meeting will be held from Total Burden Hours: 225. Crop Insurance Corporation (FCIC) amended the General Administrative 8:30 a.m. to 4 p.m. on January 12, 2006. Charlene Parker, Regulations to include provisions ADDRESSES: The meeting will be held at Departmental Information Collection regarding the requests by approved the Six Rivers National Forest Clearance Officer. insurance providers to implement the Supervisor’s Office Conference Room at 1330 Bayshore Way, Eureka, California. [FR Doc. 05–23947 Filed 12–12–05; 8:45 am] premium reduction plan authorized under section 508(e)(3) of the Federal FOR FURTHER INFORMATION CONTACT: BILLING CODE 3410–02–M Crop Insurance Act (Act) and the Laura Chapman, Committee approval of the amount of a premium Coordinator, USDA, Six Rivers National
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Forest, 1330 Bayshore Way, Eureka, CA Public comment is invited and will be Secretary of the Interior (acting through 95501. Phone: (707) 441–3549. E-mail: considered in development of the final the Bureau of Land Management) and [email protected]. directive. the Secretary of Agriculture (acting SUPPLEMENTARY INFORMATION: The DATES: Comments must be received in through the Forest Service) have agenda items include: (1) An overview writing by February 13, 2005. authority and responsibility regarding of the PAC and PAC objectives for new ADDRESSES: Send written comments via oil and gas leases on NFS lands, and members; (2) a report on the April, 2005 the U.S. Postal Service to: Oil and Gas both agencies have the authority to NWFP Monitoring Conference; (3) a CatEx Proposed Directive, C/O Content determine the stipulations under which Regional Ecosystem Office update; (4) a Analysis Group, P.O. Box 2000, leasing will be permitted. 30 U.S.C. presentation on the Pacific Northwest Bountiful, UT 84011–2000, or by 226(h); 43 CFR 3101.7–2(a). FOOGLRA Aquatic Monitoring Partnership; (5) an facsimile to (801) 397–2601, or by e- provides that the Forest Service shall update on the Watershed Progress mail to regulate all surface disturbing activities Report; (6) a presentation on the Six [email protected]. If relating to oil and gas leasing on NFS lands. 30 U.S.C. 226(g). No permit to Rivers National Forest Business Plan; (7) comments are sent via facsimile or e- drill on NFS lands may be granted CCPAC and agency updates; and (8) a mail, the public is asked not to submit without the analysis and approval by discussion of desired topics and dates duplicate written comments. Please the Forest Service of a surface use plan for upcoming meetings and field trips. confine comments to issues pertinent to of operations (SUPO) covering proposed The meeting is open to the public. the proposed directive and explain the surface disturbing activities within the Public input opportunity will be reasons for any recommended changes. All comments, including names, lease area. provided and individuals will have the The Forest Service has established an addresses and other contact information opportunity to address the committee at incremental decision-making framework when provided, are placed in the record that time. for the consideration of oil and gas and are available for public review and Dated: December 6, 2005. leasing activities on NFS lands that is copying at 5500 West Amelia Earhart set out in 36 CFR 228.102. In general, Jeff Walter, Drive, Suite 100, Salt Lake City, Utah, the various steps undertaken are as Forest Supervisor. during regular business hours (8:30 a.m. follows: (1) Forest Service leasing [FR Doc. 05–23952 Filed 12–12–05; 8:45 am] to 4:30 p.m.), Monday through Friday, analysis; (2) Forest Service notification BILLING CODE 3410–11–M except holidays. Those wishing to to Bureau of Land Management (BLM) inspect comments are encouraged to call of lands administratively available for in advance to, Jody Sutton, (801) 517– DEPARTMENT OF AGRICULTURE leasing; (3) Forest Service review and 1032 to facilitate access to the building. verification of BLM leasing proposals; Forest Service FOR FURTHER INFORMATION CONTACT: Reta (4) BLM assessment of Forest Service Laford, Ecosystem Management Staff, conditions of surface occupancy; (5) RIN 0596–AC34 (202) 205–2936, or Mike Greeley, BLM offers lease; (6) BLM issues lease; Minerals and Geology Staff, (703) 605– National Environmental Policy Act (7) Forest Service review and approval 4785, Forest Service, USDA. Documentation Needed for Oil and Gas of lessee’s SUPO; and (8) BLM review Exploration and Development SUPPLEMENTARY INFORMATION: and approval of lessee’s application for Activities (Categorical Exclusion) Need for the Proposed Direction permit to drill (APD). The proposed CE set out in this notice applies exclusively AGENCY: Forest Service, USDA. The Council on Environmental to the Forest Service’s review and ACTION: Notice of proposed directive; Quality (CEQ) regulations at 40 CFR approval of an applicant’s SUPO. request for comment. 1507.3 provide that agencies, after In 2001 President George W. Bush notice and comment, may adopt issued Executive Order (E.O.) 13212 to SUMMARY: The Forest Service is categories of actions that do not have expedite the increased supply and proposing to amend its directives in significant impacts on the human availability of energy to our Nation. E.O. Forest Service Handbook 1909.15, environment and, consequently, do not 13212 set forth ‘‘For energy-related Chapter 30, which describes categorical require preparation of an environmental projects, agencies shall expedite their exclusions, that is, categories of actions assessment (EA) or an environmental review of permits or take other actions that will not result in significant impact statement (EIS). Current Forest as necessary to accelerate the impacts on the environment and, Service procedures for complying with completion of such projects, while therefore, normally do not require and implementing the National maintaining safety, public health, and further analysis in either an Environmental Policy Act (NEPA) are environmental protections. The agencies environmental impact assessment or an set out in Forest Service Handbook shall take such actions to the extent environmental impact statement. The (FSH) 1909.15, Chapter 30. This chapter permitted by law and regulation, and proposed amendment would add a new lists the categories of actions that do not where appropriate.’’ In response, the categorical exclusion in section 31.2 to require preparation of an EA or an EIS National Energy Policy and the Forest facilitate the implementation of limited by the Forest Service. The Forest Service Energy Implementation Plan oil and gas projects on leases on Service calls these categories of action were developed. These two initiatives National Forest System lands that do ‘‘categorical exclusions’’ (CE). The call for streamlining the processing of not have significant effects on the agency is proposing a new CE for certain APDs and other energy related permits human environment. This categorical limited oil and gas exploration and in an environmentally sound manner. exclusion will not apply where there are development activities. On August 8th 2005, President George extraordinary circumstances, such as Oil and gas development is W. Bush signed the Energy Policy Act adverse effects on threatened and widespread throughout the National of 2005 into law. Section 390 of the endangered species or their designated Forest System (NFS). With the Energy Policy Act of 2005 establishes critical habitat, wilderness areas, enactment of the Federal Onshore Oil categorical exclusions under NEPA that inventoried roadless areas, wetlands, and Gas Leasing Reform Act of 1987, 30 apply to five categories of oil and gas and archeological or historic sites. U.S.C. 226 (‘‘FOOGLRA’’) both the exploration and development activities
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conducted pursuant to the Mineral Description of the Proposed New delineate fields, in coordination with Leasing Act (30 U.S.C. et seq., as Categorical Exclusion the BLM, within their boundaries. amended) on Federal oil and gas leases. The proposed CE would allow oil and Fields are areas consisting two or more Section 390 took effect on the date of natural gas exploration and/or producing wells in an oil or gas enactment, August 8, 2005. The development activities within a new oil reservoir or reservoirs related to the categorical exclusion proposed in this and/or gas field not to exceed a total of: same individual geological structural notice does not overlap or duplicate the (a) One mile of new road construction; feature. Such reservoirs may be activities proposed in section 390 of the (b) one mile of road reconstruction; (c) interconnected or separated. In such Energy Policy Act of 2005. They are three miles of pipeline installation; and cases, concerns over identifying separate and independent of the (d) four drill sites. A drill site may environmental effects resulting from activities on the adjacent fields would provisions of section 390 of the Energy include more than one well in order to be addressed through the following two reduce surface disturbance. The Policy Act. Taken in concert, this CE methods. First, before NFS lands are category would only apply to activities and the five statutory categories offered for lease, a leasing analysis is on NFS lands that are under Federal discussed above further the President’s conducted that evaluates potential lease and when there are no goals set forth in Executive Order 13212. environmental consequences resulting extraordinary circumstances. Following For decades the Forest Service has from field development. On NFS Lands, is a hypothetical example of how the CE this leasing analysis is conducted by the analyzed and administered SUPO for oil could be applied on NFS land. Forest Service in cooperation with the and gas exploration and development A Responsible Official approves the BLM. Second, an extraordinary on NFS lands. As part of the Forest construction of one exploration drill site circumstances review identified in Service Energy Implementation Plan and .5 miles of road construction within Forest Service Handbook 1909.15, process, the planning and a new field using the proposed CE Chapter 30 would be conducted for a environmental review process was where no extraordinary circumstances particular leasing proposal reviewed by field personnel who are involved. The exploration well is a indicated that the USFS and BLM land implementing the proposed CE. It is the ‘‘strike’’ and is capable of production. degree of the potential effect of the and resource management planning The Responsible Official could proposed action on these resource process, leasing process, and SUPO and appropriately use the proposed CE to conditions, which determines whether APD review processes for oil and gas subsequently approve the construction extraordinary circumstances exist. exploration and development frequently of another exploration drill site, caused agency personnel to extend involving .5 miles of road Rationale for the Proposal timelines and expend undue energy and reconstruction and .2 miles of road As previously stated, the Deputy funding in order to complete the construction. The second exploration Chief for the NFS requested field units planning and environmental well is also a strike and it is determined to monitor oil and gas exploration and documentation for minor exploration that both exploration wells are in the development projects assessed in an EA and/or development projects. The same oil or gas field. The Responsible and approved and constructed, or Deputy Chief of the NFS requested field Official could use the proposed CE partially constructed, between October units to monitor oil and gas exploration when approving development of a drill 1, 1999 and September 30, 2004. In and development projects that had been site involving .5 miles of road response, field units collected data on reconstruction and .2 miles of road analyzed in an EA, and were approved 73 projects. construction in the same field. At this and constructed, or partially The scope of the proposed new point, 3 drill sites, .9 miles of road category is consistent with the scope of constructed, between October 1, 1999 construction and one mile of road the 73 projects examined in the 2005 and September 30, 2004. The objective reconstruction have been approved in review, each of which had no significant of the review was to determine if surface the field. If a lessee submits an APD and environmental effects. The agency operations for oil and gas activities SUPO for construction of another believes the level of effects associated approved in site-specific EAs did or did development drill site and one-half mile with future activities within the not have cumulatively significant effects of road construction in the same field, proposed new category would also be on the human environment and the total miles of road construction below the level of significant therefore could or could not qualify for allowable under the category would be environmental effects. a CE. The results of this analysis are set exceeded for the field, the proposed CE In addition to reviewing the 73 oil out to under ‘‘Rationale for the could no longer be available for such a and gas exploration and development Proposal.’’ proposal, and the direct and cumulative projects a review of the analyses Based on this review and the agency’s effects of additional field development supporting oil and gas leasing was also extensive experience with oil and gas should be considered in an EA or EIS. performed. A sample of land and exploration and development activities Note that when exploration wells are resource management plans for National Forests and Grasslands and leasing EIS including the construction of well sites, drilled, they are not yet associated with a particular field. However, if an decisions, where future oil and gas field pipelines and roads and road exploration well is determined to be development is anticipated, was reconstruction, the Forest Service capable of production, it then can be reviewed. The review found that when proposes to add a new CE to its associated with a field (determined by future activities were expected to have Environmental Policy and Procedures the BLM) and for purposes of the a significant environmental effect or Handbook (FSH 1909.15). This category proposed CE, all exploration activities would be incompatible with other forest would appear in section 31.2, Categories that occurred within the field and or grassland uses, such areas had been of Actions for Which a Project or Case subsequent development activities identified as not suitable and File and Decision Memo Are Required, would be chargeable under the category. exploration or development had been and would provide a specific, narrow There is potential that new oil and gas prohibited. Furthermore, the use of best CE for oil and gas exploration and/or fields could be located adjacent to management practices such as class III development. existing developed fields. States archeological surveys, or biological
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surveys, resulted in avoidance or as well as other laws such as the standard oil and gas lease form; (b) open mitigation as necessary, and contributed Endangered Species Act and the to development but subject to to the defined category of oil and gas National Historic Preservation Act, and constraints that will require the use of activities having no significant includes public notice and opportunity lease stipulations; and (c) closed to environmental impacts. for comment. The BLM is an official leasing, distinguishing between those The proposed CE will not apply cooperator in these efforts. areas that are being closed through where there are extraordinary The Energy Policy and Conservation exercise of management direction, and circumstances, such as adverse effects Act (EPCA) directed the BLM, in those closed by law, regulation, etc.; (3) on threatened and endangered species cooperation with the Forest Service, to Individual NEPA analysis on the SUPO, or their designated critical habitat, summarize Forest Service and BLM plan a component of the APDs, includes site- wilderness areas, inventoried roadless leasing decisions. In two phases, the specific BMP and mitigations measures, areas, wetlands, and archeological or highest potential onshore geologic and; (4) Implementation monitoring historic sites. basins were studied. The studies show then occurs and informs future It is important to note that CEs do not that for the NFS lands studied 47% are development of BMPs, mitigation allow a Responsible Officials to forgo off-limits to any surface exploration or measures or standard stipulations. scoping. The CEQ regulations at 40 CFR development (due to legal and For the 19% of the NFS lands subject 1501.7 define scoping as a process for administrative withdrawal, a ‘‘no to standard lease terms (as well as 34% determining the scope of issues to be leasing’’ decision or a ‘‘no surface with lease restrictions), a permit must addressed and for identifying significant occupancy’’ lease), 19% are available to be obtained and best management issues to be documented in an EIS. The exploration and development under practices followed. Federal oil and gas Forest Service conducts scoping on all standard lease terms and restrictions, leases have extensive requirements for proposed actions, including those and 34% are subject to additional environmental protection. Oil and gas covered by CEs. Guidance to Forest restrictions beyond the standard lease exploration and development must Service employees in FSH 1909.15, terms and restrictions for additional comply with the Secretary of Chapter 10 provides that interested and protection of other forest or grassland Agriculture’s rules and regulations for affected agencies and citizens may be resources or uses. The study shows that use and occupancy of NFS lands and invited to participate in the scoping oil and gas exploration or development with additional environmental process and further states in Chapter 11 activity is not allowed or is restricted protections developed specifically for that in determining whether a proposed where such activity would have a oil and gas exploration and action can be categorically excluded, the significant environmental effect or be development in Forest Service Responsible Official must consider: (1) incompatible with other forest or regulations 36 CFR part 228 subpart E, The nature of the proposal; (2) grasslands uses or management BLM regulations 43 CFR part 3100, and preliminary issues; (3) interested and schemes. The screening that occurs at Onshore Oil and Gas Orders. For affected agencies, organizations, and the leasing decision stage contributes example, under Forest Service individuals, and; (4) the extent of significantly to the findings of no regulations 36 CFR 228.108(d) operators existing documentation. Furthermore significant environmental impacts of the are required to report findings of CEs do not absolve the Responsible 73 projects studied. cultural and historical resources to the Official from conducting appropriate authorized Forest officer immediately. Description of the Process and Best consultations with Federal and state Under BLM regulations 43 CFR part Management Practices for Approving regulatory agencies such as those 3100 environmental protection is Exploration or Development of a Lease required by the Endangered Species Act guided, in part, through the and the National Historic Preservation For oil and gas exploration and requirements of surety bonding required Act. Any activities authorized using the development on NFS lands there is an to be submitted by operators. BLM proposed CE must meet all applicable element of overlap in the Onshore Oil and Gas Order #1, which Federal, state, and local laws, as well as implementation of Best Management has been adopted by the Forest Service, land and resource management plan Practices (BMPs) and mitigation furthers these environmental protection standards and guidelines. measures. There may be additional measures by requiring an on-site review environmental protections added at Description of the Leasing Process of every proposed ADP for the purpose each stage. This overlap occurs as of identifying resource concerns. The Department of the Interior, environmental protections are added at Oil and gas exploration and Bureau of Land Management (BLM), multiple scales of implementation, development must also be consistent acts as the onshore leasing agent for the including: (1) During the land with the land management plan federal government. The BLM schedules management planning process the direction (forest or grassland land and conducts competitive bid lease agency considers the overall multiple management plans) including any sales, collects the bonus bids and issues uses of its renewable resources while current and applicable standards and leases to the successful bidders. As a maintaining the long-term productivity guidelines developed under the 1982 land management agency, the Forest of the land. Resources are managed so planning rule and continuing under the Service decides whether or not lands they are utilized in a combination that 2005 planning rule.. will be available for leasing, and under will best meet the needs of the Lessees are required to conduct what conditions (stipulations) the leases American people and maintain or operations in a manner that minimizes will be issued. Forest Service decisions restore the health of the land to provide adverse impacts to the land, air, and about leasing are made in conjunction a sustainable flow of uses, benefits, water, to cultural, biological, visual, and with approved forest or grassland and products, services and visitor other resources through such measures resource management plans, as well as opportunities; (2) The leasing process as modification to siting or design of in separate forest-wide or area-specific developed through the land facilities, timing of operations, and leasing decisions. Land management management planning process or specification of interim and final plan oil and gas leasing availability separately evaluates those areas that reclamation measures. Current best decisions are made in compliance with will be: (a) open to development subject management practices include site the National Environmental Policy Act to the terms and conditions of the specific historic or cultural, botany and
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wildlife surveys. National Pollutant documentation has been upheld in assessment that the proposed directive Discharge Elimination System (NPDES) Heartwood, Inc. v. U.S. Forest Service, conforms with the Federalism permits must be obtained from the state, 73 F. Supp. 2d 962, 972–73 (S.D. Ill. principles set out in this Executive and air quality standards met. The 1999), aff’d, 230 F. 3d 947, 954–55 (7th order; would not impose any review of the 73 projects demonstrated Cir. 2000). compliance costs on the States; and repeatedly that projects are moved, Regulatory Impact would not have substantial direct effects delayed or changed to successfully on the States, on the relationship avoid environmental impacts. This proposed interim directive has between the national government and It is the conclusion of the agency that been reviewed under USDA procedures the States, nor on the distribution of the combination of agency leasing and Executive Order 12866 on power and responsibilities among the decisions, forest or grassland land Regulatory Planning and Review. The various levels of government. Therefore, management plan standards and Office of Management and Budget the agency concludes that the proposed guidelines, best management practices, (OMB) has determined that this is a directive does not have Federalism and current laws and regulations reduce significant regulatory action as defined implications. the potential environmental effects for by Executive Order 12866. Accordingly, certain oil and gas activity to OMB has reviewed this proposed Consultation and Coordination With insignificance. The limited scope of the interim directive. Indian Tribal Governments proposed CE leads the agency to The primary economic effects of the This proposed directive has been conclude that implementation of the proposed CE for oil and gas leases are reviewed under E.O. 13175 of November proposed category would not result in changes in costs of conducting 6, 2000, ‘‘Consultation and Coordination individually or cumulatively significant environmental analysis and preparing With Indian Tribal Governments.’’ This effects on the human environment. This NEPA documents. The proposed proposed directive does not have proposed CE applies exclusively to the categorical exclusion would reduce substantial direct effects on one or more Forest Service’s review and approval of agency costs by reducing the Indian Tribes, on the relationship an applicant’s SUPO and does not documentation requirements for certain between the Federal government and eliminate the environmental analysis oil and gas exploration and Indian tribes, or on the distribution of requirement for the leasing decision. development on NFS land under power and responsibilities between the existing Federal leases. Federal Government and Indian tribes. Regulatory Certifications Effects on local economies and small Nor does this proposed directive impose Environmental Impact business entities are expected to be substantial direct compliance costs on nearly the same using either an EA or The proposed revision to Forest Indian tribal governments or preempt CE for oil and gas exploration and tribal law. Therefore, it has been Service Handbook 1909.15 would add development activities. There is direction to guide field employees in the determined that this proposed directive potential for an increase in certain oil does not have tribal implications USDA Forest Service regarding and gas exploration and development requirements for NEPA documentation requiring advance consultation with projects and increase in site Indian tribes. for particular oil and gas exploration administration since they would be and development activities. The Council faster and cheaper to prepare. No Takings Implications on Environmental Quality does not Total undiscounted costs for CEs were This proposed directive has been direct agencies to prepare a NEPA estimated at $8 million with an annual analyzed in accordance with the analysis or document before average cost of $0.8 million, while the principles and criteria contained in E.O. establishing agency procedures that undiscounted cost for EAs for the same 12630 on Governmental Actions and supplement the CEQ regulations for timeframe would be $48 million with an Interference with Constitutionally implementing NEPA. Agencies are annual average cost of $4.8 million. Protected Property Rights, and it has required to adopt NEPA procedures that There is an annual average cost saving been determined that the proposed establish specific criteria for, and of $4 million for the proposed CE. A directive does not pose the risk of a identification of, three classes of comparison of the discounted costs also taking of Constitutionally protected actions: Those that require preparation shows the same direction of cost saving private property. of an EIS; those that require preparation for CEs over EAs. An annual average of an EA; and those that are saving of discounted cost of $3 million Energy Effects categorically excluded from further for CEs is estimated. This quantitative This proposed directive has been NEPA review (40 CFR 1507.3(b)). assessment indicates a cost savings for reviewed under E.O. 13211 on Actions Categorical exclusions are one part of using CEs for oil and gas exploration Concerning Regulations that those agency procedures, and therefore and development projects for the Significantly Affect Energy Supply, establishing categorical exclusions does agency. Distribution, or Use. It has been not require preparation of a NEPA A civil rights impact analysis was determined that this proposed directive analysis or document. Agency NEPA prepared for the proposed CE. No does not constitute a significant energy procedures are internal procedural potential impacts are identified for action as defined in the Executive guidance to assist agencies in the groups of people who fall within the Order. fulfillment of agency responsibilities scope of Civil Rights legislation or the Controlling Paperwork Burdens on the under NEPA, but are not the agency’s Executive Order on Environmental Public final determination of what level of Justice (E.O. 12898). NEPA analysis is required for a This proposed directive does not particular proposed action. The Federalism contain any additional recordkeeping or requirements for establishing agency The agency has considered this reporting requirements associated with NEPA procedures are set forth at 40 CFR proposed directive under the onshore oil and gas exploration and 1505.1 and 1507.3. The determination requirements of Executive Order 13132 development or other information that establishing categorical exclusions issued August 4, 1999 (E.O. 13132), collection requirements as defined in 5 does not require NEPA analysis and ‘‘Federalism.’’ The agency has made an CFR part 1320. Accordingly, the review
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provisions of the Paperwork Reduction activities in excess of any of the Review: Stainless Steel Bar from India, Act of 1995 (44 U.S.C. 3501 et seq.) and following: 67 FR 53336 (August 15, 2002) (‘‘Final its implementing regulations at 5 CFR a. One mile of new road construction Results’’) and the accompanying Issues part 1320 do not apply. b. One mile of road reconstruction and Decision Memorandum (July 5, Dated: December 5, 2005. c. Three miles of pipeline installation 2002) (‘‘Decision Memorandum’’), the Dale N. Bosworth, d. Four drill sites. Court of International Trade (‘‘CIT’’) affirmed the Department’s third remand Chief. [FR Doc. 05–23983 Filed 12–12–05; 8:45 am] determination and entered a judgment Text of Proposed Directive BILLING CODE 3410–11–P order. In the remand determination, the Department did not collapse Viraj Note: The Forest Service organizes its Alloys Limited (‘‘VAL’’) with Viraj directive system by alpha-numeric codes and AMERICAN BATTLE MONUMENTS Impoexpo Limited (‘‘VIL’’) and Viraj subject headings. Only the section of the FSH COMMISSION Forgings Limited (‘‘VFL’’). The 1909.15, Environmental Policy and Department calculated an individual Procedures Handbook, affected by this SES Performance Review Board proposed directive is included in this notice. antidumping duty margin for VIL/VFL. Please note, however, that category 15 (para. AGENCY: American Battle Monuments The Department did not calculate an 16) is reserved. A notice for comment was Commission. individual antidumping duty margin for published for category 16 on January 5, 2005 VAL because it did not export the ACTION: Notice. (70 FR 1062). A final directive for this CE has subject merchandise to the United not been adopted as of the date of publication SUMMARY: Notice is hereby given of the States during the period of review. The of this Federal Register notice. The complete resulting antidumping duty margin for text of FSH 1909.15, Chapter 30 may appointment of members of the ABMC Performance Review Board. VIL/VFL is 0.84 percent. obtained by contacting the individuals listed Consistent with the decision of the in FOR FURTHER INFORMATION CONTACT or from FOR FURTHER INFORMATION CONTACT: U.S. Court of Appeals for the Federal the Forest Service home page on the World Theodore Gloukhoff, Director of Circuit (‘‘Federal Circuit’’) in Timken Wide Web at http://www.fs.fed.us/im/ Personnel and Administration, Co. v. United States, 893 F.2d 337 (Fed. directives/fsh/1909.15/1909.15,30.txt. The American Battle Monuments Cir. 1990) (‘‘Timken’’), the Department intended audience for this direction is Forest Commission, Courthouse Plaza II, Suite Service employees charged with planning will continue to order the suspension of 500, 2300 Clarendon Boulevard, and administering oil and gas exploration liquidation of the subject merchandise Arlington, Virginia, 22201–3367, and development projects on NFS lands until there is a ‘‘conclusive’’ decision in Telephone Number: (703) 696–6908. under Federal lease. this case. If the case is not appealed, or American Battle Monuments if it is affirmed on appeal, the Commission SES Performance Review FSH 1909.15—Environmental Policy Department will instruct the U.S. Board Mr. Gerald W. Barnes, Chief, and Procedures Handbook Chapter Customs and Border Protection (‘‘CBP’’) Operations Division, U.S. Army Corps 30—Categorical Exclusion from to liquidate all relevant entries of of Engineers Mr. Donald L. Basham, Documentation subject merchandise for VIL/VFL. Chief, Engineering & Construction, U.S. Add new paragraphs 16 and 17 as Army Corps of Engineers Mr. Stephen EFFECTIVE DATE: October 30, 2005. follows: Coakley, Director of Resource FOR FURTHER INFORMATION CONTACT: 31.2—Categories of Action for Which a Management, US Army Corps of Steve Williams, AD/CVD Enforcement Project or Case File and Decision Memo Engineers Office 1, Import Administration, Are Required International Trade Administration, Theodore Gloukhoff, U.S. Department of Commerce, 14th Routine, proposed actions within any Director, Personnel and Administration. Street and Constitution Avenue, NW, of the following categories may be [FR Doc. E5–7257 Filed 12–12–05; 8:45 am] Washington, DC 20230; telephone: (202) excluded from documentation in an EIS BILLING CODE 6120–01–P 482–4619. or an EA; however, a project or case file SUPPLEMENTARY INFORMATION: is required and the decision to proceed must be documented in a decision Background DEPARTMENT OF COMMERCE memo (sec. 32). As a minimum, the In the underlying administrative project or case file should include any International Trade Administration review covering the period February 1, records prepared, such as: The names of 2000, though January 31, 2001, the A–533–810 interested and affected people, groups, Department collapsed VAL, VIL, and and agencies contacted; the VFL pursuant to 19 USC § 1677(33) and determination that no extraordinary Stainless Steel Bar from India: Notice of Court Decision Not in Harmony and 19 CFR § 351.401(f) (2000). See Final circumstances exist; a copy of the Results; see also Decision Memorandum decision memo (sec. 05); and a list of Continuation of Suspension of Liquidation at Comment 1. As a collapsed entity, the people notified of the decision. VAL/VIL/VFL received a de minimis Maintain a project or case file and AGENCY: Import Administration, dumping margin. prepare a decision memo for any of the International Trade Administration, Based upon the record evidence, the categories of actions set forth in section Department of Commerce. Department found that VAL, VIL, and 21.21 through 31.23. SUMMARY: On October 20, 2005, in Slater VFL ‘‘meet the regulations’ collapsing * * * * * Steels Corp. v. United States, Consol. requirements.’’ Decision Memorandum 16. [Reserved] Court No. 02–00551, Slip Op. 05–137 at Comment 1. First, the Department 17. Approval of a Surface Use Plan of (CIT October 20, 2005) (‘‘Slater III’’), a found that ‘‘VAL and VIL can produce Operations for oil and natural gas lawsuit challenging the Department of subject merchandise (i.e., similar or exploration or development activities Commerce’s (‘‘the Department’’) Notice identical products) and can continue to within a new oil and/or gas field, so of Amended Final Results of do so, independently or under existing long as the approval will not authorize Antidumping Duty Administrative leasing agreements, without substantial
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retooling of their production facilities.’’ collapse VAL with VIL/VFL. See in Part, 70 FR 39735 (July 11, 2005) Id. Second, the Department found ‘‘a Remand III at 5–6. The Department (‘‘Preliminary Results’’). This review significant potential for the collapsed VIL and VFL because the covers two manufacturers/exporters of manipulation of price and production plaintiffs agreed in the underlying the subject merchandise. The among VIL, VAL, and VFL.’’ Id. Slater review that VIL and VFL should be merchandise covered by this order is Steels Corporation, Carpenter collapsed. See Remand III at 5. VIL/ certain stainless steel butt–weld pipe Technology Corporation, Electralloy VFL’s resulting antidumping duty fittings from Taiwan as described in the Corporation, and Crucible Specialty margin is 0.84 percent. Id. at 26. The ‘‘Scope of the Order’’ section of this Metals Division of Crucible Materials CIT affirmed the Department’s Remand notice. The period of review (‘‘POR’’) is Corporation (collectively, the III on October 20, 2005. See Slater III June 1, 2003, through May 31, 2004. We ‘‘plaintiffs’’/‘‘defendant–intervenors’’) Slip Op. 05–137 at 4–5. gave interested parties an opportunity to challenged this determination before the Suspension of Liquidation comment on the preliminary results. CIT, arguing that the Department Based upon our analysis of the misapplied its collapsing regulation. The Federal Circuit, in Timken, held comments received, we made changes to The CIT determined that the that the Department must publish notice the margin calculation for one Department’s decision to collapse VAL, of a decision of the CIT or the Federal respondent. Therefore, the final results VIL, and VFL was not supported by Circuit which is not ‘‘in harmony’’ with have changed from the preliminary substantial evidence on the record. the Department’s Final Results. results of this review. The final weight– Therefore, the CIT remanded the Final Publication of this notice fulfills that averaged dumping margin is listed Results to the Department to reconsider obligation. The Federal Circuit also held below in the section titled ‘‘Final its analysis of the collapsing issue and, that the Department must suspend Results of the Review.’’ if necessary, revise the dumping margin liquidation of the subject merchandise EFFECTIVE DATE: December 13, 2005. calculation accordingly. See Slater until there is a ‘‘conclusive’’ decision in Steels Corp. v. United States, 279 F. the case. Therefore, pursuant to Timken, FOR FURTHER INFORMATION CONTACT: Supp. 2d 1370 (CIT August 21, 2003) the Department must continue to Helen Kramer or Abdelali Elouaradia, (‘‘Slater I’’). Pursuant to the CIT’s order suspend liquidation pending the AD/CVD Operations, Office 7, Import in Slater I, the Department filed its Final expiration of the period to appeal the Administration, International Trade Results of Redetermination Pursuant to CIT’s October 20, 2005, decision or, if Administration, U.S. Department of Remand (‘‘Remand I’’). In Remand I, the that decision is appealed, pending a Commerce, 14th Street and Constitution Department determined that its decision final decision by the Federal Circuit. Avenue, NW., Washington, DC 20230; to collapse VAL, VIL, and VFL was The Department will instruct CBP to telephone: (202) 482–0405 and (202) supported by substantial evidence and liquidate relevant entries covering the 482–1374, respectively. in accordance with the law, and subject merchandise, in the event that SUPPLEMENTARY INFORMATION: the CIT’s ruling is not appealed, or if therefore, the Department did not revise Background its dumping margin calculations. appealed and upheld by the Court of Upon review of Remand I, the CIT Appeals for the Federal Circuit. The Department’s preliminary results again remanded the Final Results to the Dated: December 7, 2005. of review were published on July 11, 2005. See Preliminary Results. We Department for further review of its Joesph A. Spetrini, collapsing determination, citing certain invited parties to comment on the Acting Assistant Secretary for Import Preliminary Results. We received issues for the Department to reexamine. Administration. written comments on August 10, 2005, See Slater Steels Corp. v. United States, [FR Doc. E5–7275 Filed 12–12–05; 8:45 am] Court No. 02–00551, Slip Op. 04–22 from Flowline Division of Markovitz (CIT March 8, 2004) (‘‘Slater II’’). In BILLING CODE 3510–DS–S Enterprise, Inc., Shaw Allow Piping response to the CIT’s instructions in Products, Inc., Gerlin, Inc., and Taylor Slater II, the Department filed its Final DEPARTMENT OF COMMERCE Forge Stainless, Inc., collectively, ‘‘the Results of Redetermination Pursuant to petitioners.’’ On August 15, 2005, we Remand (‘‘Remand II’’). In Remand II, International Trade Administration received rebuttal comments from Ta the Department addressed the concerns Chen Stainless Pipe Co., Ltd. (‘‘Ta raised by the CIT in Slater II and found [A–583–816] Chen’’) and its wholly owned U.S. that the decision to collapse VAL, VIL, Notice of Final Results and Final subsidiary Ta Chen International, Inc. and VFL was supported by substantial Rescission in Part of Antidumping (‘‘TCI’’). The Department is conducting evidence and in accordance with the Duty Administrative Review: Certain this administrative review in law, and therefore, the Department did Stainless Steel Butt–Weld Pipe Fittings accordance with section 751 of the not revise its dumping margin From Taiwan Tariff Act of 1930, as amended (‘‘the calculations. Act’’). Upon review of Remand II, the CIT AGENCY: Import Administration, again remanded the Final Results to the International Trade Administration, Scope of the Order Department with specific instructions Department of Commerce. The products subject to this order are that the Department calculate individual SUMMARY: On July 11, 2005, the certain stainless steel butt–weld pipe dumping margins. See Slater III Slip Op. Department of Commerce (‘‘the fittings, whether finished or unfinished, 05–137 at 15. The CIT found that the Department’’) published in the Federal under 14 inches inside diameter. Department’s decision to collapse VAL, Register the preliminary results of the Certain welded stainless steel butt–weld VIL, and VFL in the Final Results was administrative review of the order on pipe fittings (‘‘pipe fittings’’) are used to not consistent with the Department’s certain stainless steel butt–weld pipe connect pipe sections in piping systems decision not to collapse VAL, VIL, and fittings from Taiwan. See Certain where conditions require welded VFL in previous reviews. See Slater III Stainless Steel Butt–Weld Pipe Fittings connections. The subject merchandise is Slip Op. 05–137 at 15. In Final Results From Taiwan: Preliminary Results of used where one or more of the following of Redetermination Pursuant to Remand Antidumping Duty Administrative conditions is a factor in designing the (‘‘Remand III’’), the Department did not Review and Notice of Intent To Rescind piping system: (1) Corrosion of the
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piping system will occur if material appended to this notice. The Decision Taiwan entered, or withdrawn from other than stainless steel is used; (2) Memorandum is on file in the Central warehouse, for consumption on or after contamination of the material in the Records Unit in room B–099 of the main the publication date of these final system by the system itself must be Commerce building, and can also be results, as provided by section 751(a) of prevented; (3) high temperatures are accessed directly on the Web at http:// the Act: (1) For the companies covered present; (4) extreme low temperatures ia.ita.doc.gov. The paper copy and by this review, the cash deposit rate will are present; and (5) high pressures are electronic version of the public version be the rate listed above; (2) for contained within the system. Pipe of the Decision Memorandum are merchandise exported by producers or fittings come in a variety of shapes, with identical in content. exporters not covered in this review but the following five shapes the most basic: Changes Since the Preliminary Results covered in the investigation, the cash ‘‘elbows,’’ ‘‘tees,’’ ‘‘reducers,’’ ‘‘stub deposit rate will continue to be the ends,’’ and ‘‘caps.’’ The edges of Based on our analysis of the company–specific rate from the most finished pipe fittings are beveled. comments received, we have made a recent review; (3) if the exporter is not Threaded, grooved, and bolted fittings correction to direct selling expenses, by a firm covered in this review, a prior are excluded from this review. The pipe including the expenses reported in the review, or the investigation, but the fittings subject to this review are field REPACKU in the calculation of producer is, the cash deposit rate will be classifiable under subheading U.S. direct selling expenses. See the that established for the most recent 7307.23.00 of the Harmonized Tariff Decision Memorandum at Comment 5. period for the producer of the Schedule of the United States Final Results of Review merchandise; and (4) the cash deposit (‘‘HTSUS’’). Although the HTSUS rate for all other producers or exporters subheading is provided for convenience As a result of our review, we determine that the following weighted– will be 51.01 percent, the ‘‘All Others’’ and customs purposes, our written rate established in the less–than-fair– description of the scope of this review average margins exists for the period June 1, 2003, through May 31, 2004: value investigation. These deposit is dispositive. Pipe fittings requirements shall remain in effect until manufactured to American Society of Weighted-Average publication of the final results of the Testing and Materials specification Manufacturer/Exporter Margin next administrative review. A774 are included in the scope of this (Percentage) order. Notification of Interested Parties Ta Chen Stainless Pipe This notice also serves as a final Partial Rescission of Review Co., Ltd ...... 2.32 reminder to importers of their In the Preliminary Results, the Tru–Flow Industrial Co., responsibility under 19 CFR 351.402 (f) Ltd ...... 152.40 Department issued a notice of intent to to file a certificate regarding the rescind the review with respect to Liang reimbursement of antidumping duties Assessment Rates Feng Stainless Steel Fitting Co., Ltd. prior to liquidation of the relevant (‘‘Liang Feng’’) and PFP Taiwan Co., The Department will determine, and entries during this review period. Ltd. (‘‘PFP’’) because we found that both U.S. Customs and Border Protection Failure to comply with this requirement had no entries of subject merchandise (‘‘CBP’’) shall assess, antidumping could result in the Secretary’s during the POR. See Preliminary Results duties on all appropriate entries, presumption that reimbursement of at 39737. The Department received no pursuant to section 751(a)(1)(B) of the antidumping duties occurred, and in the comments on this issue and we Act and 19 CFR 351.212(b). The subsequent assessment of double continue to find that rescission of the Department calculated importer– antidumping duties. review of Liang Feng and PFP is specific duty assessment rates on the This notice also is the only reminder appropriate. Therefore, the Department basis of the ratio of the total amount of to parties subject to administrative is rescinding the review with respect to antidumping duties calculated for the protective order (‘‘APO’’) of their Liang Feng and PFP. examined sales to the total entered responsibility concerning the return or value of the examined sales for that Duty Absorption destruction of proprietary information importer. Where the assessment rate is disclosed under APO in accordance In these final results, we continue to above de minimis, we will instruct CBP with 19 CFR 351.305. Timely written find duty absorption because Ta Chen to assess duties on all entries of subject notification of the return/destruction of and Tru–Flow provided no evidence on merchandise produced by Ta Chen and APO materials or conversion to judicial the record showing that their Tru–Flow. Antidumping duties for the protective order is hereby requested. unaffiliated purchasers will pay the full rescinded companies, Liang Feng and Failure to comply with the regulations duty ultimately assessed on the subject PFP, shall be assessed at rates equal to and the terms of an APO is a merchandise. (See Preliminary Results the cash deposit of estimated sanctionable violation. at 39737, 39738.) antidumping duties required at the time We are issuing and publishing these Analysis of Comments Received of entry, or withdrawal from warehouse, results and notice in accordance with for consumption, in accordance with 19 sections 751(a)(1) and 777(i)(1) of the All issues raised in the case briefs, as CFR 351.212(c)(1)(I). The Department Act. well as the Department’s findings, in will issue appropriate assessment Dated: December 6, 2005. this administrative review are addressed instructions directly to CBP within 15 in the Issues and Decision days of publication of these final results Joseph A. Spetrini, Memorandum for the Administrative of review. Acting Assistant Secretary for Import Review of Stainless Steel Butt–Weld Administration. Cash Deposit Requirements Pipe Fittings from Taiwan (‘‘Decision Appendix — Issues in Decision Memorandum’’), dated December 6, The following deposit requirements Memorandum 2005, which is hereby adopted by this will be effective upon publication of the notice. A list of the issues raised and to final results of this administrative ISSUES RELATING TO TA CHEN which we have responded, all of which review for all shipments of stainless Comment 1: Affiliations are in the Decision Memorandum, is steel butt–weld pipe fittings from Comment 2: CEP Offset
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Comment 3: Date of Sale 482–2657, (202) 482–1121 or (202) 482– 7219.34.0025, 7219.34.0030, Comment 4: U.S. Inventory Carrying 0649, respectively. 7219.34.0035, 7219.35.0005, Costs SUPPLEMENTARY INFORMATION: 7219.35.0015, 7219.35.0030, 7219.35.0035, 7219.90.0010, Comment 5: Repacking Expenses Background 7219.90.0020, 7219.90.0025, Comment 6: Bonuses and Cost of On August 8, 2005, the Department of 7219.90.0060, 7219.90.0080, Production Commerce published the preliminary 7220.12.1000, 7220.12.5000, results of administrative review of the 7220.20.1010, 7220.20.1015, ISSUES RELATING TO TRU–FLOW antidumping order covering stainless 7220.20.1060, 7220.20.1080, Comment 7: Sales by Other Companies steel sheet and strip in coils from 7220.20.6005, 7220.20.6010, of Fittings Produced by Tru–Flow Germany. See Preliminary Results. In 7220.20.6015, 7220.20.6060, [FR Doc. E5–7278 Filed 12–12–05; 8:45 am] the Preliminary Results we invited 7220.20.6080, 7220.20.7005, BILLING CODE 3510–DS–P parties to provide comments. In 7220.20.7010, 7220.20.7015, response, the Department received case 7220.20.7060, 7220.20.7080, briefs from ThyssenKrupp Nirosta 7220.20.8000, 7220.20.9030, DEPARTMENT OF COMMERCE GmbH, ThyssenKrupp VDM GmbH 7220.20.9060, 7220.90.0010, (TKVDM), ThyssenKrupp Nirosta 7220.90.0015, 7220.90.0060, and International Trade Administration Pra¨zisionsband GmbH (TKNP), and their 7220.90.0080. Although the HTSUS (A–428–825) various affiliates (collectively, TKN) and subheadings are provided for from Allegheny Ludlum, North convenience and customs purposes, the Stainless Steel Sheet and Strip in Coils American Stainless, Local 3303 United Department’s written description of the From Germany; Notice of Final Results Auto Workers, United Steelworkers of merchandise under this order is of Antidumping Duty Administrative America, AFL–CIO/CLC, and Zanesville dispositive. Review Armco Independent Organization Excluded from the scope of the order (collectively, Petitioners) on September are the following: (1) Sheet and strip AGENCY: Import Administration, 7, 2005. Petitioners submitted a rebuttal that is not annealed or otherwise heat International Trade Administration, brief on September 14, 2005. TKN did treated and pickled or otherwise Department of Commerce. not submit a rebuttal brief. descaled, (2) sheet and strip that is cut ACTION: Notice of Final Results of Scope of the Order to length, (3) plate (i.e., flat–rolled Antidumping Duty Administrative stainless steel products of a thickness of Review. The products covered by this order 4.75 mm or more), (4) flat wire (i.e., are certain stainless steel sheet and strip cold–rolled sections, with a prepared SUMMARY: On August 8, 2005, the in coils. Stainless steel is an alloy steel edge, rectangular in shape, of a width of Department of Commerce (the containing, by weight, 1.2 percent or not more than 9.5 mm), and (5) razor Department) published the preliminary less of carbon and 10.5 percent or more blade steel. Razor blade steel is a flat– results of administrative review of the of chromium, with or without other rolled product of stainless steel, not antidumping duty order covering elements. The subject sheet and strip is further worked than cold–rolled (cold- stainless steel sheet and strip in coils a flat–rolled product in coils that is reduced), in coils, of a width of not from Germany. See Stainless Steel Sheet greater than 9.5 mm in width and less more than 23 mm and a thickness of and Strip in Coils from Germany; Notice than 4.75 mm in thickness, and that is 0.266 mm or less, containing, by weight, of Preliminary Results of Antidumping annealed or otherwise heat treated and 12.5 to 14.5 percent chromium, and Duty Administrative Review, 70 FR pickled or otherwise descaled. The certified at the time of entry to be used 45682 (August 8, 2005) (Preliminary subject sheet and strip may also be in the manufacture of razor blades. See Results). The merchandise covered by further processed (e.g., cold–rolled, chapter 72 of the HTSUS, ‘‘Additional this order is stainless steel sheet and polished, aluminized, coated, etc.) U.S. Note’’ 1(d). strip in coils as described in the ‘‘Scope provided that it maintains the specific of the Order’’ section of this notice. The Flapper valve steel is also excluded dimensions of sheet and strip following from the scope of the order. This period of review (POR) is July 1, 2003 such processing. The merchandise through June 30, 2004. We invited product is defined as stainless steel strip subject to this order is currently in coils containing, by weight, between parties to comment on our Preliminary classifiable in the Harmonized Tariff Results. Based on our analysis of the 0.37 and 0.43 percent carbon, between Schedule of the United States (HTSUS) 1.15 and 1.35 percent molybdenum, and comments received, we have made at subheadings: 7219.13.0031, changes to the margin calculation. between 0.20 and 0.80 percent 7219.13.0051, 7219.13.0071, manganese. This steel also contains, by Therefore, the final results differ from 7219.1300.81 1, 7219.14.0030, the preliminary results. The final weight, phosphorus of 0.025 percent or 7219.14.0065, 7219.14.0090, less, silicon of between 0.20 and 0.50 weighted–average dumping margin for 7219.32.0005, 7219.32.0020, the reviewed firm is listed below in the percent, and sulfur of 0.020 percent or 7219.32.0025, 7219.32.0035, less. The product is manufactured by section entitled ‘‘Final Results of the 7219.32.0036, 7219.32.0038, Review.’’ means of vacuum arc remelting, with 7219.32.0042, 7219.32.0044, inclusion controls for sulphide of no EFFECTIVE DATE: December 13, 2005. 7219.33.0005, 7219.33.0020, more than 0.04 percent and for oxide of FOR FURTHER INFORMATION CONTACT: 7219.33.0025, 7219.33.0035, no more than 0.05 percent. Flapper Deborah Scott, Tyler Weinhold, or 7219.33.0036, 7219.33.0038, valve steel has a tensile strength of Robert James, AD/CVD Operations, 7219.33.0042, 7219.33.0044, between 210 and 300 ksi, yield strength Office 7, Import Administration, 7219.34.0005, 7219.34.0020, of between 170 and 270 ksi, plus or International Trade Administration, minus 8 ksi, and a hardness (Hv) of 1 Due to changes to the HTS numbers in 2001, U.S. Department of Commerce, 14th 7219.13.0030, 7219.13.0050, 7219.13.0070, and between 460 and 590. Flapper valve Street and Constitution Avenue, NW., 7219.13.0080 are now 7219.13.0031, 7219.13.0051, steel is most commonly used to produce Washington, DC 20230, telephone: (202) 7219.13.0071, and 7219.13.0081, respectively. specialty flapper valves in compressors.
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Also excluded is a product referred to corrosion. It has a melting point of 1390 has a carbide density on average of 100 as suspension foil, a specialty steel degrees Celsius and displays a creep carbide particles per 100 square product used in the manufacture of rupture limit of 4 kilograms per square microns. An example of this product is suspension assemblies for computer millimeter at 1000 degrees Celsius. This ‘‘GIN5’’ steel. The third specialty steel disk drives. Suspension foil is described steel is most commonly used in the has a chemical composition similar to as 302/304 grade or 202 grade stainless production of heating ribbons for circuit AISI 420 F, with carbon of between 0.37 steel of a thickness between 14 and 127 breakers and industrial furnaces, and in and 0.43 percent, molybdenum of microns, with a thickness tolerance of rheostats for railway locomotives. The between 1.15 and 1.35 percent, but plus–or-minus 2.01 microns, and product is currently available under lower manganese of between 0.20 and surface glossiness of 200 to 700 percent proprietary trade names such as ‘‘Gilphy 0.80 percent, phosphorus of no more Gs. Suspension foil must be supplied in 36.’’ 3 than 0.025 percent, silicon of between coil widths of not more than 407 mm, Certain martensitic precipitation– 0.20 and 0.50 percent, and sulfur of no and with a mass of 225 kg or less. Roll hardenable stainless steel is also more than 0.020 percent. This product marks may only be visible on one side, excluded from the scope of this order. is supplied with a hardness of more with no scratches of measurable depth. This high–strength, ductile stainless than Hv 500 guaranteed after customer The material must exhibit residual steel product is designated under the processing, and is supplied as, for stresses of 2 mm maximum deflection, Unified Numbering System (UNS) as example, ‘‘GIN6.’’ 6 and flatness of 1.6 mm over 685 mm S45500–grade steel, and contains, by length. weight, 11 to 13 percent chromium, and Analysis of Comments Received Certain stainless steel foil for 7 to 10 percent nickel. Carbon, All issues raised by parties in the case automotive catalytic converters is also manganese, silicon and molybdenum briefs and in Petitioners’ rebuttal brief to excluded from the scope of this order. each comprise, by weight, 0.05 percent this administrative review are addressed This stainless steel strip in coils is a or less, with phosphorus and sulfur in the Issues and Decision specialty foil with a thickness of each comprising, by weight, 0.03 Memorandum from Stephen Claeys, between 20 and 110 microns used to percent or less. This steel has copper, Deputy Assistant Secretary for Import produce a metallic substrate with a niobium, and titanium added to achieve Administration to Joseph A. Spetrini, honeycomb structure for use in aging, and will exhibit yield strengths as Acting Assistant Secretary for Import automotive catalytic converters. The high as 1700 Mpa and ultimate tensile Administration (Decision steel contains, by weight, carbon of no strengths as high as 1750 Mpa after Memorandum), dated December 6, 2005, more than 0.030 percent, silicon of no aging, with elongation percentages of 3 which is hereby adopted by this notice. more than 1.0 percent, manganese of no percent or less in 50 mm. It is generally A list of the issues which parties have more than 1.0 percent, chromium of provided in thicknesses between 0.635 raised and to which we have responded, between 19 and 22 percent, aluminum and 0.787 mm, and in widths of 25.4 all of which are in the Decision of no less than 5.0 percent, phosphorus mm. This product is most commonly Memorandum, is attached to this notice of no more than 0.045 percent, sulfur of used in the manufacture of television as an appendix. The Decision no more than 0.03 percent, lanthanum tubes and is currently available under Memorandum is on file in room B–099 of less than 0.002 or greater than 0.05 proprietary trade names such as of the main Department of Commerce percent, and total rare earth elements of ‘‘Durphynox 17.’’ 4 building. In addition, a complete more than 0.06 percent, with the Finally, three specialty stainless steels version of the Decision Memorandum balance iron. typically used in certain industrial can be accessed directly on the internet Permanent magnet iron–chromium- blades and surgical and medical at http://www.ia.ita.doc.gov. The paper cobalt alloy stainless strip is also instruments are also excluded from the copy and electronic version of the excluded from the scope of this order. scope of this order. These include Decision Memorandum are identical in This ductile stainless steel strip stainless steel strip in coils used in the content. contains, by weight, 26 to 30 percent production of textile cutting tools (e.g., chromium, and 7 to 10 percent cobalt, carpet knives).5 This steel is similar to Changes Since the Preliminary Results with the remainder of iron, in widths AISI grade 420 but containing, by Based on our analysis of comments 228.6 mm or less, and a thickness weight, 0.5 to 0.7 percent of received, we have made changes to the between 0.127 and 1.270 mm. It exhibits molybdenum. The steel also contains, margin calculation. The changes are magnetic remanence between 9,000 and by weight, carbon of between 1.0 and listed below: 12,000 gauss, and a coercivity of 1.1 percent, sulfur of 0.020 percent or • We have calculated home market between 50 and 300 oersteds. This less, and includes between 0.20 and early payment discounts and product is most commonly used in 0.30 percent copper and between 0.20 rebates on a concern (i.e., affiliated– electronic sensors and is currently and 0.50 percent cobalt. This steel is family grouping) basis rather than available under proprietary trade names sold under proprietary names such as on the basis of individual such as ‘‘Arnokrome III.’’ 2 ‘‘GIN4 Mo.’’ The second excluded customers, where applicable. Certain electrical resistance alloy steel stainless steel strip in coils is similar to • We have disregarded from our is also excluded from the scope of this AISI 420–J2 and contains, by weight, analysis all home market sales by order. This product is defined as a non– carbon of between 0.62 and 0.70 Nirosta Service Center (NSC) that magnetic stainless steel manufactured to percent, silicon of between 0.20 and were coded as sales of non–prime American Society of Testing and 0.50 percent, manganese of between merchandise. Materials (ASTM) specification B344 0.45 and 0.80 percent, phosphorus of no and containing, by weight, 36 percent more than 0.025 percent and sulfur of • For the preliminary results, certain nickel, 18 percent chromium, and 46 no more than 0.020 percent. This steel cost of production (COP) data had percent iron, and is most notable for its been inadvertently eliminated from resistance to high temperature 3 ‘‘Gilphy 36’’ is a trademark of Imphy, S.A. our analysis, thereby causing 4 ‘‘Durphynox 17’’ is a trademark of Imphy, S.A. 2 ‘‘Arnokrome III’’ is a trademark of the Arnold 5 This list of uses is illustrative and provided for 6 ‘‘GIN4 Mo,’’ ‘‘GIN5’’ and ‘‘GIN6’’ are the Engineering Company. descriptive purposes only. proprietary grades of Hitachi Metals America, Ltd.
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certain U.S. sales to be excluded from Germany entered, or withdrawn We are issuing and publishing this from our analysis since they had no from warehouse, for consumption on or notice in accordance with sections matching cost data. Therefore, for after the date of publication, as provided 751(a)(1) and 777(i) of the Tariff Act. these final results we inserted by section 751(a)(1) of the Tariff Act of Dated: December 6, 2005. programming language to maintain 1930, as amended (the Tariff Act): (1) Joseph A. Spetrini, these COP data in our analysis. The cash deposit rate for the reviewed • We corrected the data in the grade Acting Assistant Secretary for Import company will be the rate shown above; Administration. field for certain home market (2) for previously reviewed or observations that had been coded investigated companies not listed above, Appendix incorrectly. the cash deposit rate will continue to be Comments and Responses Final Results of the Review the company–specific rate published for the most recent period; (3) if the 1. Whether to Split Gauge Group 70 We determine the following exporter is not a firm covered in this 2. Calculation of Interest Expense percentage weighted–average margin review, a prior review, or the original 3. Home Market Rebates and Early exists for the period July 1, 2003, less–than-fair–value (LTFV) Payment Discounts 4. Distinguishing between Prime and through June 30, 2004: investigation, but the manufacturer is, Non–Prime Sales in Conducting the the cash deposit rate will be the rate Weighted Average Cost Test established for the most recent period Manufacturer/Exporter Margin 5. Treatment of Non–Dumped Sales (percentage) for the manufacturer of the 6. Reclassification of Non–Prime merchandise; and (4) the cash deposit TKN ...... 9.50 Products rate for all other manufacturers or 7. Dropped U.S. Sales exporters will continue to be 13.48 8. Misclassified Grades Assessment percent. This rate is the ‘‘All Others’’ [FR Doc. E5–7281 Filed 12–12–05; 8:45 am] The Department shall determine, and rate from the amended final BILLING CODE 3510–DS–S U.S. Bureau of Customs and Border determination in the LTFV investigation Protection (CBP) shall assess, of stainless steel sheet and strip in coils antidumping duties on all appropriate from Germany. See Stainless Steel Sheet DEPARTMENT OF COMMERCE entries. In accordance with 19 CFR and Strip in Coils From Germany: 351.212(b)(1), the Department calculates Amended Final Determination of International Trade Administration an assessment rate for each importer of Antidumping Duty Investigation, 67 FR the subject merchandise. Upon issuance 15178, 15179 (March 29, 2002). Export Trade Certificate of Review of the final results of this review, if any These deposit requirements shall ACTION: Notice of Issuance of an importer–specific assessment rates remain in effect until publication of the calculated in the final results are above Amended Export Trade Certificate of final results of the next administrative Review, Application No.: 84–16A12. de minimis (i.e., at or above 0.5 percent), review. we will issue appraisement instructions SUMMARY: The U.S. Department of Reimbursement directly to CBP to assess antidumping Commerce issued an amended Export duties on appropriate entries by Trade Certificate of Review to applying the assessment rate to the This notice also serves as a final reminder to importers of their Northwest Fruit Exporters (‘‘NFE’’) on entered value of the merchandise. To December 2, 2005. The Certificate has determine whether the duty–assessment responsibility under 19 CFR 351.402(f) to file a certificate regarding the been amended fifteen times. The most rate covering the period is de minimis, recent previous amendment was issued in accordance with the requirement set reimbursement of antidumping or countervailing duties prior to to NFE on October 14, 2004, and forth in 19 CFR 351.106(c)(2), we have published in the Federal Register on calculated an importer–specific liquidation of the relevant entries during this review period. Failure to October 21, 2004 (69 FR 61802). The assessment ad valorem rate by original Export Trade Certificate of aggregating the dumping margins comply with this requirement could result in the Secretary’s presumption Review No. 84–00012 was issued to calculated for all U.S. sales to each NFE on June 11, 1984, and published in customer or importer and dividing this that reimbursement of antidumping or countervailing duties occurred and the the Federal Register on June 14, 1984 amount by the total quantity sold to that (49 FR 24581). customer or importer. Where the subsequent assessment of doubled FOR FURTHER INFORMATION CONTACT: importer–specific ad valorem rate is antidumping duties. Jeffrey Anspacher, Director, Export greater than de minimis, and where the Notification Regarding Administrative Trading Company Affairs, International respondent has reported reliable entered Protective Orders Trade Administration, by telephone at values, we instruct CBP to apply the (202) 482–5131 (this is not a toll-free assessment rate to the entered value of This notice also serves as a reminder number) or by e-mail at the importer’s entries during the POR. to parties subject to administrative [email protected]. The Department will issue appropriate protective orders (APO) of their assessment instructions directly to CBP responsibility concerning the return or SUPPLEMENTARY INFORMATION: Title III of within 15 days of publication of the destruction of proprietary information the Export Trading Company Act of final results of this review. disclosed under APO in accordance 1982 (15 U.S.C. 4001–21) authorizes the with 19 CFR 351.305. Timely written Secretary of Commerce to issue Export Cash Deposit Requirements notification of the return or destruction Trade Certificates of Review. The The following deposit requirements of APO materials or conversion to regulations implementing Title III are will be effective upon publication of judicial protective order is hereby found at 15 CFR part 325 (2005). this notice of final results of requested. Failure to comply with the Export Trading Company Affairs is administrative review for all shipments regulations and terms of an APO is a issuing this notice pursuant to 15 CFR of stainless steel sheet and strip in coils violation which is subject to sanction. 325.6(b), which requires the Department
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of Commerce to publish a summary of DEPARTMENT OF COMMERCE harassment, notice of a proposed the certification in the Federal Register. authorization is provided to the public Under section 305(a) of the Act and 15 National Oceanic and Atmospheric for review. CFR 325.11(a), any person aggrieved by Administration Authorization for incidental takings the Secretary’s determination may, [I.D. 102204A] shall be granted if NMFS finds that the within 30 days of the date of this notice, taking will have no more than a bring an action in any appropriate Small Takes of Marine Mammals negligible impact on the species or district court of the United States to set Incidental to Specified Activities; Black stock(s), will not have an unmitigable aside the determination on the ground Abalone Research Surveys at San adverse impact on the availability of the that the determination is erroneous. Nicolas Island, Ventura County, CA species or stock(s) for subsistence uses, and sets forth the permissible methods Description of Amended Certificate AGENCY: National Marine Fisheries of taking and other means of effecting Service (NMFS), National Oceanic and the least practicable impact on the NFE’s Export Trade Certificate of Atmospheric Administration (NOAA), species and stock or habitat (i.e., Review has been amended to: Commerce. mitigation measures) and the 1. Add each of the following ACTION: Notice; issuance of an incidental requirements pertaining to the companies as a new ‘‘Member’’ of the harassment authorization. monitoring and reporting of such taking. Certificate within the meaning of NMFS has defined ‘‘negligible SUMMARY: In accordance with provisions impact’’ in 50 CFR 216.103 as: section 325.2(1) of the Regulations (15 of the Marine Mammal Protection Act CFR 325.2(1)): Bolinger & Sons, an impact resulting from the specified (MMPA) as amended, notification is activity that cannot be reasonably expected Wenatchee, WA; C&M Fruit Packers, hereby given that NMFS has issued an to, and is not reasonably likely to, adversely Wenatchee, WA; Cascade Fresh Fruits, Incidental Harassment Authorization affect the species or stock through effects on L.L.C., Manson, WA; AltaFresh L.L.C. (IHA) to Glenn R. VanBlaricom annual rates of recruitment or survival. dba Chelan Fresh Marketing, Chelan, (VanBlaricom) to take small numbers of Subsection 101(a)(5)(D) of the MMPA WA; Nuchief Sales Inc., Wenatchee, marine mammals, by harassment, established an expedited process by WA; Orchard View Farms, Inc., The incidental to the assessment of black which citizens of the United States can Dalles, OR; SST Growers and Packers abalone populations at San Nicolas apply for an authorization to L.L.C., Granger, WA; Voelker Fruit and Island (SNI), CA. incidentally take small numbers of Cold Storage, Yakima, WA; and Yakima- DATES: Effective from November 30, marine mammals by harassment. Except Roche Fruit Sales, L.L.C., Yakima, WA; 2005, through November 29, 2006. for certain categories of activities not pertinent here, the MMPA defines and ADDRESSES: A copy of the IHA and the application are available by writing to ‘‘harassment’’ as: 2. Delete the following companies as any act of pursuit, torment, or annoyance ‘‘Members’’ of the Certificate: Fox Steve Leathery, Chief, Permits, which (i) has the potential to injure a marine Orchards, Mattawa, WA; Magi, Inc., Conservation, and Education Division, mammal or marine mammal stock in the wild Brewster, WA (as a result of a merger Office of Protected Resources, National [‘‘Level A harassment’’]; or (ii) has the with Chelan Fruit Cooperative, a Marine Fisheries Service, 1315 East- potential to disturb a marine mammal or Member of NFE); Monson Fruit Co., West Highway, Silver Spring, MD marine mammal stock in the wild by causing disruption of behavioral patterns, including, Selah, WA (for its cherry operation, 20910–3225, or by telephoning the contact listed here. A copy of the but not limited to, migration, breathing, only); Rawland F. Taplett dba R.F. nursing, breeding, feeding, or sheltering Taplett Fruit & Cold Storage Co., application containing a list of references used in this document may [‘‘Level B harassment’’]. Wenatchee, WA; Sund-Roy L.L.C., Section 101(a)(5)(D) establishes a 45– be obtained by writing to this address, Yakima, WA; and Washington Export, day time limit for NMFS review of an by telephoning the contact listed here L.L.C., Yakima, WA. application followed by a 30–day public (see FOR FURTHER INFORMATION CONTACT) notice and comment period on any The effective date of the amended or online at: http://www.nmfs.noaa.gov/ proposed authorization for the certificate is September 6, 2005. A copy protlres/PR2/SmalllTake/ incidental harassment of small numbers of the amended certificate will be kept smalltakelinfo.htm#applications. of marine mammals. Within 45 days of in the International Trade Documents cited in this notice may be the close of the comment period, NMFS Administration’s Freedom of viewed, by appointment, during regular must either issue or deny issuance of business hours, at the aforementioned Information Records Inspection Facility, the authorization. Room 4001, U.S. Department of address. Commerce, 14th Street and Constitution FOR FURTHER INFORMATION CONTACT: Jolie Summary of Request Avenue, NW., Washington, DC 20230. Harrison, NMFS, (301) 713–2289. On August 31, 2004, NMFS received Dated: December 7, 2005. SUPPLEMENTARY INFORMATION: a letter from Glenn R. VanBlaricom, Jeffrey Anspacher, Ph.D., Washington Cooperative Fish and Background Wildlife Research Unit, requesting Director, Export Trading Company Affairs. Sections 101(a)(5)(A) and (D) of the renewal of an IHA that was first issued [FR Doc. E5–7273 Filed 12–12–05; 8:45 am] MMPA (16 U.S.C. 1361 et seq.) direct to him on September 23, 2003 (68 FR BILLING CODE 3510–DS–P the Secretary of Commerce to allow, 57427, October 3, 2003) for the possible upon request, the incidental, but not harassment of small numbers of intentional taking of small numbers of California sea lions (Zalophus marine mammals by U.S. citizens who californianus), Pacific harbor seals engage in a specified activity (other than (Phoca vitulina), and northern elephant commercial fishing) within a specified seals (Mirounga angustirostris) geographical region if certain findings incidental to research surveys are made and either regulations are performed for the purpose of assessing issued or, if the taking is limited to trends in black abalone (Haliotis
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cracherodii) populations at SNI, Ventura influence the safety of field biologists as that the applicant’s monitoring program County, California, over time in well as the quality of data collected. In is sufficient to detect the effects of the permanent study sites. Population trend most years survey work is done during proposed research activities, including data for black abalone populations have the months of January, February, March, any mortality and/or serious injury that become important in a conservation July, November, and December because results from startle responses, or context because of: a) the reintroduction of optimal availability of low tides. All stampedes. The Commission notes, of sea otters to SNI in 1987, raising the work is done only during daylight hours however, that although the proposed possibility of conflict between otter because of safety considerations. mitigation measures are expected to conservation and abalone populations Research is expected to extend over a reduce the possibility of injury or death (abalones are often significant prey for period of 2 more years, from November of animals, the potential for such taking sea otters); b) the appearance of a novel 30, 2005 through 2007, with additional remains. Consequently, the Commission exotic disease, abalone withering work in future years remaining a recommends that any authorization syndrome, at SNI in 1992, resulting in possibility pending funding and staff. issued to the applicant specify that, if a dramatically increased rates of abalone Surveys of abalones will be conducted mortality or serious injury of a marine mortality at the Island; and c) the recent each year during this year period. mammal occurs which appears to be designation of California populations of During each survey year, each of the related to the abalone research, further black abalones as a species of concern nine permanent study sites at SNI will research activities be suspended while in the context of listing pursuant to the be visited three times. Abalone surveys, NMFS determines whether steps can be Endangered Species Act (ESA). which take no more than 4 hours at each taken to avoid further injuries or Research is done under the auspices of site, are conducted during two of the mortalities or until such taking can be the Washington Cooperative Fish and three visits to each of the nine sites. A authorized by regulations promulgated Wildlife Research Unit, the University third maintenance visit, which takes under section 101(a)(5)(A) of the of Washington, and the U.S. Navy less than half of an hour at each site, is MMPA. (owner of SNI), with additional used to take measurements and make Response: NMFS appreciates the logistical support from the University of necessary repairs to plots and is Commission’s concurrence with our California, Santa Cruz. Since the conducted in a month when smaller determination. NMFS believes that the abalone are not handled or removed in numbers of pinnipeds are present. applicant’s monitoring program is The affected marine mammal the course of the research, neither a sufficient to detect the effects of his populations at SNI, especially California state nor federal permit is needed. proposed research activities. Further, Additional information on the sea lions and northern elephant seals, NMFS believes it highly unlikely that research is contained in the application have grown substantially since the injury or mortality of a marine mammal and proposed IHA Federal Register beginning of abalone research in 1979 would occur as a result of the proposed notice (69 FR 70249), which are and have occupied an expanded abalone research. The only way injury available upon request (see ADDRESSES). distribution on the island due to population growth. Sites previously or mortality could occur as a result of Project Description accessible with no risk of marine the proposed research is if the approach Nine permanent research study areas mammal harassment are now being of researchers caused pinniped mothers are located in rocky intertidal habitats utilized by marine mammals at levels to either trample or become separated on SNI in Ventura County, CA. The such that approach without the from their pups. Mitigation measures applicant has made 101 separate field possibility of harassment is difficult. Of required in the IHA include time of year trips to SNI from September 1979 the nine study sites used for the abalone restrictions that avoid researcher through June 2005, participating in surveys, only two sites can be occupied interactions with California sea lion or abalone survey work on 534 different without the possibility of disturbing at Pacific harbor seal pups. Though days at nine permanent study sites. least one species of pinniped; therefore, elephant seal pups are sometimes Quantitative abalone surveys on SNI an IHA is warranted. present at abalone surveys, elephant began in 1981, at which point seals are far less reactive to researcher permanent research sites were chosen Comments and Responses presence than the other two species, based on the presence of dense patches A notice of receipt of Dr. researchers use great care approaching of abalone in order to monitor changes VanBlaricom’s application for an IHA sites (and because elephants seals pup over time in dense abalone aggregations. renewal and proposed IHA was on the sand and permanent study sites Research is conducted by counting published in the Federal Register on are on rocks the two are always black abalone in plots of 1 m2 (3.32 ft) December 3, 2004 (69 FR 70249). During separated by at least 50 m (164 ft)), and along permanent transect lines in rocky the 30–day public comment period, only 16 total (adult) elephant seals have intertidal habitats at each of the nine comments were received from the been disturbed in the last two years (of study sites on the island. Permanent Marine Mammal Commission 971 present). However, as suggested, we transect lines are demarcated by (Commission) and one member of the have added language to the IHA stainless steel eyebolts embedded in the public. requiring that VanBlaricom suspend rock substrata and secured with marine Comment 1: The Commission concurs research activities and contact NMFS epoxy compound. Lines are placed with NMFS’ preliminary determination immediately should an injury or temporarily between bolts during that, given the mitigation measures mortality of a marine mammal be surveys and are removed once surveys proposed by the applicant, the proposed suspected of resulting from the abalone are completed. Survey work is done by research activities are likely to result in research. two field biologists working on foot; no more than the temporary Comment 2: One individual expressed therefore, monitoring of black abalone modification of behavior by California concerns about many people doing populations at SNI can be done only sea lions, Pacific harbor seals, and research and all of them resulting in the during periods of extreme low tides. northern elephant seals. The death of wildlife. This individual The exact date of a visit to any given site Commission believes that NMFS’ further questioned the applicant’s need is difficult to predict because variation preliminary determinations are to continue doing research he has in surf height and sea conditions can reasonable, provided NMFS is satisfied already been conducting for many years.
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Response: The taking by serious sea lion are on islands located in has been made, the decrease in the injury or death of any marine mammal southern California, western Baja growth rate may indicate that the is not authorized by this IHA and would California, and the Gulf of California population has reached its carrying result in the modification, suspension or and they primarily use the central capacity. The harbor seal is not listed revocation of this Authorization. NMFS California area to feed during the non- under the ESA and the California stock anticipates that Glenn VanBlaricom’s breeding season. Population estimates is not considered depleted under the black abalone surveys will result in no for the U.S. stock of California sea lions, MMPA. more than Level B Harassment that is which are based on counts conducted in Harbor seals haul out at various limited to short term and localized 2001 and extrapolations from the sandy, cobble, and gravel beaches behavioral changes, such as startle number of pups, range from a minimum around SNI and pupping occurs on the reactions or flushes of low numbers of of 138,881 to an average of 244,000 beaches from late February to early individuals from haul-out sites. animals, with a current growth rate of April, with nursing of pups extending Multi-year surveys are necessary to 5.4 to 6.1 percent per year (Carretta et into May. Harbor seals may also haul assess population trends. However, the al., 2005). The California sea lion is not out during molting period in late IHA that NMFS is issuing does not listed under the ESA and the U.S. stock Spring, and smaller numbers haul out at authorize the applicant’s black abalone is not considered depleted under the other times of year. Harbor seal research itself, but the incidental taking MMPA. abundance increased at SNI from the by harassment of small numbers of California sea lions haul out at many 1960s until 1981, but since the average marine mammals of a species or sites on SNI and are by far the most counts have not changed significantly. population stock by the applicant while common pinniped on the island. Over From 1982 to 1994, numbers of harbor engaging in that activity. the course of a year, up to 100,000 sea seals have fluctuated between 139 and lions may use SNI. Numbers of sea lions 700 harbor seals based on both peak Description of Habitat and Marine at SNI increased by about 21% per year ground counts and annual photographic Mammals Affected by the Activity between 1983 and 1995 (NMFS, 2003) survey photos. The most recent aerial San Nicolas is one of the eight and sea lions have recently started count was of 457 harbor seals in 1994. Channel Islands, located in the Santa occupying areas that were not formerly Northern Elephant Seals Barbara Channel off Southern used. Pupping occurs on the beaches of California. Nine miles long and about SNI from mid-June to mid-July. Females Northern elephant seals breed and three and a half miles across at its nurse their pups for about eight days give birth in California (U.S.) and Baja widest point, it is the farthest island and then begin an alternating pattern of California primarily on offshore islands, from the mainland, more than 60 miles foraging at sea vs. attending and nursing from December to March (Stewart et al., (96.6 km) offshore and about 85 miles the pup on land, which lasts for about 1994). The California breeding stock, (136.8 km) southwest of Los Angeles, eight months, and sometimes up to a which includes the animals on SNI, is California. SNI is owned and operated year. California sea lions also haul out now demographically separated from by the U.S. Navy and is off-limits to at SNI during the molting period in the Baja California population. Based on civilians without specific permission. September, and smaller numbers of trends in pup counts, northern elephant Many of the beaches in the Channel females and juveniles haul out during seal colonies appeared to be increasing Islands provide resting, molting or most of the year. in California through 2001. The breeding places for species of population size of northern elephant pinnipeds. On SNI, three pinniped Pacific Harbor Seals seals in California is estimated to be species (northern elephant seal, Pacific Harbor seals are widely distributed in 101,000 animals, with a minimum harbor seal, and California sea lion) can the North Atlantic and North Pacific. In population estimate of 60,547 (Carretta be expected to occur on land in the California, approximately 400–500 et al., 2005). A continuous average vicinity of abalone research sites either harbor seal haul-out sites are distributed growth rate (though it has declined a bit regularly or in large numbers during along the mainland and on offshore in recent years) of 8.3 percent has seen certain times of the year. In addition, a islands, including intertidal sandbars, numbers of this species increase from single adult male Guadalupe fur seal rocky shores and beaches (Hanan, 1996). 100 in 1900 to the current population (Arctocephalus townsendi) was seen at A complete count of all harbor seals in size (Caretta et al., 2005). The northern one abalone research site on two California is impossible because some elephant seal is not listed under the occasions during the summer months in are always away from the haul-out sites. ESA and the California stock is not the mid–1980’s; however, there have A complete pup count (as is done for considered depleted under the MMPA. been no sightings of this species on the other pinnipeds in California) is also not Increasing numbers of elephant seals island since then. possible because harbor seals are haul out at various sites around SNI. Further information on the biology precocious, with pups entering the Based on a pup count in 1995 that and distribution of these species and water almost immediately after birth. found 6,575 pups, scientists estimated others in the region can be found in Dr. Based on the most recent harbor seal that over 23,000 elephant seals may use VanBlaricom’s application, which is counts (2002) and including a correction SNI in a year (NMFS, 2003). From 1988 available upon request (see ADDRESSES), factor for the above, the estimated to 1995 the pup counts on SNI increased and the Marine Mammal Stock population of harbor seals in California at an average rate of 15.4 percent per Assessment Reports, which are available is 27,863 (Caretta et al., 2005), with an year, however, the growth rate of the online at http://www.nmfs.noaa.gov/ estimated minimum population of population as a whole seems to have protlres/PR2/ 25,720 for the California stock of harbor declined in recent years (NMFS, 2003). StocklAssessmentlProgram/ seals. Counts of harbor seals in Pupping occurs on the beaches of SNI individuallsars.html. California showed a rapid increase from from January to early February, with 1972 to 1990, but since 1990 there has nursing of pups extending into March. California Sea Lions been no net population growth along the Northern elephant seals also haul out The U.S. stock of California sea lions mainland or the Channel Islands. during the molting periods in the spring extends from the U.S./Mexico border Though no formal determination of and summer, and smaller numbers haul north into Canada. Breeding areas of the Optimal Sustainable Population (OSP) out at other times of the year.
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Potential Effects of Activities on Marine are far less reactive to researcher will reduce the possibility of incidental Mammal presence than the other two species. harassment and the potential for serious Variable numbers of sea lions, harbor Also, researchers use great care injury or mortality of dependent seals, and elephant seals typically haul approaching sites and elephants seals California sea lion pups and Pacific out near seven of the nine study sites pup on the sand while the permanent harbor seal pups to near zero. Northern elephant seal pups are used for abalone research, with breeding study sites are on rocks, leaving the two present at four sites during winter activity occurring at four of these seven always separated by at least 50 m (164 months. Risks of injury or mortality of sites. Pinnipeds likely to be affected by ft)). IN fact, only an estimated 16 total elephant seal pups by mother/pup abalone research activity are those that (adult) elephant seals have been separation or trampling are limited to are hauled out on land at or near study disturbed in the last two years (of 971 the period from January through March sites. For the previous IHA, the present). when pups are born, nursed, and applicant estimated that pinnipeds Mitigation weaned, ending about 30 days post- typically haul out near six of the nine Several mitigation measures to reduce weaning when pups depart land for study sites, with breeding activity the potential for harassment from foraging areas at sea. However, elephant occurring at five of these six sites. population assessment research surveys seals have a much higher tolerance of However, during field work in 2003 and will be implemented as part of the SNI nearby human activity than sea lions or 2004, it became apparent that non- abalone research activities. Primarily, harbor seals. Also, elephant seal breeding California sea lions had begun mitigation of the risk of disturbance to pupping typically occurs on the sandy to haul out regularly at an additional pinnipeds simply requires that beaches at SNI, approximately 50 m abalone study site, and that sea lions researchers are judicious in the route of (164 ft) or more away from the abalone and elephant seals hauled out at one of approach to abalone study sites, study sites. Possible take of northern the study sites are non-breeding avoiding close contact with pinnipeds elephant seal pups will be minimized animals; therefore, it has become hauled out on shore. In no case will by using a very careful approach to the evident that seven of the nine study marine mammals be deliberately study sites and avoiding the proximity sites are used by pinnipeds for hauling approached by abalone survey of hauled seals and any seal pups out, with breeding activity occurring at personnel, and in all cases every during collection of abalone population four of these seven sites. possible measure will be taken to select data. Incidental harassment may result if a pathway of approach to study sites One individual Guadalupe fur seal hauled animals move to increase their that minimizes the number of marine was seen at study site 8 on two separate distance from persons involved in mammals harassed. Each visit to a given occasions during the summer months in abalone surveys. Although marine study site will last for a maximum of 4 the mid–1980’s. No individuals of this mammals will not be deliberately hours, after which the site is vacated species have been seen during abalone approached by abalone survey and can be re-occupied by any hauled research work since then. Thus, personnel, approach may be marine mammals that may have been limitation of research visits to site 8 to unavoidable if pinnipeds are hauled out disturbed by the presence of abalone the period November through January directly upon the permanent abalone researchers. eliminates the potential for taking of study plots. In almost all cases, The potential risk of injury or Guadalupe fur seals by harassment. shoreline habitats near the abalone mortality will be avoided with measures Guadalupe fur seals are distinctive in study sites are gently sloping sandy required under the authorization. appearance and behavior, and can be beaches or horizontal sandstone Disturbances to females with dependent readily identified at a distance without platforms with unimpeded and non- pups (in the cases of California sea lions any disturbance. Harassment, injury, or hazardous access to the water. If and Pacific harbor seals) will be mortality of Guadalupe fur seals will be disturbed, hauled animals may move mitigated to the greatest extent prevented by immediately suspending toward the water without risk of practicable by avoiding visits to the four research work and vacating any study encountering significant hazards. In black abalone study sites with resident area in which this species is seen. these circumstances, the risk of serious pinnipeds during periods of breeding Therefore, an authorization for the injury or death to hauled animals is very and lactation from mid-February taking of Guadalupe fur seals by low. through the end of October. The harassment is neither required nor One exception to the low risk of previous authorization required the requested. Sea otters are not expected marine mammal injury or mortality applicant to avoid conducting survey ashore during the time periods when the associated with abalone research would research at certain study sites that may research activities would be conducted. be if disturbances occur during breeding have breeding and/or lactating However, if sea otters are sighted ashore season, as it is possible that mothers and pinnipeds during the period from during the abalone research, Dr. dependent pups may become separated. February through October. However, VanBlaricom would follow similar If separated pairs don’t reunite fairly during field work in early 2004 it procedures in place for fur seals, quickly, risks of mortality to pups may became evident that pupping by harbor suspending research activities in any increase. Also, adult northern elephant seals at these sites does not begin until areas California sea otters are seals may trample elephant seal pups if the latter half of February. Therefore, occupying. disturbed. Trampling increases the risk the current authorization is shortened to of injury or death to the pups. However, exclude the first half of February. Monitoring mitigation measures including time of During this period, abalone research Currently, all biological research year restrictions that require avoidance would be confined to the other five sites activities at SNI are subject to approval of all sites with California sea lion pups where pinniped breeding and post- and regulation by the Environmental or harbor seal pups will be incorporated partum nursing does not occur. Limiting Planning and Management Department into the IHA. Though elephant seal visits to the four breeding and lactation (EPMD), U.S. Navy. The U.S. Navy owns pups are sometimes present at abalone sites to periods when these activities do SNI and closely regulates all civilian surveys, NMFS does not expect risk of not occur (November, December, access to and activity on the island, pup mortalities because elephant seals January, and the first half of February) including biological research. Therefore,
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monitoring activities will be closely within each research site are likely to be determined that the described abalone coordinated with Navy marine mammal disturbed by the presence of researchers research and the accompanying IHA biologists located on SNI. and alter their behavior or attempt to will have no effect on species or critical In addition, status and trends of move out of the way. In VanBlaricom’s habitat protected under the ESA. pinniped aggregations at SNI are 2004 and 2005 abalone survey field Therefore, consultation under Section 7 monitored by the NMFS Southwest seasons, respectively, the following was not required. Fisheries Science Center. Also, long- numbers of marine mammals were term studies of pinniped population disturbed (potentially harassed): 1,472 National Environmental Policy Act dynamics, migratory and foraging and 983 California sea lions (of 2,329 (NEPA) behavior, and foraging ecology at SNI and 1,383 present); 99 and 88 Pacific NMFS prepared an Environmental are conducted by staff at Hubbs-Sea harbor seals (of 108 and 99 present); and Assessment (EA) of the Issuance of an World Research Institute (HSWRI). 7 and 9 northern elephant seals (of 562 IHA to Take Marine Mammals, by Monitoring requirements in relation and 409 present). The researcher Harassment, During Black Abalone to Dr. VanBlaricom’s abalone research considered an animal to have been Research at SNI, California and surveys will include observations made disturbed if it moved, even a few feet, subsequently issued a Finding of No by the applicant and his associates. in response to the researcher’s presence Significant Impact on November 21, Information recorded will include or if the animal was already moving and 2005. A copy of the EA and FONSI are species counts (with numbers of pups), changed direction. Animals that raised available upon request (see ADDRESSES). numbers of observed disturbances, and their head and looked at the researcher descriptions of the disturbed behaviors without moving were not considered Determinations during the abalone surveys. disturbed. Based on past observations Based on the information contained in Observations of unusual behaviors, and assuming a maximum level of the application, the December 3, 2004 numbers, or distributions of pinnipeds incidental harassment of marine (69 FR 70249) Federal Register notice, on SNI will be reported to EPMD, mammals at each site during periods of Dr. VanBlaricom’s monitoring reports NMFS, and HSWRI so that any potential visitation, NMFS estimates that the for previous field seasons, and this follow-up observations can be maximum total possible numbers of document, NMFS has determined that conducted by the appropriate personnel. individuals that will be incidentally the impact of abalone research will In addition, observations of tag-bearing harassed (resulting from one complete result, at most, in a temporary pinniped carcasses as well as any rare cycle of visits to the nine study sites) modification in behavior by small or unusual species of marine mammals would be 1600 California sea lions, 120 numbers of California sea lions, Pacific will be reported to EPMD and NMFS, Pacific harbor seals, and 20 northern harbor seals, and northern elephant allowing transmittal of this information elephant seals. Three visit cycles are seals, in the form of head alerts, to appropriate agencies and personnel. anticipated during the year-long validity movement away from the researchers If at any time injury or death of any of an IHA. As noted earlier, any site and/or flushing from the beach. In marine mammal occurs that may be a occupied by Guadalupe fur seals will be addition, no take by injury or death is result of the proposed abalone research, vacated by researchers immediately and anticipated, and harassment takes will VanBlaricom will suspend research no taking of this species will occur. be at the lowest level practicable due to activities and contact NMFS NMFS anticipates that Level B incorporation of the mitigation immediately to determine how best to harassment of small numbers of measures mentioned previously in this proceed to ensure that another injury or California sea lions, Pacific harbor seals document. While the number of death does not occur and to ensure that and northern elephant seals may occur potential incidental harassment takes the applicant remains in compliance incidental to the proposed continuation will depend on the distribution and with the MMPA. of black abalone research at SNI and abundance of marine mammals in the Reporting that these takings will result in no more vicinity of the survey activity and the than a negligible impact on these marine A draft final report must be submitted distance between the seals and the mammal species or stocks or on their researchers, NMFS anticipates that the to NMFS within 60 days after the habitats. conclusion of the year-long field season. number of potential harassment takings The report will include a summary of Possible Effects of Activities on Marine will be small relative to the species the information gathered pursuant to the Mammal Habitat stock sizes and will have no more than a negligible impact on the affected monitoring requirements set forth in the NMFS anticipates that the action will species or stocks. The project is not IHA. A final report must be submitted result in no impacts to marine mammal expected to interfere with any to the Regional Administrator within 30 habitat beyond rendering the areas subsistence hunts. NMFS has therefore days after receiving comments from immediately around each of the nine determined that the requirements of NMFS on the draft final report. If no study sites less desirable as haulout section 101(a)(5)(D) of the MMPA have comments are received from NMFS, the sites for a total of 8.5 hours per year. draft final report will be considered to been met and the authorization can be be the final report. Possible Effects of Activities on issued. Subsistence Needs Numbers of Marine Mammals Expected Authorization There are no subsistence uses for to be Harassed California sea lions, Pacific harbor seals, NMFS has issued an IHA to Dr. Glenn The distribution of pinnipeds hauled or northern elephant seals in California R. VanBlaricom for the harassment of out on beaches is not even. The number waters, and thus, there are no small numbers of California sea lions, of marine mammals disturbed will vary anticipated effects on their availability Pacific harbor seals, and northern by month and location, and, compared for subsistence uses. elephant seals incidental to black to animals hauled out on the beach abalone population trend research, farther away from survey activity, only ESA provided the previously mentioned those animals hauled out closest to the For the reasons already described in mitigation, monitoring, and reporting actual survey transect plots contained this Federal Register Notice, NMFS has requirements are incorporated.
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Dated: November 29, 2005. applications, or send any other (C) PTFP applicants are not required Donna Wieting, correspondence, write to PTFP at the to submit copies of their PTFP Deputy Director, Office of Protected following address (please note the new applications to the FCC, nor are they Resources, National Marine Fisheries Service. room number): NTIA/PTFP, Room H– required to submit copies of the FCC [FR Doc. 05–23985 Filed 12–12–05; 8:45 am] 4096, U.S. Department of Commerce, transmittal cover letters as part of their BILLING CODE 3510–22–S 1401 Constitution Avenue, NW., PTFP applications. PTFP applicants for Washington, DC 20230. Application distance learning projects must notify materials may be obtained electronically the state telecommunications agencies DEPARTMENT OF COMMERCE via the Internet (http:// in the states in which they are located www.ntia.doc.gov/ptfp). but are not required to notify every state National Telecommunications and FOR FURTHER INFORMATION CONTACT: telecommunications agency in a Information Administration William Cooperman, Director, Public potential service area. [Docket No. 051128311–5311–01] Broadcasting Division, telephone: (202) (D) For digital television conversion 482–5802; fax: (202) 482–2156. projects, NTIA has created two new Public Telecommunications Facilities Information about the PTFP can also be Subpriorities in the Broadcast Other Program: Closing Date obtained electronically via the Internet category. (E) For digital radio conversion AGENCY: National Telecommunications (http://www.ntia.doc.gov/ptfp). projects, NTIA has created a new and Information Administration (NTIA), SUPPLEMENTARY INFORMATION: Subpriority in the Broadcast Other Commerce. Electronic Access category. ACTION: Notice of availability of funds. The full funding opportunity Catalog of Domestic Federal SUMMARY: Pursuant to the Science, State, announcement for the PTFP FY 2006 Assistance: 11.550, Public Justice, Commerce, and Related grant cycle is available through Telecommunications Facilities Program. Agencies Appropriations Act, 2006, www.Grants.gov or by contacting the Eligibility Pub. L. 109–108, the National PTFP office at the address noted above. To apply for and receive a PTFP Telecommunications and Information Funding Availability Administration (NTIA), U.S. Construction Grant or Planning Grant, Department of Commerce, announces The Congress has appropriated $20 an applicant must be: (a) A public or the solicitation of applications for million for FY 2006 PTFP awards. For noncommercial educational broadcast planning and construction grants for FY 2005, NTIA awarded $21.2 million station; (b) a noncommercial public telecommunications facilities in PTFP funds to 123 projects, including telecommunications entity; (c) a system under the Public Telecommunications 73 radio awards, 39 television awards of public telecommunications entities; Facilities Program (PTFP). The PTFP and 11 nonbroadcast awards. The radio (d) a non-profit foundation, corporation, assists, through matching grants, in the awards ranged from $9,255 to $451,848. institution, or association organized planning and construction of public The television awards ranged from primarily for educational or cultural telecommunications facilities in order $11,298 to $927,937. The nonbroadcast purposes; or (e) a state, local, or Indian to: (1) Extend delivery of services to as awards ranged from $30,495 to tribal government (or agency thereof), or many citizens as possible by the most $440,000. a political or special purpose subdivision of a state. cost-effective means, including use of Statutory and Regulatory Authority broadcast and non-broadcast Evaluation and Selection Process technologies; (2) increase public The Public Telecommunications telecommunications services and Facilities Program is authorized by the See 15 CFR 2301.16 for a description facilities available to, operated by, and Communications Act of 1934, as of the Technical Evaluation and 15 CFR controlled by minorities and women; (3) amended, 47 U.S.C. 390–393, 397– 2301.18 for the Selection Process. 399(b). The PTFP operates pursuant to strengthen the capability of existing Evaluation Criteria public television and radio stations to rules (1996 Rules) which were See 15 CFR 2301.17 for a full provide public telecommunications published on November 8, 1996 (61 FR description of the Evaluation Criteria. services to the public. 57966). Copies of the 1996 Rules (15 CFR Part 2301) are posted on the NTIA The six evaluation criteria are (1) DATES: Applications must be received Internet site at www.ntia.doc.gov/Rules/ Applicant Qualifications, (2) Financial prior to 5 p.m. Eastern Standard Time currentrules.htm and NTIA will make Qualifications, (3) Project Objectives, (4) (Closing Time), February 7, 2006 printed copies available to applicants Urgency, (5) Technical Qualifications (Closing Date). Applications submitted upon request. (construction applicants only) or by facsimile or electronic means are not Planning Qualifications (planning acceptable. If an application is received Supplemental Policies applicants only), and (6) Special after the Closing Date due to (1) carrier The following supplemental policies Consideration. error, when the carrier accepted the will also be in effect: package with a guarantee for delivery by (A) Applicants may file emergency Funding Priorities and Selection the Closing Date and Closing Time, (2) applications at any time. Factors significant weather delays or natural (B) Applicants may file requests for See 15 CFR 2301.4 and the disasters, or (3) delays due to national Federal Communications Commission supplemental policies above for a security issues, NTIA will, upon receipt (FCC) authorizations with the FCC after description of the PTFP Priorities and of proper documentation, consider the the PTFP Closing Date. Grant applicants 15 CFR 2301.18 for the Selection application as having been received by for Ku-band satellite uplinks may Factors. the deadline. NTIA will not accept submit FCC applications after a PTFP applications posted on the Closing Date award is made. NTIA may accept FCC Cost Sharing Requirements or later and received after this deadline. authorizations that are in the name of an PTFP requires cost sharing. By statute, ADDRESSES: To obtain a printed organization other than the PTFP PTFP cannot fund a construction project application package, submit completed applicant. for more than 75% of the eligible project
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costs. NTIA has established a policy of agency to award any specific project or on Disability and Rehabilitation funding most new public broadcasting to obligate any available funds. Research (NIDRR). Specifically, this station activation projects at a 75% notice proposes a priority for Spinal Paperwork Reduction Act federal share, and most other television, Cord Injury Model Systems Centers radio and nonbroadcast projects at a Notwithstanding any other provision (SCIMS centers) and a priority and 50% federal share. NTIA can fund of the law, no person is required to selection criterion for Disability and planning applications up to 100% of the respond to, nor shall any person be Rehabilitation Research Projects eligible project costs, but has subject to a penalty for failure to comply (DRRPs). The Assistant Secretary may established a policy of funding planning with, a collection of information subject use these priorities and selection applications at a 75% share. Any to the requirements of the Paperwork criterion for competitions in fiscal year applicant can request federal funding Reduction Act (PRA), unless that (FY) 2006 and later years. We take this greater than PTFP’s policy, up to the collection displays a currently valid action to focus research attention on statutory maximum, and provide Office of Management and Budget areas of national need. We intend these justification for the request. (OMB) control number. The PTFP priorities and selection criterion to application form has been cleared under improve rehabilitation services and Intergovernmental Review OMB Control No. 0660–0003. outcomes for individuals with PTFP applications are subject to Executive Order 13132 disabilities. Executive Order 12372, It has been determined that this notice DATES: We must receive your comments ‘‘Intergovernmental Review of Federal on or before January 12, 2006. Programs,’’ if the state in which the does not contain policies with ADDRESSES: Address all comments about applicant organization is located Federalism implications as that term is these proposed priorities and selection participates in the process. Usually defined in Executive Order 13132. criterion to Donna Nangle, U.S. submission to the State Single Point of Administrative Procedure Act/ Department of Education, 400 Maryland Contact (SPOC) needs to be only the Regulatory Flexibility Act Avenue, SW., room 6030, Potomac first two pages of the PTFP application Prior notice and opportunity for Center Plaza, Washington, DC 20204– form, but applicants should contact public comment are not required by the 2700. If you prefer to send your their own SPOC offices to find out about Administrative Procedure Act or any comments through the Internet, use the and comply with its requirements. The other law for this rule concerning following address: names and addresses of the SPOC grants, benefits, and contracts (5 U.S.C. [email protected] or offices are listed on the PTFP website 553(a)(2). Because notice and [email protected]. and at the Office of Management and opportunity for comment are not Budget’s home page at http:// You must include the term ‘‘Notice of required pursuant to 5 U.S.C. 553 or any proposed priorities for SCIMS Centers www.whitehouse.gov/omb/grants/ other law, the analytical requirements of spoc.html. and DRRPs’’ in the subject line of your the Regulatory Flexibility Act (5 U.S.C. electronic message. 601 et seq.) are inapplicable. Therefore, Universal Identifier FOR FURTHER INFORMATION CONTACT: a regulatory flexibility analysis has not Donna Nangle. Telephone: (202) 245– All applicants (nonprofit, state, local been prepared. government, universities, and tribal 7462. organizations) will be required to Bernadette McGuire-Rivera, If you use a telecommunications provide a Dun and Bradstreet Data Associate Administrator, Office of device for the deaf (TDD), you may call Universal Numbering System (DUNS) Telecommunications and Information the Federal Relay Service (FRS) at 1– number during the application process. Applications. 800–877–8339. See the October 30, 2002 (67 FR 66177) [FR Doc. 05–23992 Filed 12–12–05; 8:45 am] Individuals with disabilities may and April 8, 2003 (68 FR 17000) Federal BILLING CODE 3510–60–P obtain this document in an alternative Register notices for additional format (e.g., Braille, large print, information. Organizations can receive a audiotape, or computer diskette) on DUNS number at no cost by calling the DEPARTMENT OF EDUCATION request to the contact person listed dedicated toll-free DUNS Number under FOR FURTHER INFORMATION request line 1–866–705–5711 or via the National Institute on Disability and CONTACT. Internet (www.dunandbradstreet.com). Rehabilitation Research—Disability SUPPLEMENTARY INFORMATION: This and Rehabilitation Research Projects The Department of Commerce Pre- notice of proposed priorities is in and Centers Program—Spinal Cord concert with President George W. Award Notification Requirements for Injury Model Systems Centers (SCIMS Grants and Cooperative Agreements Bush’s New Freedom Initiative (NFI) Centers) and Disability Rehabilitation and NIDRR’s Proposed Long-Range Plan The Department of Commerce Pre- Research Projects (DRRPs) for FY 2005–2009 (Plan). The NFI can Award Notification of Requirements for AGENCY: Office of Special Education and be accessed on the Internet at the Grants and Cooperative Agreements Rehabilitative Services, Department of following site: http:// contained in the Federal Register notice Education. www.whitehouse.gov/infocus/ of December 30, 2004 (69 FR 78389) is ACTION: Notice of proposed priorities for newfreedom. The Plan, which was applicable to this solicitation. SCIMS Centers and DRRPs. published in the Federal Register on Limitation of Liability July 27, 2005 (70 FR 43522), can be SUMMARY: The Assistant Secretary for accessed on the Internet at the following In no event will the Department of Special Education and Rehabilitative site: http://www.ed.gov/legislation/ Commerce be responsible for proposal Services proposes certain funding FedRegister/other/2005–3/ preparation costs if this program fails to priorities and a selection criterion for 072705d.html). receive funding or is cancelled because the Disability and Rehabilitation Through the implementation of the of other agency priorities. Publication of Research Projects and Centers Program NFI and the Plan, NIDRR seeks to—(1) this announcement does not obligate the administered by the National Institute Improve the quality and utility of
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disability and rehabilitation research; Note: This notice does not solicit than 23,000 cases, with follow up data (2) Foster an exchange of expertise, applications. In any year in which we choose on some subjects covering a 30-year information, and training to facilitate to use these proposed priorities, we invite period post injury. There are certain the advancement of knowledge and applications through a notice in the Federal criteria that must be met in order for a Register. When inviting applications we understanding of the unique needs of designate the priorities as absolute, SCIMS program to include information traditionally underserved populations; competitive preference, or invitational. The relating to a particular subject in the (3) Determine best strategies and effect of each type of priority follows: database. Eligible subjects must— programs to improve rehabilitation Absolute priority: Under an absolute (a) Be admitted to and receive care in outcomes for underserved populations; priority, we consider only applications that at least one component of a model SCI (4) Identify research gaps; (5) Identify meet the priority (34 CFR 75.105(c)(3)). system, including acute or surgical care, mechanisms of integrating research and Competitive preference priority: Under a inpatient rehabilitation, outpatient practice; and (6) Disseminate findings. competitive preference priority, we give rehabilitation, or day-hospitalization competitive preference to an application by rehabilitation; (b) Be treated at a model Invitation To Comment either (1) awarding additional points, SCI system within one year of the We invite you to submit comments depending on how well or the extent to injury; (c) Sign a consent form and the regarding these proposed priorities and which the application meets the competitive priority (34 CFR 75.105(c)(2)(i)); or (2) Health Insurance Portability and selection criterion. To ensure that your selecting an application that meets the Accountability Act of 1996 (HIPAA) comments have maximum effect in competitive priority over an application of authorization; (d) Reside in a geographic developing the notice of final priorities, comparable merit that does not meet the catchment area of the model system at we urge you to identify clearly the priority (34 CFR 75.105(c)(2)(ii)). the time of the injury; and (e) Be a U.S. specific proposed priority or selection Invitational priority: Under an invitational citizen. criterion that each comment addresses. priority, we are particularly interested in We invite you to assist us in applications that meet the invitational SCIMS Centers complying with the specific priority. However, we do not give an There are currently 16 SCIMS centers requirements of Executive Order 12866 application that meets the invitational funded by NIDRR. These centers and its overall requirement of reducing priority a competitive or absolute preference provide comprehensive rehabilitation over other applications (34 CFR 75.105(c)(1)). regulatory burden that might result from services to individuals with SCI and conduct spinal cord research, including these proposed priorities and selection Priorities criterion. Please let us know of any clinical research and the analysis of further opportunities we should take to Background standardized data in collaboration with other related projects. reduce potential costs or increase The SCIMS Program potential benefits while preserving the Each SCIMS Center funded under this effective and efficient administration of In 1972, the U.S. Department of program establishes a multidisciplinary the program. Health, Education, and Welfare system for providing rehabilitation During and after the comment period, established the national Spinal Cord services specifically designed to meet you may inspect all public comments on Injury Model Systems (SCIMS) Program the special needs of individuals with this notice of proposed priorities in by funding four projects to provide SCI. These services include acute care room 6030, 550 12th Street, SW., comprehensive, multidisciplinary as well as periodic inpatient or Potomac Center Plaza, Washington, DC, rehabilitation services to persons who outpatient follow up and vocational between the hours of 8:30 a.m. and 4 experience Spinal Cord Injury (SCI) and services. Centers demonstrate and p.m., Eastern time, Monday through to conduct research to foster advances evaluate the benefits and cost Friday of each week except Federal in SCI rehabilitation. The SCIMS effectiveness of their systems for holidays. program became part of the research providing rehabilitation services to portfolio of NIDRR when NIDRR was individuals with SCI and demonstrate Assistance to Individuals With established (initially as the National and evaluate existing, new, and Disabilities in Reviewing the Institute of Handicapped Research) improved methods and equipment Rulemaking Record within the Department of Health, essential to the care, management, and On request, we will supply an Education, and Welfare (now Education) rehabilitation of individuals with SCI. appropriate aid, such as a reader or in 1978. Centers also demonstrate and evaluate print magnifier, to an individual with a The SCIMS program is designed to methods of community outreach and disability who needs assistance to study the course of recovery and education for individuals with SCI in review the comments or other outcomes following the delivery of a connection with the problems these documents in the public rulemaking coordinated system of care for individuals experience in such areas as record for this notice of proposed individuals with SCI, which for housing, transportation, recreation, priorities. If you want to schedule an purposes of this program is defined as employment, and community activities. appointment for this type of aid, please a clinically discernible degree of SCIMS centers engage in initiatives and contact the person listed under FOR neurologic impairment following a new approaches and maintain close FURTHER INFORMATION CONTACT. traumatic event. Since 1973, SCIMS working relationships with other We will announce the final priorities programs have collected and governmental and voluntary institutions and selection criterion in a notice in the contributed information on common and organizations to unify and Federal Register. We will determine the data elements for a centralized SCI coordinate scientific efforts, encourage final priorities and selection criterion database, the SCIMS database, which is joint planning, and promote the after considering responses to this maintained through a NIDRR-funded interchange of data and reports among notice and other information available grant for a National Data and Statistical SCI researchers. to the Department. This notice does not Center. (Additional information on the The Conference Report accompanying preclude us from proposing or using SCIMS database can be found at http:// the 2005 Appropriations Act noted that additional priorities or selection criteria, www.spinalcord.uab.edu.) The data NIDRR was receiving additional funding subject to meeting applicable collected and contributed to the for the SCIMS program and stated that rulemaking requirements. database thus far have involved more the conferees intended that the
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additional funds be used to support methods to carry out multi-site research encompass a continuum of care, investments that could facilitate multi- conducted under Priority Two. including emergency medical services, center research on SCI therapies and Therefore, we propose an additional acute care services, acute medical interventions, and the use of technology criterion to address methods for rehabilitation services, and post-acute in providing SCI rehabilitation services. carrying out multi-site research services. In order to plan for this expanded collaboration for Priority Two. This • Address the needs of people with funding, NIDRR conducted a review of proposed criterion is intended to disabilities including individuals from its current program and met with SCI emphasize the importance of multi-site traditionally underserved populations. organizations and Federal partners. The research collaboration. • Coordinate with the NIDRR-funded priorities and selection criterion To be eligible under Priority Two, an Model Systems Knowledge Translation proposed in this notice are the result of applicant must have received a grant Center to provide scientific results and this review and subsequent discussions. under Priority One. The Department information for dissemination to clinical It is NIDRR’s intention that, through intends to announce the competition for and consumer audiences. funding of projects under these Priority Two awards after selecting the • Ensure participation of individuals priorities, the SCIMS program will serve grantees from the Priority One with disabilities in all aspects of SCIMS as a platform for multi-site research that competition. Only successful applicants research. contributes to the formulation of from the Priority One competition will Proposed Priority Two and Selection practice guidelines to improve outcomes be eligible to apply for awards under the Criterion for SCIMS Multi-Site Research for individuals with SCI. Priority Two competition. Projects Proposed Priorities and Selection Proposed Priority One—SCIMS Centers Proposed Priority Criterion The Assistant Secretary proposes a The Assistant Secretary proposes a In accordance with section 204(b)(4) priority for the funding of Spinal Cord priority for the funding of Spinal Cord of the Rehabilitation Act of 1973, as Injury Model Systems (SCIMS) centers Injury Model Systems (SCIMS) multi- amended (Act), and 34 CFR part 359, to conduct research that contributes to site research projects to conduct Priority One will provide for the evidence-based rehabilitation research that contributes to evidence- funding of SCIMS centers that will build interventions and clinical and practice based rehabilitation interventions and upon the work of the current centers, to guidelines that improve the lives of clinical practice guidelines that improve provide comprehensive rehabilitation individuals with spinal cord injury the lives of individuals with spinal cord services to individuals with SCI and (SCI). Each SCIMS center must— injury (SCI). conduct spinal cord research, including 1. Contribute to continued assessment To be eligible under this priority, an clinical research and the analysis of of long-term outcomes of SCI by applicant must have received a grant standardized data in collaboration with enrolling at least 30 subjects per year under the SCIMS Centers priority. other related projects. into the SCIMS database, following Following completion of a competition Priority Two, authorized under established protocols for the collection under the SCIMS Centers priority, the section 202 of the Act and 34 CFR part of enrollment and follow-up data on Department will invite successful 350, will provide for the funding of subjects; applicants under that competition to Disability and Rehabilitation Research 2. Contribute to improved outcomes apply for funding as a lead center under Projects (DRRP) that will conduct multi- for persons with SCI by proposing and this SCIMS Multi-Site Research Projects site research that contributes to participating in at least one priority. evidence-based rehabilitation collaborative research module project, Each SCIMS multi-site research interventions and clinical practice which may range from pilot research to project must— guidelines that improve the lives of more extensive studies (At the 1. Ensure utilization of SCIMS individuals with SCI. These projects beginning of the funding cycle, the SCI capacity by collaborating with three or will serve the overall purpose of the model system directors, in conjunction more of the NIDRR-funded SCIMS DRRP program, which is to plan and with NIDRR, will select specific centers (for a minimum of four SCIMS conduct research, demonstration modules for implementation from the sites). Applicants may propose to projects, training, and related activities approved applications); and include other SCI research sites that are to develop methods, procedures, and 3. Contribute to improved long-term not participating in a NIDRR-funded rehabilitation technology that maximize outcomes of individuals with SCI by program in their multi-site research the full inclusion and integration into conducting one site-specific research projects; society, employment, independent project to test innovative approaches to 2. Contribute to improved long-term living, family support, and economic treating and evaluating SCI outcomes in outcomes of individuals with SCI by and social self-sufficiency of individuals accordance with the focus areas conducting multi-site research on with disabilities, especially individuals identified in NIDRR’s Proposed Long- questions of significance to SCI with the most severe disabilities, and to Range Plan for FY 2005–2009 (Plan). rehabilitation, using clearly identified improve the effectiveness of services In carrying out these activities, research designs. The research must authorized under the Act. DRRPs carry applicants may select from the focus on one or more specific domains out one or more of the following types following research domains related to identified in NIDRR’s Proposed Long- of activities, as specified in 34 CFR specific areas of the Plan: Health and Range Plan for FY 2005–2009 (Plan), 350.13 through 350.19: research, function, employment, participation including health and function, development, demonstration, training, and community living, and technology participation and community living, dissemination, utilization, and technical for access and function. technology, and employment, and assistance. Additional information on In addition, applicants must address ensure that the research study has the DRRP program can be found at: the following requirements: appropriate research hypotheses and http://www.ed.gov/rschstat/research/ • Provide a multidisciplinary system methods to generate reliable and valid pubs/res-program.html#DRRP. of rehabilitation care specifically findings; The Department is interested in designed to meet the needs of 3. Demonstrate the capacity to carry ensuring that grantees use rigorous individuals with SCI. The system must out multi-site research projects,
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including the ability to coordinate Summary of Potential Costs and ENVIRONMENTAL PROTECTION research among centers; maintain data Benefits AGENCY quality; and adhere to research [EPA–HQ–OPPT–2005–0061; FRL–7749–8] protocols, confidentiality requirements, The potential costs associated with and data safety requirements; and these proposed priorities are minimal while the benefits are significant. Data Submissions for the Voluntary 4. Specify start up activities that will Children’s Chemical Evaluation be required to mount the proposed The benefits of the Special Projects Program; Request for Comment on multi-site research project, including and Demonstrations for Spinal Cord Renewal of Information Collection infrastructure requirements and Injury and Disability and Rehabilitation Activities measurement tools. Applicants must Research Projects Programs have been specify in their applications the amount well established over the years in that AGENCY: Environmental Protection requested, not to exceed $800,000, to similar projects have been completed Agency (EPA). cover these start-up costs. successfully. These proposed priorities ACTION: Notice. will generate new knowledge and In addition, applicants must address SUMMARY: In compliance with the the following requirements: technologies through research, development, dissemination, utilization, Paperwork Reduction Act (PRA) (44 • Address the needs of people with and technical assistance projects. U.S.C. 3501 et seq.) EPA is seeking disabilities, including individuals from public comment on the following traditionally underserved populations. Another benefit of these proposed Information Collection Request (ICR): priorities are that the establishment of • Coordinate with the NIDRR-funded Data Submissions for the Voluntary new SCIMS centers and the DRRPs Children’s Chemical Evaluation Model Systems Knowledge Translation conducting SCIMS multi-site research Center by providing scientific results Program (VCCEP) (EPA ICR No. 2055.02, projects will support the President’s NFI OMB Control No. 2070–0165). This ICR and information for dissemination to and will improve the lives of persons clinical and consumer audiences. involves a collection activity that is with disabilities. These centers and currently approved and scheduled to • Ensure participation of individuals DRRPs will generate, disseminate, and expire on September 30, 2006. The with disabilities in all aspects of model promote the use of new information that information collected under this ICR systems research. will improve the options for individuals provides information to EPA on Proposed Selection Criterion with disabilities to perform regular chemicals to which children are likely activities in the community. to be exposed so that any risks can be In accordance with the provisions of Applicable Program Regulations: 34 assessed and managed. Information on 34 CFR 350.53 and 350.54 and in CFR parts 350 and 359. health effects, exposure, risk, and data addition to the selection criteria needs will be submitted by chemical specified in those sections, the Secretary Electronic Access to This Document manufacturers who have volunteered to proposes to consider the following participate in VCCEP. The ICR describes factor in evaluating applications You may view this document, as well as all other Department of Education the nature of the information collection submitted under the SCIMS multi-site activity and its expected burden and research projects priority: documents published in the Federal Register, in text or Adobe Portable costs. Before submitting this ICR to the The extent to which the applicant Document Format (PDF) on the Internet Office of Management and Budget clearly documents its capacity to at the following site: http://www.ed.gov/ (OMB) for review and approval under manage multi-site research projects, news/fedregister. the PRA, EPA is soliciting comments on including administrative capabilities, specific aspects of the collection. To use PDF you must have Adobe experience with management of multi- DATES: Written comments, identified by Acrobat Reader, which is available free site research protocols, and the docket identification (ID) number at this site. If you have questions about demonstrated ability to maintain EPA–HQ–OPPT–2005–0061, must be using PDF, call the U.S. Government standards for quality and confidentiality received on or before February 13, 2006. of data gathered from multiple sites. Printing Office (GPO), toll free, at 1– 888–293–6498; or in the Washington, ADDRESSES: Comments may be Executive Order 12866 DC, area at (202) 512–1530. submitted electronically, by mail, or through hand delivery/courier. Follow This notice of proposed priorities has Note: The official version of this document the detailed instructions as provided in been reviewed in accordance with is the document published in the Federal Unit I. of the SUPPLEMENTARY Register. Free Internet access to the official Executive Order 12866. Under the terms INFORMATION. of the order, we have assessed the edition of the Federal Register and the Code FOR FURTHER INFORMATION CONTACT: For potential costs and benefits of this of Federal Regulations is available on GPO general information contact: Colby regulatory action. Access at: http://www.gpoaccess.gov/nara/ index.html. Lintner, Regulatory Coordinator, The potential costs associated with (Catalog of Federal Domestic Assistance Environmental Assistance Division the notice of proposed priorities are (7408M), Office of Pollution Prevention those resulting from statutory Number 84.133N, Model Spinal Cord Injury Centers and 84.133A, Disability and Toxics, Environmental Protection requirements and those we have Agency, 1200 Pennsylvania Ave., NW., determined as necessary for Rehabilitation Research Projects) Program Authority: 29 U.S.C. 760, 764(a), and Washington, DC 20460–0001; telephone administering these programs effectively 764(b)(4). number: (202) 554–1404; e-mail address: and efficiently. [email protected]. In assessing the potential costs and Dated: December 7, 2005. For technical information contact: benefits—both quantitative and John H. Hager, Catherine Roman, Chemical Control qualitative—of this notice of proposed Assistant Secretary for Special Education and Division (7405M), Office of Pollution priorities, we have determined that the Rehabilitative Services. Prevention and Toxics, Environmental benefits of the proposed priorities [FR Doc. 05–23937 Filed 12–12–05; 8:45 am] Protection Agency, 1200 Pennsylvania justify the costs. BILLING CODE 4000–01–P Ave., NW., Washington, DC 20460;
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telephone number: (202) 564–8172; fax B. How Can I Get Copies of this not be placed in EPA’s electronic public number: (202) 564–4755; e-mail address: Document and Other Related docket but will be available only in [email protected]. Information? printed, paper form in the official public docket. To the extent feasible, publicly SUPPLEMENTARY INFORMATION: 1. Docket. EPA has established an official public docket for this action available docket materials will be made I. General Information under docket ID number EPA–HQ– available in EPA’s electronic public docket. When a document is selected A. Does this Action Apply to Me? OPPT–2005–0061. The official public docket consists of the documents from the index list in EPA Dockets, the system will identify whether the You may be potentially affected by specifically referenced in this action, document is available for viewing in any public comments received, and this action if you are a manufacturer or EPA’s electronic public docket. other information related to this action. importer of certain chemicals and have Although not all docket materials may Although a part of the official docket, volunteered to sponsor your chemical in be available electronically, you may still the public docket does not include the VCCEP. Potentially affected entities access any of the publicly available Confidential Business Information (CBI) may include, but are not limited to: docket materials through the docket or other information whose disclosure is • Chemical manufacturing (NAICS facility identified in Unit I.B.1. EPA restricted by statute. The official public 325), e.g., basic chemical intends to work towards providing docket is the collection of materials that manufacturing; resin, synthetic rubber electronic access to all of the publicly is available for public viewing at the and artificial and synthetic fibers and available docket materials through EPA Docket Center, Rm. B102-Reading EPA’s electronic public docket. filaments manufacturing; pesticide, Room, EPA West, 1301 Constitution fertilizer, and other agricultural For public commenters, it is Ave., NW., Washington, DC. The EPA important to note that EPA’s policy is chemical manufacturing; soap, cleaning Docket Center is open from 8:30 a.m. to compound, and toilet preparation that public comments, whether 4:30 p.m., Monday through Friday, submitted electronically or in paper, manufacturing, etc. excluding legal holidays. The EPA • will be made available for public Paint and coating manufacturing Docket Center Reading Room telephone viewing in EPA’s electronic public (NAICS 32551), e.g., enamel paints number is (202) 566–1744 and the docket as EPA receives them and manufacturing, latex paint telephone number for the OPPT Docket, without change, unless the comment manufacturing, paints manufacturing, which is located in the EPA Docket contains copyrighted material, CBI, or stains manufacturing, varnishes Center, is (202) 566–0280. other information whose disclosure is manufacturing, etc. 2. Electronic access. You may access restricted by statute. When EPA • Adhesive manufacturing (NAICS this Federal Register document identifies a comment containing electronically through the EPA Internet 32552), e.g., adhesives manufacturing, copyrighted material, EPA will provide under the ‘‘Federal Register’’ listings at caulking compounds manufactuing, a reference to that material in the http://www.epa.gov/fedrgstr/. epoxy adhesives manufacturing, glues version of the comment that is placed in Agency Website: EDOCKET, EPA’s EPA’s electronic public docket. The manufacturing, rubber cements electronic public docket and comment manufacturing, tile adhesives entire printed comment, including the system was replaced on November 25, copyrighted material, will be available manufacturing, etc. 2005, by an enhanced federal-wide • in the public docket. Textile mills (NAICS 313), e.g., electronic docket management and Public comments submitted on acetate spun yarns, acrylic spun yarns, comment system located at http:// computer disks that are mailed or cotton spun yarns, flax spun yarns, hard www.regulations.gov/. Follow the on- delivered to the docket will be fiber spun yarns, natural fiber spun line instructions. transferred to EPA’s electronic public yarns, nylon spun yarns, rayon spun An electronic version of the public docket. Public comments that are yarns, wool spun yarn, etc. docket is available through EPA’s mailed or delivered to the docket will be • Petroleum refineries (NAICS electronic public docket and comment scanned and placed in EPA’s electronic 324110), e.g., aviation fuels system, EPA Dockets. You may use EPA public docket. Where practical, physical manufacturing, crude oil refining, diesel Dockets at http://www.epa.gov/edocket/ objects will be photographed, and the fuels manufacturing, fuel oils to submit or view public comments, photograph will be placed in EPA’s access the index listing of the contents manufacturing, gasoline made in electronic public docket along with a of the official public docket, and to petroleum refineries, kerosene brief description written by the docket access those documents in the public manufacturing, petroleum refineries, staff. docket that are available electronically. etc. Although not all docket materials may C. How and to Whom Do I Submit the This listing is not intended to be be available electronically, you may still Comments? exhaustive, but rather provides a guide access any of the publicly available You may submit comments for readers regarding entities likely to be docket materials through the docket electronically, by mail, or through hand affected by this action. Other types of facility identified in Unit I.B.1. Once in delivery/courier. To ensure proper entities not listed in this unit could also the system, select ‘‘search,’’ then key in receipt by EPA, identify the appropriate be affected. The North American the appropriate docket ID number. docket ID number in the subject line on Industrial Classification System Certain types of information will not the first page of your comment. Please (NAICS) codes have been provided to be placed in the EPA Dockets. ensure that your comments are assist you and others in determining Information claimed as CBI and other submitted within the specified comment whether this action might apply to information whose disclosure is period. Comments received after the certain entities. If you have any restricted by statute, which is not close of the comment period will be questions regarding the applicability of included in the official public docket, marked ‘‘late.’’ EPA is not required to this action to a particular entity, consult will not be available for public viewing consider these late comments. If you the technical person listed under FOR in EPA’s electronic public docket. EPA’s wish to submit CBI or information that FURTHER INFORMATION CONTACT. policy is that copyrighted material will is otherwise protected by statute, please
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follow the instructions in Unit I.D. Do WordPerfect or ASCII file format. Avoid 4. If you estimate potential burden or not use EPA Dockets or e-mail to submit the use of special characters and any costs, explain how you arrived at the CBI or information protected by statute. form of encryption. estimate that you provide. 1. Electronically. If you submit an 2. By mail. Send your comments to: 5. Provide specific examples to electronic comment as prescribed in this Document Control Office (7407M), illustrate your concerns. unit, EPA recommends that you include Office of Pollution Prevention and 6. Offer alternative ways to improve your name, mailing address, and an e- Toxics (OPPT), Environmental the collection activity. mail address or other contact Protection Agency, 1200 Pennsylvania 7. Make sure to submit your information in the body of your Ave., NW., Washington, DC 20460– comments by the deadline in this comment. Also include this contact 0001. notice. information on the outside of any disk 3. By hand delivery or courier. Deliver 8. To ensure proper receipt by EPA, or CD ROM you submit, and in any your comments to: OPPT Document be sure to identify the docket ID number cover letter accompanying the disk or Control Office (DCO) in EPA East Bldg., assigned to this action in the subject CD ROM. This ensures that you can be Rm. 6428, 1201 Constitution Ave., NW., line on the first page of your response. identified as the submitter of the Washington, DC. Attention: Docket ID You may also provide the name, date, comment and allows EPA to contact you Number EPA–HQ–OPPT–2005–0061. and Federal Register citation. in case EPA cannot read your comment The DCO is open from 8 a.m. to 4 p.m., F. What Information is EPA Particularly due to technical difficulties or needs Monday through Friday, excluding legal Interested in? further information on the substance of holidays. The telephone number for the your comment. EPA’s policy is that EPA DCO is (202) 564–8930. Pursuant to section 3506(c)(2)(A) of will not edit your comment, and any the PRA, EPA specifically solicits identifying or contact information D. How Should I Submit CBI to the comments and information to enable it provided in the body of a comment will Agency? to: be included as part of the comment that Do not submit information that you 1. Evaluate whether the proposed is placed in the official public docket, consider to be CBI electronically collections of information are necessary and made available in EPA’s electronic through EPA’s electronic public docket for the proper performance of the public docket. If EPA cannot read your or by e-mail. You may claim functions of the Agency, including comment due to technical difficulties information that you submit to EPA as whether the information will have and cannot contact you for clarification, CBI by marking any part or all of that practical utility. EPA may not be able to consider your information as CBI (if you submit CBI 2. Evaluate the accuracy of the comment. on disk or CD ROM, mark the outside Agency’s estimates of the burdens of the i. EPA Dockets. Your use of EPA’s of the disk or CD ROM as CBI and then proposed collections of information. electronic public docket to submit identify electronically within the disk or 3. Enhance the quality, utility, and comments to EPA electronically is CD ROM the specific information that is clarity of the information to be EPA’s preferred method for receiving CBI). Information so marked will not be collected. comments. Go directly to EPA Dockets disclosed except in accordance with 4. Minimize the burden of the at http://www.epa.gov/edocket/, and procedures set forth in 40 CFR part 2. collections of information on those who follow the online instructions for In addition to one complete version of are to respond, including through the submitting comments. Once in the the comment that includes any use of appropriate automated or system, select ‘‘search,’’ and then key in information claimed as CBI, a copy of electronic collection technologies or docket ID number EPA–HQ–OPPT– the comment that does not contain the other forms of information technology, 2005–0061. The system is an information claimed as CBI must be e.g., permitting electronic submission of ‘‘anonymous access’’ system, which submitted for inclusion in the public responses. means EPA will not know your identity, docket and EPA’s electronic public II. What Information Collection e-mail address, or other contact docket. If you submit the copy that does information unless you provide it in the Activity or ICR Does this Action Apply not contain CBI on disk or CD ROM, to? body of your comment. mark the outside of the disk or CD ROM ii. E-mail. Comments may be sent by clearly that it does not contain CBI. EPA is seeking comments on the e-mail to [email protected], Attention: Information not marked as CBI will be following ICR: Docket ID Number EPA–HQ–OPPT– included in the public docket and EPA’s Title: Data Submissions for the 2005–0061. In contrast to EPA’s electronic public docket without prior Voluntary Children’s Chemical electronic public docket, EPA’s e-mail notice. If you have any questions about Evaluation Program (VCCEP). system is not an ‘‘anonymous access’’ CBI or the procedures for claiming CBI, ICR numbers: EPA ICR No. 2055.02, system. If you send an e-mail comment please consult the technical person OMB Control No. 2070–0165. directly to the docket without going listed under FOR FURTHER INFORMATION ICR status: This ICR is currently through EPA’s electronic public docket, CONTACT. scheduled to expire on September 30, EPA’s e-mail system automatically 2006. An Agency may not conduct or captures your e-mail address. E-mail E. What Should I Consider when I sponsor, and a person is not required to addresses that are automatically Prepare My Comments for EPA? respond to, a collection of information, captured by EPA’s e-mail system are You may find the following unless it displays a currently valid OMB included as part of the comment that is suggestions helpful for preparing your control number. The OMB control placed in the official public docket, and comments: numbers for EPA’s regulations in title 40 made available in EPA’s electronic 1. Explain your views as clearly as of the CFR, after appearing in the public docket. possible. Federal Register, are listed in 40 CFR iii. Disk or CD ROM. You may submit 2. Describe any assumptions that you part 9, and included on the related comments on a disk or CD ROM that used. collection instrument or form, if you mail to the mailing address 3. Provide copies of any technical applicable. identified in Unit I.C.2. These electronic information and/or data you used that Abstract: VCCEP is a voluntary submissions will be accepted in support your views. program intended to provide data to
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enable the public to understand the information; search data sources; List of Subjects potential health risks to children complete and review the collection of Environmental protection, Reporting associated with certain chemical information; and transmit or otherwise and recordkeeping requirements. exposures. EPA has asked companies disclose the information. that manufacture and/or import 20 The ICR provides a detailed Dated: December 2, 2005. chemicals that have been found in explanation of this estimate, which is Susan B. Hazen, human tissues and the environment to only briefly summarized in this notice. Acting Assistant Administrator, Office of volunteer to sponsor their evaluation in The annual public burden for this Prevention, Pesticides and Toxic Substances. VCCEP. VCCEP consists of three tiers collection of information is estimated to that a sponsor may commit to average 231 hours per response. The [FR Doc. 05–23974 Filed 12–12–05; 8:45 am] separately. As part of their sponsorship, following is a summary of the estimates BILLING CODE 6560–50–S companies submit commitment letters, taken from the ICR: collect and/or develop health effects Respondents/affected entities: and exposure information on their Manufacturers or importers of certain FEDERAL RESERVE SYSTEM chemical(s), integrate that information chemicals who have volunteered to in a risk assessment, and develop a Agency Information Collection sponsor chemicals in the VCCEP. Activities: Announcement of Board ‘‘Data Needs Assessment.’’ The Data Estimated total number of potential Needs Assessment discusses the need Approval Under Delegated Authority respondents: 20. and Submission to OMB for additional data, which could be Frequency of response: On occasion. provided by the next tier, to fully Estimated total/average number of SUMMARY: characterize the risks the chemical may responses for each respondent: 3.5 Background pose to children. responses per respondent annually. The information submitted by the Notice is hereby given of the final sponsor will be evaluated by a group of Estimated total annual burden hours: 106,256 hours. approval of a proposed information scientific experts with extensive, collection by the Board of Governors of relevant experience in toxicity testing Estimated total annual burden costs: $8,973,067. the Federal Reserve System (Board) and exposure evaluations, a Peer under OMB delegated authority, as per Consultation Group. This group will IV. Are There Changes in the Estimates 5 CFR 1320.16 (OMB Regulations on forward its opinions to EPA and the from the Last Approval? Controlling Paperwork Burdens on the sponsor(s) concerning the adequacy of There is a decrease of 48,076 hours Public). Board-approved collections of the assessments and the need for information are incorporated into the development of any additional (from 154,332 hours to 106,256 hours) in the total estimated respondent official OMB inventory of currently information to fully assess risks to approved collections of information. children. EPA will consider the burden compared with that identified in Copies of the OMB 83-Is and supporting opinions of the Peer Consultation Group the information collection most recently statements and approved collection of and announce whether additional approved by OMB. This decrease information instrument(s) are placed higher tier information is needed. represents the net effect of many into OMB’s public docket files. The Sponsors and the public will have an changes in estimates and assumptions Federal Reserve may not conduct or opportunity to comment on EPA’s made from the previous VCCEP ICR, sponsor, and the respondent is not decision concerning data needs. EPA based on recent experiences with the required to respond to, an information will consider these comments and issue VCCEP pilot. First, the estimated collection that has been extended, a final decision. If the final decision is number of chemicals participating in revised, or implemented on or after that additional information is needed, the program was reduced from 23 to 20, sponsors will be asked to volunteer to based on actual participation. Second, October 1, 1995, unless it displays a provide the next tier of information. If because the Tier 1 Peer Consultation currently valid OMB control number. additional information is not needed, Documents submitted thus far to EPA FOR FURTHER INFORMATION CONTACT: the risk communication and, if have been so comprehensive (e.g., many Federal Reserve Board Clearance necessary, risk management phases of have contained information on Tier 2 Officer—Michelle Long—Division of the program will be initiated. and Tier 3 level tests), EPA is estimating Research and Statistics, Board of that fewer chemicals will advance to the Governors of the Federal Reserve III. What are EPA’s Burden and Cost higher tiers. System, Washington, DC 20551 (202– Estimates for this ICR? 452–3829). OMB Desk Officer-Mark V. What is the Next Step in the Process Under PRA, ‘‘burden’’ means the total Menchik—Office of Information and for this ICR? time, effort, or financial resources Regulatory Affairs, Office of expended by persons to generate, EPA will consider the comments Management and Budget, New maintain, retain, or disclose or provide received and amend the ICR as Executive Office Building, Room 10235, information to or for a Federal Agency. appropriate. The final ICR package will Washington, DC 20503, or e-mail to For this collection it includes the time then be submitted to OMB for review [email protected]. needed to review instructions; develop, and approval pursuant to 5 CFR Final approval under OMB delegated acquire, install, and utilize technology 1320.12. EPA will issue another Federal authority of the revision, without and systems for the purposes of Register notice pursuant to 5 CFR extension, of the following reports: collecting, validating, and verifying 1320.5(a)(1)(iv) to announce the Report titles: Report of Changes in information, processing and submission of the ICR to OMB and the Organizational Structure, Report of maintaining information, and disclosing opportunity to submit additional Changes in FBO Organizational and providing information; adjust the comments to OMB. If you have any Structure. existing ways to comply with any questions about this ICR or the approval Agency form number: FR Y–10, FR Y– previously applicable instructions and process, please contact the technical 10F, and FR Y–10S. requirements; train personnel to be able person listed under FOR FURTHER OMB control number: 7100–0297. to respond to a collection of INFORMATION CONTACT. Frequency: Event-generated.
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Reporters: Bank holding companies be required and the burden for non- information collections. At the end of (BHCs), foreign banking organizations public organizations should be minimal. the comment period, the comments and (FBOs), and state member banks As proposed, the Federal Reserve will recommendations received will be unaffiliated with a BHC. add a Supplement to the Reports of analyzed to determine the extent to Annual reporting hours: 18,004 hours. Changes in Organizational Structure (FR which the FFIEC should modify the Estimated average hours per response: Y–10S) to enhance the Federal Reserve’s reports. The agencies will then submit 1 hour. ability to compare regulatory data to the reports to OMB for review and Number of respondents: 5,510. market data and to increase the Federal approval. General description of report: This Reserve’s effectiveness in assessing DATES: Comments must be submitted on information collection is mandatory (12 banking organizations’ compliance with or before February 13, 2006. Sarbanes-Oxley Act of 2002 (SOX). The U.S.C. 248(a)(1), 602, 611a, 1843(k), ADDRESSES: Interested parties are 1844(c)(1)(A), 3106(a) and 12 CFR initial collection of this data will be as invited to submit written comments to 211.13(c), 225.5(b), and 225.87). of December 31, 2005. any or all of the agencies. All comments, The FR Y–10S panel will comprise Individual respondent data are not which should refer to the OMB control top-tier BHCs, FBOs, and state member considered as confidential. However, a number, will be shared among the banks that are not controlled by a BHC. company may request confidential agencies. treatment pursuant to sections (b)(4) and All of these organizations currently file OCC: You should direct your (b)(6) of the Freedom of Information Act either the FR Y–10 or FR Y–10F. comments to: (5 U.S.C. 552(b)(4) and (b)(6)). However, FBOs will not be required to Communications Division, Office of Abstract: The FR Y–10 is an event- report data for Schedule B. the Comptroller of the Currency, Public generated report filed by top-tier Board of Governors of the Federal Reserve Information Room, Mail stop 1–5, domestic BHCs, including financial System, December 7, 2005. Attention: 1557–0100, 250 E Street, holding companies (FHCs), and state Jennifer J. Johnson, SW., Washington, DC 20219. In member banks unaffiliated with a BHC Secretary of the Board. addition, comments may be sent by fax or FHC, to capture changes in their [FR Doc. E5–7239 Filed 12–12–05; 8:45 am] to 202–874–4448, or by electronic mail regulated investments and activities. BILLING CODE 6210–01–P to [email protected]. You The Federal Reserve uses the data to can inspect and photocopy the monitor structure information on comments at the OCC’s Public subsidiaries and regulated investments DEPARTMENT OF THE TREASURY Information Room, 250 E Street, SW., of these entities engaged in both Washington, DC 20219. You can make banking and nonbanking activities. Office of the Comptroller of the an appointment to inspect the The FR Y–10F is an event-generated Currency comments by calling 202–874–5043. report filed by FBOs, including FHCs, to Board: You may submit comments, capture changes in their regulated FEDERAL RESERVE SYSTEM identified by FFIEC 009, by any of the following methods: investments and activities. The Federal • Reserve uses the data to ensure FEDERAL DEPOSIT INSURANCE Agency Web Site: http:// compliance with U.S. banking laws and CORPORATION www.federalreserve.gov. Follow the regulations and to determine the risk instructions for submitting comments Agency Information Collection profile of the FBO structure. on the http://www.federalreserve.gov/ Activities: Proposed Collection; Current action: On September 29, generalinfo/foia/ProposedRegs.cfm. Comment Request • Federal eRulemaking Portal: http:// 2005, the Federal Reserve published a www.regulations.gov. Follow the notice soliciting comments on the AGENCIES: Office of the Comptroller of instructions for submitting comments. proposed supplement (70 FR 56897). the Currency (OCC), Treasury; Board of • E-mail: The comment period ended on Governors of the Federal Reserve [email protected]. November 28, 2005. The Federal System (Board); and Federal Deposit Include docket number in the subject Reserve received one general comment Insurance Corporation (FDIC). line of the message. letter; however, the proposal is ACTION: Joint notice and request for • FAX: 202–452–3819 or 202–452– unchanged from the one the Board comment. 3102. initially approved. • Mail: Jennifer J. Johnson, Secretary, In the comment letter, a small SUMMARY: In accordance with the Board of Governors of the Federal commercial bank generally questioned requirements of the Paperwork Reserve System, 20th Street and the usefulness of the proposed Reduction Act of 1995 (44 U.S.C. Constitution Avenue, NW., Washington, supplement for supervisory purposes. chapter 35), the OCC, the Board, and the DC 20551. As described in the initial Federal FDIC (the ‘‘agencies’’) may not conduct All public comments are available Register notice, the data would be used or sponsor, and the respondent is not from the Board’s Web site at http:// to enhance the Federal Reserve’s ability required to respond to, an information www.federalreserve.gov/generalinfo/ to compare regulatory data to market collection unless it displays a currently foia/ProposedRegs.cfm as submitted, data and to increase the Federal valid Office of Management and Budget except as necessary for technical Reserve’s effectiveness in assessing (OMB) control number. The Federal reasons. Accordingly, your comments banking organizations’ compliance with Financial Institutions Examination will not be edited to remove any the Sarbanes-Oxley Act of 2002 (SOX). Council (FFIEC), of which the agencies identifying or contact information. Although the commenter asserted that are members, has approved the Public comments may also be viewed the Federal Reserve was trying to make agencies’ publication for public electronically or in paper in Room MP– non-public organizations comply with comment of a proposal to extend, 500 of the Board’s Martin Building (20th SOX, non-public organizations are only without revision, the Country Exposure and C Streets, NW.) between 9 a.m. and required to check two boxes indicating Report (FFIEC 009) and the Country 5 p.m. on weekdays. that they have no data to report. Exposure Information Report (FFIEC FDIC: You may submit written Therefore, SOX compliance would not 009a), which are currently approved comments, which should refer to
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‘‘Country Exposure Reports, 3064– Proposal To Extend for Three Years, the degree of risk in their portfolios and 0017,’’ by any of the following methods: Without Revision, the Following the possible impact on U.S. banks of • Agency Web Site: http:// Currently Approved Collections of adverse developments in particular www.fdic.gov/regulations/laws/federal/ Information countries. The Country Exposure propose.html. Follow the instructions Report Title: Country Exposure Report Information Report (FFIEC 009a) is a supplement to the FFIEC 009 and for submitting comments on the FDIC and Country Exposure Information provides publicly available information Web site. Report. Form Number: FFIEC 009 and FFIEC on material foreign country exposures • Federal eRulemaking Portal: http:// 009a. (all exposures to a country in excess of www.regulations.gov. Follow the Frequency of Response: Quarterly. 1 percent of total assets or 20 percent of instructions for submitting comments. Affected Public: Business or other for capital, whichever is less) of U.S. banks • E-mail: [email protected]. profit. and bank holding companies that file • the FFIEC 009 report. As part of the Mail: Robert E. Feldman, Executive OCC Country Exposure Information Report, Secretary, Attention: Comments, FDIC, OMB Number: 1557–0100. reporting institutions must also furnish 550 17th Street, NW., Washington, DC Estimated Number of Respondents: 21 a list of countries in which they have 20429. (FFIEC 009); 21 (FFIEC 009a). lending exposures above 0.75 percent of • Hand Delivery/Courier: Guard Estimated Average Time per total assets or 15 percent of total capital, station at the rear of the 550 17th Street Response: 70 burden hours (FFIEC 009); whichever is less. 5.25 burden hours (FFIEC 009a). Building (located on F Street) on Request for Comment business days between 7 a.m. and 5 p.m. Estimated Total Annual Burden: 5,880 burden hours (FFIEC 009); 441 Comments are invited on: Public Inspection: All comments burden hours (FFIEC 009a). a. Whether the information received will be posted without change collections are necessary for the proper to http://www.fdic.gov/regulations/laws/ Board performance of the agencies’ functions, federal/propose/html including any OMB Number: 7100–0035. including whether the information has personal information provided. Estimated Number of Respondents: 29 practical utility; Comments may be inspected at the FDIC (FFIEC 009); 16 (FFIEC 009a). b. The accuracy of the agencies’ Public Information Center, Room 100, Estimated Average Time per estimates of the burden of the 801 17th Street, NW., Washington, DC, Response: 70 burden hours (FFIEC 009); information collections, including the between 9 a.m. and 4:30 p.m. on 5.25 burden hours (FFIEC 009a). validity of the methodology and business days. Estimated Total Annual Burden: assumptions used; A copy of the comments may also be 8,120 burden hours (FFIEC 009); 336 c. Ways to enhance the quality, submitted to the OMB desk officer for burden hours (FFIEC 009a). utility, and clarity of the information to the agencies: By mail to U.S. Office of FDIC be collected; Management and Budget, 725 17th d. Ways to minimize the burden of OMB Number: 3064–0017. information collections on respondents, Street, NW., #10235, Washington, DC Estimated Number of Respondents: 21 20503 or by facsimile to 202–395–6974, including through the use of automated (FFIEC 009); 21 (FFIEC 009a). collection techniques or other forms of Attention: Federal Banking Agency Desk Estimated Average Time per information technology; and Officer. Response: 70 burden hours (FFIEC 009); e. Estimates of capital or start up costs 5.25 burden hours (FFIEC 009a). FOR FURTHER INFORMATION CONTACT: and costs of operation, maintenance, Estimated Total Annual Burden: Additional information or a copy of the and purchase of services to provide 5,880 burden hours (FFIEC 009); 441 collection may be requested from: information. burden hours (FFIEC 009a). OCC: Mary Gottlieb, OCC Clearance Comments submitted in response to this notice will be shared among the Officer, or Camille Dixon, 202–874– General Description of Reports agencies. All comments will become a 5090, Legislative and Regulatory These information collections are matter of public record. Written Activities Division, Office of the mandatory: 12 U.S.C. 161 and 1817 (national banks), 12 U.S.C. 248(a), comments should address the accuracy Comptroller of the Currency, 250 E of the burden estimates and ways to Street, SW., Washington, DC 20219. 1844(c), and 3906 (state member banks and bank holding companies); and 12 minimize burden including the use of Board: Michelle Long, Federal U.S.C. 1817 and 1820 (insured state automated collection techniques or the Reserve Board Clearance Officer, 202– nonmember commercial and savings use of other forms of information 452–3829, Division of Research and banks). The FFIEC 009 information technology as well as other relevant Statistics, Board of Governors of the collection is given confidential aspects of the information collection Federal Reserve System, 20th and C treatment (5 U.S.C. 552(b)(4) and (b)(8)). request. Streets, NW., Washington, DC 20551. The FFIEC 009a information collection Dated: November 22, 2005. Telecommunications Device for the Deaf is not given confidential treatment. Stuart Feldstein, (TDD) users may call 202–263–4869, Abstract Assistant Director, Legislative and Regulatory Board of Governors of the Federal Activities Division, Office of the Comptroller Reserve System, 20th and C Streets, The Country Exposure Report (FFIEC of the Currency. NW., Washington, DC 20551. 009) is filed quarterly with the agencies Board of Governors of the Federal Reserve FDIC: Leneta G. Gregorie, Counsel, and provides information on System, December 1, 2005. international claims of U.S. banks and 202–898–3719, Legal Division, Federal Jennifer J. Johnson, Deposit Insurance Corporation, 550 17th bank holding companies that is used for supervisory and analytical purposes. Secretary of the Board. Street, NW., Washington, DC 20429. The information is used to monitor Dated at Washington, DC, this 5th day of SUPPLEMENTARY INFORMATION: country exposure of banks to determine December, 2005.
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Federal Deposit Insurance Corporation. Officer) 411 Locust Street, St. Louis, government charge card programs. The Robert E. Feldman, Missouri 63166-2034: requirements in OMB Circular A–123 Executive Secretary. 1. Illinois Bancshares, Inc., Karnak, (revised), Appendix B pertain to the use [FR Doc. E5–7276 Filed 12–12–05; 8:45 am] Illinois; to become a bank holding of charge card programs by agencies and BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P company by acquiring 96.5 percent of their employees and must be included the voting shares of The First State Bank in internal agency regulations, of Grand Chain, Grand Chain, Illinois. procedures, and training materials. FEDERAL RESERVE SYSTEM C. Federal Reserve Bank of Bulletin FTR 05–08 serves as guidance Minneapolis (Jacqueline G. King, to agencies on implementing those Formations of, Acquisitions by, and Community Affairs Officer) 90 policies and guidelines that are related Mergers of Bank Holding Companies Hennepin Avenue, Minneapolis, to the official travel charge card. Minnesota 55480-0291: The companies listed in this notice 1. Beulah Bancorporation, Sioux B. Procedures have applied to the Board for approval, Falls, South Dakota; to acquire 100 Bulletins regarding Federal travel pursuant to the Bank Holding Company percent of the voting shares of Valley expenses are located on the Internet at Act of 1956 (12 U.S.C. 1841 et seq.) Bank & Trust, Mapleton, Iowa. www.gsa.gov/ftrbulletins as Federal (BHC Act), Regulation Y (12 CFR part Travel Regulation (FTR) bulletins. 225), and all other applicable statutes Board of Governors of the Federal Reserve and regulations to become a bank System, December 8, 2005. Dated: December 2, 2005. holding company and/or to acquire the Robert deV. Frierson, Becky Rhodes, assets or the ownership of, control of, or Deputy Secretary of the Board. Deputy Associate Administrator. the power to vote shares of a bank or [FR Doc. E5–7262 Filed 12–12–05; 8:45 am] [FR Doc. E5–7259 Filed 12–12–05; 8:45 am] bank holding company and all of the BILLING CODE 6210–01–S BILLING CODE 6820–14–S banks and nonbanking companies owned by the bank holding company, including the companies listed below. GENERAL SERVICES DEPARTMENT OF HEALTH AND The applications listed below, as well ADMINISTRATION HUMAN SERVICES as other related filings required by the Board, are available for immediate Federal Travel Regulation; Notice of [Document Identifier: OS–0990–New [60-day notice]] inspection at the Federal Reserve Bank GSA Bulletin FTR 05–08 indicated. The application also will be AGENCY: Office of Governmentwide Office of the Secretary; Agency available for inspection at the offices of Policy, General Services Administration Information Collection Activities: the Board of Governors. Interested (GSA). Proposed Collection; Comment persons may express their views in Request writing on the standards enumerated in ACTION: Notice of a bulletin. AGENCY: Office of the Secretary, HHS. the BHC Act (12 U.S.C. 1842(c)). If the SUMMARY: This notice announces GSA In compliance with the requirement proposal also involves the acquisition of Federal Travel Regulation (FTR) of section 3506(c)(2)(A) of the a nonbanking company, the review also Bulletin 05–08. This Bulletin informs Paperwork Reduction Act of 1995, the includes whether the acquisition of the agencies that in accordance with the Office of the Secretary (OS), Department nonbanking company complies with the OMB Circular A–123 (revised), of Health and Human Services, is standards in section 4 of the BHC Act Appendix B, issued August 5, 2005, publishing the following summary of (12 U.S.C. 1843). Unless otherwise new travel charge card policies and proposed collections for public noted, nonbanking activities will be guidance are issued to Executive Branch comment. Interested persons are invited conducted throughout the United States. departments and agencies in order to to send comments regarding this burden Additional information on all bank help reduce the risk of fraud, misuse, estimate or any other aspect of this holding companies may be obtained and late payments. OMB Circular A–123 collection of information, including any from the National Information Center (revised), Appendix B is effective of the following subjects: (1) The website at http://www.ffiec.gov/nic/. October 1, 2005. Bulletin FTR 05–08 necessity and utility of the proposed Unless otherwise noted, comments may be found at www.gsa.gov/ information collection for the proper regarding each of these applications ftrbulletins. An amendment to the FTR performance of the agency’s functions; must be received at the Reserve Bank on the use of the government issued (2) the accuracy of the estimated indicated or the offices of the Board of travel charged card is forthcoming. Governors not later than January 6, burden; (3) ways to enhance the quality, 2006. DATES: The bulletin announced in this utility, and clarity of the information to notice is effective December 2, 2005. be collected; and (4) the use of A. Federal Reserve Bank of New FOR FURTHER INFORMATION CONTACT: For automated collection techniques or York (Jay Bernstein, Bank Supervision clarification of content, contact General other forms of information technology to Officer) 33 Liberty Street, New York, Services Administration, Office of minimize the information collection New York 10045-0001: Governmentwide Policy, Office of burden. 1. Community Partners Bancorp, Travel, Transportation and Asset Type of Information Collection Middletown, New Jersey; to become a Management, at (202) 501–1777. Please Request: New collection. bank holding company by acquiring 100 cite Bulletin FTR 05–08. Title of Information Collection: percent of the voting shares of The SUPPLEMENTARY INFORMATION: Evaluation of the Office for Human Town Bank, Westfield, New Jersey, and Research Protections (OHRP) Education thereby indirectly acquire voting shares A. Background Program Activities. of Two River Community Bank, OMB Circular A–123 (revised), Form/OMB No.: OS–0990–New. Middletown, New Jersey. Appendix B, establishes guidance for Use: The OHRP Evaluation of B. Federal Reserve Bank of St. Louis Executive branch agencies for Education Activites project will (Glenda Wilson, Community Affairs improving the management of evaluate the outcomes of OHRP’s
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educational (and outreach) activites and managed by the Department of Health data set and to phase out the use of the identify opportunities for and Human Services is publishing the old forms. OMB committed to a one- improvements, based on information following summary of proposed year transition period and further obtained on the research communities’ collection for public comment. committed to reevaluate the data set at education needs related to protection of Interested individuals are invited to the end of the transition period. human research subjects. send comments regarding any aspect of Following the expiration of the Frequency: Reporting on occasion. this collection of information or any transition period, a cross-agency Affected Public: State, local, or tribal other aspect of this collection of working group recommended revisions governments, Federal Government, information, including any of the to the SF–424 core data set and form. business or other for-profit, not-for- following subjects: (1) The necessity and Based on these recommendations, the profit institutions. utility of the proposed information Grants.gov Program office now proposes Annual Number of Respondents: collection for the proper performance of the addition of the following three new 6,598. the agency’s functions; (2) the accuracy standard data elements to the SF–424 Total Annual Responses: 1. of the estimated burden; (3) ways to data set and form: Requesting entity’s Average Burden Per Response: 1 hour. enhance the quality, utility, and clarity Province to collect non-US geographic Total Annual Hours: 900. of the information to be collected; and subdivision data for international To obtain copies of the supporting (4) the use of automated collection address purposes, if applicable. statement and any related forms for the techniques or other forms of information Requesting entity’s Point of Contact’s proposed paperwork collections technology to minimize the information Organizational Affiliation, if applicable. referenced above, access the HHS Web collection burden. Requesting entity’s Point of Contact’s site address at http://www.hhs.gov/ Type of Information Collection Title, if applicable. oirm/infocollect/pending/ or e-mail your Request: Regular, Revision of a currently The Grants.gov Program office further request, including your address, phone approved collection; proposes deletion of the requesting number, OMB number, and OS Title of Information Collection: SF– entity’s designation of construction or document identifier, to 424 Application for Federal Assistance; non-construction type of submission [email protected], or call the Reports Form/OMB No.: OS–4040–0004 data element. Also proposed are non- Clearance Office on (202) 690–6162. (Formerly OMB–0348–0043); data collection related changes, i.e., Written comments and The SF–424 Application for Federal renaming of data elements. These recommendations for the proposed Assistance (OMB control number 0348– changes are presented in the supporting information collections must be mailed 0043) was cleared by OMB for statement found on the HHS Web site at within 60 days of this notice directly to emergency use on July 31, 2003, Federal http://www.hhs.gov/oirm/infocollect/ the OS Paperwork Clearance Officer Register notice [68 FR 44974]. OMB has pending. designated at the following address: since assigned the responsibility for this Federal agencies will not be required Department of Health and Human government-wide standard form to the to collect all of the information included Services, Office of the Secretary, Grants.gov Program Management Office in the data set. The agency will identify Assistant Secretary for Budget, and therefore the SF–424 Application the data that must be provided by Technology, and Finance, Office of for Federal Assistance OMB control applicants through instructions that will Information and Resource Management, number was changed in April 2005 from accompany the application package. Attention: Naomi Cook (0990–New) 0348–0043 to 4040–0004. A 60-day The efforts to address potential future Room 531–H, 200 Independence Federal Register Notice was published revisions to the SF–424A and SF–424C Avenue, SW., Washington, DC 20201. on September 15, 2005 [Vol. 70. No. budget forms and categories and to Date: December 2, 2005. 178]. evaluate the SF–424B and SF–424D Use: In the Federal Register notice Robert E. Polson, assurance language are separate efforts published April 8, 2003 [68 FR 17090], to be undertaken by the Public Law 106/ Office of the Secretary, Paperwork Reduction OMB proposed to establish a Act Reports Clearance Officer. 107 working groups and have no impact government-wide standard set of data upon the proposed revisions to the SF– [FR Doc. E5–7251 Filed 12–12–05; 8:45 am] elements and definitions for grant- BILLING CODE 4168–17–P 424 data set or form. related applications. After consultation An estimate of the total burden was with the public, OMB added four data submitted during the first information elements to the existing Standard Form DEPARTMENT OF HEALTH AND collection package for the SF–424 on 424 (SF–424), Application for Federal HUMAN SERVICES April 8, 2003, Federal Register notice Assistance data elements and [68 FR 17090]. The estimate has been Office of the Secretary established the data as the standard core updated based on the Paperwork data set for use on both paper and Reduction Act Worksheets (OMB 83–C) [Document Identifier: OS–4040–0004 electronic applications. After obtaining (Formerly OMB–0348–0043) [30–day notice] received from the agencies. Collectively, emergency clearance, July 31, 2003, the agencies plan to receive 142,223 Grants.gov Program Management Federal Register notice, [68 FR 44974], applications annually and estimate that Office; Agency Information Collection use of the standard data elements was it takes applicants one hour on average Activities: Proposed Collection; implemented through the electronic to complete each application. Comment Request grants application process of Grants.gov, Cumulatively, the agencies report the and was deployed in October 2003 as total burden to applicants to be 146,758 AGENCY: Office of the Secretary, part of the implementation of the hours. Grants.gov Program Management Office, Federal Financial Assistance Frequency: Recordkeeping, Reporting, HHS. Management Improvement Act of 1999 on occasion. In compliance with the requirement (Pub. L. 106–107). Affected: Federal, State, Local and of section 3506(c)(2)(A) of the OMB recognized that a transition Tribal governments; farms; non-profit Paperwork Reduction Act of 1995, the period would be needed to provide institutions, and other for-profit. Grants.gov Program Management Office, agencies time to adapt their application Total Annual Respondents: 77,576. one of the 26 E-Government initiatives, forms and systems to the SF–424 core Total Annual Responses: 142,223.
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Average Burden Per Response: 1 hour. announced in the Federal Register (56 programs. Priority data needs To obtain copies of the supporting FR 52178). The list was subsequently documents describing ATSDR’s statement and any related forms for the revised based on public comments and rationale for prioritizing research needs proposed paperwork collections published in final form on November for each substance are available. See referenced above, access the HHS Web 16, 1992 (57 FR 54150). ADDRESSES section of this Notice. site address at http://www.hhs.gov/ The 38 substances, each of which is This Notice also serves as a oirm/infocollect/pending/ or e-mail your found on ATSDR’s Priority List of continuous call for voluntary research request, including your address, phone Hazardous Substances (68 FR 63098, proposals. Private-sector organizations number, OMB number, and OS November 7, 2003), are aldrin/dieldrin, may volunteer to conduct research to document identifier, to arsenic, benzene, beryllium, cadmium, address specific priority data needs [email protected], or call the Reports carbon tetrachloride, chloroethane, identified in this Notice by indicating Clearance Office on (202) 690–6162. chloroform, chromium, cyanide, p,p’- their interest through submission of a Written comments and DDT,DDE,DDD, di(2-ethylhexyl) letter of intent to ATSDR (see recommendations for the proposed phthalate, lead, mercury, methylene ADDRESSES section of this Notice). A Tri- information collections must be mailed chloride, nickel, polychlorinated Agency Superfund Applied Research within 30 days of this notice directly to biphenyl compounds (PCBs), polycyclic Committee (TASARC) composed of the Desk Officer at the address below: aromatic hydrocarbons (PAHs— scientists from ATSDR, National OMB Desk Officer: Katherine Astrich, includes 15 substances), selenium, Institute of Environmental Health OMB Human Resources and Housing tetrachloroethylene, toluene, Sciences (NIEHS)/NTP, and the EPA, Branch, Attention: (OMB 4040–0004), trichloroethylene, vinyl chloride, and will review all proposed voluntary New Executive Office Building, Room zinc. research studies. 10235, Washington, DC 20503. On July 30, 1997, priority data needs DATES: ATSDR provides updates on the Date: December 2, 2005. for 12 additional hazardous substances status of its Substance-Specific Applied frequently found at waste sites were Robert E. Polson, Research Program approximately every determined and announced in the three years or sooner, as needed. ATSDR Office of the Secretary, Paperwork Reduction Federal Register (62 FR 40820). The 12 Act Reports Clearance Officer. considers the voluntary research effort substances, each of which is included in to be important to the continuing [FR Doc. E5–7252 Filed 12–12–05; 8:45 am] ATSDR’s Priority List of Hazardous BILLING CODE 4157–17–P implementation of the SSARP. Substances, are chlordane, 1,2-dibromo- Therefore, the Agency strongly 3-chloropropane, di-n-butyl phthalate, encourages private-sector organizations DEPARTMENT OF HEALTH AND disulfoton, endrin (includes endrin to volunteer at any time to conduct HUMAN SERVICES aldehyde), endosulfan (alpha-, beta-, research to fill data needs until ATSDR and endosulfan sulfate), heptachlor announces that other research Agency for Toxic Substances and (includes heptachlor epoxide), mechanisms are in place to address Disease Registry hexachlorobutadiene, those specific data needs. hexachlorocyclohexane (alpha-, beta-, ADDRESSES: Private-sector organizations [ATSDR–215] delta- and gamma-), manganese, methoxychlor, and toxaphene. interested in volunteering to conduct Update on the Status of the Superfund More recently, priority data needs for research can write to Yee-Wan Stevens, Substance-Specific Applied Research 10 additional hazardous substances M.S., Applied Toxicology Branch, Program frequently found at waste sites were Division of Toxicology and determined and announced in the Environmental Medicine, ATSDR, 1600 Editorial Note: FR Doc. 05–23361 was Clifton Road, NE., Mailstop F–32, originally published at page 71506 in the Federal Register (68 FR 22704). The ten issue of Tuesday, November 29, 2005. The substances, each of which is included in Atlanta, Georgia 30333, e-mail: corrected document is republished below in ATSDR’s Priority List of Hazardous [email protected]. Information about its entirety, due to printing errors. Substances, are asbestos, benzidine, pertinent ongoing or completed research that may fill priority data needs cited in AGENCY: Agency for Toxic Substances chlorinated dibenzo-p-dioxins, 1,2- and Disease Registry (ATSDR), U.S. dibromoethane, 1,2-dichloroethane, 1,1- this Notice should be similarly Department of Health and Human dichloroethene, ethylbenzene, addressed. Services (HHS). pentachlorophenol, 1,1,2,2- Other Requirements: Projects that involve the collection of information ACTION: Notice. tetrachloroethane, and total xylenes. Currently, the priority data needs for from ten or more individuals and SUMMARY: This Notice provides the acrolein and barium are being identified funded by cooperative agreement will status of ATSDR’s Superfund-mandated and will be reported in a future Federal be subject to review by the Office of Substance-Specific Applied Research Register notice. Management and Budget (OMB) under Program (SSARP) which was last To date, 270 priority data needs have the Paperwork Reduction Act. updated in a Federal Register notice in been identified for the 60 hazardous FOR FURTHER INFORMATION CONTACT: Yee- 2002 (67 FR 4836). Authorized by the substances, and 86 priority data needs Wan Stevens, M.S., Applied Toxicology Comprehensive Environmental have been filled (Table 1). ATSDR fills Branch, Division of Toxicology and Response, Compensation, and Liability these research needs through U.S. Environmental Medicine, ATSDR, 1600 Act of 1980 (CERCLA, also known as the Environmental Protection Agency (EPA) Clifton Road, NE., Mailstop F–32, Superfund statute), as amended by the regulatory mechanisms (test rules), Atlanta, Georgia 30333, telephone: (770) Superfund Amendments and private-sector voluntarism, and the 488–3325, fax: (770) 488–4178. Reauthorization Act of 1986 (SARA) [42 direct use of CERCLA funds. Additional SUPPLEMENTARY INFORMATION: U.S.C. 9604 (i)], this research program priority data needs are being addressed was initiated on October 17, 1991. At through collaboration with the National Background that time, a list of priority data needs for Toxicology Program (NTP), by ATSDR’s CERCLA as amended by SARA [42 38 priority hazardous substances Great Lakes Human Health Effects U.S.C. 9604(i)] requires that ATSDR (1) frequently found at waste sites was Research Program, and other Agency jointly with the EPA, develop and
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prioritize a list of hazardous substances [7 U.S.C. 136 et seq.] (FIFRA), or by cost • If it has been referred to one of the found at National Priorities List (NPL) recovery from responsible parties under implementation mechanisms and sites, (2) prepare toxicological profiles CERCLA. To execute this statutory research has been initiated (Exception: for these substances, and (3) assure the intent, ATSDR developed a plan priority data needs referred to EPA [i.e., initiation of a research program, in whereby parts of the SSARP are being included in the EPA/ATSDR test rule] conjunction with NTP, to address conducted via the regulatory and/or ATSDR Voluntary Research identified data needs associated with mechanisms referenced (TSCA/FIFRA), Program remain as priority data needs the substances. Before starting such a private-sector voluntarism, and the until the studies have been completed, program, ATSDR will consider direct use of CERCLA funds. peer reviewed and accepted by ATSDR), recommendations of the InterAgency The TASARC, composed of scientists OR Testing Committee on the type of from ATSDR, NIEHS/NTP, and EPA, has • If an updated ATSDR toxicological research that should be done. This been set up to: profile contains relevant new studies, or committee was established under (1) Advise ATSDR on the assignment if other relevant, peer-reviewed, and section 4(e) of the Toxic Substances of priorities for mechanisms to address publicly available new studies (not Control Act of 1976 [15 U.S.C. data needs, included in the toxicological profile) 2604(e)](TSCA). (2) Coordinate knowledge of research have been identified since the The major goals of the ATSDR SSARP activities to avoid duplication of finalization of the priority data needs are (1) to address the substance-specific research in other programs and under document; and based on such studies, it information needs of the public and other authorities, is generally agreed that a priority data scientific community, and (2) to supply (3) Advise ATSDR on issues of need has been filled. information necessary to improve the science related to substance-specific Furthermore, in the event a priority database used to conduct data needs, and data need is considered filled, it does comprehensive public health (4) Maintain a scheduled forum that not necessarily mean that the study has assessments of populations living near provides an overall review of the been completed and that ATSDR has hazardous waste sites. We anticipate ATSDR SSARP. accepted the data. It does, however, that the information will help to TASARC has met 12 times since the indicate that the Agency no longer establish linkages between levels of considers it a priority to initiate contaminants in the environment and initiation of the SSARP. It has guided referral of priority data needs to EPA additional studies at this time. levels in human tissue and organs A priority data need remains and the associated development of test associated with adverse health effects. unchanged: Once such links have been established, rules through TSCA. In addition, it has • If no mechanism or information has strategies to mitigate potentially harmful endorsed the proposals of several been identified to address the priority exposures can be developed. This private-sector organizations to conduct data need, or program will also provide data that can voluntary research. Furthermore, • If the priority data need is included be generalized to other substances or TASARC has become a forum for other in the ATSDR/EPA test rule under areas of science, including risk federal agencies to bring forth their development and/or ATSDR Voluntary assessment of chemicals, thus creating a research agendas. For example, it has Research Program, or it is associated scientific information base for coordinated research efforts on with a pilot substance in EPA’s addressing a broader range of data hazardous pollutants with the Office of Voluntary Children’s Chemical needs. Air and Radiation, EPA. TASARC has Evaluation Program. ATSDR encourages the use of in vitro developed testing guidelines for assessment methods and other immunotoxicity; and has endorsed the Specific Criteria innovative tools for filling priority data use of decision-support methodologies Examples of specific criteria for two needs. For example, the Agency believes such as physiologically based categories of priority data needs are that physiologically based pharmacokinetic (PBPK) modeling and described below. pharmacokinetic (PBPK) modeling benchmark-dose modeling, where • Epidemiologic studies—A priority could serve as a valuable tool in appropriate. data need is filled if multiple new predicting across route similarities (or Additional priority data needs are studies assessing key health end points differences) in toxicological responses being addressed through collaborative are available in ATSDR’s updated to hazardous substances. Therefore, on research efforts with NTP, by ATSDR’s toxicological profile and/or ongoing a case-by-case basis, a priority data need Great Lakes Human Health Effects studies have been identified, e.g., can be filled using existing data and Research Program, and other Agency human health studies supported by modeling. In addition, ATSDR is a programs. ATSDR’s Great Lakes Human Health Effects Research Program or the member of NTP’s InterAgency Criteria for Evaluating Status of Coordinating Committee on the Minority Health Professions Foundation Priority Data Needs Validation of Alternative Methods Research Program. In some cases, (ICCVAM) and supports development, To update the activities covered ATSDR indicates that it will continue to validation, and acceptance of alternative under the SSARP, criteria for evaluating evaluate new data as they become toxicological test methods that reduce, the status of the priority data needs available to determine whether refine, and replace the use of animals, were developed. Based on these criteria additional studies are needed. as appropriate. and the review of the current literature, • Exposure levels in humans (adults CERCLA section 104(i)(5)(D) states a priority data need can be filled, or and/or children)—A priority data need that it is the sense of Congress that the unchanged. is filled if (a) there are current and costs for conducting this research The criteria for evaluating the status adequate biomonitoring data for program ‘‘be borne by the manufacturers of the priority data needs are described exposed populations associated with and processors of the hazardous below. health effects (from published or substance in question,’’ as required in ongoing studies), or (b) there are TSCA and the Federal Insecticide, General Criteria reference range data (e.g., the Centers for Fungicide, and Rodenticide Act of 1972 A priority data need is filled: Disease Control and Prevention’s Third
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National Report on Human Exposure to intermediate-duration, oral exposure) by pursue appropriate testing mechanisms Environmental Chemicals, with data conducting PBPK modeling to obtain at a later date. from a random sample of participants the data for oral exposure using existing B. Private-Sector Voluntarism from the National Health and Nutrition inhalation data. However, ATSDR is Examination Survey [NHANES] ) or concerned that, based on the existing As part of the Substance-Specific generally agreed upon background data for this exposure duration, it is not Applied Research Program (SSARP), population levels. In the latter case, clear if the most sensitive end point for ATSDR announced a set of proposed ATSDR acknowledges that reference oral exposure is the same as that for procedures for conducting voluntary concentration data can support inhalation exposure. Therefore, the research in the Federal Register (57 FR exposure and health assessments at Agency believes it is prudent not to 4758) on February 7, 1992. Revisions waste sites, but the Agency also consider it a priority to conduct a PBPK based on public comments were continues to recognize the importance study to obtain the oral data at this time published on November 16, 1992 (57 FR of collecting additional data on pending evaluation of additional 54160). Private-sector organizations are uniquely exposed populations at waste information. This is reflected in Table 1 encouraged to volunteer to conduct sites. It should be noted that for some from which this priority data need has research to fill specific priority data of the chemicals listed in the National been deleted. needs at no expense to ATSDR. All Report, the measurements are reported study protocols and final reports are Update of Activities in the SSARP as below the limit of detection (LOD) for subjected to ATSDR’s external peer those chemicals. However, the LODs for An update of the activities associated review, and ATSDR accepts the study all the chemicals monitored are with the mechanisms for implementing results based on the peer reviewers’ available in the Report, and therefore, the ATSDR Substance-Specific Applied recommendation and the industry these data can be considered as Research Program (SSARP) is discussed groups’ satisfactory response to the estimates of background exposure below. reviewers’ comments. levels. A. TSCA/FIFRA To date, ATSDR has established In updating the SSARP, the status of memoranda of understanding with four the priority data needs may change as In developing and implementing the industry groups. Through the voluntary new information becomes available. SSARP, ATSDR, NIEHS/NTP, and EPA research efforts of these organizations, at Further, during the literature review, have identified a subset of priority data least 15 research needs (12 priority data new studies may be identified needs for substances of mutual interest needs and 3 data needs) for methylene suggesting other effects of concern, such to the federal programs. These priority chloride, tetrachloroethylene as those related to endocrine disruptors data needs are being addressed through (perchloroethylene), trichloroethylene, and children’s health, which were not a program of toxicological testing under polychlorinated biphenyl compounds included in the original list of priority TSCA according to established [PCBs], and vinyl chloride have been or data needs. In such cases, additional procedures and guidelines. On several are being filled (Table 2). priority data needs may be added to the occasions when ATSDR identified Industry groups which conducted research agenda. For example, in priority data needs for oral exposure, studies under the Voluntary Research addressing issues relating to children’s other agencies needed inhalation data. Program include: The American health, ATSDR considers it a priority to In response, ATSDR considers proposals Chemistry Council (ACC) [formerly the obtain data on exposure levels in to conduct inhalation studies in Chemical Manufacturers Association children; therefore, when such conjunction with physiologically based (CMA)] ATSDR accepted the ACC information is available, it is used to fill pharmacokinetic (PBPK) studies in lieu studies ‘‘Vinyl chloride: Combined this additional priority data need (e.g., of oral studies. ATSDR expects that inhalation two-generation reproduction cadmium, chlordane, chlorinated inhalation data derived from these and developmental toxicity study in CD dibenzo-p-dioxins, DDT, lead, and studies can be used with PBPK rats.’’ pentachlorophenol, see Table 1). modeling to address its oral toxicity In contrast, the Agency may consider priority data needs. Currently, an EPA/ General Electric Company (GE) a previously identified priority data ATSDR test rule, under development, GE conducted studies on need to no longer be a priority to fill at includes eight ATSDR substances, i.e., polychlorinated biphenyls including this time and thus be deleted from the benzene, chloroethane, cyanide ‘‘An assessment of the chronic toxicity list of priority data needs. However, it (hydrogen cyanide and sodium and oncogenicity of Aroclors 1016, remains a data need for the Agency. For cyanide), methylene chloride, 1242, 1254, and 1260 administered in example, as a result of reevaluation of tetrachloroethylene, toluene and diet to rats,’’ ‘‘PCB congener analyses,’’ the database for di-n-butyl phthalate, trichloroethylene, and addresses 13 and ‘‘Metabolite detection as a tool for two of its previously identified priority ATSDR priority data needs (Table 2). determining naturally occurring aerobic data needs, i.e., immunotoxicity and The test rule is presently undergoing PCB biodegradation.’’ Although these neurotoxicty studies via oral exposure ATSDR and EPA final review and is studies do not specifically address are no longer considered to be priority anticipated to be available for public ATSDR’s priority data needs for PCBs, data needs. This is due to the fact that comment in Spring 2006. they do address other Agency research the immune system does not appear to At least seven metals included in the needs for these substances. be a target for di-n-butyl phthalate ATSDR’s SSARP (arsenic, beryllium, toxicity and that additional neurotoxicty chromium, manganese, mercury, nickel, Halogenated Solvents Industry Alliance, studies do not seem necessary because and selenium, associated with 21 Inc. (HSIA) of the lack of effects seen in long-term priority data needs) (Table 2) have been To date, ATSDR has entered into five neurotoxicty studies. In addition, under forwarded to EPA through TASARC for MOUs with HSIA to conduct studies to the Agency’s Voluntary Research toxicity testing. The EPA is currently fill priority data needs for methylene Program, the Halogenated Solvents developing a risk assessment framework chloride, tetrachloroethylene and Industry Alliance, Inc. (HSIA) proposed for metals. Once the framework has trichloroethylene. In addition, in 2002, to fill a trichloroethylene priority data been adopted, the EPA will solicit HSIA signed a letter of agreement with need (dose-response data for testing proposals for these metals and ATSDR stating that HSIA volunteers to
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conduct studies to fill ATSDR’s C. CERCLA-Funded Research (Minority assessment, community-based remaining priority data needs for Health Professions Foundation Research environmental health education, and tetrachloroethylene (perchloroethylene) Program) environmental health education for and trichloroethylene. These studies are During FY 1992, ATSDR announced a primary-care providers. No additional being done in conjunction with the $4 million cooperative agreement priority data needs are being addressed EPA/ATSDR test rule and EPA’s program with the Minority Health under this new program. To date, Program research findings Voluntary Children’s Chemical Professions Foundation (MHPF) to and other activities have resulted in the Evaluation Program. In some cases, support substance-specific publication of more than 50 HSIA first conducted a study via investigations. A not-for-profit Internal manuscripts in peer-reviewed journals. inhalation which was followed by route Revenue Code 501(c)(3) organization, The institutions which have received extrapolation via PBPK modeling to the MHPF comprises 11 minority health awards and their respective studies are obtain data for oral exposure. This is professions schools at historically black listed in Table 2. because, for specific chemicals, EPA colleges and universities. The MHPF requires inhalation data while ATSDR mission is to research health problems D. National Toxicology Program (NTP) has determined that ingestion of that disproportionately affect poor and contaminated environmental media is Section 104(i)(5) of CERCLA directs minority citizens. The purpose of the the administrator of ATSDR (in the primary exposure route at hazardous cooperative agreement was to address waste sites. consultation with the administrator of substance-specific data needs for EPA and agencies and programs of the HSIA studies accepted by ATSDR priority hazardous substances identified Public Health Service) to assess whether include: Addressing priority data needs by ATSDR. In addition, the agreement adequate information on the health for methylene chloride with strengthened the environmental health effects of priority hazardous substances physiologically based pharmacokinetic research opportunities for scientists and found at NPL sites is available. Where modeling’’ which evaluates acute- and students at MHPF member institutions adequate information is not available, subchronic-duration toxicity and and enhanced existing disciplinary ATSDR, in cooperation with the developmental toxicity via oral capacities to conduct research in National Toxicology Program (NTP), is exposure. toxicology and environmental health. required to assure the initiation of a ‘‘Methylene chloride: 28 day The MHPF published a report, program of research designed to inhalation toxicity study in the rat to ‘‘Environmental Health and Toxicology determine these health effects (and assess potential immunotoxicity.’’ Research Program: Meeting techniques for developing methods to Environmental Health Challenges ‘‘Immunotoxic potential of orally determine such health effects). Through Research, Education, and ATSDR continues to collaborate with administered dichloromethane from Service,’’ that describes the research NTP to address priority data needs of immunotoxicty studies conducted by findings and other successes from the mutual interest. Chemicals for which the inhalation route.’’ (PBPK modeling) first 5 years of the program. NTP has conducted studies (or is in the ‘‘Trichloroethylene: Inhalation In the first five year project period process of conducting studies) to fill developmental toxicity study in CD that concluded during FY 1997, nine ATSDR’s priority data needs include rats.’’ HSIA will conduct PBPK priority data needs for 21 priority carbon tetrachloride, 1,1- modeling to obtain data for oral hazardous substances and 22 other dichloroethene, di-n-butyl phthalate, exposure based on the inhalation data. research needs for these and other disulfoton, and heptachlor (Table 2). ‘‘Trichloroethylene (TCE): substances were addressed. Research initiated in the second 5-year project E. Great Lakes Human Health Effects Immunotoxicity potential in CD rats Research Program following a 4-week vapor inhalation period included studies to address 10 exposure.’’ The final report of the study additional priority data needs for Some of the priority data needs is undergoing ATSDR’s external peer chlordane, di-n-butyl phthalate, lead, identified in the SSARP have been review. Pending ATSDR’s acceptance of manganese, the polycylic aromatic independently identified as research the inhalation study, HSIA will conduct hydrocarbons (PAHs), zinc, and eight needs through the ATSDR Great Lakes PBPK modeling to obtain data for oral other research needs. To date, 14 Human Health Effects Research exposure based on the inhalation data. priority data needs have been filled Program, a separate research program. through this cooperative agreement In support of the Great Lakes Critical ‘‘Perchloroethylene: Study of effects (Table 1). Programs Act of 1990, ATSDR on embryo-fetal development in CD rats During 2003, ATSDR announced a announced in Fiscal Year 1992 the by inhalation administration.’’ HSIA new five year cooperative agreement availability of $2 million for a grant will conduct PBPK modeling to obtain program with the MHPF. The purpose of program to conduct research on the data for oral exposure based on the the program is to apply findings from potential for short- and long-term inhalation data. the previous ten year environmental adverse health effects from consumption Electric Power Research Institute, Inc. health and Toxicology Research of contaminated fish from the Great (EPRI) Program and to improve public health Lakes basin. Research undertaken and environmental medicine in low- through this program is intended to In addition to the substance-specific income and minority communities. The build on and amplify the results of past MOUs described above, ATSDR also new program builds on earlier efforts and ongoing fish consumption research signed an MOU with EPRI to conduct a and expands the Program’s public in the Great Lakes basin. The ATSDR- study ‘‘Validation of test methods for environmental health impact on affected supported research projects focus on assessing neurodevelopment in communities. Activities across the known high-risk populations to define children.’’ In this particular case, following four research and further the human health consequences ATSDR and three other federal agencies environmental public health focus areas of exposure to persistent toxic (the Food and Drug Administration, were funded to initiate this new substances (PTSs) identified in the Great EPA, and NIEHS) were also funding program: substance-specific toxicology Lakes basin. These at-risk populations partners. research, environmental exposure include sport anglers; African
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Americans, Asians and other non- health effects studies, and through information necessary to improve the English speaking populations; pregnant establishing and using substance- database used to conduct women; fetuses, nursing infants, and specific subregistries of people within comprehensive public health children of mothers who consume the Agency’s National Exposure Registry assessments of populations living near contaminated Great Lakes sport fish; the who have potentially been exposed to hazardous waste sites. The information elderly, and the urban poor. To date, the these substances. Regarding the priority will enable the Agency to establish research activities of the ATSDR Great data need for exposure subregistries, the linkages between levels of contaminants Lakes Human Health Effects Research list of the 60 priority hazardous in the environment and levels in human Program have resulted in 70 substances in the SSARP was forwarded tissue and organs associated with publications in peer-reviewed journals. to ATSDR’s Division of Health Studies adverse health effects, ultimately Currently, 14 priority data needs for for consideration as potential candidates helping to determine methods for 24 priority hazardous substances for subregistries of exposed persons, (including 15 PAHs) identified in the interdicting exposure and mitigating based on criteria described in its 1994 toxicity. This program will also provide SSARP are being addressed through this document, ‘‘National Exposure Registry: program. The institutions which have data that can be generalized to other Policies and Procedures Manual substances or areas of science, including received awards and their respective (Revised),’’ Agency for Toxic Substances risk assessment of chemicals, thus studies are listed in Table 2. and Disease Registry, Public Health creating a scientific information base for Service, U.S. Department of Health and F. Other ATSDR Programs addressing a broader range of data Human Services, Atlanta, Georgia, NTIS In its role as a public health agency needs. The Agency plans to provide an Publication No. PB95–154571. addressing environmental health, update on the status of this research ATSDR may collect human data to Currently, ATSDR has established exposure subregistries for benzene, program approximately every three validate substance-specific exposure years or sooner, as needed. and toxicity findings. The need for dioxin, 1,1,1-trichloroethane (not additional information on levels of included in the SSARP), Dated: November 17, 2005. contaminants in humans has been trichloroethylene, and tremolite Kenneth Rose, identified, and remains as a priority asbestos. Acting Director, Office of Policy, Planning, data need for 59 of the 60 priority G. Conclusion and Evaluation, National Center for substances (Table 1). In some cases, Environmental Health/Agency for Toxic ATSDR anticipates obtaining this The results of the research conducted Substances and Disease Registry. information through exposure and via the SSARP are expected to provide
TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
Aldrin/Dieldrin ...... 1A ...... Dose-response data in animals ...... Filled ...... An MRL was derived in the 2000 for intermediate-duration oral updated ATSDR toxicological exposure. profile. 1B ...... Bioavailability from soil. 1C ...... Exposure levels in humans living ...... This priority data need, previously near hazardous waste sites addressed in a study in the and other populations, such as Great Lakes Research Pro- exposed workers. gram, is no longer investigated in that study. 1D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Arsenic ...... 2A ...... Comparative toxicokinetic studies EPA. to determine if an appropriate animal species can be identi- fied. 2B ...... Half-lives in surface water, EPA. groundwater. 2C ...... Bioavailability from soil ...... EPA. 2D ...... Exposure levels in humans living G. Lakes .. Filled ...... In addition to the data from the near hazardous waste sites Great Lakes Research Pro- and other populations, such as gram, background level data exposed workers. are available in ATSDR’s 1993 toxicological profile, and at least seven ATSDR studies that evaluated urine arsenic levels and potential adverse health effects are available. Also, additional studies are available in ATSDR’s 2000 up- dated toxicological profile.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
Asbestos ...... 3A ...... Epidemiologic studies of individ- uals occupationally exposed to asbestos levels lower than those experienced before the institution of current occupa- tional standards governing the use of asbestos, but higher than current levels in the gen- eral population. These studies should be performed in con- junction with the immunotoxicity studies. 3B ...... Immunotoxicity studies of individ- uals occupationally exposed to asbestos. 3C ...... Development of human and rat lung retention models to aid in extrapolating between rat and human data. 3D ...... Improved analytical methods for screening samples and deter- mining the chemical structure of asbestos fibers. Also, tech- niques are needed to nor- malize studies in which dif- ferent analytical methods were employed. 3E ...... Exposure levels, fiber size dis- tribution, and asbestos fiber type in areas with natural geo- logic deposits of friable asbes- tos and at hazardous waste sites. Also, techniques for esti- mating air levels of asbestos from soil concentrations and activity scenarios. 3F ...... Exposure levels in humans living near hazardous waste sites and in other populations, such as humans living in areas with naturally high levels of friable asbestos. 3G ...... Potential candidate for subreg- ATSDR .... Filled ...... ATSDR established registry to istry of exposed persons. follow the health of people who were exposed to asbestos in Libby, Montana. The name of the registry is the Tremolite As- bestos Registry (TAR). Benzene ...... 4A ...... Dose-response data in animals EPA ...... Reproductive toxicity study is the for acute- and intermediate-du- only component of this PDN ration oral exposure. The sub- that is included in the EPA/ chronic study should include an ATSDR test rule. extended reproductive organ histopathology. 4B ...... Prenatal developmental toxicity EPA ...... Previously planned study in the study via oral exposure. MHPF Research Program to address this priority data need was canceled. 4C ...... Neurotoxicology battery of tests EPA. via oral exposure. 4D ...... Epidemiologic studies on the ...... Filled ...... Based on an evaluation of the health effects of benzene (Spe- data in ATSDR’s 1997 updated cial emphasis end points in- toxicological profile. ATSDR clude immunotoxicity). will continue to evaluate new data as they become available to determine if additional stud- ies are needed.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
4E ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites are available (Ashley et al. and other populations, such as 1992, 1994; Needham et al. exposed workers. 1995), and at least one ATSDR study that evaluated blood ben- zene levels and potential ad- verse health effects is avail- able. ATSDR acknowledges that reference concentration data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. Benzidine ...... 5A ...... Dose-response data for acute- and intermediate-duration ex- posure via the oral route (the study of intermediate-duration exposure should include eval- uation of reproductive and en- docrine organ histopathology, lymphoid tissues histopathology as well as ex- amination of relevant blood components, and nervous sys- tem histopathology). 5B ...... Exposure levels in humans living near hazardous waste sites. 5C ...... Exposure levels in children. 5D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Beryllium ...... 6A ...... Dose-response data in animals EPA. for acute- and intermediate-du- ration inhalation exposures. The subchronic study should include extended reproductive organ histopathology. 6B ...... Prenatal developmental toxicity EPA. study via inhalation exposure. 6C ...... Environmental fate in air; factors EPA. affecting bioavailability in air. 6D ...... Analytical methods to determine ...... Filled ...... Based on an evaluation of the environmental speciation. data in ATSDR’s 2000 updated toxicological profile. 6E ...... Immunotoxicology battery of tests EPA. following oral exposure. 6F ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in urine are available (Paschal waste sites and other popu- et al. 1998, CDC 2005). lations, such as exposed work- ATSDR acknowledges that ref- ers. erence concentration data can support exposure and health assessments at waste sites, but the Agency also continues to recognize the importance of collecting additional data on uniquely exposed populations at waste sites. 6G ...... Exposure levels in children ...... Filled ...... Reference range concentrations in urine are available (CDC 2005). 6H ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Cadmium ...... 7A ...... Analytical methods for biological ...... Filled ...... Based on an evaluation of the tissues and fluids and environ- data in ATSDR’s 1999 updated mental media. toxicological profile.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
7B ...... Exposure levels in humans G. Lakes .. Filled ...... In addition to the data from the (adults) living near hazardous Great Lakes Research Pro- waste sites and other popu- gram, reference range con- lations, such as exposed work- centrations in blood and urine ers. are available (CDC 2005), and at least nine ATSDR studies that evaluated blood and urine cadmium levels and potential adverse health effects are available. 7C ...... Exposure levels in children ...... Filled ...... Reference range concentrations in blood and urine are available (CDC 2005). Carbon tetrachloride ...... 8A ...... Dose-response data in animals for chronic oral exposure. The study should include extended reproductive organ and nerv- ous tissue histopathology. 8B ...... Immunotoxicology battery of tests NTP ...... Filled ...... NTP dose-finding study and one via oral exposure. study in ATSDR’s 1994 up- dated toxicological profile ad- dressed the priority data need. 8C ...... Half-life in soil ...... Filled ...... One study in ATSDR’s 1994 up- dated toxicological profile pro- vided information on half-life in soil. 8D ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; Needham et exposed workers. al. 1995). ATSDR acknowl- edges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 8E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Chlordane ...... 9A ...... Oral multigenerational studies to MHPF ...... Filled ...... Availability of studies in the evaluate reproductive toxicity. MHPF Research Program. 9B ...... Bioavailability studies following ingestion of contaminated media. 9C ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in serum are available (CDC waste sites and other popu- 2005). ATSDR acknowledges lations potentially exposed to that reference concentration chlordane. data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. 9D ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). 9E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Chlorinated dibenzo-p-dioxins 10A ...... Studies via oral exposure de- (CDDs). signed to assess childhood susceptibility.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
10B ...... Comparative toxicokinetic studies examining the relative absorp- tion of CDDs across exposure routes and the relative con- tribution of each exposure route to total body burdens. 10C ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in serum are available (CDC waste sites. 2005). ATSDR acknowledges that reference concentration data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. 10D ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). Chloroethane ...... 11A ...... Dose-response data in animals EPA. for acute- and intermediate-du- ration oral exposures. The sub- chronic study should include an evaluation of immune and nervous system tissues, and extended reproductive organ histopathology. 11B ...... Dose-response data in animals EPA. for chronic inhalation expo- sures. The study should in- clude an evaluation of nervous system tissues. 11C ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Chloroform ...... 12A ...... Dose-response data in animals ...... Filled ...... An MRL was derived in ATSDR’s for intermediate-duration oral 1997 updated toxicological pro- exposure. file. 12B ...... Epidemiologic studies on the ...... Filled ...... Based on an evaluation of the health effects of chloroform data in ATSDR’s 1997 updated (Special emphasis end points toxicological profile. ATSDR include cancer, neurotoxicity, will continue to evaluate new reproductive and develop- data as they become available mental toxicity, hepatotoxicity, to determined if additional stud- and renal toxicity). ies are needed. 12C ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; and Need- exposed workers. ham et al. 1995). ATSDR ac- knowledges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 12D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Chromium ...... 13A ...... Dose-response data in animals EPA. for acute-duration exposure to chromium (VI) and (III) via oral exposure and for intermediate- duration exposure to chromium (VI) via oral exposure. 13B ...... Multigeneration reproductive tox- EPA. icity study via oral exposure to chromium (III) and (VI).
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
13C ...... Immunotoxicology battery of tests EPA. following oral exposure to chro- mium (III) and (VI). 13D ...... Prenatal developmental toxicity EPA. study via oral exposure to chromium (III) and (VI). 13E ...... Exposure levels in humans living G. Lakes .. Filled ...... In addition to the data from the near hazardous waste sites Great Lakes Research Pro- and other populations, such as gram, reference range con- exposed workers. centrations in urine are avail- able (Paschal et al. 1998). Also, at least two ATSDR stud- ies that evaluated urine chro- mium levels and potential ad- verse health effects are avail- able. Cyanide ...... 14A ...... Dose-response data in animals EPA. for acute- and intermediate-du- ration exposures via inhalation. The subchronic study should include extended reproductive organ histopathology and eval- uation of neurobehavioral and neuropathological end points. 14B ...... Prenatal developmental toxicity EPA. study via oral exposure. 14C ...... Evaluation of the environmental ...... Filled ...... A study addressing the priority fate of cyanide in soil. data need was submitted by in- dustry to EPA in response to EPA’s solicitation for proposals for test rule making. Scientists from EPA and ATSDR re- viewed the study and consid- ered that this research need is no longer a priority. 14D ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 14E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 1,2-dibromo-3-chloropropane ...... 15A ...... Dose-response data in animals for acute-duration exposure via the oral route (including repro- ductive organ histopathology). 15B ...... Dose-response data in animals for chronic-duration exposure via the oral route (including re- productive organ histopathology). 15C ...... Prenatal developmental toxicity study via oral exposure. 15D ...... Immunotoxicology testing battery ...... Previously planned study in the via oral exposure. MHPF Research Program to address this priority data need was canceled. 15E ...... Neurotoxicology testing battery ...... Previously planned study in the via oral exposure. MHPF Research Program to address this priority data need was canceled. 15F ...... Exposure levels in humans living near hazardous waste sites and other exposed populations, such as exposed workers. 15G ...... Potential candidate for subreg- ATSDR. istry of exposed persons.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
1,2-Dibromoethane ...... 16A ...... Dose-response data in animals for acute- and intermediate-du- ration exposure by the oral route (the study of inter- mediate-duration exposure should include evaluation of neuropathology and observa- tion for overt signs of neurotoxicity). 16B ...... Multigeneration reproductive tox- icity studies via oral exposure. 16C ...... Developmental toxicity studies via oral exposure. 16D ...... Immunotoxicity battery studies via oral exposure. 16E ...... Exposure levels in humans living near hazardous waste sites and in other populations, such as workers exposed to 1, 2- dibromoethane. 16F ...... Exposure levels in children. 16G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 1,2-Dichloroethane ...... 17A ...... Dose-response data in animals for acute-duration (14-day) ex- posure by the inhalation route, including a comparison of young and adult animals. 17B ...... Dose-response data in animals for acute-duration (14-day) ex- posure by the oral route, in- cluding a comparison of young and adult animals. 17C ...... Dose-response data in animals for intermediate-duration expo- sure by the inhalation route (the study should be performed in conjunction with the neurotoxicology battery of tests). 17D ...... Neurotoxicology battery of tests following inhalation exposure. 17E ...... Neurotoxicology battery of tests following oral exposure. 17F ...... Dose-response data in animals for chronic-duration exposure by the oral route. 17G ...... Prenatal developmental toxicity data for inhalation exposure (assessment of developmental cardiotoxicity and neurotoxicity). 17H ...... Prenatal developmental toxicity data for oral exposure (assess- ment of developmental cardiotoxicity and neurotoxicity). 17I ...... Additional analyses and studies for comparative toxicokinetics across species, ages, routes, and durations. 17J ...... Children’s susceptibility. 17K ...... Exposure levels in humans living near hazardous waste sites. 17L ...... Exposure levels in children. 17M ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 1,1-Dichloroethene ...... 18A ...... Dose-response data in animals NTP ...... Filled ...... Availability of ongoing NTP study. for acute-duration exposure by the inhalation route.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
18B ...... Dose-response data in animals NTP ...... Filled ...... Availability of ongoing NTP study. for chronic-duration exposure by the inhalation route. 18C ...... Dose-response data in animals for acute- and intermediate-du- ration exposure by the oral route. 18D ...... Carcinogenicity studies in two species following inhalation ex- posure. 18E ...... Reproductive toxicity studies as- sessing male and female end points following inhalation ex- posure. 18F ...... Prenatal developmental toxicity studies following oral exposure. 18G ...... Immunotoxicology battery of tests following oral exposure. 18H ...... Battery of neurobehavioral tests following inhalation exposure. 18I ...... Children’s susceptibility. 18J ...... Exposure levels in humans living near hazardous waste sites. 18K ...... Exposure levels in children. 18L ...... Potential candidate for subreg- ATSDR. istry of exposed persons. DDT ...... 19A ...... Dose-response data in animals for chronic-duration oral expo- sure. 19B ...... Comparative toxicokinetic study (across routes/species). 19C ...... Bioavailability and bioaccumula- tion from soil. 19D ...... Epidemiologic studies on the G. Lakes .. Filled ...... In addition to the data from the health effects of DDT, DDD, Great Lakes Research Pro- and DDE (Special emphasis gram, multiple studies in end points include ATSDR’s 2000 updated toxi- immunotoxicity, and reproduc- cological profile are available. tive and developmental toxicity). 19E ...... Exposure levels in humans G. Lakes .. Filled ...... In addition to the data from the (adults) living near hazardous Great Lakes Research Pro- waste sites and other popu- gram, reference range con- lations, such as exposed work- centrations in serum are avail- ers. able (CDC 2005). ATSDR ac- knowledges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 19F ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). 19G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Di (2-ethylhexyl) phthalate...... 20A ...... Epidemiologic studies on the health effects of DEHP (Spe- cial emphasis end points in- clude cancer).
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
20B ...... Dose-response data in animals ...... This research need remains as a for acute- and intermediate-du- priority data need because the ration oral exposures. The sub- previously developed MRL for chronic study should include an acute-duration (1993 toxi- extended histopathologic eval- cological profile) was with- uation of the immunologic and drawn. However, a new MRL neurologic systems. for intermediate-duration was derived in ATSDR’s 2002 up- dated Toxicological Profile. Therefore, this priority data need is considered partially filled because additional ade- quate acute-duration data for deriving an MRL are still lack- ing. 20C ...... Multigeneration reproductive tox- ...... This research need is reassigned icity study via oral exposure. as a priority data need based on an evaluation of the data in ATSDR’s 2002 updated toxi- cological profile. Also, the NTP Center for the Evaluation of Risks to Human Reproduction Expert Panel Report (October 2000) has identified critical data needs for reproductive toxicity. 20D ...... Comparative toxicokinetic studies ...... Filled ...... The existing database provides (Studies designed to examine adequate information to fill this how primates metabolize and priority data need based on distribute DEHP as compared ATSDR’s reevaluation of the with rodents via oral exposure). published data. 20E ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 20F ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Di-n-butyl phthalate...... 21A ...... Dose-response data in animals NTP ...... Filled ...... Availability of an NTP study. for acute-duration exposure via the oral route. 21B ...... Dose-response data in animals for chronic-duration exposure via the oral route. 21C ...... Carcinogenicity studies via oral exposure. 21D ...... In vivo genotoxicity studies...... MHPF ...... Filled ...... Availability of a study in the MHPF Research Program. 21E ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 21F ...... Environmental fate of di-n-butyl phthalate in environmental media. 21G ...... Bioavailability in contaminated environmental media near haz- ardous waste sites. 21H ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Disulfoton ...... 22A ...... Immunotoxicology testing battery NTP ...... Filled ...... Availability of ongoing NTP study. following oral exposure. 22B ...... Exposure levels of disulfoton in tissues/fluids for populations living near hazardous waste sites and other populations, such as exposed workers. 22C ...... Disulfoton should be considered ATSDR. as a potential candidate for a subregistry of exposed persons.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
Endosulfan (a, b, and sulfate) ...... 23A ...... Acute-duration oral exposure studies. 23B ...... Data on sensitive neurologic end point following oral exposure. 23C ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 23D ...... Data on the bioavailability of endosulfan from soil. 23E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Endrin/endrin aldehyde...... 24A ...... Dose-response animal data for acute oral exposure to endrin. 24B ...... Multigeneration reproductive tox- icity studies via oral exposure to endrin. 24C ...... Accurately describe the toxicokinetics of endrin and its degradation products and iden- tify the animal species to be used as the most appropriate model for human exposure. 24D ...... Exposure levels for endrin and its degradation products in hu- mans living near hazardous waste sites. 24E ...... Accurately describe the environ- mental fate of endrin, including environmental breakdown prod- ucts and rates, media half- lives, and chemical and phys- ical properties of the break- down products that help predict mobility and volatility. 24F ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Ethylbenzene ...... 25A ...... Dose-response data for acute-du- ration exposure by the inhala- tion route. 25B ...... Dose-response data for chronic- duration exposure by the inha- lation route. 25C ...... Dose-response data for acute- and intermediate-duration ex- posure by the oral route; the study of intermediate-duration exposure should include an evaluation of clinical signs of neurotoxicity and histopathology of reproductive organs, endocrine glands, and nervous system. 25D ...... Multigeneration toxicity study ex- amining reproductive end points and indicators of endo- crine disruption following inha- lation exposure. 25E ...... Prenatal developmental study with continued assessment of offspring during postnatal de- velopment following oral expo- sure. 25F ...... Studies for comparative toxicokinetics. 25G ...... Exposure levels in humans living near hazardous waste sites. 25H ...... Exposure levels in children.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
25I ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Heptachlor/heptachlor epoxide..... 26A ...... Dose-response animal data for acute- and intermediate-dura- tion oral exposures, including immunopathology. 26B ...... Multigeneration reproductive tox- NTP ...... Filled ...... Availability of publication ‘‘The ef- icity studies via the oral route fects of perinatal/juvenile hep- of exposure. tachlor exposure on adult im- mune and reproductive system function in rats’’ by Smialowicz et al. (2001), Toxicological Sciences 61:164–175. 26C ...... Prenatal developmental toxicity ...... Filled ...... Based on ATSDR’s review of the studies via the oral route of ex- literature, i.e., Smialowicz et al. posure. (2001), Toxicological Sciences 61:164–175 and Moser et al. (2001) Toxicological Sciences 60 (2):315–326. 26D ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in serum are available (CDC waste sites and other popu- 2005). ATSDR acknowledges lations, such as exposed work- that reference concentration ers. data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. 26E ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). 26F ...... Bioavailability from contaminated air, water, and soil and bio- accumulation potential. 26G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Hexachlorobutadiene ...... 27A ...... Dose-response data in animals for acute-duration exposure via the oral route. 27B ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 27C ...... Environmental fate studies that determine the extent to which hexachlorobutadiene volatilizes from soil, and studies that de- termine the reactions and rates which drive degradation in soil. 27D ...... Bioavailability studies in soil and plants. 27E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Hexachlorocyclohexane (a, b and 28A ...... Dose-response data for chronic- ...... Filled ...... An MRL was derived in ATSDR’s g). duration oral exposure. 1999 updated toxicological pro- file. 28B ...... Mechanistic studies on the neurotoxicity, hepatotoxicity, re- productive toxicity, and immunotoxicity of hexachlorocyclohexane.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
28C ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in serum are available (CDC waste sites and other popu- 2005). ATSDR acknowledges lations, such as exposed work- that reference concentration ers. data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. 28D ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). 28E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Lead ...... 29A ...... Mechanistic studies on the neuro- MHPF ...... Filled ...... Multiple studies (at least 13 publi- toxic effects of lead. cations from the MHPF Re- search Program + numerous studies in ATSDR’s 1999 up- dated toxicological profile) are available. 29B ...... Analytical methods for tissue lev- MHPF ...... Filled ...... A publication from the MHPF Re- els. search Program and numerous studies in ATSDR’s 1999 toxi- cological profile are available. 29C ...... Exposure levels in humans MHPF ...... Filled ...... In addition to the data from Great (adults) near hazardous waste G. Lakes Lakes Research Program and sites and other populations, MHPF Research Program, ref- such as exposed workers. erence range concentrations in blood and urine are available (CDC 2005; Paschal et al. 1998), and at least 19 ATSDR studies that evaluated blood lead levels and potential ad- verse health effects are avail- able. 29D ...... Exposure levels in children ...... Filled ...... Reference range concentrations in blood and urine are available (CDC 2005). Manganese ...... 30A ...... Dose-response data for acute- MHPF ...... Filled ...... Availability of studies in the and intermediate-duration oral EPA MHPF Research Program. exposures (the subchronic study should include reproduc- tive histopathology and an evaluation of immunologic pa- rameters including manganese effects on plaque-forming cells (SRBC), surface markers (D4:D8 ratio), and delayed hypersensitivity reactions). 30B ...... Toxicokinetic studies on animals MHPF ...... Filled ...... Availability of studies in the to investigate uptake and ab- EPA ...... MHPF Research Program. sorption, relative uptake of dif- fering manganese compounds, metabolism of manganese, and interaction of manganese with other substances following oral exposure. 30C ...... Epidemiological studies on the ...... Filled ...... Based on an evaluation of the health effects of manganese data in ATSDR’s 2000 updated (Special emphasis end points toxicological profile. ATSDR include neurologic, reproduc- will continue to evaluate new tive, developmental, data as they become available immunologic, and cancer). to determine if additional stud- ies are needed.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
30D ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 30E ...... Relative bioavailability of different EPA. manganese compounds and bioavailability of manganese from soil. Mercury ...... 31A ...... Multigeneration reproductive tox- MHPF ...... Filled ...... Availability of publications from icity study via oral exposure. the MHPF Research Program. 31B ...... Dose-response data in animals ...... Filled ...... An MRL was derived in ATSDR’s from chronic-duration oral ex- 1999 updated toxicological pro- posure. file. 31C ...... Immunotoxicology battery of tests EPA. via oral exposure. 31D ...... Exposure levels in humans G. Lakes .. Filled ...... In addition to the data from the (adults) living near hazardous Great Lakes Research Pro- waste sites and other popu- gram, background levels data lations, such as exposed work- are available in ATSDR’s 1997 ers. updated toxicological profile, and multiple ATSDR studies that evaluated blood, urine, hair mercury levels and poten- tial adverse health effects are available. Also, reference range concentrations in blood and urine are available (CDC 2005). 31E ...... Exposure levels in children ...... Filled ...... Reference range concentrations in blood and urine are available (CDC 2005). 31F ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Methoxychlor ...... 32A ...... Evaluate neurologic effects after ...... Filled ...... Based on an evaluation of the long-term, low-level oral expo- data in ATSDR’s 2000 updated sure. toxicological profile. 32B ...... Exposure levels of methoxychlor and primary metabolites in hu- mans living near hazardous waste sites and those individ- uals with the potential to ingest it. 32C ...... Evaluate the fate, transport, and levels of the degradation prod- ucts of methoxychlor in soil. 32D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Methylene chloride...... 33A ...... Dose-response data in animals EPA ...... Filled ...... ATSDR accepted HSIA’s toxicity for acute- and intermediate-du- Vol Res study for acute- and inter- ration oral exposure. The sub- mediate-duration exposure du- chronic study should include ration in February 1997. Also, extended reproductive organ ATSDR accepted HSIA’s histopathology, immunotoxicity study via inha- neuropathology, and lation in November 2000 and immunopathology. the oral data obtained via PBPK modeling conducted by HSIA based on the immunotoxicity data from the inhalation study. Neurotoxicity screening battery testing re- mains in the ATSDR/EPA test rule under development. 33B ...... Prenatal developmental toxicity Vol Res .... Filled ...... ATSDR accepted HSIA’s study in study via the oral route. February 1997.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
33C ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; Needham et exposed workers. al. 1995). ATSDR acknowl- edges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 33D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Nickel ...... 34A ...... Epidemilogic studies on the ...... Filled ...... Based on at least two relevant health effects of nickel (Special studies in ATSDR’s 1997 up- emphasis end points include dated toxicological profile. reproductive toxicity). ATSDR will continue to evalu- ate new data as they become available to determine if addi- tional studies are needed. 34B ...... Prenatal development toxicity EPA ...... Filled ...... In ATSDR’s 1997 updated toxi- study via the oral route. cological profile, a study con- firming the results of two pre- vious studies is available. 34C ...... Dose-response data in animals EPA. for acute- and intermediate-du- ration oral exposures. 34D ...... Neurotoxicology battery of tests EPA. via oral exposure. 34E ...... Bioavailability of nickel from soil .. EPA. 34F ...... Exposure levels in humans G. Lakes .. Filled ...... Based on availability of the data (adults) living near hazardous from the Great Lakes Research waste sites and other popu- Program and an evaluation of lations, such as exposed work- ATSDR’s 1997 updated toxi- ers. cological profile. 34G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Pentachlorophenol ...... 35A ...... Comparative toxicokinetic studies. 35B ...... Exposure levels in humans ...... Filled ...... Reference range concentrations (adults) living near hazardous in urine are available (CDC waste sites. 2005). ATSDR acknowledges that reference concentration data can support exposure and health assessments at waste sites, but the Agency also con- tinues to recognize the impor- tance of collecting additional data on uniquely exposed pop- ulations at waste sites. 35C ...... Exposure levels in children ...... Filled ...... Reference range concentrations in urine are available (CDC 2005). 35D ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Polychlorinated biphenyls (PCBs) 36A ...... Dose-response data in animals G. Lakes...... Although an MRL for inter- for acute- and intermediate-du- mediate-exposure duration was ration oral exposure. derived in ATSDR’s 2000 up- dated toxicological profile, an MRL for acute-exposure dura- tion is still lacking. 36B ...... Biodegradation of PCBs in water; bioavailability of PCBs in air, water, and soil.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
36C ...... Dose-response data in animals for acute- and intermediate-du- ration inhalation exposures. The subchronic study should include extended reproductive organ histopathology. 36D ...... Epidemiologic studies on the G. Lakes .. Filled ...... In addition to the data from the health effects of PCBs (Special Great Lakes Research Pro- emphasis end points include gram, multiple studies in immunotoxicity, gastrointestinal ATSDR’s 2000 updated toxi- toxicity, liver toxicity, kidney cological profile are available. toxicity, thyroid toxicity, and re- productive/developmental tox- icity). 36E ...... Exposure levels in humans G. Lakes .. Filled ...... In addition to the data from the (adults) living near hazardous Great Lakes Research Pro- waste sites and other popu- gram, background levels data lations, such as exposed work- are available (ATSDR’s 1997 ers. updated toxicological profile, Needham et al. 1996, and CDC 2005). Also, multiple ATSDR studies that evaluated blood and breast milk PCB lev- els and potential adverse health effects are available. 36F ...... Exposure levels in children ...... Filled ...... Reference range concentrations in serum are available (CDC 2005). 36G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 36H 5 .... Chronic toxicity and oncogenicity Vol Res .... Filled ...... ATSDR accepted the final report via oral exposure. of the GE study in October 1997. 36I 5 ...... Aerobic PCB biodegradation in Vol Res .... Filled ...... ATSDR accepted the final report sediment. of the GE study in July 1999. 36J 5 ..... PCB congener analysis ...... Vol Res .... Filled ...... ATSDR accepted the final report G. Lakes of the GE study in October 1997. Also, data from the Great Lakes Research Pro- gram are available. Polycyclic aromatic hydrocarbons 37A ...... Dose-response data in animals MHPF ...... Filled ...... MRLs for four PAHs were derived (PAHs) (Includes 15 sub- for intermediate-duration oral in ATSDR’s 1995 updated toxi- stances). exposures. The subchronic cological profile. A publication study should include extended from the MHPF Research Pro- reproductive organ gram addressing this priority histopathology and data need is available. immunopathology. 37B ...... Prenatal developmental toxicity MHPF ...... Filled ...... Data from the MHPF Research study via inhalation or oral ex- Program including a publication posure. are available. 37C ...... Mechanistic studies on PAHs, on MHPF ...... Filled ...... In addition to publications from how mixtures of PAHs can in- the MHPF Research Program, fluence the ultimate activation studies are available in of PAHs, and on how PAHs af- ATSDR’s 1995 updated toxi- fect rapidly proliferating tissues. cological profile. 37D ...... Dose-response data in animals MHPF ...... Filled ...... Data from the MHPF Research for acute- and intermediate-du- Program including one publica- ration inhalation exposures. tion are available. The subchronic study should include extended reproductive organ histopathology and immunopathology. 37E ...... Epidemiologic studies on the ...... Filled ...... Multiple studies in ATSDR’s 1995 health effects of PAHs (Special updated toxicological profile emphasis end points include are available. ATSDR will con- cancer, dermal, tinue to evaluate new data as hemolymphatic, and hepatic they become available to deter- toxicity). mine if additional studies are needed.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
37F ...... Exposure levels in humans G. Lakes .. Filled ...... Based on data from the Great (adults) living near hazardous Lakes Research Program and waste sites and other popu- an evaluation of the ATSDR lations, such as exposed work- 1995 updated toxicological pro- ers. file. Also, reference range con- centrations in urine are avail- able (CDC 2005). The Agency continues to recognize the im- portance of collecting additional data on uniquely exposed pop- ulations at waste sites. 37G ...... Exposure levels in children ...... Filled ...... Reference range concentrations in urine are available (CDC 2005). 37H ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Selenium ...... 38A ...... Dose-response data in animals EPA. for acute-duration oral expo- sure. 38B ...... Immunotoxicology battery of tests EPA. via oral exposure. 38C ...... Epidemiologic studies on the ...... Filled ...... Based on an evaluation of health effects of selenium ATSDR’s 2001 updated toxi- (Special emphasis end points cological profile. ATSDR will include cancer, reproductive continue to evaluate new data and developmental toxicity, as they become available to hepatotoxicity, and adverse determine if additional studies skin effects). are needed. 38D ...... Exposure levels in humans living G. Lakes .. Filled ...... In addition to the data from the near hazardous waste sites Great Lakes Research Pro- and other populations, such as gram, reference range con- exposed workers. centrations in serum are avail- able (NHANES III). ATSDR ac- knowledges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 38E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 1,1,2,2-Tetrachloroethane ...... 39A ...... Prenatal developmental toxicity study by the oral route. 39B ...... Immunotoxicity battery following oral exposure. 39C ...... Mammalian in vivo genotoxicity assays. 39D ...... Exposure levels in humans living near hazardous waste sites. 39E ...... Exposure levels in children. 39F ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Tetrachloroethylene ...... 40A ...... Dose-response data in animals ...... Filled ...... An MRL was derived in the for acute-duration oral expo- ATSDR 1997 updated toxi- sure, including neuropathology cological profile. and demeanor, and immunopathology.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
40B ...... Multigeneration reproductive tox- Vol Res ...... HSIA’s inhalation study was ac- icity study via oral exposure. cepted by ATSDR and included in ATSDR’s 1997 updated toxi- cological profile. However, ATSDR has identified ingestion of contaminated environmental media to be the primary expo- sure route for this chemical at waste sites. HSIA will obtain the oral data from the inhala- tion study by conducting PBPK modeling. 40C ...... Dose-response data in animals EPA...... HSIA will obtain oral data for in- for intermediate-duration oral Vol Res termediate-duration toxicity and exposure, including neurotoxicity by PBPK mod- neuropathology, and eling based on existing inhala- immunopathology. tion data. Also, it will conduct an inhalation immunotoxicity study, followed by PBPK mod- eling to obtain oral data. 40D ...... Prenatal developmental toxicity Vol Res ...... HSIA’s developmental toxicity study via oral exposure. study via inhalation was ac- cepted by ATSDR. However, ATSDR has identified ingestion of contaminated environmental media to be the primary expo- sure route for this chemical at waste sites. HSIA will obtain the oral data from the inhala- tion study by conducting PBPK modeling. 40E ...... Developmental neurotoxicity EPA study via oral exposure. Vol Res. 40F ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; Needham et exposed workers. al. 1995). ATSDR acknowl- edges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. 40G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Toluene ...... 41A ...... Dose-response data in animals ...... Filled ...... Availability of MRLs for acute- for acute- and intermediate-du- and intermediate-exposure du- ration oral exposures. The sub- rations in ATSDR’s 2000 up- chronic study should include an dated toxicological profile. extended histopathologic eval- uation of the immune system. 41B ...... Comparative toxicokinetic studies ...... Filled ...... Based on evaluation of the data (Characterization of absorption, in ATSDR’s 2000 updated toxi- distribution, and excretion via cological profile. oral exposure). 41C ...... Neurotoxicology battery of tests EPA ...... A publication for acute exposure via oral exposure. MHPF but not longer term exposure is available in the MHPF Re- search Program. Also, this pri- ority data need is included in the EPA/ATSDR test rule. 41D ...... Mechanism of toluene-induced ...... Filled ...... Multiple studies in ATSDR’s 1994 neurotoxicity. and 2000 updated toxicological profiles are available.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
41E ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; Needham et exposed workers. al. 1995), and additional data in ATSDR’s 2000 updated toxi- cological profile are available. ATSDR acknowledges that ref- erence concentration data can support exposure and health assessments at waste sites, but the Agency also continues to recognize the importance of collecting additional data on uniquely exposed populations at waste sites. 41F ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Toxaphene ...... 42A ...... Identify the long-term health con- sequences of exposure to envi- ronmental toxaphene via oral exposure. 42B ...... Conduct additional immunotoxicity studies for chronic-duration via oral route of exposure. 42C ...... Conduct additional neurotoxicity studies for chronic-duration via oral route of exposure. 42D ...... Exposure levels in humans living in areas near hazardous waste sites with toxaphene and in those individuals with the po- tential to ingest it. 42E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Trichloroethylene ...... 43A ...... Dose-response data in animals ...... Filled ...... An MRL was derived in ATSDR’s for acute-duration oral expo- 1997 updated toxicological pro- sure. file. 43B ...... Neurotoxicology battery of tests EPA ...... A publication for acute exposure via the oral route. MHPF ...... but not longer term exposure is Vol Res available in the MHPF Re- search Program. Also, this pri- ority data need is included in the EPA/ATSDR test rule and ATSDR’s Voluntary Research Program. 43C ...... Immunotoxicology battery of tests Vol Res ...... HSIA has completed an inhala- via oral route. tion immunotoxicity study which is undergoing ATSDR peer re- view. HSIA will obtain oral data via PBPK modeling based on the inhalation data. 43D ...... Prenatal developmental toxicity Vol Res...... ATSDR has accepted HSIA’s study via oral exposure. final report for an inhalation de- velopmental toxicity study. HSIA will use PBPK modeling to obtain data for oral exposure based on the results of its in- halation study. 43E ...... Developmental neurotoxicity EPA study via oral exposure. Vol Res 43F ...... Epidemiologic studies on the ...... Filled ...... Based on evaluation of the data health effects of trichloro- in ATSDR’s 1997 updated toxi- ethylene (Special emphasis cological profile. ATSDR will end points include cancer, continue to evaluate new data hepatotoxicity, renal toxicity, as they become available to developmental toxicity, and determine if additional studies neurotoxicity). are needed.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
43G ...... Exposure levels in humans living ...... Filled ...... Reference range concentrations near hazardous waste sites in blood are available (Ashley and other populations, such as et al. 1992, 1994; Needham et exposed workers. al. 1995). ATSDR acknowl- edges that reference con- centration data can support ex- posure and health assess- ments at waste sites, but the Agency also continues to rec- ognize the importance of col- lecting additional data on uniquely exposed populations at waste sites. Vinyl chloride ...... 44A ...... Dose-response data in animals ...... Filled ...... An MRL was derived in ATSDR’s for acute-duration inhalation 1997 updated toxicological pro- exposure. file. 44B ...... Multigeneration reproductive tox- Vol Res .... Filled ...... ATSDR accepted the final report icity study via inhalation. of ACC’s study in November 2000. 44C ...... Dose-response data in animals for chronic-duration inhalation exposure. 44D ...... Mitigation of vinyl chloride-in- duced toxicity. 44E ...... Prenatal developmental toxicity Vol Res .... Filled ...... ATSDR accepted the final report study via inhalation. of ACC’s study in November 2000. 44F ...... Exposure levels in humans living near hazardous waste sites and other populations, such as exposed workers. 44G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Xylenes ...... 45A ...... Dose-response data for chronic- duration exposure by the oral route. This study should be done in conjunction with the neurotoxicology battery of tests. 45B ...... Neurotoxicology battery of tests following oral exposure. 45C ...... Two-generation reproductive study following oral exposure. 45D ...... Developmental toxicity study that includes neurodevelopmental end points following oral expo- sure. 45E ...... Exposure levels in humans living near hazardous waste sites. 45F ...... Exposure levels in children. 45G ...... Potential candidate for subreg- ATSDR. istry of exposed persons. Zinc ...... 46A ...... Dose-response data in animals MHPF ...... Filled ...... Availability of ongoing studies in for acute- and intermediate-du- the MHPF Research Program. ration oral exposures. The sub- chronic study should include an extended histopathologic eval- uation of the immunologic and neurologic systems. 46B ...... Multigeneration reproductive tox- MHPF ...... Filled ...... Availability of ongoing studies in icity study via oral exposure. the MHPF Research Program. 46C ...... Carcinogenicity testing (2-year bioassay) via oral exposure. 46D ...... Exposure levels in humans living ...... This priority data need, previously near hazardous waste sites anticipated to be addressed and other populations, such as under the voluntary research exposed workers. program, is not being inves- tigated under any of the ATSDR research programs.
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TABLE 1.—ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS FOR 60 PRIORITY HAZARDOUS SUBSTANCES— Continued
Status Substances PDN ID 1 PDN description Program 2 Comments 4 change 3
46E ...... Potential candidate for subreg- ATSDR. istry of exposed persons. 1 Priority data need identification number. 2 Programs addressing priority data needs. ATSDR = ATSDR’s Division of Health Studies; EPA = U.S. Environmental Protection Agency; G. Lakes = Great Lakes Human Health Effects Research Program; MHPF = Minority Health Professions Foundation; NTP = National Toxicology Program; Vol Res = Voluntary research. 3 PDN can be filled or remain unchanged based on reevaluation of the database using criteria developed by ATSDR. 4 ACC = American Chemistry Council; Ashley et al. 1992 = Ashley DL, Bonin MA, Cardinali FL, et al. Anal Chem (1992) 64:1021–29; Ashley et al. 1994 = Ashley DL, Bonin MA, Cardinali FL et al., Clin Chem (1994) 40/7:1401–4; ATSDR studies = Studies conducted by ATSDR’s Division of Health Studies; GE = General Electric Company; HSIA = Halogenated Solvents Industry Alliance, Inc.; MHPF = Minority Health Professions Foundation; MRL = Minimal Risk Level; CDC 2005 = The third National Report on Human Exposure to Environmental Chemicals, prepared by the National Center for Environmental Health, Centers for Disease Control and Prevention, Atlanta, GA; Needham et al. 1995 = Needham LL, Hill RH Jr, Ashley DL, Pirkle JL, and Sampson EJ. Environ Health Perspect 103(Suppl 3):89–94; Needham et al. 1996 = Needham LL, Patterson DG Jr, Burse VW, Paschal DC, Turner WE, and Hill VW Jr. Toxicol Ind Health 12:507–513; NHANES III = The Third National Health and Nutrition Examination Survey, conducted by the National Center for Health Statistics, Centers for Disease Control and Prevention, Atlanta, GA; NTP = Na- tional Toxicology Program; Paschal et al. 1998 = Paschal DC, Ting BC, Morrow JC, et al. Environ Res, Section A 76: 53–59; PBPK modeling = physiologically based pharmacokinetic modeling; Toxicological profile = ATSDR’s toxicological profiles for the Agency’s priority hazardous sub- stances. 5 Not a priority data need.
TABLE 2.—GROUPS WHICH ARE ADDRESSING/HAVE ADDRESSED ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS (PDNS)
Firm, institution, agency, or consor- Program tium Substance PDN ID
Voluntarism ...... American Chemistry Council ...... Vinyl chloride ...... 44B, 44E General Electric Company ...... PCBs ...... 36H*, 36I*, 36J* Halogenated Solvents Industry Alli- Methylene chloride ...... 33A, 33B ance, Inc. Tetrachloroethylene ...... 40B, 40C, 40D, 40E Trichloroethylene ...... 43B, 43C, 43D, 43E Minority Health Professions Founda- Florida A & M University ...... Lead ...... 29A tion. The King/Drew Medical Center of the Lead ...... 29B, 29C Charles R. Drew University of Medi- cine and Science. Meharry Medical College ...... PAHs ...... 37A, 37B, 37C, 37D Morehouse School of Medicine ...... Lead ...... 29C Texas Southern University ...... Di-n-butyl phthalate ...... 21D Lead ...... 29A Toluene ...... 41C Trichloroethylene ...... 43B Tuskegee University ...... Chlordane ...... 9A Mercury ...... 31A Zinc ...... 46A, 46B Xavier University ...... Manganese ...... 30A, 30B Zinc ...... 46A Great Lakes Human Health Effects Michigan State University ...... DDT/DDE ...... 19D, 19E Research Program. Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* Selenium ...... 38D New York State Health Department .... DDT/DDE ...... 19E Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* State University of New York at Al- PCBs ...... 36E bany. State University of New York at Buf- DDT/DDE ...... 19D, 19E falo. Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* State University of New York at DDT/DDE ...... 19D, 19E Oswego. Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* University of Illinois at Chicago ...... DDT/DDE ...... 19D, 19E
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TABLE 2.—GROUPS WHICH ARE ADDRESSING/HAVE ADDRESSED ATSDR’S SUBSTANCE-SPECIFIC PRIORITY DATA NEEDS (PDNS)—Continued
Firm, institution, agency, or consor- Program tium Substance PDN ID
Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* University of Illinois at Urbana-Cham- DDT/DDE ...... 19D, 19E paign. Lead ...... 29C Mercury ...... 31D PCBs ...... 36D, 36E, 36J* University of Wisconsin-Milwaukee ..... DDT/DDE ...... 19D, 19E Lead ...... 29C Mercury ...... 31D PCBs ...... 36A, 36D, 36E, 36J* Selenium ...... 38D Wisconsin Department of Health and Arsenic ...... 2D Social Services—5 State Consor- tium. Cadmium ...... 7B Chromium ...... 13E DDT/DDE ...... 19D, 19E Lead ...... 29C Mercury ...... 31D Nickel ...... 34F PAHs ...... 37F PCBs ...... 36D, 36E, 36J* Environmental Protection Agency EPA/ATSDR Test Rule ...... Benzene ...... 4A, 4B, 4C TSCA/FIFRA. Chloroethane ...... 11A, 11B Cyanide (hydrogen cyanide and so- 14A, 14B dium cyanide). Methylene chloride ...... 33A Tetrachloroethylene ...... 40C, 40E Toluene ...... 41C Trichloroethylene ...... 43B, 43E Metals Testing Task Force (TASARC) Arsenic ...... 2A, 2B, 2C Beryllium ...... 6A, 6B, 6C, 6E Chromium ...... 13A, 13B, 13C, 13D Manganese ...... 30A, 30B, 30E Mercury ...... 31C Nickel ...... 34B, 34C, 34D, 34E Selenium ...... 38A, 38B National Toxicology Program...... National Institute of Environmental Carbon tetrachloride ...... 8B Health Sciences. 1,1-dichloroethene ...... 18A, 18B Di-n-butyl phthalate ...... 21A Disulfoton ...... 22A Heptachlor ...... 26B * Not priority data needs.
Editorial Note: FR Doc. 05–23361 was DEPARTMENT OF HEALTH AND summaries of proposed projects. To originally published at page 71506 in the HUMAN SERVICES request more information on the issue of Tuesday, November 29, 2005. The proposed projects or to obtain a copy of corrected document is republished in its Centers for Disease Control and the data collection plans and entirety, due to printing errors. Prevention instruments, call 404–639–4766 or send comments to Seleda Perryman, CDC [FR Doc. R5–23361 Filed 12–12–05; 8:45 am] [60Day–06–0556] Assistant Reports Clearance Officer, BILLING CODE 1505–01–D Proposed Data Collections Submitted 1600 Clifton Road, MS–D74, Atlanta, for Public Comment and GA 30333 or send an e-mail to Recommendations [email protected]. Comments are invited on: (a) Whether In compliance with the requirement the proposed collection of information of Section 3506(c)(2)(A) of the is necessary for the proper performance Paperwork Reduction Act of 1995 for of the functions of the agency, including opportunity for public comment on whether the information shall have proposed data collection projects, the practical utility; (b) the accuracy of the Centers for Disease Control and agency’s estimate of the burden of the Prevention (CDC) will publish periodic proposed collection of information; (c)
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ways to enhance the quality, utility, and Prevention—(1) pregnancy success rates when a woman begins taking clarity of the information to be achieved by such ART program, and (2) medication to stimulate the ovaries to collected; and (d) ways to minimize the the identity of each embryo laboratory develop eggs or starts ovarian burden of the collection of information used by such ART program and whether monitoring with the intent of having on respondents, including through the the laboratory is certified or has applied embryos transferred. Data will be use of automated collection techniques for such certification under this Act. collected through a Web-based data or other forms of information The Act defines ART as all treatments collection system, developed by Westat technology. Written comments should and procedures that include the in consultation with CDC, that complies be received within 60 days of this handling of human oocytes and sperm with FCSRCA requirements. notice. or embryos for the purpose of In developing the definition of Proposed Project establishing a pregnancy. pregnancy success rates and the list of The Centers for Disease Control and data items to be reported, CDC has Assisted Reproductive Technology consulted with representatives of the (ART) Program Reporting System— Prevention seeks to extend approval of a reporting system for the Assisted Society for Assisted Reproductive Extension—National Center for Chronic Technology (SART), the American Disease Prevention and Health Reproductive Technology (ART) Program from the Office of Management Society for Reproductive Medicine Promotion (NCCDPHP), Centers for (ASRM), and RESOLVE, the National Disease Control and Prevention (CDC). and Budget (OMB) for a period of 3 years. The reporting system includes all Infertility Association (a national, Background and Brief Description ART cycles initiated by any of the nonprofit consumer organization), as well as a variety of individuals with Section 2(a) of Public Law 102–493 approximately 400 ART programs in the expertise and interest in this field. The (known as the Fertility Clinic Success United States, and covers the pregnancy average annual cost to each ART Rate and Certification Act of 1992 outcome of each cycle as well as a program responding to the survey, (FCSRCA), 42 U.S.C. 263a–1(a)) requires number of data items deemed important including data entry and validation, is that each ART program shall annually to explain variability in success rates estimated to be $6,720. report to the Secretary through the across ART programs and across Centers for Disease Control and individuals. An ART cycle is started Estimated Annualized Burden Table
Number of Average Number of responses burden per Total bur- Respondents respondents per response den respondent (in hrs.) (in hours)
ART Programs (data entry) ...... *400 *288 37/60 71,040 ART Programs (selected for data validation) ...... **40 **83 23/60 1,273
Total ...... 72,313 *Approximately 400 ART programs (respondents) reported data in 2002. The average number of ART cycles (responses) per ART program was 288. **Approximately 10% of the ART programs are selected for validation. An average of 83 ART cycles per ART program were selected for vali- dation in 2002.
Dated: December 7, 2005. proposed projects or to obtain a copy of Proposed Project Joan F. Karr, the data collection plans and Metropolitan Atlanta Stillbirth Acting Reports Clearance Officer, Centers for instruments, call 404–639–4766 or send Management Survey: Knowledge, Disease Control and Prevention. comments to Seleda Perryman, CDC Attitudes and Practice Patterns from [FR Doc. E5–7258 Filed 12–12–05; 8:45 am] Assistant Reports Clearance Officer, Obstetricians, new collection, National BILLING CODE 4163–18–P 1600 Clifton Road, MS–D74, Atlanta, Center on Birth Defects and GA 30333 or send an email to Developmental Disabilities (NCBDDD), [email protected]. Centers for Disease Control and DEPARTMENT OF HEALTH AND Prevention (CDC). HUMAN SERVICES Comments are invited on: (a) Whether the proposed collection of information Background and Brief Description Centers For Disease Control and is necessary for the proper performance Prevention of the functions of the agency, including The U.S. Congress House Report 108– 792 (joint conference report for the [60Day–06–06AI] whether the information shall have practical utility; (b) the accuracy of the Fiscal Year 2005 omnibus appropriations bill) provides specific Proposed Data Collections Submitted agency’s estimate of the burden of the funding to devise a comprehensive for Public Comment and proposed collection of information; (c) strategy for expanding existing birth Recommendations ways to enhance the quality, utility, and defects surveillance systems to clarity of the information to be In compliance with the requirement incorporate surveillance data on all of section 3506(c)(2)(A) of the collected; and (d) ways to minimize the intrauterine fetal deaths of 20 or more Paperwork Reduction Act of 1995 for burden of the collection of information week’s gestation into the Metropolitan opportunity for public comment on on respondents, including through the Atlanta Congenital Defects Program proposed data collection projects, the use of automated collection techniques (MACDP). Stillbirth is largely an Centers for Disease Control and or other forms of information understudied adverse pregnancy Prevention (CDC) will publish periodic technology. Written comments should outcome even though it accounts for summaries of proposed projects. To be received within 60 days of this nearly one half of all perinatal mortality. request more information on the notice. There is currently no nationally
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accepted definition of what constitutes information will be used to identify outcome. This survey will be mailed to a stillbirth, and there are no universally prevailing deficiencies leading to randomly selected obstetricians whose recommended, standardized stillbirth incomplete and inaccurate reporting of practices serve residents of the 5 evaluation protocols in use for the data relative to stillbirths, and to counties comprising metropolitan evaluation of fetal deaths. The proposed develop targeted awareness and Atlanta. This survey will be conducted survey has been designed to evaluate educational strategies for participating once and will take approximately 2–3 and assess the knowledge, attitudes and MACDP facilities. Ongoing, accurate months to collect the data. NCBDDD is practice management patterns of and reliable population-based registries requesting OMB clearance for 1 (one) obstetricians in the metropolitan Atlanta of stillbirths are essential for conducting year. There is no cost to the survey area regarding stillbirths in general, as epidemiologic studies on the causes of respondents except for the time well as in their medical practice. This and risk factors for this pregnancy necessary to complete the survey.
ESTIMATED ANNUALIZED BURDEN TABLE
Number of Average burden Respondents Respondents responses per per response Total burden (type) (number) respondent (in hrs.) (in hrs.)
Obstetricians ...... 600 1 30/60 300 Total ...... 600 ...... 300
Dated: December 7, 2005. ADDRESSES: Submit written comments preparation of the scientific and medical Joan F. Karr, to the Division of Dockets Management evaluations of the drug or substance. (HFA–305), Food and Drug Acting Reports Clearance Officer, Centers for I. WHO Notification Disease Control and Prevention. Administration, 5630 Fishers Lane, rm. [FR Doc. E5–7260 Filed 12–12–05; 8:45 am] 1061, Rockville, MD 20852. Submit The Secretary of HHS received the BILLING CODE 4163–18–P electronic comments to http:// following notices from WHO: www.fda.gov/dockets/ecomments. Ref: C.L.29.2005 FOR FURTHER INFORMATION CONTACT: WHO Questionnaire for Collection of DEPARTMENT OF HEALTH AND James R. Hunter, Center for Drug Information for Review of Dependence- HUMAN SERVICES Evaluation and Research (HFD–9), Food Producing Psychoactive Substances and Drug Administration, 5600 Fishers The WHO presents its compliments and Food and Drug Administration Lane, Rockville, MD 20857, 301–443– has the pleasure of informing Member States 5563, e mail: [email protected]. and Associate Members that the Thirty-fourth [Docket No. 2005N–0479] Expert Committee on Drug Dependence will SUPPLEMENTARY INFORMATION: The meet from March 28 to 31, 2006 to review the International Drug Scheduling; United States is a party to the 1971 following substances: Convention on Psychotropic Convention on Psychotropic 1. Butorphanol (INN) Substances; Single Convention on Substances. Article 2 of the Convention 2. Dronabinol (INN)1 Narcotic Drugs; Butorphanol; Delta–9– on Psychotropic Substances provides 3. Gamma-hydroxybutyric acid tetrahydrocannabinol (Dronabinol); that if a party to the convention or WHO 4. Ketamine (INN) Gamma-Hydroxybutyric Acid; has information about a substance, 5. Khat (Catha edulis Forsk) which in its opinion may require 6. Tramadol (INN) Ketamine; Khat; Tramadol; Zopiclone; 7. Zopiclone (INN) Buprenorphine; Oripavine international control or change in such As a follow-up for the thirty-third meeting control, it shall so notify the Secretary of the Expert Committee on Drug AGENCY: Food and Drug Administration, General of the United Nations and Dependence, final decisions will be taken for HHS. provide the Secretary General of the buprenorphine (INN) and oripavine (INN). ACTION: Notice. United Nations with information in One of the essential elements of the support of its opinion. established review procedure is for the SUMMARY: The Food and Drug The CSA (21 U.S.C. 811 et seq.) (Title Secretariat to collect relevant information Administration (FDA) is requesting II of the Comprehensive Drug Abuse from Member States to prepare a Critical interested persons to submit comments Prevention and Control Act of 1970) Review Report for submission to the Expert Committee on Drug Dependence. WHO concerning abuse potential, actual provides that when WHO notifies the abuse, medical usefulness, trafficking, invites Member States to collaborate, as in United States under Article 2 of the the past, in this process by providing and impact of scheduling changes on Convention on Psychotropic Substances pertinent information mentioned in the availability for medical use of nine drug that it has information that may justify attached questionnaire concerning substances. These comments will be adding a drug or other substances to one substances listed above. considered in preparing a response from of the schedules of the convention, Further clarification on any of the above the United States to the World Health transferring a drug or substance from items can be obtained from Quality Organization (WHO) regarding the abuse one schedule to another, or deleting it Assurance and Safety: Medicines, Department of Medicines Policy and liability and diversion of these drugs. from the schedules, the Secretary of WHO will use this information to Standards, WHO, Geneva, to which replies State must transmit the notice to the should be sent not later than January 3, 2006. consider whether to recommend that Secretary of the Department of Health WHO takes this opportunity to renew to certain international restrictions be and Human Services (the Secretary of Member States and Associate Members the placed on these drugs. This notice HHS). The Secretary of HHS must then assurance of its highest consideration. requesting comments is required by the publish the notice in the Federal GENEVA, October 27, 2005 Controlled Substances Act (CSA). Register and provide opportunity for * * * * * DATES: Submit written or electronic interested persons to submit comments comments by January 12, 2006. that will be considered by HHS in its 1Including its stereo-isomers.
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If statistical information requested is not Please attach copies of relevant study 1.1 Is the substance currently registered as readily available, a brief descriptive answer reports and other background information as a medical product? (Yes/No) would be appreciated. appropriate. If ‘‘yes,’’ since when (year of marketing)? * * * * * 19lll Please indicate trade name(s), dosage 1. BUTORPHANOL (INN) form(s) with strength(s) and indication(s): 1. LEGITIMATE USE OF THE SUBSTANCE
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.3 Any information on the extent of public availability for medical use will be affected? other legitimate use of the substance? (Yes/ health or social problems associated with the (Yes/No) No) abuse of the substance (statistics on cases of 4.2 If ‘‘yes,’’ how do you think the transfer If ‘‘yes,’’ please describe the purpose of overdose deaths, dependence, etc.)? will impact its medical availability? use. 3. ILLICIT ACTIVITIES INVOLVING THE 2. DRONABINOL (INN) AND ITS STEREO- SUBSTANCE 1.3 If there is legitimate use of the ISOMERS 3.1 Any information on the nature and substance, how is the substance supplied? 1. LEGITIMATE USE OF THE SUBSTANCE (Imported/Manufactured in the country) extent of illicit activities involving the 1.1 Is the substance currently registered as 2. ABUSE OF THE SUBSTANCE substance (clandestine manufacture, a medical product? (Yes/No) 2.1 Is the substance abused or misused2 in smuggling, diversion, seizure, etc.)? If ‘‘yes,’’ since when (year of marketing)? your country? (Yes/No/No Information) 4. IMPACT OF SCHEDULING 19lll 2.2 If ‘‘yes,’’ any information on the extent 4.1 If butorphanol is placed under Please indicate trade name(s), dosage of abuse? international control, do you think that its form(s) with strength(s) and indication(s):
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.2 If ‘‘yes,’’ any information on the extent 3. GAMMA-HYDROXYBUTYRIC ACID other legitimate use of the substance? (Yes/ of abuse? (GHB) No) 2.3 Any information on the extent of public 1. LEGITIMATE USE OF THE SUBSTANCE If ‘‘yes,’’ please describe the purpose of health or social problems associated with the use. abuse of the substance (statistics on cases of 1.1 Is the substance currently registered as overdose deaths, dependence, etc.)? a medical product? (Yes/No) 1.3 If there is legitimate use of the 3. ILLICIT ACTIVITIES INVOLVING THE If ‘‘yes,’’ since when (year of marketing)? substance, how is the substance supplied? SUBSTANCE 19lll (Imported/Manufactured in the country) 3.1 Any information on the nature and Please indicate trade name(s), dosage 2. ABUSE OF THE SUBSTANCE extent of illicit activities involving the form(s) with strength(s) and indication(s): 2.1 Is the substance abused or misused in substance (clandestine manufacture, your country? (Yes/No/No information) smuggling, diversion, seizure, etc.)?
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.2 If ‘‘yes,’’ any information on the extent 4. IMPACT OF TRANSFER TO SCHEDULE II other legitimate use of the substance? (Yes/ of abuse? or III OF THE CONVENTION ON No) 2.3 Any information on the extent of public PSYCHOTROPIC SUBSTANCES, 1971, ON If ‘‘yes,’’ please describe the purpose of health or social problems associated with the MEDICAL AVAILABILITY use. abuse of the substance (statistics on cases of 4.1 If gamma-hydroxybutyric acid is overdose deaths, dependence, etc.)? transferred from Schedule IV of the 1.3 If there is legitimate use of the 3. ILLICIT ACTIVITIES INVOLVING THE Convention on Psychotropic Substances, substance, how is the substance supplied? SUBSTANCE 1971, to either Schedule II or III of the (Imported/Manufactured in the country) 3.1 Any information on the nature and Convention on Psychotropic Substances, do 2. ABUSE OF THE SUBSTANCE extent of illicit activities involving the you think that its availability for medical use will be affected? (Yes/No) 2.1 Is the substance abused or misused in substance (clandestine manufacture, 4.2 If ‘‘yes,’’ how do you think the transfer your country? (Yes/No/No information) smuggling, diversion, seizure, etc.)? will impact its medical availability?
2In this questionnaire, ‘‘abuse or misuse’’ refers to use of the substance other than for medical or scientific purposes.
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4. KETAMINE (INN) 1.1 Is the substance currently registered as Please indicate trade name(s), dosage 1. LEGITIMATE USE OF THE SUBSTANCE a medical product? (Yes/No) form(s) with strength(s) and indication(s): If ‘‘yes,’’ since when (year of marketing)? 19lll
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.3 Any information on the extent of public availability for medical use will be affected? other legitimate use of the substance? (Yes/ health or social problems associated with the (Yes/No) No) abuse of the substance (statistics on cases of 4.2 If ‘‘yes,’’ how do you think the transfer If ‘‘yes,’’ please describe the purpose of overdose deaths, dependence, etc.)? will impact its medical availability? use. 3. ILLICIT ACTIVITIES INVOLVING THE SUBSTANCE 5. KHAT (CATHA EDULIS Forsk.) 1.3 If there is legitimate use of the 3.1 Any information on the nature and 1. LEGITIMATE USE OF THE SUBSTANCE substance, how is the substance supplied? 1.1 Is the substance currently registered as (Imported/Manufactured in the country) extent of illicit activities involving the 2. ABUSE OF THE SUBSTANCE substance (clandestine manufacture, a medical product? (Yes/No) 2.1 Is the substance abused or misused in smuggling, diversion, seizure, etc.)? If ‘‘yes,’’ since when (year of marketing)? your country? (Yes/No/No information) 4. IMPACT OF SCHEDULING 19lll 2.2 If ‘‘yes,’’ any information on the extent 4.1 If ketamine is placed under Please indicate trade name(s), dosage of abuse? international control, do you think that its form(s) with strength(s) and indication(s):
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.3 Any information on the extent of public 4.2 If ‘‘yes,’’ how do you think the transfer other legitimate use of the substance? (Yes/ health or social problems associated with the will impact its medical availability? No) abuse of the substance (statistics on cases of If ‘‘yes,’’ please describe the purpose of overdose deaths, dependence, etc.)? 6. TRAMADOL (INN) use. 3. ILLICIT ACTIVITIES INVOLVING THE 1. LEGITIMATE USE OF THE SUBSTANCE SUBSTANCE 1.1 Is the substance currently registered as 1.3 If there is legitimate use of the 3.1 Any information on the nature and a medical product? (Yes/No) substance, how is the substance supplied? extent of illicit activities involving the If ‘‘yes,’’ since when (year of marketing)? (Imported/Manufactured in the country) substance (clandestine manufacture, 2. ABUSE OF THE SUBSTANCE smuggling, diversion, seizure, etc.)? 19lll 2.1 Is the substance abused or misused in 4. IMPACT OF SCHEDULING Please indicate trade name(s), dosage your country? (Yes/No/No information) 4.1 If khat is placed under international form(s) with strength(s) and indication(s): 2.2 If ‘‘yes,’’ any information on the extent control, do you think that its availability for of abuse? medical use will be affected? (Yes/No)
Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there 2.3 Any information on the extent of public availability for medical use will be affected? other legitimate use of the substance? (Yes/ health or social problems associated with the (Yes/No) No) abuse of the substance (statistics on cases of 4.2 If ‘‘yes,’’ how do you think the transfer If ‘‘yes,’’ please describe the purpose of overdose deaths, dependence, etc.)? will impact its medical availability? use. 3. ILLICIT ACTIVITIES INVOLVING THE 7. ZOPICLONE (INN) SUBSTANCE 1.3 If there is legitimate use of the 1. LEGITIMATE USE OF THE SUBSTANCE substance, how is the substance supplied? 3.1 Any information on the nature and 1.1 Is the substance currently registered as (Imported/Manufactured in the country) extent of illicit activities involving the 2. ABUSE OF THE SUBSTANCE substance (clandestine manufacture, a medical product? (Yes/No) 2.1 Is the substance abused or misused in smuggling, diversion, seizure, etc.)? If ‘‘yes,’’ since when (year of marketing)? your country? (Yes/No/No information) 4. IMPACT OF SCHEDULING 19lll 2.2 If ‘‘yes,’’ any information on the extent 4.1 If tramadol is placed under Please indicate trade name(s), dosage of abuse? international control, do you think that its form(s) with strength(s) and indication(s):
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Trade Name Dosage Form Strength(s) Indication(s)
1.2 If the answer to 1.1 is ‘‘no,’’ is there controlled in Schedule III of the CSA, internationally under the Psychotropic other legitimate use of the substance? (Yes/ and the drug substance dronabinol Convention or the Single Convention on No) (which is the synthetic equivalent of the Narcotic Drugs. If ‘‘yes,’’ please describe the purpose of natural active component of marijuana, Tramadol is a centrally acting use. delta–9–THC) is controlled in Schedule synthetic analgesic. At least two 1.3 If there is legitimate use of the I of the CSA. The drug substance complementary mechanisms of action substance, how is the substance supplied? dronabinol, including its isomers, is appear applicable: binding of parent and (Imported/Manufactured in the country) controlled internationally in Schedule II metabolite to mu-opioid receptors and 2. ABUSE OF THE SUBSTANCE of the Psychotropic Convention. inhibition of the reuptake of 2.1 Is the substance abused or misused in Gamma-hydroxybutyric acid (GHB) is norepinephrine and serotonin. It is your country? (Yes/No/No information) classified as a central nervous system marketed in the United States for the 2.2 If ‘‘yes,’’ any information on the extent depressant. In 2002, FDA approved a treatment of moderate to moderately of abuse? GHB-containing product, Xyrem, for the severe pain. Cases of abuse and 2.3 Any information on the extent of public treatment of cataplexy associated with dependence of tramadol have been health or social problems associated with the narcolepsy. Xyrem was approved under reported. It is not controlled in the abuse of the substance (statistics on cases of overdose deaths, dependence, etc.)? the regulations in 21 CFR part 314, United States under the CSA or 3. ILLICIT ACTIVITIES INVOLVING THE subpart H (21 CFR 314.520), and the controlled internationally under the SUBSTANCE product labeling contained a Psychotropic Convention or the Single 3.1 Any information on the nature and comprehensive risk management Convention on Narcotic Drugs. extent of illicit activities involving the program, which includes restricted Zopiclone is classified as a substance (clandestine manufacture, distribution of the drug through a nonbenzodiazepine hypnotic. The pure smuggling, diversion, seizure, etc.)? central pharmacy. Xyrem is controlled enantiomer (optical isomer) of 4. IMPACT OF SCHEDULING domestically in Schedule III of the CSA, zopiclone, eszopiclone, is marketed in 4.1 If zopiclone is placed under while bulk GHB and all other material the United States for the treatment of international control, do you think that its containing GHB is controlled in insomnia. The precise mechanism of availability for medical use will be affected? action of eszopiclone as a hypnotic is (Yes/No) Schedule I. In addition, illicit use of 4.2 If ‘‘yes,’’ how do you think the transfer Xyrem is subject to Schedule I penalties unknown, but its effect is believed to will impact its medical availability? of the CSA. GHB is controlled result from its interaction with gamma- internationally in Schedule IV of the aminobutyric acid (GABA)-receptor 8. BUPRENORPHINE (INN) Psychotropic Convention. complexes at binding domains located 1. IMPACT OF TRANSFER TO SCHEDULE I Ketamine is classified as a rapid- close to or allosterically coupled to OF THE SINGLE CONVENTION ON acting general anesthetic agent used for benzodiazepine receptors. Eszopiclone NARCOTIC DRUGS, 1961, ON MEDICAL short diagnostic and surgical procedures and zopiclone are controlled AVAILABILITY that do not require skeletal muscle domestically in Schedule IV of the CSA 1.1 If buprenorphine is transferred from relaxation. It is marketed in the United and are not controlled internationally Schedule III of the Convention on Psychotropic Substances, 1971, to Schedule States as an injectable. Ketamine is under the Psychotropic Convention or I of the Single Convention on Narcotic Drugs, controlled domestically in Schedule III Single Convention on Narcotic Drugs. 1961, do you think that its availability for of the CSA. It is not controlled Buprenorphine is a semisynthetic medical use will be affected? (Yes/No) internationally under the Psychotropic opium derivative with partial mu-opioid 1.2 If ‘‘yes,’’ how do you think the Convention or the Single Convention on receptor agonist activity. In the United transfer will impact its medical Narcotic Drugs. States, buprenorphine is available as a availability? Khat (or qat) refers to the leaves and parenteral product marketed for the young shoots of the plant Cathia edulis relief of moderate to severe pain, as a II. Background Forsk. The principal psychoactive sublingual single-entity tablet, and as a Butorphanol is classified as a substances contained in khat leaves are sublingual combination tablet with synthetic opiate partial agonist cathinone and cathine. Cathinone (a- naloxone. The sublingual tablets are analgesic. It is marketed in the United ketoamphetamine) is a monoamine used for the treatment of opiate States for the management of pain as an alkaloid that is controlled domestically addiction. Buprenorphine is controlled injectable and as a nasal spray solution. and internationally in Schedule I. The domestically in Schedule III of the CSA It is controlled domestically in Schedule DEA published a final rule on January as a narcotic and is controlled IV of the CSA and is not controlled 14, 1993 (58 FR 4316), that results in the internationally in Schedule III of the internationally under the Psychotropic placement of any material that contains Psychotropic Convention. Convention or the Single Convention on cathinone into Schedule I, which Oripavine is a phenanthrene alkaloid Narcotic Drugs. includes khat. Cathine, also a contained in the species of the Papaver Synthetic delta–9– monoamine alkaloid, is controlled plant. It is a chemical derivative of tetrahydrocannabinol (delta–9–THC), or domestically in Schedule IV of the CSA thebaine, a naturally-occurring dronabinol, is the active component of and internationally in Schedule III drug substance found in the opium plant. the drug product Marinol, which is under the Convention on Psychotropic Oripavine is controlled domestically in marketed in the United States as an Substances. In 1980, WHO classified Schedule II of the CSA because it is a antiemetic in the setting of cancer khat as a drug of abuse that can produce derivative of thebaine, opium, and other chemotherapy and for treatment of AIDS mild to moderate psychic dependence, opiates. Oripavine is not under wasting syndrome. Marinol is currently however khat is not controlled international control.
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III. Opportunity to Submit Domestic DEPARTMENT OF HEALTH AND the combined function of fluorescent Information HUMAN SERVICES labeling and magnetic separation have many applications in biomedical As required by section 201(d)(2)(A) of National Institutes of Health science, including those resulting from the CSA (21 U.S.C. 811(d)(2)(A)), FDA, the encapsulation of both particles in on behalf of HHS, invites interested Government-Owned Inventions; polymer microcapsules. However, these persons to submit comments regarding Availability for Licensing related prior technologies are the nine named drugs. Any comments AGENCY: National Institutes of Health, predominantly dependent on core-shell received will be considered by HHS Public Health Service, HHS. type technologies. Typically, a magnetic when it prepares a scientific and material such as magnetite or a ACTION: Notice. medical evaluation of these drugs. HHS fluorescent particle such as a QD is used will forward a scientific and medical SUMMARY: The inventions listed below as a core. Such a core-shell structure is evaluation of these drugs to WHO, are owned by an agency of the U.S. chemically unstable and through the Secretary of State, for Government and are available for disadvantageous for fluorescence WHO’s consideration in deciding licensing in the U.S. in accordance with applications because the shell tends to whether to recommend international 35 U.S.C. 207 to achieve expeditious absorb either or both of the excitation control/decontrol of any of these drugs. commercialization of results of and emission lights, thus dimming the Such control could limit, among other federally-funded research and fluorescent signal. The nanoparticles of things, the manufacture and distribution development. Foreign patent this invention are composed of a (import/export) of these drugs and could applications are filed on selected mesoporous copolymer, a magnetic impose certain recordkeeping inventions to extend market coverage material embedded into the mesoporous copolymer, a fluorescent nanomaterial requirements on them. for companies and may also be available for licensing. concurrently embedded into the HHS will not now make any ADDRESSES: Licensing information and mesoporous copolymer, and one or recommendations to WHO regarding copies of the U.S. patent applications more biomaterials coupled to the whether any of these drugs should be listed below may be obtained by writing mesoporous copolymer. subjected to international controls. to the indicated licensing contact at the TFNs and MFNs have multiple uses. Instead, HHS will defer such Office of Technology Transfer, National When the TFNs are labeled by a single consideration until WHO has made Institutes of Health, 6011 Executive biomaterial, the nanoparticles may official recommendations to the Boulevard, Suite 325, Rockville, specifically bind to a cell, or a protein Commission on Narcotic Drugs, which Maryland 20852–3804; telephone: 301/ or any other moiety that to which the are expected to be made in early 2006. 496–7057; fax: 301/402–0220. A signed biomaterial specifically binds. For Any HHS position regarding Confidential Disclosure Agreement will instance, the biomaterial may be a small international control of these drugs will be required to receive copies of the molecule ligand that is specifically be preceded by another Federal Register patent applications. bound by a cell surface receptor. MFNs notice soliciting public comments as in which two bioagents are coupled to Tri-Functional Nanospheres required by section 201(d)(2)(B) of the single BFNs allow using one bioagent to CSA. Yun-bo Shi (NICHD) et al. target a macromolecule or a cell and U.S. Patent Application No. 11/135,380 using the second one to alter the IV. Comments filed 24 May 2005 (HHS Reference function/properties of the No. E–145–2005/0–US–01). macromolecule or cell, e.g., using a Interested persons may submit to the Licensing Contact: Cristina protein to target a cell and using a toxin Division of Dockets Management (see Thalhammer-Reyero; 301/435–4507; or cell death protein to kill the targeted ADDRESSES) written or electronic [email protected]. cell, or using a chemical or protein to comments regarding the drugs. The Available for licensing and target a protein within a complex and abbreviated comment period is commercial development is an another one to alter the function of a necessary to allow sufficient time to invention related to ‘‘biofunctional’’ tri- different component of the complex. prepare and submit the domestic functional nanospheres (TFNs) or multi- The technology is further described in information package by the deadline functional nanospheres (MFNs) ‘‘Biofunctionalization of fluorescent- imposed by WHO. Two copies of any obtained by binding one or more magnetic-biofunctional nanospheres comments are to be submitted, except biomaterials, such as folate, IgG, biotin and their applications,’’ Guo-Ping Wang, that individuals may submit one copy. or streptavidin, to fluorescent-magnetic Er-Qun Song, Hai-Yan Xie, Zhi-Ling Comments are to be identified with the bifunctional nanospheres (BFNs). Zhang, Zhi-Quan Tian, Chao Zuo, Dai- docket number found in brackets in the Unlike other BFNs available, which are Wen Pang, Dao-Cheng Wu and Yun-Bo heading of this document. Received virtually all based on having a magnetic Shi; Chemical Communications, 2005, comments may be seen in the Division core, the present invention is based on (34), 4276–4278; DOI: 10.1039/ of Dockets Management between 9 a.m. mesoporous BFNs with hydrophobic b508075d. and 4 p.m., Monday through Friday. inner cavities. The properties of the In addition to licensing, the TFNs of the subject invention have technology is available for further Dated: December 5, 2005. superior qualities for use for the various development through collaborative Jeffrey Shuren, applications that require aqueous research opportunities with the Assistant Commissioner for Policy. solutions. inventors. [FR Doc. 05–23958 Filed 12–12–05; 8:45 am] Nanospheres are becoming the Efficient Growth of Wild-Type Hepatitis materials of choice for a rapidly BILLING CODE 4160–01–S A Virus in Cell Culture for increasing number of pharmaceutical Development of Live Vaccines and biomedical applications, including the use of quantum dots (QDs) and Gerarado Kaplan and Krishnamurthy magnetic nanoparticles. Materials with Konduru (FDA).
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U.S. Provisional Application No. 60/ including RT–PCR and multiplex PCR positions and catalyzes the reactants 684,526 filed 28 Jun 2005 (HHS applications, regardless of the organism/ favorably to form the inhibitor. The Reference No. E–151–2004/0–US–01). gene/nucleic acid being targeted. It bisubstrate inhibitor is likely to Licensing Contact: Chekesha S. provides the user/assay developer a accumulate in the cell because it is Clingman; 301/435–5018; choice of control product sizes, stable, highly charged and thus will not [email protected]. fluorogenic probe reporting systems, pass through cell membranes. The This technology relates to the and thermal cycling options, allowing targeted acetyltransferase will thus be development of recombinant wild-type ease of incorporation into various assay inhibited and therapeutic actions and attenuated Hepatitis A Virus (HAV) formats and instrument platforms. This realized. vectors capable of growing in cell unique internal control also can be The varied actions of culture and useful for development of a readily incorporated into virtually any acetyltransferases in biochemical live HAV vaccine. This technology also existing quantitative multiplex real-time processes offer many potential encompasses HAV vectors coding for PCR assay. The invention also provides therapeutic targets. Acetylation markers that allow the selection of cell methods of using the internal control inactivates drugs and endogenous lines that support the efficient growth of system and kits of the invention. ligands so inhibitors could, for example, wild-type and attenuated HAV in Additional information may be found enhance the effectiveness of antibiotics culture for diagnostic and in Vickery et al., ‘‘Detection and where antibiotic resistance is due to a environmental monitoring purposes. Quantification of Total and Potentially high level of acetylation. In the case of The currently available killed HAV Virulent Vibrio parahaemolyticus Using AANAT, acetylation inactivates vaccines are expensive and require a a 4-Channel Multiplex Real-Time PCR serotonin and is the rate limiting step in two dose schedule to confer immunity Targeting the tl, tdh, and trh Genes and the formation of melatonin. Inhibition of for approximately two decades. Inability a Novel PCR Internal Control,’’ AANAT will thus decrease melatonin of wild-type (wt) HAV to grow published abstract, 103rd General production and increase serotonin efficiently in cell culture has been the Meeting of the American Society for levels. Melatonin is a pineal hormone major roadblock to developing a live Microbiology, May 18–23, 2003, that has endocrinological, HAV vaccine, which could confer Washington, DC. neurophysiological, and behavioral lifelong immunity, be cost-effective and In addition to licensing, the functions. Since melatonin and allow eradication of the virus. The technology is available for further serotonin are implicated in several types inventors have developed recombinant development through collaborative of mood disorders, inhibition of infectious HAV coding for resistance research opportunities with the AANAT could have valuable genes against antibiotics that inhibits inventors. therapeutic uses. Specific inhibitors of translation in mammalian cells and Bisubstrate Inhibitors of melatonin synthesis are not yet provides a selective phenotype that Acetyltransferases available and serotonin antagonists have allows selection of cells expressing the unacceptable side effects in many phenotype within one week. Also, the Dr. David Klein et al. (NICHD). patients. inventors have created methods of HHS Reference No. E–205–1999/0– In addition to licensing, the selecting cells permissive for replication PCT–02 filed 08 Aug 2000. technology is available for further of wild-type and not overly attenuated Licensing Contact: Marlene Shinn-Astor; development through collaborative HAV by utilizing selective or screened 301/435–4426; [email protected]. research opportunities with the phenotypes and antibiotic resistant cell The present invention provides inventors. methods of inhibiting acetyletransferase techniques. Imaging With Positron-Emitting In addition to licensing, the enzymes, such as arylalkylamine-N- Taxanes, Camptothecins, and Other technology is available for further acetyltransferase (AANAT), by Drugs as a Guide to Antitumor Therapy development through collaborative producing a bisubstrate inhibitor in a research opportunities with the cell. AANAT catalyzes the transfer of Jerry M. Collins, Raymond W. Klecker, inventors. acetyl groups from Acetyl coenzyme A Lawrence Anderson (FDA). (AcCoA) to substrates such as serotonin. U.S. Patent Application No. 10/088,561 Internal Control Nucleic Acid Molecule Bisubstrate inhibitors are compounds filed 19 Mar 2002 (HHS Reference No. for Real-Time Polymerase Chain which share characteristics of AcCoA E–263–1998/0–US–03); Reaction and of the specific acetyl group U.S. Patent Application No. 10/319,812 Michael Vickery, Angelo DePaola, acceptors. A highly potent bisubstrate filed 16 Dec 2002 (HHS Reference No. George Blackstone (FDA). inhibitor of AANAT is CoA-S-N- E–263–1998/1–US–01). U.S. Provisional Application No. 60/ acetyltryptamine. That inhibitor may be Licensing Contact: Michael Shmilovich; 471,121 filed 16 May 2003 (HHS formed in vitro by the reaction of 301/435–5019; Reference No. E–213–2003/0–US–01); alkylating derivatives of the acetyl [email protected]. PCT Application No. PCT/US04/15175 acceptor and AcCoA. However, the Available for licensing and filed 14 May 2004 (HHS Reference inhibitor thus formed does not cross the commercial development is a method No. E–213–2003/0–PCT–02). cell membranes and is expensive to for using of positron-emitting Licensing Contact: Michael Shmilovich; produce using AcCoA. compounds to label taxane type drugs. 301/435–5019; The present invention is based on the This invention also relates to the use, [email protected]. surprising discovery that a bisubstrate synthesis and structure of three radio- The invention provides a PCR internal inhibitor which is specific for a labeled probe molecules, 11C–SN–38, control system for use in both real-time particular acetyltransferase can be 11C-imatinib, and 11C-mitoxantrone. PCR (also known as kinetic or Q–PCR) formed in a cell by introducing into the SN–38 is a major active metabolite of and conventional PCR. This flexible cell an alkylating derivative of an acetyl Camptosar, a product marketed by system has a number of novel design acceptor. Formation of the bisubstrate Pharmacia for the treatment of qualities which make it universally inhibitor occurs efficiently at very low colorectal cancer. Imatinib is a adaptable for use in virtually any real- concentrations of introduced drug compound that is used to treat chronic time or conventional PCR assay, because the enzyme to be inhibited myeloid leukemia (CML) and is
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marketed under the tradename Gleevec. ADDRESSES: Licensing information and Autotaxin: Motility Simulating Protein Mitoxantrone is also used to treat copies of the U.S. patent applications Useful in Cancer Diagnosis and certain types of cancers and multiple listed below may be obtained by writing Therapy sclerosis. For all of these compounds to the indicated licensing contact at the Mary Stracke, Lance Liotta, Elliot the FDA approved new and expanded Office of Technology Transfer, National Schiffman, Jerry Krutzch, and Jun uses and there is intense interest in Institutes of Health, 6011 Executive Murata (NCI). determining whether and where each of Boulevard, Suite 325, Rockville, U.S. Patent Application filed 16 Feb the compounds actually collects in the Maryland 20852–3804; telephone: 301– 2005 (HHS Reference No. E–142– body, and especially whether they are 496–7057; fax: 301–402–0220. A signed 1990–2–US–05). taken up by the targeted tumor. Confidential Disclosure Agreement will Licensing Contact: Mojdeh Bahar; 301– Traditional approaches to determine be required to receive copies of the 435–2950; [email protected]. drug uptake and retention have been patent applications. Cell motility plays an important role invasive. Advantages of using this Quantitative Assay of the Angiogenic in embryonic events, adult tissue technology include: (1) Avoidance of and Antiangiogenic Activity of a Test remodeling, wound healing and exposing patients to toxic drugs that Molecule metastasis of tumor cells. Some tumor have no potential for benefit; (2) ability cells produce proteins termed to rapidly determine whether a given Steven K. Libutti (NCI). ‘‘autocrine motility factors’’ that U.S. Patent Application No. 11/014,472 tumor will be likely to respond to a stimulate motility in tumor cells. This filed 16 Dec 2004 (HHS Reference No. particular drug; and (3) the ability to invention describes a novel tumor monitor the impact of various dosages, E–152–2002/1–US–01). Licensing Contact: Mojdeh Bahar; 301– protein called Autotaxin (‘‘ATX’’) that schedules, and modulators for delivery, 435–2950; [email protected]. stimulates both random and directed in situ, at the actual tumor under The invention provides a method of migration of human A2058 melanoma treatment conditions. Further, methods measuring the angiogenic or cells. ATX is a member of the to guide treatment of solid tumors, with antiangiogenic activity of a test nucleotide phosphodiesterase and labeled taxanes, are also disclosed in the molecule. The method comprises pyrophosphatase (NPP) family of present application. obtaining an embryonated fowl egg, proteins but is the only member of the Additional information may be found creating a window in the shell of the family that stimulates motility. It is also in: Ravert et al., ‘‘Radiosynthesis of fowl egg, such that the CAM membrane the only member shown to possess [11C]paclitaxel,’’ J Label Compd and is exposed, providing to a test region of lysophospholipase D activity. Radiopharm, 2002, 45(6):471–477. interest on the CAM a substrate, This invention can provide a In addition to licensing, the administering to a vessel located in the functional marker that can directly technology is available for further CAM a test molecule, administering to estimate the invasive potential of a development through collaborative a vessel located in the CAM a particular human cancer. One could research opportunities with the fluorescent-labeled particle, such that also use this invention as an assay for inventors. the fluorescent-labeled particle travels a particular secreted marker in body through each vessel contained in the fluids, or in tissues. Other uses include Dated: December 1, 2005. the detection, diagnosis, and treatment Steven M. Ferguson, test region of interest, removing the substrate and the test region of interest of human malignancies, and other Director, Division of Technology Development inflammatory, fibrotic, infectious and and Transfer, Office of Technology Transfer, from the fowl egg, capturing a three- dimensional image of the test region of healing disorders. National Institutes of Health. In addition to licensing, the [FR Doc. E5–7249 Filed 12–12–05; 8:45 am] interest, wherein the three-dimensional image comprises a plurality of pixels, technology is available for further BILLING CODE 4140–01–P such that a fluorescent vascular density development through collaborative (FVD) value can be assigned to the test research opportunities with the inventors. DEPARTMENT OF HEALTH AND region of interest, and comparing the HUMAN SERVICES FVD value of the test region of interest Dated: December 1, 2005. with the FVD value of a control region Steven M. Ferguson, National Institutes Of Health of interest that was prepared in the same Director, Division of Technology Development manner as the test region of interest but and Transfer, Office of Technology Transfer, Government-Owned Inventions; without the administration of a test National Institutes of Health. Availability for Licensing molecule, such that the angiogenic or [FR Doc. E5–7250 Filed 12–12–05; 8:45 am] antiangiogenic activity of the test BILLING CODE 4140–01–P AGENCY: National Institutes of Health, molecule is measured. A lower FVD Public Health Service, HHS. value of the test region of interest as ACTION: Notice. compared to the FVD value of the DEPARTMENT OF HEALTH AND control region of interest is indicative of HUMAN SERVICES SUMMARY: The inventions listed below the test molecule being useful as an are owned by an agency of the U.S. inhibitor of angiogenesis. Conversely, a National Institutes of Health Government and are available for higher FVD value of the test region of National Institute of Mental Health; licensing in the U.S. in accordance with interest as compared to the FVD value Notice of Closed Meetings 35 U.S.C. 207 to achieve expeditious of the control region of interest is commercialization of results of indicative of the test molecule being Pursuant to section 10(d) of the federally-funded research and useful as a stimulator of angiogenesis. Federal Advisory Committee Act, as development. Foreign patent In addition to licensing, the amended (5 U.S.C. Appendix 2), notice applications are filed on selected technology is available for further is hereby given of the following inventions to extend market coverage development through collaborative meetings. for companies and may also be available research opportunities with the The meetings will be closed to the for licensing. inventors. public in accordance with the
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provisions set forth in sections DEPARTMENT OF HEALTH AND Place: National Institutes of Health, 6701 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HUMAN SERVICES Rockledge Drive, Bethesda, MD 20892, as amended. The grant applications and (Telephone Conference Call). the discussions could disclose National Institutes of Health Contact Person: Alexander D. Politis, PhD, confidential trade secrets or commercial Scientific Review Administrator, Center for property such as patentable material, Center For Scientific Review; Notice of Scientific Review, National Institutes of and personal information concerning Closed Meetings Health, 6701 Rockledge Drive, Room 3210, individuals associated with the grant MSC 7808, Bethesda, MD 20892, (301) 435– 1150, [email protected]. applications, the disclosure of which Pursuant to section 10(d) of the Federal Advisory Committee Act, as This notice is being published less than 15 would constitute a clearly unwarranted days prior to the meeting due to the timing invasion of personal privacy. amended (5 U.S.C. Appendix 2), notice is hereby given of the following limitations imposed by the review and Name of Committee: National Institute of meetings. funding cycle. Mental Health Special Emphasis Panel, Name of Committee: Center for Scientific The meetings will be closed to the Molecular Libraries Screening Centers Review Special Emphasis Panel, Clinical Network (MLSCN). public in accordance with the Parasitology. Date: December 9, 2005. provisions set forth in sections Date: December 21, 2005. Time: 8 a.m. to 5:30 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 2 p.m. to 3 p.m. Agenda: To review and evaluate grant as amended. The grant applications and Agenda: To review and evaluate grant applications. the discussions could disclose applications. Place: Grand Hyatt Washington, 1000 H confidential trade secrets or commercial Place: National Institutes of Health, 6701 Street, NW., Washington, DC 20001. property such as patentable material, Rockledge Drive, Bethesda, MD 20892, Contact Person: Yong Yao, PhD, Scientific and personal information concerning (Telephone Conference Call). Review Administrator, Division of individuals associated with the grant Contact Person: Alexander D. Politis, PhD, Extramural Activities, National Institute of applications, the disclosure of which Scientific Review Administrator, Center for Mental Health, NIH, Neuroscience Center, would constitute a clearly unwarranted Scientific Review, National Institutes of 6001 Executive Blvd., Room 6149A, MSC invasion of personal privacy. Health, 6701 Rockledge Drive, Room 3210, 9606, Bethesda, MD 20892–9606, 301–443– MSC 7808, Bethesda, MD 20892, (301) 435– Name of Committee: Center for Scientific 6102, [email protected]. 1150, [email protected]. Review Special Emphasis Panel, Antibiotic This notice is being published less than 15 This notice is being published less than 15 Biosynthesis Program Project. days prior to the meeting due to the timing Date: December 12, 2005. days prior to the meeting due to the timing limitations imposed by the review and Time: 8 a.m. to 5 p.m. limitations imposed by the review and funding cycle. Agenda: To review and evaluate grant funding cycle. Name of Committee: National Institute of applications. Name of Committee: Center for Scientific Mental Health Special Emphasis Panel, Place: The Fairmont Washington, 2401 M Review Special Emphasis Panel, High-end Rapid Assessment Post-Impact of Disaster. Street, NW., Washington, DC .20037. S10s. Date: December 21, 2005. Contact Person: Noni Byrnes, PhD, Date: January 26, 2006. Time: 10 a.m. to 12 p.m. Scientific Review Administrator, Center For Time: 8:30 a.m. to 2 p.m. Agenda: To review and evaluate grant Scientific Review, National Institutes of Agenda: To review and evaluate grant applications. Health, 6701 Rockledge Drive, Room 4180, applications. Place: National Institutes of Health, MSC 7806, Bethesda, MD 20892, (301) 435– Place: Melrose Hotel, 2430 Pennsylvania Neuroscience Center, 6001 Executive 1217, [email protected]. Ave., NW., Washington, DC 20037. This notice is being published less than 15 Boulevard, Rockville, MD 20852, (Telephone Contact Person: Alexandra M. Ainsztein, days prior to the meeting due to the timing Conference Call). PhD, Scientific Review Administrator, Center limitations imposed by the review and Contact Person: Christopher S. Sarampote, funding cycle. for Scientific Review, National Institutes of PhD, Scientific Review Administrator, Health, 6701 Rockledge Drive, Room 5144, Name of Committee: Center for Scientific Division of Extramural Activities, National MSC 7840, Bethesda, MD 20892, 301–451– Review Special Emphasis Panel, ZRG1 BCMB Institute of Mental Health, NIH, 3848, [email protected]. K (90) S Prions and Tau Filaments. Neuroscience Center, 6001 Executive Blvd., Date: December 20, 2005. Name of Committee: Integrative, Room 6148, MSC 9608, Bethesda, MD 20892– Time: 1 p.m. to 3 p.m. Functional and Cognitive Neuroscience 9608, 301–443–1959, Agenda: To review and evaluate grant Integrated Review Group, Auditory System [email protected]. applications. Study Section. This notice is being published less than 15 Place: National Institutes of Health, 6701 Date: January 31–February 1, 2006. days prior to the meeting due to the timing Rockledge Drive, Bethesda, MD 20892, Time: 8:30 a.m. to 4:30 p.m. limitations imposed by the review and (Telephone Conference Call). Agenda: To review and evaluate grant funding cycle. Contact Person: Arnold Revzin, PhD, applications. (Catalogue of Federal Domestic Assistance Scientific Review Administrator, Center for Place: Wyndham City Center Hotel, 1143 Program Nos. 93.242, Mental Health Research Scientific Review, National Institutes of New Hampshire Ave., NW., Washington, DC Health, 6701 Rockledge Drive, Room 4184, Grants; 93.281 Scientist Development Award, 20037. MSC 7824, Bethesda, MD 20892, (301) 435– Scientist Development Award for Clinicians, Contact Person: Edwin C. Clayton, PhD, 1153, [email protected]. and Research Scientist Award; 93.282, Scientific Review Administrator, Center for This notice is being published less than 15 Mental Health National Research Service days prior to the meeting due to the timing Scientific Review, National Institutes of Awards for Research Training, National limitations imposed by the review and Health, 6701 Rockledge Drive, Room 5095C, Institutes of Health, HHS) funding cycle. MSC 7844, Bethesda, MD 20892, (301) 402– 1304, [email protected]. Dated: December 1, 2005. Name of Committee: Center for Scientific Anna Snouffer, Review Special Emphasis Panel, Fungal (Catalogue of Federal Domestic Assistance Therapeutics. Program Nos. 93.306, Comparative Medicine; Acting Director, Office of Federal Advisory Date: December 20, 2005. 93.333, Clinical Research, 93.306, 93.333, Committee Policy. Time: 3:30 p.m. to 4:30 p.m. 93.337, 93.393–93.396, 93.837–93.844, [FR Doc. 05–23942 Filed 12–12–05; 8:45 am] Agenda: To review and evaluate grant 93.846–93.878, 93.892, 93.893, National BILLING CODE 4140–01–M applications. Institutes of Health, HHS)
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Dated: December 5, 2005. DEPARTMENT OF HOMELAND ACTION: General Notice. Anna Snouffer, SECURITY Acting Director, Office of Federal Advisory SUMMARY: Pursuant to section 641 of the Committee Policy. Bureau of Customs and Border Tariff Act of 1930, as amended, (19 Protection [FR Doc. 05–23943 Filed 12–12–05; 8:45 am] U.S.C. 1641) and the Customs BILLING CODE 4140–01–M Notice of Cancellation of Customs Regulations (19 CFR 111.51), the Broker Permit following Customs broker permits are cancelled without prejudice. AGENCY: Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
Name Permit # Issuing port
A.P. Champagne Company, Inc ...... 002 ...... New Orleans. International Freight Forwarders, Inc ...... 14074 ...... Norfolk. Menlo Worldwide Trade Services, Inc ...... 14075 ...... Norfolk. Hub Forwarding Company, Inc ...... 04–0141 ...... Boston. Menlo Worldwide Trade Services, Inc ...... 04–0016 ...... Boston. Brent D. Powell ...... 04–03–AXE ...... Boston. Vastera Solutions ...... 04–0158 ...... Boston. Mark K. Neville, Jr...... 04–0132 ...... Boston. Brian A. Hill ...... 04–03–BBL ...... Boston. American Shipping Co., Inc ...... 04–0155 ...... Boston. Galaxy Customhouse Brokers, Inc ...... 92103 ...... Los Angeles. Elizabeth Chapman ...... 28–05–BLQ ...... San Francisco. David Saliba ...... 6416 ...... Dallas. Eric Peterson ...... 26–05–JB7 ...... Nogales. J.L.W. Associates, Inc ...... 00/17/001 ...... Savannah. Len M. Miyar ...... 52–04–BJJ ...... Miami. Jorg Berger ...... 4864 ...... San Francisco.
Dated: December 6, 2005. DEPARTMENT OF HOMELAND ACTION: General Notice. Jayson P. Ahern, SECURITY Assistant Commissioner, Office of Field SUMMARY: Pursuant to section 641 of the Operations. Bureau of Customs and Border Tariff Act of 1930, as amended, (19 Protection [FR Doc. 05–23990 Filed 12–12–05; 8:45 am] U.S.C. 1641) and the Customs BILLING CODE 9111–14–P Notice of Cancellation of Customs Regulations (19 CFR 111.51), the Broker License following Customs broker licenses are cancelled without prejudice. AGENCY: Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
Name License # Issuing port
Diaz & Flores, Inc ...... 21823 ...... San Juan. A.P. Champagne Company, Inc ...... 10194 ...... New Orleans. Richard L. Writsman ...... 20472 ...... Los Angeles. N.I. Logistics American Corporation ...... 20580 ...... Portland.
Dated: December 6, 2005. DEPARTMENT OF HOMELAND ACTION: General notice. Jayson P. Ahern, SECURITY Assistant Commissioner, Office of Field SUMMARY: Pursuant to section 641 of the Operations. Bureau of Customs and Border Tariff Act of 1930, as amended, (19 Protection [FR Doc. 05–23988 Filed 12–12–05; 8:45 am] U.S.C. 1641) and the Customs BILLING CODE 9111–14–P Notice of Cancellation of Customs Regulations (19 CFR 111.51), the Broker License following Customs broker license is canceled with prejudice. AGENCY: Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
Name License # Issuing port
Bernell W. Grizzard ...... 16261 ...... Atlanta
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Dated: December 6, 2005. DEPARTMENT OF HOMELAND ACTION: General notice. Jayson P. Ahern, SECURITY Assistant Commissioner, Office of Field SUMMARY: Notice is hereby given that, Operations. Bureau of Customs and Border pursuant to Title 19 of the Code of Protection [FR Doc. 05–23991 Filed 12–12–05; 8:45 am] Federal Regulations § 111.51(a), the BILLING CODE 9111–14–P Notice of Cancellation of Customs following individual Customs broker Broker License Due to Death of the licenses and any and all permits have License Holder been cancelled due to the death of the broker: AGENCY: Bureau of Customs and Border Protection, U.S. Department of Homeland Security.
Name License # Port name
Gaspar F. Torres ...... 21062 ...... Otay Mesa. Nicholas E. Vacakis ...... 3621 ...... San Francisco.
Dated: December 6, 2005. DATES: Comments Due Date: January 12, proposed collection of information is Jayson P. Ahern, 2006. necessary for the proper performance of Assistant Commissioner, Office of Field ADDRESSES: Interested persons are the functions of the agency, including Operations. invited to submit comments regarding whether the information will have [FR Doc. 05–23989 Filed 12–12–05; 8:45 am] this proposal. Comments should refer to practical utility; (2) Evaluate the BILLING CODE 9111–14–P the proposal by name and/or OMB accuracy of the agency’s estimate of the Approval Number (2502–0527) and burden of the proposed collection of should be sent to: HUD Desk Officer, information; (3) Enhance the quality, DEPARTMENT OF HOUSING AND Office of Management and Budget, New utility, and clarity of the information to URBAN DEVELOPMENT Executive Office Building, Washington, be collected; and (4) Minimize the DC 20503; fax: 202–395–6974. burden of the collection of information [Docket No. FR–4971–N–64] FOR FURTHER INFORMATION CONTACT: on those who are to respond; including Wayne Eddins, Reports Management through the use of appropriate Notice of Submission of Proposed Officer, AYO, Department of Housing automated collection techniques or Information Collection to OMB; and Urban Development, 451 Seventh other forms of information technology, Rehabilitation Mortgage Insurance Street, SW., Washington, DC 20410; e- e.g., permitting electronic submission of Underwriting Program Section 203(K) mail [email protected]; or responses. AGENCY: Office of the Chief Information Lillian Deitzer at This notice also lists the following Officer, HUD. [email protected] or information: Title of Proposal: Rehabilitation ACTION: Notice. telephone (202) 708–2374. This is not a toll-free number. Mortgage Insurance Underwriting SUMMARY: The proposed information Copies of available documents Program. Section 203(K). collection requirement described below submitted to OMB may be obtained OMB Approval Number: 2502–0527. has been submitted to the Office of from Mr. Eddins or Ms Deitzer. Form Numbers: HUD–92700, HUD– Management and Budget (OMB) for SUPPLEMENTARY INFORMATION: This 92700–A, HUD–9746–A, HUD–92577. review, as required by the Paperwork notice informs the public that the Description of the Need for the Reduction Act. The Department is Department of Housing and Urban Information and its Proposed Use: This soliciting public comments on the Development has submitted to OMB a information collection covers subject proposal. request for approval of the information application, qualification, and This information collection covers collection described below. This notice certification processes for participants application, qualification, and is soliciting comments from members of in HUD–FHA’s 203(K) Rehabilitation certification processes for participants the public and affecting agencies Mortgage Insurance Program. in HUD–FHA’s 203(K) Rehabilitation concerning the proposed collection of Frequency of Submission: On Mortgage Insurance Program. information to: (1) Evaluate whether the occasion, annually.
Number of Annual × Hours per Burden respondents responses response = hours
Reporting Burden ...... 8,225 17.56 23.66 341,910
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Total Estimated Burden Hours: equivalent state and local fair housing assistance to a project that will establish 341,910. laws. or build the capacity of a start up fair Status: Revision of currently housing organization to become a viable FOR FURTHER INFORMATION CONTACT: approved collection. Myron P. Newry, Director, FHIP fair housing enforcement organization Authority: Section 3507 of the Paperwork Support Division, U.S. Department of that will conduct fair housing activities Reduction Act of 1995, 44 U.S.C. 35, as Housing and Urban Development, 451 in underserved areas. The fourth amended. Seventh Street, SW., Room 5228, initiative, Administrative Enforcement Dated: December 7, 2005. Washington, DC 20410–2000, telephone Initiative is currently not being used. Wayne Eddins, (202) 708–0614, ext. 7095. To provide The Catalog of Federal Domestic Departmental Paperwork Reduction Act service for persons who are hearing- or Assistance number for this program is Officer, Office of the Chief Information speech-impaired, this number may be 14–408. Officer. reached via TTY by dialing the Federal On March 21, 2005 (70 FR 13722), [FR Doc. E5–7244 Filed 12–12–05; 8:45 am] Information Relay Service on (800) 877– HUD published a Notice of Funding BILLING CODE 4210–72–P 8339 or (202) 708–1455. Telephone Availability (NOFA) announcing the numbers, other than ‘‘800’’ TTY availability of $18.040 million in numbers are not toll free. competitive funding allocated to the DEPARTMENT OF HOUSING AND SUPPLEMENTARY INFORMATION: The Fair three Initiatives as follows: Private URBAN DEVELOPMENT Housing Initiatives Program statute (Sec. Enforcement Initiative—$13,000,000, [Docket No. FR–4950–FA–18] 561 of the 1987 Housing and Education and Outreach Initiative— Community Development Act, as $3,940,000, and Fair Housing Announcement of Funding Awards for amended in 1992) authorizes the Organizations Initiative—$1,100,000. Fiscal Year 2005 Fair Housing Secretary to make funds available This initial Federal Register NOFA had Initiatives Program through grant agreements or by contract a closing date for FHIP of May 23, 2005. On May 25, 2005, a notice was AGENCY: Office of the Assistant in support of activities that assure published in the Federal Register Secretary for Fair Housing and Equal compliance with the Fair Housing Act allowing a grace period that extended Opportunity, HUD. and substantially equivalent state and the deadline date for FHIP until June 6, ACTION: local fair housing laws. FHIP provides Announcement of funding 2005. awards. competitive funding under three of the four Initiatives: (1) Private Enforcement The Department reviewed, evaluated, SUMMARY: In accordance with section Initiative assists private tax-exempt fair and scored the applications received 102(a)(4)(C) of the Department of housing enforcement organizations in based on the criteria in the NOFA. As Housing and Urban Development the investigation and enforcement of a result, HUD has funded the Reform Act of 1989, this document alleged violations of the Fair Housing applications below, in accordance with notifies the public of funding awards for Act and substantially equivalent state section 102(a)(4)(C) of the Department of the Fiscal Year 2005 Fair Housing and local fair housing laws, (2) Housing and Urban Development Initiatives Program (FHIP). The purpose Education and Outreach Initiative Reform Act of 1989 (103 Stat. 1987, 42 of this document is to announce the assists projects that inform the public U.S.C., 3545). One awardee, Disability names, addresses and the amount about their rights and obligations under Law Center of Salt Lake City, Utah, was awarded to the winners under the FHIP the Fair Housing Act and with funded ($75,252.80) under FY 2005 competition. The purpose of FHIP is substantially equivalent state and local funding from a previous year’s also to increase compliance with the fair housing laws, and (3) Fair Housing competition as a result of an Fair Housing Act and with substantially Organizations Initiative provides administrative error.
LIST OF AWARDEES UNDER THE FY 2005 FAIR HOUSING INITIATIVES PROGRAM FUNDING COMPETITION, BY INITIATIVE, ORGANIZATION, AND GRANT AMOUNT
Award amount Organization name (in dollars)
Education and Outreach Initiative
Disability Law Center, Salt Lake City, UT ...... $75,252.80 United Neighborhood Center of Lackawanna County, Scranton, PA ...... 82,603.00 Legal Aid Services of Oregon, Portland, OR ...... 100,000.00 Legal Services of Northern California, Inc., Woodland, CA ...... 100,000.00 Citizens Action of New Jersey, Hackensack, NJ ...... 100,000.00 Coalition on Homelessness and Housing in Ohio, Columbus, OH ...... 100,000.00 Champlain Valley Office of Economic Opportunity, Burlington, VT ...... 100,000.00 Office of Human Affairs, Newport News, VA ...... 58,215.00 Prairie State Legal Services, Inc., Rockford, IL ...... 100,000.00 City of San Antonio, San Antonio, TX ...... 30,135.00 United Spinal Association, Jackson Heights, NY ...... 99,643.00 St. Martin Center, Fair Housing, Erie, PA ...... 99,956.00 Neighborhood Economic Development Advocacy Project, New York, NY ...... 100,000.00 Advocacy Center, New Orleans, LA ...... 100,000.00 University of Southern Mississippi, Hattiesburg, MS ...... 100,000.00 Aids Legal Referral Panel of San Francisco, San Francisco, CA ...... 70,222.00 Piedmont Housing Alliance, Charlottesville, VA ...... 72,363.00 Mental Health Advocacy Services, Inc., Los Angeles, CA ...... 100,000.00 JC Vision and Associates, Inc., Hinesville, GA ...... 99,990.00
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LIST OF AWARDEES UNDER THE FY 2005 FAIR HOUSING INITIATIVES PROGRAM FUNDING COMPETITION, BY INITIATIVE, ORGANIZATION, AND GRANT AMOUNT—Continued
Award amount Organization name (in dollars)
Arkansas Community Housing Corporation, Little Rock, AR ...... 100,000.00 Housing Council in the Monroe County Area, Rochester, NY ...... 77,110.00 Housing Authority of the City of Fresno, Fresno, CA ...... 100,000.00 Howard University, Washington, DC ...... 99,997.00 Fair Housing Agency of Alabama, Mobile, AL ...... 97,905.00 La Raza Centro Legal, San Francisco, CA ...... 100,000.00 Housing Counseling Services, Inc., Washington, DC ...... 100,000.00 Greater Napa Fair Housing Center, Napa, CA ...... 99,990.00 Legal Services of North Florida, Inc., Tallahassee, FL ...... 100,000.00 Asian Pacific American Legal Center of California, Los Angeles, CA ...... 100,000.00 American Institute for Social Justice, Washington, DC ...... 100,000.00 ByDesign Financial Solutions, Los Angeles, CA ...... 100,000.00 Waccamaw Regional Council of Governments, Georgetown, SC ...... 98,915.00 City of Billings—Community Development, Billings, MT ...... 92,879.00 AAFE Community Development Fund, New York, NY ...... 100,000.00 Missouri Tax Justice Research Project, St. Louis, MO ...... 100,000.00 Elizabeth City State University, Elizabeth City, NC ...... 99,968.00 ACORN Housing, St. Paul, MN ...... 100,000.00 New York Agency for Community Affairs, Brooklyn, NY ...... 99,975.00 Legal Aid Society of Palm Beach County, West Palm Beach, FL ...... 100,000.00 Virginia Office for Protection and Advocacy, Richmond, VA ...... 100,000.00 Total Action Against Poverty in Roanoke, Roanoke, VA ...... 87,928.62 ACORN Institute, Dallas, TX ...... 96,952.58
Fair Housing Organizations Initiative
Housing Discrimination Project, Holyoke, MA ...... 500,000.00
Private Enforcement Initiative
Fair Housing Council of Central California, Fresno, CA ...... 220,000.00 Fair Housing Center of Greater Grand Rapids, Grand Rapids, MI ...... 218,244.00 Housing Opportunities Made Equal, Inc., Buffalo, NY ...... 218,930.40 Fair Housing Council Montgomery County, Glenside, PA ...... 270,000.00 Tennessee Fair Housing Council, Nashville, TN ...... 219,542.40 Arizona Fair Housing Center, Phoenix, AZ ...... 219,535.20 Fair Housing Council of Suburban Philadelphia, Inc., Swarthmore, PA ...... 275,000.00 Housing Opportunities Made Equal of G. Cincinnati, Cincinnati, OH ...... 219,762.64 Family Housing Advisory Services, Inc., Omaha, NE ...... 275,000.00 Fair Housing Center of South Puget Sound, Tacoma, WA ...... 275,000.00 Jacksonville Area Legal Aid, Inc., Jacksonville, FL ...... 274,972.67 Housing Research & Advocacy Center, Cleveland, OH ...... 220,000.00 South Suburban Housing Center, Homewood, IL ...... 262,500.00 Inland Fair Housing and Mediation Board, Ontario, CA ...... 219,999.20 Fair Housing Resource Center, Inc., Painesville, OH ...... 220,000.00 Legal Aid Society of Minneapolis, Minneapolis, MN ...... 220,000.00 Gulfcoast Legal Services, Inc., St. Petersburg, FL ...... 220,000.00 Connecticut Fair Housing Center, Inc., Hartford, CT ...... 220,000.00 Chicago Lawyers’ Committee for Civil Rights, Chicago, IL ...... 219,960.80 Intermountain Fair Housing Council, Boise, ID ...... 219,399.20 South Brooklyn Legal Services, Inc., Brooklyn, NY ...... 220,000.00 California Rural Legal Assistance, Inc., San Francisco, CA ...... 220,000.00 North Dakota Fair Housing Council, Bismarck, ND ...... 188,538.40 Legal Aid Society of Hawaii, Honolulu, HI ...... 220,000.00 Fair Housing of Marin, San Rafael, CA ...... 220,000.00 Pine Tree Legal Assistance, Inc., Portland, ME ...... 220,000.00 Project Sentinel, Palo Alto, CA ...... 214,568.80 Miami Valley Fair Housing Center, Inc., Dayton, OH ...... 220,000.00 Fair Housing Center of Northern Alabama, Birmingham, AL ...... 220,000.00 Silver State Fair Housing Council, Reno, NV ...... 203,629.00 John Marshall Law School, Chicago, IL ...... 219,973.60 Fair Housing Continuum, Inc., Cocoa, FL ...... 275,000.00 Bay Area Legal Services, Inc., Tampa, FL ...... 127,467.89 Legal Assistant Corp. of Central Massachusetts, Worcester, MA ...... 220,000.00 Access Living of Metropolitan Chicago, Chicago, IL ...... 220,000.00 Metro St. Louis Equal Housing Opportunity Council, St. Louis, MO ...... 220,000.00 Metropolitan Milwaukee Fair Housing Council, Milwaukee, WI ...... 274,996.00 Gulf Coast Fair Housing Center, Gulfport, MS ...... 220,000.00 HOPE Fair Housing Center, Wheaton, IL ...... 274,702.33 Fair Housing Center of Greater Boston, Inc., Boston, MA ...... 274,166.67
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LIST OF AWARDEES UNDER THE FY 2005 FAIR HOUSING INITIATIVES PROGRAM FUNDING COMPETITION, BY INITIATIVE, ORGANIZATION, AND GRANT AMOUNT—Continued
Award amount Organization name (in dollars)
Metro Fair Housing Services, Inc., East Point, GA ...... 216,894.40 Montana Fair Housing, Inc., Missoula, MT ...... 220,000.00 Central Alabama Fair Housing Center, Montgomery, AL ...... 219,200.00 Northwest Fair Housing Alliance, Spokane, WA ...... 220,000.00 Austin Tenants Council, Inc., Austin, TX ...... 219,487.20 Westchester Residential Opportunities, Inc., White Plains, NY ...... 202,048.00 Lexington Fair Housing Council, Lexington, KY ...... 205,258.00 Fair Housing Center of Southwest Michigan, Kalamazoo, MI ...... 199,209.60 Housing Discrimination Project, Inc., Holyoke, MA ...... 220,000.00 Equal Rights Center, Washington, DC ...... 220,000.00 Sentinel Fair Housing, Oakland, CA ...... 219,432.00 West Tennessee Legal Services, Inc., Jackson, TN ...... 275,000.00 Long Island Housing Services, Inc., Bohemia, NY ...... 220,000.00 Fair Housing Partnership of Greater Pittsburgh, Inc., Pittsburgh, PA ...... 220,000.00 San Antonio Fair Housing Council, San Antonio, TX ...... 219,997.60 Fair Housing Contact Service, Akron, OH ...... 220,000.00 Metro Fair Housing Council of Greater Oklahoma, Oklahoma City, OK ...... 217,724.00 Bay Area Legal Aid, Oakland, CA ...... 220,000.00 Housing Advocates, Inc., Cleveland, OH ...... 217,640.00 Fair Housing Center of Metropolitan Detroit, Detroit, MI ...... 112,360.80 Savannah-Chatham County Fair Housing Council, Savannah, GA ...... 134,859.20
Dated: November 14, 2005. ADDRESSES: To become a qualified bidders an opportunity to bid Kim Kendrick, bidder and receive the BIP, prospective competitively on the Mortgage Loans. Assistant Secretary for Fair Housing and bidders must complete, execute, and The Mortgage Loans will be stratified Equal Opportunity. submit a Confidentiality Agreement and for bidding purposes into several [FR Doc. E5–7268 Filed 12–12–05; 8:45 am] a Qualification Statement acceptable to mortgage loan pools. Each pool will BILLING CODE 4210–28–P HUD. Both documents will be available contain Mortgage Loans that generally on the HUD Web site at http:// have similar performance, property www.hud.gov/offices/hsg/comp/asset/ type, geographic location, lien position DEPARTMENT OF HOUSING AND mfam/mhls.cfm. The executed and other characteristics. Qualified URBAN DEVELOPMENT documents must be mailed and faxed to bidders may submit bids on one or more S.S.D., Inc., HUD’s Transaction pools of Mortgage Loans or may bid on [Docket No. FR–4639–N–09] Specialist for the sale, at 1400 K Street, individual loans. A mortgagor who is a NW., Suite 950, Attention: MHLS 2005– qualified bidder may submit an Notice of HUD-Held Multifamily and 3 Sale Coordinator, Fax: (202) 464–3047. individual bid on its own Mortgage Healthcare Loan Sale (MHLS 2005–3) FOR FURTHER INFORMATION CONTACT: Loan. Interested Mortgagors should Myrna Gordon, Deputy Director, Asset AGENCY: Office of the Assistant review the Qualification Statement to Sales Office, Department of Housing and determine whether they may also be Secretary for Housing—Federal Housing Urban Development, 451 Seventh Street, Commissioner, HUD. eligible to qualify to submit bids on one SW., Room 3136, Washington, DC or more pools of Mortgage Loans or on ACTION: Notice of sale of mortgage loans. 20410–8000; telephone (202) 708–2625, individual loans in MHLS 2005–3. extension 3369 or Gregory Bolton, SUMMARY: This notice announces HUD’s Senior Attorney, Office of Insured The Bidding Process intention to sell certain unsubsidized Housing, Multifamily Division, Room multifamily and healthcare mortgage 9230; telephone (202) 708–0614, The BIP will describe in detail the loans, without Federal Housing extension 5245. Hearing- or speech- procedure for bidding in MHLS 2005–3. Administration (FHA) insurance, in a impaired individuals may call (202) The BIP will also include a standardized competitive, sealed bid sale (MHLS 708–4594 (TTY). These are not toll-free nonnegotiable loan sale agreement 2005–3). This notice also describes numbers. (Loan Sale Agreement) and a loan generally the bidding process for the SUPPLEMENTARY INFORMATION: HUD information CD that contains a sale and certain persons who are announces its intention to sell in MHLS spreadsheet with selected attributes for ineligible to bid. 2005–3 certain unsubsidized mortgage each Mortgage Loan. DATES: The Bidder’s Information loans (Mortgage Loans) secured by As part of its bid, each bidder must Package (BIP) was made available to multifamily and healthcare properties submit a deposit equal to the greater of qualified bidders on November 10, located throughout the United States. $100,000 or 10% of the bid price. HUD 2005. Bids for the loans must be The Mortgage Loans are comprised will evaluate the bids submitted and submitted on the bid date, which is primarily of non-performing mortgage determine the successful bids in its sole currently scheduled for December 14, loans. A final listing of the Mortgage and absolute discretion. If a bidder is 2005. HUD anticipates that awards will Loans will be included in the BIP. The successful, the bidder’s deposit will be be made on or before December 16, Mortgage Loans will be sold without non-refundable and will be applied 2005. Closings are expected to take FHA insurance and with servicing toward the purchase price. Deposits will place on December 21, 2005. released. HUD will offer qualified be returned to unsuccessful bidders.
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Closings are scheduled to occur on Bidder Eligibility pool containing such Mortgage Loan, December 21, 2005. In order to bid in the sale, a but may bid on loan pools that do not These are the essential terms of sale. prospective bidder must complete, contain Mortgage Loans that they have The Loan Sale Agreement, which will execute and submit both a serviced or held at any time during the be included in the BIP, will contain Confidentiality Agreement and a two-year period prior to November 30, 2005. Also ineligible to bid on any additional terms and details. To ensure Qualification Statement acceptable to Mortgage Loan are: (a) Any affiliate or a competitive bidding process, the terms HUD. The following individuals and principal of any entity or individual of the bidding process and the Loan Sale entities are ineligible to bid on any of described in the preceding sentence; (b) the Mortgage Loans included in MHLS Agreement are not subject to any employee or subcontractor of such 2005–3: negotiation. entity or individual during that two-year (1) Any employee of HUD, a member period; or (c) any entity or individual Due Diligence Review of such employee’s household, or an that employs or uses the services of any entity owned or controlled by any such The BIP will describe the due other entity or individual described in employee or member of such an diligence process for reviewing loan this paragraph in preparing its bid on employee’s household; files in MHLS 2005–3. Qualified bidders such Mortgage Loan. (2) any individual or entity that is will be able to access loan information Prospective bidders should carefully debarred, suspended, or excluded from remotely via a high-speed Internet review the Qualification Statement to doing business with HUD pursuant to connection. Further information on determine whether they are eligible to Title 24 of the Code of Federal performing due diligence review of the submit bids on the Mortgage Loans in Regulations, Part 24; MHLS 2005–3. Mortgage Loans will be provided in the (3) any contractor, subcontractor and/ BIP. or consultant or advisor (including any Freedom of Information Act Requests Mortgage Loan Sale Policy agent, employee, partner, director, HUD reserves the right, in its sole and principal or affiliate of any of the absolute discretion, to disclose HUD reserves the right to add foregoing) who performed services for or information regarding MHLS 2005–3, Mortgage Loans to or delete Mortgage on behalf of HUD in connection with including, but not limited to, the Loans from MHLS 2005–3 at any time MHLS 2005–3; identity of any successful bidder and its prior to the Award Date. HUD also (4) any individual who was a bid price or bid percentage for any pool reserves the right to reject any and all principal, partner, director, agent or of loans or individual loan, upon the bids, in whole or in part, without employee of any entity or individual closing of the sale of all the Mortgage prejudice to HUD’s right to include any described in subparagraph 3 above, at Loans. Even if HUD elects not to Mortgage Loans in a later sale. Mortgage any time during which the entity or publicly disclose any information Loans will not be withdrawn after the individual performed services for or on relating to MHLS 2005–3, HUD will Award Date except as is specifically behalf of HUD in connection with have the right to disclose any provided in the Loan Sale Agreement. MHLS 2005–3; information that HUD is obligated to This is a sale of unsubsidized (5) any individual or entity that uses disclose pursuant to the Freedom of mortgage loans. Pursuant to the the services, directly or indirectly, of Information Act and all regulations Multifamily Mortgage Sale Regulations, any person or entity ineligible under promulgated thereunder. subparagraphs 1 through 4 above to 24 CFR 290.30 et seq., the Mortgage Scope of Notice Loans will be sold without FHA assist in preparing any of its bids on the This notice applies to MHLS 2005–3 insurance. Consistent with HUD’s Mortgage Loans; and does not establish HUD’s policy for policy as set forth in 24 CFR 290.35, (6) any individual or entity which the sale of other mortgage loans. HUD is unaware of any Mortgage Loan employs or uses the services of an that is delinquent and secures a project employee of HUD (other than in such Dated: December 4, 2005. employee’s official capacity) who is (1) for which foreclosure appears Brian D. Montgomery, involved in MHLS 2005–3; unavoidable, and (2) in which very-low Assistant Secretary for Housing—Federal (7) any mortgagor (or affiliate of a income tenants reside who are not Housing Commissioner. mortgagor) that failed to submit to HUD receiving housing assistance and who [FR Doc. E5–7269 Filed 12–12–05; 8:45 am] on or before November 30, 2005, would be likely to pay rent in excess of BILLING CODE 4210–27–P audited financial statements for 1998 30 percent of their adjusted monthly through 2004 for a project securing a income if HUD sold the Mortgage Loan. Mortgage Loan; and DEPARTMENT OF THE INTERIOR If HUD determines that any Mortgage (8) any individual or entity and any Loans meet these criteria, they will be Related Party (as such term is defined in Bureau of Land Management removed from the sale. the Qualification Statement) of such Mortgage Loan Sale Procedure individual or entity that is a mortgagor [UT–070–1610–DP–011J] in any of HUD’s multifamily housing Supplement to Notice of Availability of HUD selected a competitive sale as programs and that is in default under the Draft Resource Management Plan the method to sell the Mortgage Loans such mortgage loan or is in violation of and Draft Environmental Impact primarily to satisfy the Mortgage Sale any regulatory or business agreements Statement for the Price Field Office To Regulations. This method of sale with HUD, unless such default or List Proposed Areas of Critical optimizes HUD’s return on the sale of violation is cured on or before Environmental Concern and Specific these Mortgage Loans, affords the November 30, 2005. Associated Resource Use Limitations greatest opportunity for all qualified In addition, any entity or individual for Public Lands in Carbon and Emery bidders to bid on the Mortgage Loans, that serviced or held any Mortgage Loan Counties, UT and provides the quickest and most at any time during the two-year period efficient vehicle for HUD to dispose of prior to November 30, 2005, is ineligible AGENCY: Bureau of Land Management, the Mortgage Loans. to bid on such Mortgage Loan or on the Interior.
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ACTION: Notice of availability. State, and private surface in the area. Pictographs ACEC, San Rafael Reef The decisions of the Price RMP will ACEC, Muddy Creek ACEC, Segers Hole SUMMARY: A notice of availability for the only apply to BLM-administered public ACEC, and Highway I–70 Scenic ACEC. Draft Resource Management Plan (RMP) lands and Federal mineral estate. Under all action alternatives, the and Environmental Impact Statement The Draft RMP/EIS addresses five Pictographs ACEC name would change (EIS) for the Price Field Office planning alternatives and provides proposed to the Rock Art ACEC and 12 sites area in Carbon and Emery Counties, management decisions and impact would be added, totaling 16,047 acres. Utah was published in the Federal analysis of the alternatives. The number Under Alternatives C and D, Swasey’s Register, volume 69, number 136, and acreages of ACECs that would be Cabin ACEC and Temple Mountain Friday, July 16, 2004. This supplements designated vary by alternative. For ACEC would be included as a part of the that Notice with information on existing example, Alternative A would designate Heritage Sites Potential ACEC. and potential Areas of Critical eight ACECs comprising 167,439 public The 9 potential ACECs being Environmental Concern (ACECs) surface acres, while Alternative C would considered are the Lower Green River considered within the Draft RMP and designate 19 ACECs comprising 642,516 Potential ACEC (38,317 acres), Gordon EIS, as required in 43 CFR 1610.7–2. acres. Resource use limitations applied Creek Potential ACEC (2,620 acres), The CFR also provides an associated 60- to the ACECs also vary by alternative in Beckwith Plateau Potential ACEC day comment period. some cases. There are presently 13 (50,531 acres), Temple-Cottonwood- DATES: The comment period will existing designated ACECs (289,629 Dugout Wash Potential ACEC (72,796 commence with the publication of this total acres) in the Price Field Office, acres), Nine Mile Canyon Potential notice in the Federal Register and end which were established by the San ACEC (48,861 acres), Range Creek 60 days after its publication. Rafael RMP (1991). These are reflected Potential ACEC (65,495 acres), ADDRESSES: Written comments on in the No Action Alternative of the Draft Cleveland-Lloyd Dinosaur Quarry ACECs should be sent to the Bureau of RMP and EIS. There are also 9 potential Potential ACEC (767 acres), Heritage Land Management, Price Field Office, ACECs (286,416 total acres), each of Sites Potential ACEC (2,862 acres, 7 125 South 600 West, Price, UT 84501. which is being considered in at least locations) and Uranium Mining Districts If you have already submitted comments one action alternative. Specific ACEC Potential ACEC (4,167 acres, 4 during the comment period for the Draft proposals, including resource use locations). RMP and EIS held from July 16, 2004, limitations, are described in detail by The Lower Green River Potential to November 30, 2004, they will be alternative in Chapter 2 of the Draft ACEC, Gordon Creek Potential ACEC, RMP/EIS. A summary of this considered for the Proposed RMP and and Beckwith Plateau Potential ACEC information follows: Final EIS, and there is no need to are proposed for designation under at resubmit them in response to this The 13 currently designated ACECs that are being reconsidered are as least one action alternative. Resource notice. use limitations would vary by Comments, including names and follows: Big Flat Tops ACEC (192 acres), Copper Globe ACEC (128 acres), San alternative and relate to livestock street addresses of respondents, will be grazing, leasing for oil and gas; disposal available for public review at the Price Rafael Canyon ACEC (49,791 acres), Sids Mountain ACEC (55,165 acres), of mineral materials, locatable mineral Field Office during regular business entry, OHV use, and VRM. Use hours, 8 a.m. to 4:30 p.m., Monday Bowknot Bend ACEC (1,087 acres), Dry Lake Archaeological District ACEC limitations for ROWs within the through Friday, except holidays and Beckwith Plateau Potential ACEC would will be subject to disclosure under the (18,007 acres), Pictographs ACEC (43 acres), San Rafael Reef ACEC (74,102 vary by alternative, and protective Freedom of Information Act (FOIA). measures would have to be taken within They may be published as part of the acres), Muddy Creek ACEC (25,751 acres), Segers Hole ACEC (7,369 acres), the Gordon Creek Potential ACEC before EIS and other related documents. Highway I–70 Scenic ACEC (39,488 surface-disturbing activities could Individual respondents may request acres), Swasey’s Cabin ACEC (60 acres) occur. confidentiality. If you wish to withhold and Temple Mountain ACEC (2,442 The Temple-Cottonwood-Dugout your name or street address from public acres). These currently designated Wash Potential ACEC, Nine Mile review and disclosure under the FOIA, ACECs would continue to be designated Canyon Potential ACEC, and the Range you must state this prominently at the in the No Action Alternative and in at Creek Potential ACEC are proposed for beginning of your written comment. least one of the action alternatives. designation under at least one action Such requests will be honored to the Boundaries and acreages vary by alternative. Resource use limitations extent allowed by law. All submissions alternative for the San Rafael Canyon relate to oil and gas leasing, OHV use, from organizations or businesses will be ACEC, Sids Mountain ACEC, and disposal of mineral materials, and made available for public inspection in Highway I–70 Scenic ACEC (acreage locatable mineral entry. Within the their entirety. figures shown above are for existing Range Creek potential ACEC, public FOR FURTHER INFORMATION CONTACT: ACEC boundaries). Resource use access would be limited to hiking and Floyd Johnson, Assistant Field Manager, limitations for all currently designated horseback riding only. The Nine Mile BLM Price Field Office, 125 South 600 ACECs vary by alternative and relate to Canyon Potential ACEC would have West, Price, UT 84501, phone 435–636– leasing for oil and gas, locatable mineral restrictions relating to VRM and cultural 3600. entry, right-of-way (ROW) grants, resources as well. SUPPLEMENTARY INFORMATION: The Price private or commercial use of woodland The Cleveland-Lloyd Dinosaur Quarry Field Office planning area includes all products, livestock use, land treatments Potential ACEC would be designated in of the public land and Federal mineral and range improvements, visual all action alternatives. Resource use ownership managed by the Price Field resource management (VRM), off- limitations would vary by alternative Office in Carbon and Emery Counties, highway vehicle (OHV) use, disposal of and relate to public access, OHV use, Utah. This area includes approximately mineral materials, and fire suppression construction of facilities, recreation, oil 2.5 million acres of BLM-administered activities. In addition, cultural resource and gas leasing, disposal of mineral surface lands and 2.8 million acres of considerations are made for Dry Lake materials, locatable mineral entry; and Federal mineral lands under Federal, Archaeological District ACEC, collection of nonrenewable resources.
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The Heritage Sites Potential ACEC comment period for the Draft RMP and including resource use limitations, are and the Uranium Mining Districts EIS held from January 14, 2005, to June described in detail by alternative in Potential ACEC would be designated 24, 2005, they will be considered for the Chapter 2 of the Draft RMP/EIS. A under Alternatives C and D. Resource Proposed RMP and Final EIS, and there summary of this information follows: use limitations for the Heritage Sites is no need to resubmit them in response The 7 currently designated ACECs Potential ACEC relate to oil and gas to this notice. that are being reconsidered are as leasing, locatable mineral entry, Comments, including names and follows (acreage figures shown are for disposal of mineral materials, ROW street addresses of respondents, will be grants, land treatments and range available for public review at the Vernal existing ACEC boundaries): Red improvements, and VRM. Resource use Field Office during regular business Mountain-Dry Fork ACEC (24,285 limitations for the Uranium Mining hours, 8 a.m. to 4:30 p.m., Monday acres), Nine Mile Canyon ACEC (44,181 Districts Potential ACEC relate to through Friday, except holidays and acres), Browns Park ACEC (52,721 firewood collection, livestock use, oil will be subject to disclosure under the acres), Lower Green River ACEC (8,470 and gas leasing, disposal of mineral Freedom of Information Act (FOIA). acres), Lears Canyon ACEC (1,375 acres) materials, locatable mineral entry, and They may be published as part of the and Pariette Wetlands ACEC (10,437 cultural resources. EIS and other related documents. acres), and the Red Creek Watershed Dated: October 18, 2005. Individual respondents may request ACEC (24,475 acres). Resource use confidentiality with respect to their limitations for these ACECs would vary Jeff Rawson, name, address, and phone number. If by alternative, and relate to oil and gas Acting State Director. you wish to withhold your name or leasing, visual resource management [FR Doc. E5–7254 Filed 12–12–05; 8:45 am] street address from public review and (VRM) and management of off-highway BILLING CODE 4310–DK–P disclosure under the FOIA, you must vehicle (OHV) use. In addition, there are state this prominently at the beginning limitations regarding disposal of of your written comment. Such requests DEPARTMENT OF THE INTERIOR mineral materials within the Lears will be honored to the extent allowed by Canyon and Pariette Wetlands ACECs. Bureau of Land Management law. All submissions from organizations The Red Mountain-Dry Fork ACEC, or businesses will be made available for Browns Park ACEC, Lears Canyon [UT–080–1610–DP–010J] public inspection in their entirety. ACEC, Pariette Wetlands ACEC, Red Supplement to Notice of Availability of FOR FURTHER INFORMATION CONTACT: Jerry Creek Watershed ACEC, and Nine Mile the Draft Resource Management Plan Kenczka, Planner, BLM Vernal Field Canyon ACEC would continue to be and Draft Environmental Impact Office, 170 South 500 East, Vernal, UT designated in all alternatives, although Statement for the Vernal Field Office 84078, phone 435–781–4400. boundaries and acreages vary by To List Proposed Areas of Critical SUPPLEMENTARY INFORMATION: The alternative for the Nine Mile Canyon Environmental Concern and Specific Vernal Field Office planning area and Brown’s Park ACEC. The Lower Associated Resource Use Limitations includes all of the public land and Green River ACEC would continue to be for Public Lands in Daggett, Duchesne, Federal mineral ownership managed by designated in Alternatives A, C, and D, Uintah and Grand Counties, UT the Vernal Field Office in Daggett, and boundaries and acreages for this Duchesne, and Uintah Counties, in ACEC would vary by alternative. AGENCY: Bureau of Land Management, northeast Utah, and about 3,000 acres in Interior. Grand County. This area includes The 6 potential ACECs being ACTION: Notice of availability. approximately 1.8 million acres of BLM considered are as follows: Middle Green administered surface lands and 2.1 River Potential ACEC (6,768 acres), Four SUMMARY: A notice of availability for the million acres of Federal mineral lands Mile Wash Potential ACEC (50,280 Draft Resource Management Plan (RMP) under Federal, state, private, and Ute acres), Main Canyon Potential ACEC and Environmental Impact Statement Tribal surface in the four county areas. (100,915 acres), Coyote Basin Potential (EIS) for the Vernal Field Office The Draft RMP/EIS addresses four ACEC, White River Potential ACEC, and planning area in Daggett, Duchesne, and alternatives and provides proposed Bitter Creek Potential ACEC. Boundaries Uintah Counties, Utah was published in management decisions and impact and acreages would vary by alternative the Federal Register, volume 70, analysis of the alternatives. The number for the Coyote Basin, White River, and number 10, on Friday, January 14, 2005. and acreages of ACECs that would be Bitter Creek Potential ACECs. When This supplements that Notice with designated vary by alternative. For included in more than one alternative, information on existing and potential example, Alternative D would designate Areas of Critical Environmental Concern resource use limitations for these ACECs seven ACECs comprising 165,944 public would vary and relate to oil and gas (ACECs) considered within the Draft surface acres, while Alternative C would RMP and EIS, as required in 43 CFR leasing, visual resource management, designate 13 ACECs comprising 681,310 and management of OHV use. 1610.7–2. The CFR also provides an acres. Resource use limitations often associated 60-day comment period on vary by ACEC and alternative as well. Dated: October 18, 2005. the potential ACECs. There are presently 7 designated Jeff Rawson, DATES: The comment period will ACECs (165,944 acres) in the Vernal Acting State Director. commence with the publication of this Field Office, which were established by [FR Doc. E5–7253 Filed 12–12–05; 8:45 am] notice in the Federal Register and end the Diamond Mountain Resource BILLING CODE 4310–DK–P 60 days after its publication. Management Plan (RMP) (1994). These ADDRESSES: Written comments on are reflected in the No Action ACECs should be sent to the Bureau of Alternative (Alternative D) of the Draft Land Management, Vernal Field Office, RMP and EIS. There are also 6 potential 170 South 500 East, Vernal, UT 84078; ACECs (515,366 acres), each of which is Fax 435–781–4410. If you have already being considered in at least one submitted comments during the alternative. Specific ACEC proposals,
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DEPARTMENT OF THE INTERIOR Written: Mail or deliver to BLM Oil Individual respondents may request Shale and Tar Sands Resources Leasing confidentiality. If you wish to withhold Bureau of Land Management Programmatic EIS Scoping, Argonne your name and/or address from public [WO–300–1310–PP–OSHL] National Laboratory, 9700 S. Cass review or disclosure under the Freedom Avenue, Argonne, IL 60439. of Information Act, you must state this Notice of Intent To Prepare a Electronic: Through the Web site at prominently at the beginning of your Programmatic Environmental Impact http://ostseis.anl.gov. written comment. The BLM will honor Statement (EIS) and Plan Amendments FOR FURTHER INFORMATION CONTACT: For such requests to the extent allowed by for Oil Shale and Tar Sands Resources further information and/or to have your law. All submissions from organizations Leasing on Lands Administered by the name added to our mailing list, contact or businesses, and from individuals Bureau of Land Management in Sherri Thompson, Bureau of Land identifying themselves as Colorado, Utah, and Wyoming Management, Colorado State Office, representatives or officials of 2850 Youngfield Street, Lakewood, CO organizations or businesses, are AGENCY: Bureau of Land Management, 80215, (303) 239–3758 or visit the Oil available for public inspection in their Interior. Shale and Tar Sands Resources Leasing entirety. ACTION: Notice of intent. Programmatic EIS Web site at http:// Preliminary issues and management ostseis.anl.gov. concerns have been identified by BLM SUMMARY: In accordance with section personnel, other agencies, and in SUPPLEMENTARY INFORMATION: This 369(d)(1) of the Energy Policy Act of meetings with individuals and user Notice Of Intent provides public notice 2005, the Bureau of Land Management groups. They represent the BLM’s that the BLM intends to prepare the (BLM) intends to prepare a knowledge to date regarding the issues Programmatic EIS to amend applicable Programmatic EIS for Oil Shale and Tar and concerns with current land resource management plans to open Sands Resources Leasing on Lands management. The major issues that will BLM lands for oil shale and tar sands Administered by the BLM in Colorado, be addressed in this planning effort leasing in Colorado, Utah and Wyoming. Utah, and Wyoming, and by this notice include: Management of the oil shale It also announces opportunities for the is announcing public scoping meetings. and tar sands resources; surface and public to provide comments relating to The Programmatic EIS will amend groundwater protection; air quality the preparation, scope, and content of existing applicable Resource protection; wildlife and wildlife habitat the Programmatic EIS. The Management Plans to open lands for oil quality and fragmentation; protection of Programmatic EIS will also inform the shale and tar sands resources leasing in wilderness, riparian, and scenic values; development of the regulations required these three states. The Programmatic EIS cultural resource protection; threatened by section 369(d)(2) of the Energy Policy will also inform the development of the and endangered species and habitat Act of 2005. regulations required by section 369(d)(2) protection; transportation corridors; of the Energy Policy Act of 2005. The planning area for the oil shale resources is the Piceance and Washakie multiple mineral development; and DATES: The BLM will accept written Basins in Colorado, the Uintah Basin in socio-economic impacts on local comments on the scope of the Utah, and the Green River and Washakie economies. After BLM has gathered public input Programmatic EIS that are postmarked Basins in Wyoming. For the tar sands on issues the plan should address, we or delivered by January 31, 2006, and resources, the planning area is certain electronic comments that are received will categorize comments as follows: sedimentary provinces in the Colorado 1. Issues to be resolved in the plan; by January 31, 2006. The BLM will hold Plateau in Utah. The plan will fulfill the public scoping meetings to obtain 2. Issues to be resolved through needs and obligations set forth by the policy, regulation, or administrative comments at the following locations on National Environmental Policy Act the dates specified below: action; or (NEPA), the Federal Land Policy and 3. Issues beyond the scope of this Salt Lake City, Utah: Tuesday, January Management Act (FLPMA), and BLM plan. 10, 2006; policies. The BLM will work The BLM will provide an explanation Price, Utah: Wednesday, January 11, collaboratively with interested parties to in the Programmatic EIS as to why we 2006; identify the leasing decisions that are placed an issue in category two or three. Vernal, Utah: Thursday, January 12, best suited to local, regional, and In addition to these major issues, a 2006; national needs and concerns. The number of management questions and Rock Springs, Wyoming: Friday, January Programmatic EIS will analyze the no concerns will be addressed in the 13, 2006; action alternative and leasing under Programmatic EIS. The public is Rifle, Colorado: Wednesday, January 18, stipulations to protect other resource encouraged to help identify these 2006; values and other alternatives identified questions and concerns during the Denver, Colorado: Thursday, January 19, during scoping. The purpose of the scoping phase. 2006; public scoping process is to determine Planning criteria are the standards, Cheyenne, Wyoming: Friday, January relevant issues that will influence the rules, and other factors used in 20, 2006; scope of the environmental analysis and formulating judgments about data The BLM will announce exact times the alternatives. These issues also guide collection, analysis and decisionmaking and locations for all public meetings the planning process. You may submit associated with preparation of the through the local media, newsletters, comments on issues and planning Programmatic EIS. These criteria and the project Web site (http:// criteria in writing to the BLM at any establish parameters and help focus ostseis.anl.gov) at least 15 days prior to public scoping meeting, or by using one preparation of the EIS. We welcome the meeting. We will provide formal of the methods listed in the ADDRESSES public comment on the following opportunities for public participation section above. The minutes and list of preliminary planning criteria, which upon publication of the Draft attendees for each scoping meeting will will be utilized in the preparation of the Programmatic EIS. be available to the public and open for Programmatic EIS: ADDRESSES: You may submit comments 30 days after the meeting should A. The Programmatic EIS and plan by the following methods: participants wish to clarify their views. amendments will be completed in
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compliance with the Federal Land SUMMARY: The U.S. Department of with this proposed withdrawal may Policy and Management Act and all Agriculture has filed an application present their views in writing to the other applicable laws. requesting the Secretary of the Interior Wyoming State Director of the Bureau of B. BLM will work collaboratively with to withdraw from mining 1278.09 acres Land Management. the States of Colorado, Utah, and of National Forest System lands for 20 Comments, including names and Wyoming, tribal governments, county years to protect the unique natural, street addresses of respondents, will be and municipal governments, other archaeological, and historical values in available for public review at the BLM Federal agencies, and all other the Inyan Kara area of the Black Hills Wyoming State Office, 5353 interested groups, agencies and National Forest. This notice segregates Yellowstone Road, Cheyenne, individuals. Public participation will be the lands from location and entry under encouraged throughout the process. the United States mining laws for up to Wyoming, during regular business C. The Programmatic EIS will amend 2 years. The land will remain open to hours. the appropriate individual land use mineral leasing and to all other forms of Individual respondents may request plans to address leasing of oil shale and disposition which may by law be made confidentiality. If you wish to withhold tar sands resources on BLM- of National Forest System lands. your name or address from public administered lands. DATES: Comments and requests for a review or from disclosure under the D. A strategy to mitigate socio- public meeting should be received on or Freedom of Information Act, you must economic impacts including the before March 13, 2006. state this prominently at the beginning infrastructure to accommodate the ADDRESSES: Comments and meeting of your comments. Such requests will be required workforce will be addressed in requests should be sent to the State honored to the extent allowed by law. the Programmatic EIS and plan Director, Wyoming State Office, Bureau All submissions from organizations or amendments. of Land Management (BLM), P.O. Box businesses, and from individuals E. Preparation of the Programmatic 1828, Cheyenne, Wyoming 82003. identifying themselves as EIS and plan amendments will involve FOR FURTHER INFORMATION CONTACT: representatives or officials of coordination with Native American Janet Booth, BLM Wyoming State Office, organizations or businesses, will be Tribal governments and will provide 307–775–6124. made available for public inspection in strategies for the protection of their entirety. recognized traditional uses. SUPPLEMENTARY INFORMATION: The U.S. F. BLM will coordinate with local, Department of Agriculture, acting Notice is hereby given that an State, and Federal agencies in the through the Forest Service, filed an opportunity for a public meeting is Programmatic EIS and plan application with the Bureau of Land afforded in connection with the amendments to strive for consistency Management to withdraw the following proposed withdrawal. All interested with their existing plans and Policies, to described National Forest System lands persons who desire a public meeting for the extent practicable. from location and entry under the the purpose of being heard on the G. The Programmatic EIS will comply United States mining laws, subject to proposed withdrawal must submit a with the legislative directives set forth valid existing rights: written request to the Wyoming State in the Energy Policy Act of 2005. Director within 90 days from the date of Black Hills National Forest, Sixth Principal publication of this notice. Upon The BLM will use an interdisciplinary Meridian approach to develop the Programmatic determination by the authorized officer EIS in order to consider the variety of T. 49 N., R. 62 W., sec. 19, lots 1 to 4, that a public meeting will be held, a inclusive, E1⁄2, and E1⁄2W1⁄2; sec. 30, lots 1 resource issues and concerns identified. notice of time and place will be and 2, E1⁄2NW1⁄4, and N1⁄2NE1⁄4. Specialists with expertise in the published in the Federal Register at following disciplines will be involved T. 49 N., R. 63 W., sec. 24, E1⁄2E1⁄2; sec. 25, least 30 days before the scheduled date 1 1 1 in the planning process: Minerals and NE ⁄4, and N ⁄2SE ⁄4. of the meeting. geology, wildlife and fisheries, air The area described contains 1278.09 acres, The application will be processed in quality, outdoor recreation, archeology, more or less, in Crook County, Wyoming. accordance with the regulations set paleontology, hydrology, soils, The purpose of this proposed forth in 43 CFR Part 2300. sociology and economics. withdrawal is to protect an important For a period of 2 years from the date Thomas P. Lonnie, natural, historical and cultural resource. of publication of this notice in the Assistant Director, Minerals, Realty, and As proposed, the withdrawal would be Federal Register, the lands will be Resource Protection. for a period of 20 years. segregated from location and entry [FR Doc. 05–23976 Filed 12–12–05; 8:45 am] The use of a right-of-way or under the United States mining laws as cooperative agreement instead of a BILLING CODE 4310–84–P specified above unless the application is withdrawal would not provide adequate denied or cancelled or the withdrawal is protection for this area. Because of the approved prior to that date. During this broad scope and nondiscretionary DEPARTMENT OF THE INTERIOR period, the Forest Service will continue nature of the general mining laws, the to permit uses within the statutory Bureau of Land Management area would remain open and vulnerable authorities pertinent to National Forest to prospecting, location, and mining. [WY–920–1430–ET; WYW 162499] There are no alternative sites since the System lands and subject to lands described contain the resources discretionary approval. Notice of Proposed Withdrawal and that need protection. Authority: 43 CFR 2310.3 Opportunity for Public Meeting; Water will not be needed to fulfill the Wyoming purpose of the requested withdrawal. Michael Madrid, Chief, Branch of Fluid Mineral Operations, AGENCY: Bureau of Land Management, For a period of 90 days from the date Lands and Appraisal. Interior. of publication of this notice, all persons who wish to submit comments, [FR Doc. E5–7240 Filed 12–12–05; 8:45 am] ACTION: Notice. suggestions, or objections in connection BILLING CODE 4310–22–P
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DEPARTMENT OF THE INTERIOR [email protected], of on the Web at opened to operation of the public land http://www.or.blm.gov laws generally, subject to valid existing Bureau of Land Management rights, the provisions of existing Jay Carlson, [OR–100–6333–PH; GP2–0195] withdrawals, other segregations of Roseburg District Manager. record, and the requirements of Meetings; Resource Advisor [FR Doc. 05–23874 Filed 12–12–05; 8:45 am] applicable law. All valid applications Committees BILLING CODE 4310–33–M received at or prior to 9 a.m. on January 12, 2006, shall be considered as AGENCY: Bureau of Land Management. simultaneously filed at that time. Those ACTION: Meeting notices for the DEPARTMENT OF THE INTERIOR received thereafter shall be considered Roseburg District Bureau of Land Bureau of Land Management in the order of filing. Management (BLM) Resource Advisory 3. At 9 a.m. on January 12, 2006, the Committee under section 205 of the [CO–923–1430–ET; COC–17097, COC– lands described Paragraph 1 will be Secure Rural Schools and Community 17128, COC–19377] opened to nonmetalliferous location and Self Determination Act of 2000 (PL 106– entry under the United States mining 393). Public Land Order No. 7648; Partial Revocation of the Executive Order laws subject to valid exiting rights, the provisions of existing withdrawals, SUMMARY: This notice is published in Which Created Public Water Reserve No. 107; Colorado other segregations of record, and the accordance with section 10(a)(2) of the requirements of applicable law. Federal Advisory Committee Act. AGENCY: Bureau of Land Management, Appropriation of any of the lands Meeting notice is hereby given for the Interior. described in this order to Roseburg District BLM Resource ACTION: Public land order. nonmetalliferous mining under the Advisory Committee pursuant to section general mining laws prior to the date 205 of the Secure Rural Schools and SUMMARY: This order partially revokes and time of restoration is unauthorized. Community Self Determination Act of an Executive Order insofar as it affects Any such attempted appropriation, 2000, Public Law 106–393 (the Act). 326.28 acres of public lands withdrawn including attempted adverse possession Topics to be discussed by the Roseburg for Bureau of Land Management Public under 30 U.S.C. 38 (2000), shall vest no District BLM Resource Advisory Water Reserve No. 107. This action will rights against the United States. Acts Committee include operating open 326.28 acres to surface entry under required to establish a location and to procedures, evaluation criteria for the public land laws and to initiate a right of possession are projects, and the schedule for future nonmetalliferous location and entry governed by State law when not in meetings in 2006. under the United States Mining laws to conflict with Federal Law. The Bureau DATES: The Roseburg Resource Advisory allow for disposal. of Land Management will not intervene Committee will meet at the BLM Effective Date: January 12, 2006. in disputes between rival locators over Roseburg District Office, 777 NW., FOR FURTHER INFORMATION CONTACT: possessory rights since Congress has Garden Valley Boulevard, Roseburg, Doris E. Chelius, BLM Colorado State provided for such determinations in Oregon 97470, 9 a.m. to 12 p.m., on Office, 2850 Youngfield Street, local courts. January 23, 2006. Lakewood, Colorado 80215, 303–239– Dated: October 28, 2005. SUPPLEMENTARY INFORMATION: Pursuant 3706. Rebecca W. Watson, to the Act, five Resource Advisory SUPPLEMENTARY INFORMATION: The lands Committees have been formed for Assistant Secretary—Land and Minerals have been and will remain open to Management. western Oregon BLM districts that mineral leasing and to metalliferous [FR Doc. E5–7255 Filed 12–12–05; 8:45 am] contain Oregon & California (O&C) mining. Grand Lands and Coos Bay Wagon Road BILLING CODE 4310–JB–P lands. The Act establishes a six-year Order payment schedule to local counties in By virtue of the authority vested in DEPARTMENT OF THE INTERIOR lieu of funds derived from the harvest the Secretary of the Interior by Section of timber on federal lands, which have 204 of the Federal Land Policy and National Park Service dropped dramatically over the past 10 Management Act of 1976, 43 U.S.C. years. 1714 (2000), it is ordered as follows: 60-Day Notice of Intention To Request The Act creates a new mechanism for 1. Executive Order of April 17, 1926, Clearance of Collection of Information; local community collaboration with which established Public Water Reserve Opportunity for Public Comment federal land management activities in No. 107, is hereby revoked insofar as it the selection of projects to be conducted affects the following described lands: AGENCY: National Park Service, The on federal lands or that will benefit Department of the Interior. New Mexico Principal Meridian resources on federal lands using funds ACTION: Notice of request for comments. under Title II of the Act. The Roseburg T. 35 N., R. 6 E., sec. 21, lot 6. District BLM Resource Advisory T. 42 N., R. 6 E., sec. 11, NW1/4SE1/4. SUMMARY: In accordance with the Committee consists of 15 local citizens T. 43 N., R. 7 E., sec. 29, NE1/4SW1/4. Paperwork Reduction Act of 1995, this T. 49 N., R.12 E., sec. 8, NE1/4NE1/4. notice announces the National Park (plus 6 alternates) representing a wide T. 46 N., R. 3 W., sec. 21, NW1/4NW1/4; sec. array of interests. 29, SW1/4NE1/4; sec. 33, lot 1. Service’s (NPS) intention to request an FOR FURTHER INFORMATION CONTACT: extension for a currently approved T. 46 N., R. 4 W., sec. 24, SW1/4NE1/4. Additional information concerning the information collection in support of its Roseburg District BLM Resource The areas described aggregate 326.28 acres Concession Management Program. Advisory Committee may be obtained in Freemont, Gunnison, Conejos, and DATES: Public comments will be from Jake Winn, Roseburg District Saguache Counties. accepted on or before 60 days from the Office, 777 Garden Valley Blvd, 2. At 9 a.m. on January 12, 2006, the date of publication in the Federal Roseburg, Oregon 97470, or lands described Paragraph 1 will be Register.
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ADDRESSES: Send comments to Jo A. fees belong to the Government. If any DEPARTMENT OF THE INTERIOR Pendry, Concession Program Manager, portion of the purchase price is National Park Service, 1849 C Street, attributable either directly or indirectly National Park Service NW., (2410), Washington, DC 20240; e- to such assets, the transaction may not Notice of Availability of the Final mail: [email protected]; Phone: 202/ be approved. The amount and type of Environmental Impact Statement for 513–7144; Fax: 202/371–2090. information to be submitted varies with the General Management Plan, Lincoln SUPPLEMENTARY INFORMATION: the type and complexity of the proposed Boyhood National Memorial, IN Title: Proposed Sale of Concession transaction. Without such information, Operations. the NPS would be unable to determine AGENCY: National Park Service, OMB Control Number: 1024–0126. whether approval of the proposed Department of the Interior Expiration Date of Approval: February transaction would be adequate. SUMMARY: Pursuant to section 102(2)(C) 28, 2006. Send comments on: (1) The need for of the National Environmental Policy Type of Request: Extension of a Act of 1969, 42 U.S.C. 4332(2)(C), the currently approved information the collection of information for the performance of the functions of the National Park Service (NPS) announces collection. the availability of the final Description of Need: The National agency; (2) the accuracy of the agency’s burden estimates; (3) ways to enhance environmental impact statement/general Park Service (NPS) authorizes private management plan (EIS/GMP), Lincoln the quality, utility and clarity of the businesses known as concessioners to Boyhood National Memorial, Indiana. provide necessary and appropriate information collection; (4) and ways to minimize the information collection DATES: The draft EIS/GMP was on visitor facilities and services in areas of public review for 60 days beginning on the National Park System. Concession burden on respondents, such as use of automated means of collection of the June 17. Responses to substantive public authorizations may be assigned, sold, comments are addressed in the final information. transferred or encumbered by the EIS/GMP. The NPS will execute a concessioner subject to prior written Estimate of Burden: Approximately 8 record of decision (ROD) no sooner than approval of the NPS. The NPS requires hours per response. 30 days following publication of the that certain information be submitted Environmental Protection Agency’s for review prior to the consummation of Estimated Number of Respondents: Approximately 20. notice of availability of the final EIS/ any sale, transfer, assignment, or GMP in the Federal Register. encumbrance. Estimated Number of Responses per 16 U.S.C. 3 provides that no contract, Respondent: One. ADDRESSES: Copies of the Final GMP/ lease, permit or privilege granted for the EIS are available by request by writing Estimated Total Annual Burden on to the Superintendent at Lincoln purpose of providing accommodations Respondents: 1600 hours. for visitors to the national parks shall be Boyhood National Memorial, P.O. Box assigned or transferred by such grantees, A list of information required to be 1816, Lincoln City, Indiana 47552–1816; permitees, or licenses without the submitted with a request for sale, by telephoning the park office at (812) assignment, transfer or encumbrance of 937–4541; or by e-mail at approval of the NPS, first obtained in _ writing. It further provides that the NPS a concession authorization is set forth at
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possible, some elements of the cloister the National Park System within the nonrecreational through-traffic would could be returned to their original District of Columbia. be accommodated. However, to improve design. The new addition or structure DATES: The FEIS/GMP will be made visitor safety and the quality of the would harmonize in size, scale, available to the public for review and visitor’s experience, traffic speeds proportion, and materials with the comment until February 13, 2006. would be reduced as compared to the extant structure, and would not intrude During the 60 day period the National No Action Alternative. on the historic scene. Park Service will take no action and will The ‘‘No Action’’ Alternative Among the alternatives the NPS accept further public comment on the (Alternative B) is a continuation of the considered, the preferred alternative final plan. A 90-day public review present management course of visitor best protects the Memorial’s natural and period took place on the Draft use and resource protection. cultural resources, while also providing Environmental Impact Statement for the Alternative C, ‘‘Non-motorized a range of quality recreational and General Management Plan, Rock Creek Recreation Emphasis,’’ would eliminate educational experiences. It also meets Park and Rock Creek and Potomac automobile traffic along much of the NPS goals for managing the Memorial, Parkway (DEIS/GMP) from April 15 to northern portion of Beach Drive and and meets national environmental July 15, 2003 (68 FR 12368). Responses implement automobile traffic along policy goals. The preferred alternative to public comment are addressed in the much of the northern portion of Beach will not result in the impairment of FEIS/GMP. Drive and implement traffic-calming measures on the roads in the southern resources and values. The full range of ADDRESSES: The document will be foreseeable environmental portion of the park and on the parkway. available for public review at: Management of resources other than consequences was assessed. • Office of the Superintendent, Rock traffic would be the same as in During the public review period for Creek Park, 3545 Williamsburg Lane, the draft EIS/GMP, a total of 12 Alternative A. NW., Washington, DC 20008–1207; Alternative D, ‘‘Mid-weekly comments were received from other • Office of the Chief of Planning, agencies and private individuals. None Recreation Enhancement,’’ would National Capital Region, National Park eliminate automobile traffic along much of the comments initiated a change in Service, 1100 Ohio Drive, SW., the results of the analysis of impacts on of the northern part of Beach Drive from Washington, DC 20242, (202) 619–7277; 9:30 a.m. to 3:30 p.m. on weekdays. important resources. However, several • Office of Public Affairs, National Management of resources other than recommendations were made Park Service, Department of the Interior, traffic would be the same as in concerning the management of native 18th and C Streets, NW., Washington, tree species and were incorporated into Alternative A. Alternative D is the DC 20240, (202) 208–6843; environmentally preferred alternative. the final EIS. Other concerns were • http://parkplanning.nps.gov expressed considering the need for • http://www.nps.gov/rocr/pphtml/ In the DEIS/GMP, Alternative D was the National Park Service’s preferred visitors to cross the existing county road documents.html and the existing railroad track. The NPS alternative. Following issuance of the SUPPLEMENTARY INFORMATION: The FEIS/ DEIS/GMP, the National Park Service will provide proper signage for these GMP analyzes four alternatives for crossings and will work with the county considered a proposal to create a managing Rock Creek Park and the Rock variation called D–1, which would close government to install traffic calming Creek and Potomac Parkway. The plan devices on the county road. Other Beach Drive from Broad Branch Road to is intended to provide a foundation to Joyce Road during the same time as in concerns included the current and help park managers guide park future route of the U.S. Highway 231. Alternative D, but concluded this new programs and set priorities for the variation was not needed since it was Dated: October 28, 2005. management of Rock Creek Park and the essentially contained in the existing Ernest Quintana, Rock Creek and Potomac Parkway for Alternative D. As a result of the Regional Director, Midwest Region. the next 15 to 20 years. The FEIS/GMP comments received from the public and [FR Doc. E5–7266 Filed 12–12–05; 8:45 am] evaluates the environmental government agencies as well as analysis BILLING CODE 4312–89–P consequences of the preferred of the scientific and regulatory alternative and the other alternatives on components and review of the natural and cultural resources, conclusions of the DEIS/GMP, the DEPARTMENT OF THE INTERIOR traditional park character and visitor National Park Service’s preferred experience, public health and safety, alternative is now Alternative A. National Park Service regional and local transportation and You may submit your comments on community character. the FEIS/GMP by any of several Notice of Availability of the Final Alternative A, ‘‘Improved methods. Comments may be: Mailed to Environmental Impact for the General Management of Established Uses,’’ is the the Superintendent, Rock Creek Park, Management Plan, Rock Creek Park, National Park Service’s Preferred 3545 Williamsburg Lane NW., and the Rock Creek and Potomac Alternative. Alternative A would Washington, DC 20008–1207; e-mailed Parkway improve visitor safety, better control to [email protected]; or AGENCY: National Park Service, traffic speeds through the park, enhance submitted via an electronic link at Department of the Interior. interpretation and education http://parkplanning.nps.gov. Click on ACTION: Notice. opportunities and improve the use of the link ‘‘Plans/Documents Open for park resources, especially cultural Comment,’’ and follow that link to SUMMARY: Pursuant to the National resources. It generally retains the ‘‘Rock Creek Park GMP/EIS.’’ Environmental Policy Act of 1969, 42 current scope of visitor uses. Traffic Our practice is to make comments, U.S.C. 4332(c), the National Park management within the park and including names and home addresses of Service announces the availability of the parkway would be improved through respondents, available for public review Final Environmental Impact Statement the use of traffic calming devices, such during regular business hours. for the General Management Plan, Rock as speed tables, and speed enforcement Individual respondents may request that Creek Park and the Rock Creek and measures. The existing park roadway we withhold their home address from Potomac Parkway (FEIS/GMP), a unit of system would be retained and the record, which we will honor to the
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extent allowable by law. There also may 2006 when it is ready for public review. Public Conservation and Recreation be circumstances in which we would The NPS will notify the public by mail, Areas. Consideration was given to the withhold your name and/or address, website, and other means and will following factors listed in 43 CFR 21.4 you must state this prominently at the include where or how to obtain a copy (a)(1)(i-iv): existing and projected public beginning of your comment. We will of the EA, how to comment on the EA, need for the area, compatibility between make all submissions from and the length of the public comment public uses and private cabin sites, organizations or businesses, and from period. development potential and plans for the individuals identifying themselves as FOR FURTHER INFORMATION CONTACT: area, and other relevant factors. An representatives or officials of Laura Joss, Superintendent, Arches analysis of each of these factors is given organizations or businesses, available National Park, PO Box 907, Moab, UT in ‘‘Supplemental Information’’. From for public inspection in their entirety. 84532–0907; Tel: (435) 719–2201; FAX this analysis it has been determined that FOR FURTHER INFORMATION CONTACT: (435) 719–2305; e-mail: public need for the area currently Superintendent, Rock Creek Park, 3545 [email protected]. occupied by Keyhole and Sundance Williamsburg Lane NW., Washington, Dated: November 1, 2005. boat clubs has grown to a point where DC 20008–1207, (202) 895–6004. continued use of the area by the boat Kate Cannon, Dated: September 23, 2005. clubs is no longer in the best public Acting Deputy Director, Intermountain interest. Joseph M. Lawler, Region. Regional Director, National Capital Region. [FR Doc. E5–7267 Filed 12–12–05; 8:45 am] DATES: The Keyhole and Sundance Boat [FR Doc. 05–23966 Filed 12–12–05; 8:45 am] BILLING CODE 4312–06–P Club permits will expire December 31, BILLING CODE 4312–52–M 2005. ADDRESSES: The Keyhole State Park DEPARTMENT OF THE INTERIOR Recreation Master Plan is available for DEPARTMENT OF THE INTERIOR review on WSPHS’s Web site at: http:// Bureau of Reclamation wyoparks.state.wy.us/keyhole- National Park Service recreation-master-plan.pdf or can be Notice of Intent of Non-Renewal of obtained by writing to: Area Manager, Transportation Plan, Termination of Permits to Keyhole and Sundance Boat Bureau of Reclamation, Dakotas Area the Environmental Impact Statement, Clubs, Keyhole Reservoir, WY Arches National Park, UT Office, P.O. Box 1017, Bismarck ND AGENCY: Bureau of Reclamation, 58502. AGENCY: National Park Service, Interior. FOR FURTHER INFORMATION CONTACT: Department of the Interior. ACTION: Notice of intent of non-renewal Joseph E. Hall, Chief, Resource ACTION: Notice of termination of the of permits to Keyhole and Sundance Management Division, Bureau of Environmental Impact Statement for the Boat Clubs, Keyhole Reservoir, Reclamation, Dakotas Area Office, P.O. Transportation Plan, Arches National Wyoming. Box 1017, Bismarck, ND 58502; Park. Telephone: 701–250–4242 extension SUMMARY: The permits between the State 3615; or FAX to 701–250–4326. SUMMARY: In a Notice of Intent of Wyoming, Department of State Parks published May 7, 2003 (68 FR 24501), and Cultural Resources, Division of SUPPLEMENTARY INFORMATION: the National Park Service (NPS) State Parks and Historic Sites (WSPHS) Information supporting the review to announced its intent to prepare an and the Keyhole and Sundance Boat determine if the existence of the boat Environmental Impact Statement (EIS) Clubs at Keyhole Reservoir in northeast clubs conflicts with the best public use for the Transportation Plan at Arches Wyoming will not be renewed after their of the area as outlined in 43 CFR 21.4 National Park. The NPS has since expiration on December 31, 2005. was gathered during the development of determined that it is appropriate at this The Bureau of Reclamation is the the 2003 Keyhole State Park Recreation time to prepare an Environmental Federal agency responsible for Master Plan (Plan), an update of the Assessment (EA), rather than an EIS, for administering lands and resources Keyhole State Park Master Plan the Transportation Plan. associated with Keyhole Reservoir. developed by WSPHS in 1981. The Plan SUPPLEMENTARY INFORMATION: The NPS Keyhole State Park (Park) is managed by assesses existing conditions and had begun working on the EIS following Wyoming State Parks and Historic Sites establishes a framework to develop and publication of the Notice of Intent after through a Memorandum of implement appropriate improvements preliminary analysis of the plan Understanding with Reclamation that for a 20-year period, until 2023. alternatives revealed there could be provides WSPHS with the authority to Development of the Plan included potential for significant impacts. Based issue permits for limited recreation extensive public involvement using on the potential costs of the plan, the activities. Permits have been issued by surveys, newsletters, public meetings, NPS Washington Office of Alternative WSPHS to Keyhole and Sundance boat press releases, and stakeholder groups, Transportation Planning Program clubs since 1967 to conduct recreation and coordination with the Wyoming Management requested a much smaller activities as boat clubs. These two boat congressional delegation. Plans for scale ‘‘Transportation Implementation clubs occupy a total of 18 contiguous development of a campground at the Plan’’. This plan would include only acres on Cottonwood Bay and currently area including: recreational vehicle and those transportation strategies that have 20 private seasonal occupancy tent sites, comfort stations, vault toilets, could be implemented within a 5 to 6 trailers in the permit area, hereafter playground equipment, and boat year timeframe. Based on these changes referred to as the ‘‘area’’. launching and parking facilities were and preliminary analysis of impacts of This administrative decision results completed to meet existing and the new strategies, the NPS has from a review to determine if the projected recreation demand as determined that it is appropriate at this existence of the boat clubs conflicts described in the Plan. Construction of time to prepare an EA. with the best public use of the area as the campground will begin in 2006. DATES: The EA will be distributed for outlined in Part 21.4(a)(1) of 43 CFR In December 2003, boat club members public comment in winter 2005/spring Part 21, Occupancy of Cabin Sites on were notified that new permits issued to
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the club would terminate December 31, percent of peak season visitors camp at campgrounds discussed above prevent 2005 and could not be renewed. Permits least one night. This percentage, plus the large scale expansion that is needed executed with the boat clubs in April peak season visitor use, was used to to meet current and 2023 projected 2004 contained these conditions. A project numbers of future campers and campsite demands. A new campground Categorical Exclusion Checklist for the corresponding future campsite need. proposed on Mule Creek Bay will permit issuance was completed in An estimated 800–900 campers per day supply part of the needed campsites, but accordance with the National will visit the Park by 2008, with a this area is less accessible to the public Environmental Policy Act of 1969, as campsite need of 275 to 310. By 2023, than the Pronghorn/Arch Rock areas amended. 350 to 485 campsites will be needed to and will require significant investment A detailed explanation of provide for an estimated 1,000 to 1,400 to develop roads, water supply, and consideration of the factors outlined in campers per day. Also, recreation trends other infrastructure. Mule Creek Bay is 43 CFR 21.4 follows. in campgrounds are changing. The Plan a lower priority for development as it Existing and Projected Public Need for identifies a current lack of and future will primarily meet long term needs the Area need for campsites that accommodate rather than current and near future large recreational vehicles. A visitor demands. The area occupied by the boat Keyhole Reservoir is located at the survey conducted in 2004, after clubs offers the best location for the western edge of the Black Hills and is completion of the Plan, identified immediate addition of a new the only large reservoir in northeast developed campgrounds as the most campground for the reasons discussed Wyoming. The reservoir area includes important facilities in State Parks, below. 14,720 acres, of which 9,340 are water reflecting the trend toward more The 18-acre area occupied by the boat and 5,380 are land. The western portion developed camping with larger campers clubs is located on the west side of of the land area is relatively flat and and recreational vehicles. Cottonwood Bay, between Pronghorn treeless. It is less accessible by main In 2003, Keyhole State Park had 8 and Arch Rock Campgrounds. highways or public roads and is more developed campgrounds with a total of Cottonwood Bay is narrow and dramatically affected by reservoir 180 campsites. Campground occupancy sheltered, with shade, protection from drawdown than the eastern portion. The on summer weekends is high in all the wind, and relatively stable water smaller eastern land area has gently developed campgrounds. Pronghorn and levels. The west side of the bay is easily rolling to rocky terrain with open Arch Rock campgrounds, located on accessed from Interstate 90 via the ponderosa pine forest. Recreation either side of the area, are the parks recently improved Pine Ridge Road and developments are concentrated in the most popular campgrounds with one of the main park roads, which eastern portion of the reservoir because occupancy rates ranging from 79 percent already has an entrance/fee booth. The of the tree cover, visually interesting to 114 percent and with the peak west side includes the marina which terrain, proximity to park management occupancy recorded as 123 percent and has a store, boat launch, and shower facilities and infrastructure, and better 140 percent, respectively. Occupancy facility; a universally accessible paved access to the reservoir during lake level over 100 percent means that more than trail; a modern water system; and park fluctuations. one camping unit is using each camping headquarters which facilitates Visitation at Keyhole State Park is space and/or campers are being allowed management and oversight by WSPHS. linked primarily to regional growth to camp in undesignated areas not The boat club area’s location here trends. Approximately 71 percent of suitable for camping. This is causing between two most popular existing visitors are from Wyoming and 29 resource impacts such as erosion and campgrounds makes it a logical choice percent are from out of state. Visitation soil compaction in campgrounds and for additional camping. has increased steadily since the 1970s undeveloped areas. due to continued population growth in To alleviate damage to resources and Compatibility Between Public Uses and Wyoming and South Dakota. Population meet demand for campsites, the Plan Private Cabin Sites in Wyoming has increased 57 percent recommends the addition of 258 new According to the visitor surveys over the last 30 years while South campsites, for a total of 438 sites. All conducted in 1993, 1997, 2000, and Dakota has increased approximately 16 existing campgrounds, as well as 2004, the most popular recreation percent. undeveloped areas, were evaluated activities at the park include From 1990 to 2000 visitation at the during the planning process to recreational vehicle/trailer camping, Park increased by 98 percent, with determine which areas have good tent camping, boating, fishing, approximately 200,000 visitors recorded potential for additional campsites or swimming, picnicking, hiking, in the year 2000, an approximate 5 developed campgrounds. This resulted sightseeing, and relaxing. A Labor Day percent increase over 1999. Visitation in recommendations to add campsites or survey in 2000 found fishing to be the projections were made in the Plan using alter campsites to allow for larger most popular activity, followed closely a range of possible growth scenarios; recreational vehicles in many existing by boating and camping. low (1.5 percent), medium (3.0 percent), campgrounds. Much of the western In contrast to the increasing public and high (5.0 percent). Using the lowest portion of the reservoir was not use of the park, surveys of visitation at visitation growth rate of 1.5 percent, considered suitable for expansion the boat clubs during weekends and park visitation is projected at 219,918 by because of the constraints discussed holidays from 1998 through 2003 2008 and 283,000 by 2023. above. Many locations on the eastern indicate that average weekend visitor Growth in population and the number portion of the reservoir have other use of the boat clubs has varied between of visitors creates additional demand for development constraints such as terrain 13 percent and 21 percent of the boat recreation facilities. Visitor surveys (for example, cliffs that prevent access club trailers. conducted at the Park in 1993, 1997, to the water), lack of roads to provide Public entry to boat club areas is not and 2000 list camping as one of the public access, and natural resource prohibited but these areas are not open most popular activities at the Park and concerns. for public camping, and public access in show that this popularity has increased While it is feasible to add a limited the past for other recreation activities since 1993. Using data from the 1997 number of campsites to many has been both formally and informally and 2000 surveys, on average, 60 campgrounds, the constraints in existing discouraged by boat club members. The
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arrangement of the trailers, which are indicates that there will be no SUMMARY: This notice announces the located on lots throughout the 18 acres, significant detrimental impacts to Occupational Safety and Health prevents the development of attractive natural resources from changing the use Administration’s final decision public spaces and facilities and inhibits of the area. This change will benefit the expanding the recognition of TUV the general public from engaging in general public by allowing them access Product Services GmbH (TUVPSG) as a most recreation activities in the area. to the area and meeting public demand Nationally Recognized Testing This is in contrast to the wide variety of for campsites. Laboratory under 29 CFR 1910.7. recreational uses that occur on the rest All of the provisions of 43 CFR 21.4 DATES: The expansion of recognition of Cottonwood Bay. Increased public (b) have been met. There are no becomes effective on December 13, recreation activity in the area is being substantial improvements on the 18-acre 2005. prevented by the occupation of the 18 boat club area which would require FOR FURTHER INFORMATION CONTACT: acres by the boat clubs. amortization as required by 43 CFR 21.4 Office of Technical Programs and Development Potential and Plans for (b). No substantial improvements were Coordination Activities, NRTL Program, the Area placed in the area prior to the June 10, Occupational Safety and Health 1967, the effective date of 43 CFR part The boat club area was reviewed Administration, U.S. Department of 21. Had substantial improvements been Labor, 200 Constitution Avenue, NW., during the preparation of the Plan and in place the 20 year amortization period found to be suitable for development Room N–3653, Washington, DC 20210, described in 43 CFR 21.4(b) would have or phone (202) 693–2110. and recreational use, with low potential expired in 1987. The trailers and any SUPPLEMENTARY INFORMATION: for conflicts between development and removable facilities such as decks, fire natural resources. The area is lightly rings, or the portable toilets used by the Notice of Final Decision forested with favorable slopes and water boat clubs are not considered access, provides minimal wildlife The Occupational Safety and Health substantial improvements as per 43 CFR Administration (OSHA) hereby gives habitat, has sparse ground cover, 21.3 (e). The Keyhole Boat Club existing disturbance from human use, notice of the expansion of recognition of constructed a boat ramp in 1980. They TUV Product Services GmbH (TUVPSG) no known or suspected federally listed agreed in writing that the ramp would threatened or endangered species, no as a Nationally Recognized Testing become the property of WSPHS after Laboratory (NRTL). TUVPSG’s wetlands that would be impacted, and construction. no cultural or historical resources expansion covers the use of additional This administrative decision is test standards. OSHA’s current scope of within the area boundary. consistent with applicable Reclamation The proposed new campground at the recognition for TUVPSG may be found policy, directives and standards. area would include approximately 40 in the following informational Web Reclamation’s Recreation Management recreational vehicle sites, including page: http://www.osha-slc.gov/dts/ Policy (LND P04) directs Reclamation to group sites which are large enough to otpca/nrtl/tuvpsg.html. ‘‘Prohibit new exclusive uses, as accommodate modern recreational OSHA recognition of an NRTL allowed by current use agreements, to vehicles, approximately 8 tent sites, signifies that the organization has met maximize public recreation activities, camper cabins, electrical hook-ups, the legal requirements in section 1910.7 facilities and services’’. Reclamation’s central water sources, a comfort station, of Title 29, Code of Federal Regulations Land Use Authorizations Directives and play area, camper boat launch, and (29 CFR 1910.7). Recognition is an Standards (LND 08–01) directs expanded parking. The design would acknowledgment that the organization Reclamation to eliminate exclusive utilize many of the existing roads and can perform independent safety testing private uses of Reclamation land when trailer pads. The new campground and certification of the specific products a use authorization expires if it is could be managed by a concessionaire, covered within its scope of recognition determined that there is a public need creating opportunity for additional and is not a delegation or grant of for the area. The factors to consider amenities for the public including: Boat government authority. As a result of when determining when sites are slip rentals, marina facilities, recognition, employers may use needed for public use included in those recreational vehicle sites with electrical products ‘‘properly certified’’ 1 by the directives and standards were evaluated and water hookups, and shower NRTL to meet OSHA standards that in this review. facilities. This campground design has require testing and certification. been extensively reviewed and revised Dated: December 7, 2005. The Agency processes applications by to assure that it will meet current and Gregory Gere, an NRTL for initial recognition or for future recreation needs. Deputy Area Manager, Dakotas Area Office. expansion or renewal of this recognition This campground would provide 48, [FR Doc. E5–7256 Filed 12–12–05; 8:45 am] following requirements in Appendix A to 29 CFR 1910.7. This appendix or almost 20 percent, of the 258 new BILLING CODE 4310–MN–P campsites recommended for the park. It requires that the Agency publish two will be located in a highly desirable area notices in the Federal Register in processing an application. In the first with favorable development potential. DEPARTMENT OF LABOR notice, OSHA announces the Other Relevant Factors Occupational Safety and Health application and provides its preliminary An Environmental Assessment (EA) Administration finding and, in the second notice, the for changing the use of the area from Agency provides its final decision on exclusive to non-exclusive was [Docket No. NRTL1–2001] the application. These notices set forth completed, with a Finding of No the NRTL’s scope of recognition or Significant Impact signed on November TUV Product Services GmbH, 17, 2005. This EA analyzed the impact Expansion of Recognition 1 Properly certified means, in part, that the of the proposed action on a variety of product is labeled or marked with the NRTL’s AGENCY: Occupational Safety and Health ‘‘registered’’ certification mark (i.e., the mark the resources, and utilized the information Administration (OSHA), Labor. NRTL uses for its NRTL work) and that the product gathered during the public involvement ACTION: Notice. certification falls within the scope of recognition of process for the Plan. The EA/FONSI the NRTL.
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modifications of that scope. We the authority in 29 CFR 1910.7, OSHA inform the test standard developing maintain an informational Web page for hereby expands the recognition of organization of this fact and provide each NRTL, which details its scope of TUVPSG, subject to the following that organization with appropriate recognition. These pages can be limitation and conditions. relevant information upon which its accessed from our Web site at http:// concerns are based; Limitation www.osha-slc.gov/dts/otpca/nrtl/ TUVPSG must not engage in or permit index.html. OSHA limits the expansion of others to engage in any TUVPSG submitted an application, TUVPSG’s recognition to testing and misrepresentation of the scope or dated September 18, 2003 (see Exhibit certification of products for conditions of its recognition. As part of 10) to expand its recognition to include demonstration of conformance to the this condition, TUVPSG agrees that it 5 additional test standards. The NRTL test standards listed below. OSHA has will allow no representation that it is Program staff determined that each of determined that the standards meet the either a recognized or an accredited these standards is an ‘‘appropriate test requirements for an appropriate test Nationally Recognized Testing standard’’ within the meaning of 29 CFR standard, within the meaning of 29 CFR Laboratory (NRTL) without clearly 1910.7(c). Therefore, OSHA is 1910.7(c). indicating the specific equipment or approving these five test standards for UL 201 Garage Equipment material to which this recognition is the expansion. Following review of the UL 325 Door, Drapery, Gate, Louver tied, or that its recognition is limited to application, OSHA requested certain and Window Operator and Systems certain products; additional information from TUVPSG UL 696 Electric Toys TUVPSG must inform OSHA as soon and deferred action on the application UL 697 Toy Transformers as possible, in writing, of any change of pending receipt of this information. The UL 1029 High-Intensity-Discharge ownership, facilities, or key personnel, NRTL adequately responded to that Lamp Ballasts and of any major changes in its request prior to publication of the operations as an NRTL, including The designation and title of the above preliminary notice, permitting OSHA to details; resume processing of the application. In test standards were current at the time TUVPSG will meet all the terms of its connection with this request, OSHA of the preparation of the notice of the recognition and will always comply evaluated the NRTL’s capability for the preliminary finding. with all OSHA policies pertaining to additional test standards during an on- OSHA’s recognition of TUVPSG, or this recognition; and site review of TUVPSG’s NRTL facility, any NRTL, for a particular test standard TUVPSG will continue to meet the and the assessor recommended the is limited to equipment or materials requirements for recognition in all areas expansion for the additional standards (i.e., products) for which OSHA where it has been recognized. (see Exhibit 11). The preliminary notice standards require third party testing and certification before use in the Signed at Washington, DC this 28th day of announcing the expansion application November, 2005. was published in the Federal Register workplace. Consequently, an NRTL’s scope of recognition excludes any Jonathan L. Snare, on May 18, 2005 (70 FR 28583). Acting Assistant Secretary. Comments were requested by June 2, product(s) falling within the scope of a [FR Doc. E5–7261 Filed 12–12–05; 8:45 am] but no comments were received in test standard for which OSHA has no response to this notice. NRTL testing and certification BILLING CODE 4510–26–P The previous notices published by requirements. OSHA for TUVPSG’s recognition Many UL test standards also are covered an expansion of recognition, approved as American National NATIONAL CREDIT UNION which became effective on April 22, Standards by the American National ADMINISTRATION Standards Institute (ANSI). However, for 2003 (68 FR 19856). Sunshine Act Meeting You may obtain or review copies of convenience, we use the designation of the standards developing organization all public documents pertaining to the TIME AND DATE: 10 a.m., Thursday, TUVPSG application by contacting the for the standard as opposed to the ANSI December 15, 2005. designation. Under our procedures, any Docket Office, Occupational Safety and PLACE: Board Room, 7th Floor, Room NRTL recognized for an ANSI-approved Health Administration, U.S. Department 7047, 1775 Duke Street, Alexandria, VA test standard may use either the latest of Labor, 200 Constitution Avenue, 22314–3428. NW., Room N–2625, Washington, DC, proprietary version of the test standard STATUS: Open. 20210. Docket No. NRTL1–2001 or the latest ANSI version of that contains all materials in the record standard. You may contact ANSI to find MATTERS TO BE CONSIDERED: 1. National Credit Union Share concerning TUVPSG’s recognition. out whether or not a test standard is The current address of the TUVPSG currently ANSI-approved. Insurance Fund (NCUSIF) Operating facility already recognized by OSHA is: Level for 2006. Conditions 2. Proposed Rule: Section 701.2(h) of TUV Product Services GmbH, NCUA’s Rules and Regulations, Third- Ridlerstrasse 65, D–80339, Munich, TUVPSG must also abide by the Party Servicing of Indirect Vehicle Germany. following conditions of the recognition, in addition to those already required by Loans. Final Decision and Order 29 CFR 1910.7: 3. Final Rule: Part 723 of NCUA’s NRTL Program staff has examined the OSHA must be allowed access to Rules and Regulations, Member application, the assessor’s report, and TUVPSG’s facilities and records for Business Loans. other pertinent information. Based upon purposes of ascertaining continuing 4. Final Rule: Section 741.8 of this examination and the assessor’s compliance with the terms of its NCUA’s Rules and Regulations, recommendation, OSHA finds that recognition and to investigate as OSHA Purchase of Assets and Assumptions of TUVPSG has met the requirements of 29 deems necessary; Liabilities. CFR 1910.7 for expansion of its If TUVPSG has reason to doubt the RECESS: 11:15 a.m. recognition, subject to the limitation efficacy of any test standard it is using TIME AND DATE: 11:30 a.m., Thursday, and conditions listed below. Pursuant to under this program, it must promptly December 15, 2005.
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PLACE: Board Room, 7th Floor, Room No. NPF–38, which authorizes orders issued by the Commission, 7047, 1775 Duke Street, Alexandria, VA operation of Waterford 3, issued by the subject to the conditions set forth below. 22314–3428. Nuclear Regulatory Commission (NRC The NRC staff has further found that the STATUS: Closed. or the Commission). The license application for the proposed license authorizes ELI to possess, and EOI to amendment complies with the MATTERS TO BE CONSIDERED: standards and requirements of the 1. One (1) Insurance Appeal. Closed use and operate, Waterford 3. Atomic Energy Act of 1954, as amended, pursuant to Exemptions (6) and (9)(B). II. and the Commission’s rules and 2. One (1) Personnel Matter. Closed By application dated July 20, 2005, as regulations set forth in 10 CFR Chapter pursuant to Exemptions (2) and (6). supplemented September 14, 2005, EOI, 1; the facility will operate in conformity Mary Rupp, acting on behalf of itself and ELI, with the application, the provisions of Secretary of the Board. requested approval by the NRC of the the Act, and the rules and regulations of [FR Doc. 05–24005 Filed 12–8–05; 4:12 pm] transfer of Facility Operating License the Commission; there is reasonable No. NPF–38 for Waterford 3 from ELI to BILLING CODE 7535–01–M assurance that the activities authorized Entergy Louisiana, LLC (ELL). The by the proposed license amendment can initial application and the supplement be conducted without endangering the are hereinafter referred to as ‘‘the health and safety of the public and that NEIGHBORHOOD REINVESTMENT application’’ unless otherwise indicated. such activities will be conducted in CORPORATION EOI also requested approval of a compliance with the Commission’s conforming license amendment to Sunshine Meeting; Regular Board of regulations; and the issuance of the reflect the transfer. The conforming Directors Meeting proposed license amendment will not license amendment would replace be inimical to the common defense and Time & Date: 2 p.m., Monday, references to ELI with ELL. The security or the health and safety of the December 19, 2005. application requested approval of the public. The NRC staff finds the issuance transfer of Facility Operating License of the proposed amendment will be in Place: Neighborhood Reinvestment and Materials License No. NPF–38 for accordance with 10 CFR part 51 of the Corporation, DBA NeighborWorks Waterford 3, held by ELI and EOI, and Commission’s regulations and all America, 1325 G Street NW., Suite 800, approval of a conforming amendment, applicable requirements have been Boardroom, Washington, DC 20005. pursuant to Title 10 of the Code of satisfied. The foregoing findings are Status: Open. Federal Regulations, Sections 50.80 and supported by a safety evaluation dated Contact Person for More Information: 50.90. The transfer is associated with December 2, 2005. Jeffrey T. Bryson, General Counsel/ the restructuring of ELI from a Louisiana Secretary 202–220–2372; corporation to a Texas limited liability III. [email protected]. company, ELL. EOI will continue to Accordingly, pursuant to Sections Agenda: operate Waterford 3, and the proposed 161b, 161i, and 184 of the Atomic I. Call to Order restructuring will not affect the Energy Act of 1954, as amended, 42 II. Approval of Minutes: October 3, 2005 technical or financial qualifications of U.S.C. 2201(b), 2201(i), and 2234, and III. Audit Committee Meeting ELL or EOI. 10 CFR 50.80, it is hereby ordered that IV. Finance and Budget Committee Notice of consideration of approval the transfer of the license as described V. Corporate Fundraising Committee and an opportunity for a hearing was herein to Entergy Louisiana, LLC, is VI. CEO Quarterly Management Report published in the Federal Register on approved, subject to the following October 17, 2005 (70 FR 60374). No VII. NHSA Update conditions: hearing requests or written comments (1) After receipt of all required VIII. Adjournment were received. The supplemental letter regulatory approvals of the license Jeffrey T. Bryson, dated September 14, 2005, provided transfer to Entergy Louisiana, LLC, General Counsel/Secretary. additional information that clarified the Entergy Louisiana, Inc. shall inform the [FR Doc. 05–24030 Filed 12–9–05; 2:13 pm] application, did not expand the scope of Director, Office of Nuclear Reactor BILLING CODE 7570–01–M the application as originally noticed, Regulation, in writing of such receipt, and did not affect the applicability of within 5 business days, and of the date the generic no significant hazards of the closing of the transfer no later consideration determination. than 7 business days before the date of NUCLEAR REGULATORY Pursuant to 10 CFR 50.80, no license, COMMISSION closing. If the transfer is not completed or any right thereunder, shall be by January 1, 2006, this Order shall [Docket No. 50–382; License No. NPF–38] transferred, directly or indirectly, become null and void, with the through transfer of control of the provision that, upon written application Entergy Louisiana, Inc., Entergy license, unless the Commission shall and for good cause shown, such date Operations, Inc., (Waterford Steam give its consent in writing. After may be extended. Electric Station, Unit 3); Order reviewing the information in EOI’s (2) At the time of the closing of the Approving Transfer of License and application and other information transfer of ownership of Waterford 3 Conforming Amendment before the Commission, and relying and license from Entergy Louisiana, Inc. upon the representations and to Entergy Louisiana, LLC, the I. agreements contained in the Waterford 3 decommissioning trust Entergy Louisiana, Inc. (ELI) is the application, the NRC staff has agreement(s) shall be amended to reflect owner of Waterford Steam Electric determined that ELL is qualified to hold Entergy Louisiana, LLC as the owner of Station, Unit 3 (Waterford 3), located in the license for Waterford 3 and that the all the decommissioning trust funds St. Charles Parish, Louisiana. Entergy transfer of the license to ELL, as accumulated as of the date of the Operations, Inc. (EOI), is the licensed previously described herein, is closing. operator of Waterford 3. They are the otherwise consistent with applicable (3) Prior to completion of the transfer holders of Facility Operating License provisions of law, regulations, and of the Waterford 3 operating license,
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Entergy Louisiana, LLC shall provide to a petition dated April 12, 2005, filed applicant by letter dated March 24, the Director, Office of Nuclear Reactor by Mr. David Lochbaum, of the Union 2005. The licensee responded to this Regulation, satisfactory documentary of Concerned Scientists, hereinafter letter by letter dated April 19, 2005. evidence that it has obtained the referred to as the ‘‘Petitioner.’’ The In an acknowledgment letter dated appropriate amount of insurance petition concerns the operation of the May 20, 2005, the NRC informed the required of licensees under 10 CFR part Beaver Valley Power Station, Unit Nos. Petitioner that the portion of the 140, ‘‘Financial Protection 1 and 2 (BVPS–1 and 2). petition requesting that enforcement Requirements and Indemnity The Petitioner requested that the action be taken was accepted for review Agreements,’’ of the Commission’s Nuclear Regulatory Commission (NRC under 10 CFR 2.206 and had been regulations. or Commission) either (1) take referred to the Office of Nuclear Reactor It is further ordered that consistent enforcement action against FirstEnergy Regulation for appropriate action. with 10 CFR 2.1315(b), a license Nuclear Operating Company (FENOC or The NRC staff sent a copy of the amendment that makes changes, as the licensee) and impose a civil penalty proposed Director’s Decision to the indicated in Enclosure 2 to the cover of at least $55,000, or (2) move the Petitioner and to the licensee for letter forwarding this Order, to conform license renewal application for the comment by letters dated September 15, the license to reflect the subject license Beaver Valley Power Station, Unit Nos. 2005. The NRC staff did not receive any transfer is approved. The amendment 1 and 2 (BVPS–1 and 2), to the end of comments on the proposed Director’s shall be issued and made effective at the the current review queue. Decision. time the proposed transfer is completed. As a basis for the requests, the The Director of the Office of Nuclear This Order is effective upon issuance. Petitioner cited NRC news release 05– Reactor Regulation has determined that For further details with respect to this 052, dated March 24, 2005, which stated the request to take enforcement action action, see the initial application dated that the NRC returned the February 9, against the licensee and impose a civil July 20, 2005, the supplemental letter 2005, license renewal application penalty of at least $55,000 is denied. dated September 14, 2005, and the submitted by FirstEnergy Nuclear The reasons for this decision are explained in the Director’s Decision safety evaluation dated December 2, Operating Company. The Petitioner pursuant to 10 CFR 2.206 (DD–05–06), 2005, which are available for public quoted a statement made by Mr. David the complete text of which is available inspection at the Commission’s Public Matthews, Director of the Division of for inspection at the Commission’s Document Room (PDR), located at One Regulatory Improvement Programs at Public Document Room, located at One White Flint North, 11555 Rockville Pike NRC: White Flint North, Public File Area O1 (first floor), Rockville, Maryland, and The NRC’s primary mission is ensuring F21, 11555 Rockville Pike (first floor), accessible electronically through the protection of public health and safety, and Rockville, Maryland, or electronically Agencywide Documents Access and we cannot do that for an additional 20 years of Beaver Valley operation unless we have from the Agencywide Documents Management System (ADAMS) Public complete, accurate, and up-to-date Access and Management System Electronic Reading Room on the Internet information on the plant. Given the gaps in (ADAMS) Public Electronic Reading on the NRC’s Web site http:// the current application, we simply could not Room on the NRC Web site at http:// www.nrc.gov/reading-rm/adams.html. properly review FirstEnergy’s request. www.nrc.gov/reading-rm/adams.html. Persons who do not have access to The Petitioner further stated that the The Director’s Decision addresses (1) ADAMS or who encounter problems in licensee’s February 9, 2005, submittal whether a violation of NRC regulations accessing the document located in was not complete and accurate in all occurred with respect to the licensee’s ADAMS, should contact the NRR PDR material respects and that this is a license renewal application and (2) Reference Staff by telephone at 1–800– violation of 10 CFR 50.9(a) which whether enforcement action should be 397–4209, 301–415–4737, or by e-mail requires, in part, that information taken. to [email protected]. provided to the Commission by a With respect to the first issue, the Dated at Rockville, Maryland, this 2nd day licensee shall be complete and accurate NRC staff concluded that the licensee’s of December, 2005. in all material respects. The Petitioner license renewal application did contain For the Nuclear Regulatory Commission. stated his basis for the alternative an example of incorrect information and R. William Borchardt, sanction of moving the license renewal that the submission of incorrect Deputy Director, Office of Nuclear Reactor application: Moving the application to information in the licensee’s application Regulation. the end of the current queue would is a violation of 10 CFR 54.13. With [FR Doc. E5–7271 Filed 12–12–05; 8:45 am] allow time for the licensee to ensure the respect to the second issue, the NRC BILLING CODE 7590–01–P resubmittal is complete and accurate. It staff concluded that the violation is would also allow the NRC to review the appropriately classified as minor and application without requiring additional pursuant to Section 3.9 of the NRC NUCLEAR REGULATORY resources to recheck the resubmittal Enforcement Manual, the NRC did not COMMISSION concurrent with other license renewal document its identification of this reviews, which the Petitioner stated minor violation in an inspection report [Docket Nos. 50–334 and 50–412; License could compromise the quality of the or correspondence to the applicant. Nos. DPR–66 AND NPF–73] NRC review. Further, pursuant to Section 3.9 of the FirstEnergy Nuclear Operating The NRC staff performed an NRC Enforcement Manual and the NRC Company (FENOC), et al.; Notice of acceptance review of the license Enforcement Policy, Sections IV.B, Issuance of Director’s Decision Under renewal application to determine if VI.A–B, and Supplement VII.E, the NRC 10 CFR 2.206 sufficient information existed for the did not cite this minor violation and did NRC staff to begin its detailed technical not propose a civil penalty. Notice is hereby given that the review. The NRC staff determined that A copy of the Director’s Decision will Director, Office of Nuclear Reactor the application did not contain be filed with the Secretary of the Regulation, Nuclear Regulatory sufficient detail and therefore was not Commission for the Commission’s Commission (NRC or Commission) has acceptable for docketing. This review in accordance with 10 CFR 2.206 issued a Director’s Decision with regard determination was conveyed to the of the Commission’s regulations. As
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provided for by this regulation, the The purpose of these models is to TSs are responsible for reviewing the Director’s Decision will constitute the permit the NRC to efficiently process staff’s evaluation, referencing the final action of the Commission 25 days amendments to incorporate this change applicable technical justifications, and after the date of the decision, unless the into plant-specific TSs for General providing any necessary plant-specific Commission, on its own motion, Electric (GE) BWRs. Licensees of information. Each amendment institutes a review of the director’s nuclear power reactors to which the application made in response to the decision in that time. models apply can request amendments notice of availability would be Dated at Rockville, Maryland, this 3rd day conforming to the models. In such a processed and noticed in accordance of December, 2005. request, a licensee should provide with applicable NRC rules and For the Nuclear Regulatory Commission. supporting documentation to confirm procedures. J.E. Dyer, the applicability of the SE and NSHC determination to its plant. This notice involves an increase in Director, Office of Nuclear Reactor the allowed CTs to restore an inoperable DATES: The NRC staff issued a Federal Regulation. PCIV to operable status or isolate the Register Notice (70 FR 30151, May 25, [FR Doc. E5–7270 Filed 12–12–05; 8:45 am] affected penetration flow path when 2005) which provided a model SE and BILLING CODE 7590–01–P selected PCIVs are inoperable at BWRs. a model NSHC determination relating to By letter dated September 5, 2003, the the extension of the CT for TS actions related to inoperable PCIVs at GE plants. BWROG proposed this change, NUCLEAR REGULATORY including corresponding changes to the COMMISSION The NRC staff hereby announces that the model SE and NSHC determination TS Bases, for incorporation into the STSs as TSTF–454, Revision 0. By letter Notice of Availability of Model may be referenced in plant-specific Application Concerning Technical applications to extend the PCIV dated September 21, 2005, BWROG Specification Improvement To Extend completion times as described in revised the proposed change as TSTF– the Completion Times for Inoperable Revision 1 to TSTF–454. The staff has 454, Revision 1. This change is based on Containment Isolation Valves at posted a model application on the NRC the NRC staff-approved generic analyses General Electric Plants Using the Web site to assist licensees in using the contained in BWROG TR NEDC–33046– Consolidated Line Item Improvement consolidated line item improvement A, ‘‘Technical Justification to Support Process process (CLIIP) to request the subject TS Risk-Informed Primary Containment change. The NRC staff can most Isolation Valve AOT Extensions for AGENCY: Nuclear Regulatory efficiently consider applications based BWR Plants,’’ transmitted to the NRC on Commission. upon the model application if the January 20, 2005, which is accessible ACTION: Notice of Availability. application is submitted within a year of electronically from the Agencywide this Federal Register Notice. Documents Access and Management SUMMARY: Notice is hereby given that FOR FURTHER INFORMATION CONTACT: System’s (ADAMS) Public Electronic the staff of the Nuclear Regulatory Bhalchandra Vaidya, Mail Stop: O–7D1, Reading Room on the Internet (ADAMS Commission (NRC) has prepared a Division of Operating Reactor Licensing, Accession No. ML050240360) at the model application relating to changes to Office of Nuclear Reactor Regulation, NRC Web site http://www.nrc.gov/ the Standard Technical Specifications U.S. Nuclear Regulatory Commission, reading-rm/adams.html. This (STSs) 3.6.1.3, ‘‘Primary Containment Washington, DC 20555–0001, telephone transmittal incorporated TR NEDC– Isolation Valves (PCIVs),’’ for boiling- (301) 415–3308. 33046, submitted on May 3, 2002 water reactors (BWR) in NUREG–1433, SUPPLEMENTARY INFORMATION: (ADAMS Accession No. ML021280156), Revision 3, ‘‘Standard Technical as supplemented by letter dated July 30, Specifications, General Electric Plants, Background 2003 (ADAMS Accession No. BWR/4,’’ and ‘‘NUREG–1434, Revision Regulatory Issue Summary 2000–06, ML032130164), and as approved by the 3, ‘‘Standard Technical Specifications, ‘‘Consolidated Line Item Improvement NRC in its letter and SE dated October General Electric Plants, BWR/6.’’ The Process for Adopting Standard 8, 2004 (ADAMS Accession No. proposed change to the STSs 3.6.1.3 Technical Specifications Changes for ML042660055). Persons who do not would extend to 7 days the completion Power Reactors,’’ was issued on March have access to ADAMS or who time (CT) (or allowed outage time 20, 2000. The CLIIP is intended to encounter problems in accessing the (AOT)) to restore an inoperable PCIV to improve the efficiency and transparency documents located in ADAMS, should operable status or isolate the affected of NRC licensing processes. This is contact the NRC Public Document Room penetration flow path both for selected accomplished by processing proposed Reference staff by telephone at 1–800– primary containment penetrations with changes to the STSs in a manner that 397–4209, 301–415–4737, or by e-mail two (or more) PCIVs and for selected supports subsequent license amendment to [email protected]. primary containment penetrations with applications. The CLIIP includes an only one PCIV. This change is based on opportunity for the public to comment Applicability analyses provided in a generic topical on proposed changes to the STSs, This proposed change to revise the TS report (TR) submitted by the BWR following a preliminary assessment by CTs for selected PCIVs is applicable to Owners’ Group (BWROG). The BWROG, the NRC staff, and finding that the GE BWRs. through its participation in the change will likely be offered for Technical Specification (TS) Task Force adoption by licensees. The CLIIP directs To efficiently process the incoming (TSTF) proposed this change to the the NRC staff to evaluate any comments license amendment applications, the STSs in Change Traveler No. TSTF–454, received for a proposed change to the NRC staff requests each licensee Revision 1. This notice also includes a STSs and to either reconsider the applying for the changes addressed by model safety evaluation (SE) and a change or proceed with announcing the TSTF–454, Revision 1, to use the CLIIP model no significant hazards availability of the change for proposed to address the seven plant-specific consideration (NSHC) determination adoption by licensees. Those licensees conditions and the one commitment relating to this matter. opting to apply for the subject change to identified in the model SE, as follows:
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Conditions will not break the pressure boundary for Decisionmaking: Technical 1. Because not all penetrations have more than the currently allowed CT. Specifications,’’ Tier 3 program ensures the same impact on core damage 5. The licensee’s application must that, while the plant is in a limiting frequency (CDF), large early release provide supporting information that it condition for operation (LCO) actions frequency (LERF), incremental will verify the operability of the condition with an extended CT for conditional core damage probability remaining PCIVs in the associated restoring an inoperable PCIV to operable (ICCDP), or incremental conditional penetration flow path before applying status, additional activities will not be large early release probability (ICLERP), an extended CT for an inoperable PCIV. performed that could further degrade 6. Simultaneously utilizing the a licensee’s application must provide the capabilities of the plant to respond proposed extended CT for multiple supporting information that verifies the to a condition the inoperable PCIV or inoperable PCIVs and the resulting associated system is designed to applicability of TR NEDC–33046, impact on risk were not specifically mitigate and, as a result, increase plant including verification that the PCIV evaluated by the BWROG. However, TR risk beyond that determined by the TR configurations for the specific plant NEDC–33046 does state that multiple analysis. A licensee’s implementation of match the TR and that the risk PCIVs can be out of service RG 1.177 Tier 3 guidelines generally parameter values used in the TR are simultaneously during extended CTs implies the assessment of risk with bounding for the specific plant. Any and does not preclude the practice. respect to CDF. However, the proposed additional PCIV configurations or non- Therefore, the licensee’s application PCIV extended CT impacts containment bounding risk parameter values not must provide supporting information isolation and, consequently, LERF as evaluated by the TR should be included that confirms that its Tier 3 well as CDF. Therefore, each licensee in the licensee’s plant-specific analysis. configuration risk management program requesting extended CTs for PCIVs [Note that PCIV configurations or non- (10 CFR 50.65(a)(4)) requires that under TSTF–454, Revision 1, must bounding risk parameter values outside simultaneous application of an commit to enhancing its configuration the scope of the TR will require NRC extended CT to more than one risk management program (CRMP), staff review of the specific penetrations inoperable PCIV in separate penetration including those implemented under 10 and related justifications for the flow paths is evaluated. The purpose of CFR 50.65(a)(4), the maintenance rule, proposed CTs.] this evaluation is to ensure that the to include a LERF methodology and 2. The licensee’s application must cumulative risk of continued plant assessment. This commitment and the provide supporting information that operation with multiple inoperable CRMP enhancements must be verifies that external event risk, either PCIVs utilizing extended CTs does not documented in the licensee’s plant- through quantitative or qualitative exceed the plant risk value, as specific application. evaluation, will not have an adverse determined by the analysis presented in The CLIIP does not prevent licensees impact on the conclusions of the plant- TR NEDC–33046. from requesting an alternative approach specific analysis for extending the PCIV 7. The licensee must provide or proposing the changes without CTs. supporting information that verifies that providing the information described in 3. Because TR NEDC–33046 was the plant-specific probabilistic risk the above seven conditions, or making based on generic plant characteristics, assessment (PRA) quality is acceptable the requested commitment. Variations each licensee adopting the TR must for this application in accordance with from the approach recommended in this provide supporting information that the guidelines given in RG 1.174, ‘‘An notice may, however, require additional confirms plant-specific Tier 3 Approach for Using Probabilistic Risk review by the NRC staff and may information in their individual Assessment in Risk-Informed Decisions increase the time and resources needed submittals. The licensee’s application on Plant-specific Changes to the for the review. must provide supporting information Licensing Basis.’’ To ensure the that discusses conformance to the Public Notices applicability of TR NEDC–33046 to a requirements of the maintenance rule licensee’s plant, each licensee In a notice published in the Federal (10 CFR 50.65(a)(4)), as they relate to the requesting an amendment must provide Register dated May 25, 2005 (70 FR proposed PCIV CTs and the guidance additional information on PRA quality 30151), the NRC staff requested contained in NUMARC 93–01, Section in the following areas: comment on the use of the CLIIP to 11, as endorsed by Regulatory Guide a. Justification that the plant-specific process requests to extend the CT for (RG) 1.182, ‘‘Assessing and Managing PRA reflects the as-built, as-operated selected inoperable PCIVs at GE plants, Risk Before Maintenance Activities at plant. as described in Revision 0 of TSTF–454. Nuclear Power Plants.’’ This should b. Applicable PRA updates including TSTF–454, Revision 1, as well as the include verification that the licensee’s individual plant examinations (IPE) and NRC staff’s SE and model application, maintenance rule program, with respect individual plant examinations of may be examined, and/or copied for a to PCIVs, includes a LERF and ICLERP external events (IPEEE) findings. fee, at the NRC’s Public Document assessment as part of the maintenance c. Conclusions of the peer review Room, located at One White Flint North, rule process. including any A or B facts and Public File Area O–1 F21, 11555 4. The licensee’s application must observations (F and Os) applicable to Rockville Pike (first floor), Rockville, provide supporting information that the proposed PCIV extended CTs. Maryland. Publicly available records are verifies that a penetration remains intact d. The PRA quality assurance program accessible electronically from the during maintenance activities, including and associated procedures. ADAMS Public Library component on corrective maintenance activities. e. PRA adequacy, completeness, and the NRC Web site, (the Electronic Regarding maintenance activities where applicability with respect to evaluating Reading Room). the pressure boundary would be broken, the plant specific impact of the In response to the notice soliciting the licensee must provide supporting proposed PCIV extended CT. comments from interested members of information that confirms that the the public about modifying the TS assumptions and results of the TR Commitment requirements regarding an increase in remain valid. This includes the The RG 1.177, ‘‘An Approach for the specified CTs to restore an assumption that maintenance on a PCIV Plant-Specific, Risk-Informed inoperable PCIV to operable status or
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isolate the affected penetration flow calculation to quantify LERF risk values evaluation. An additional concern of the path when selected PCIVs are for the specific plant configurations NRC staff stems from the fact that TR inoperable at BWRs, the NRC staff each time a PCIV is inoperable? Would NEDC–33046 only evaluated the risk of received three comments from the this apply only when the extended extending the CT for a single PCIV. Owners Group TSTF members. These Completion Time is used or only when However, the implementation of the TR comments were specific to the model SE multiple penetration flow paths are allows separate concurrent extended and are discussed as follows: affected as discussed in Condition 6? CTs for multiple inoperable PCIVs Would it be acceptable to assess and because the current and proposed STSs Comment 1 (as stated) manage the containment performance for extended PCIVs allow separate Condition 3, Condition 6, and the one impacts by qualitative methods and actions condition entry for each required commitment of Section 3.2, administrative controls as currently penetration flow path (see the NRC Evaluation of Proposed Changes, of the allowed by NUMARC 93–01 as staff’s response to Comment 2). As model Safety Evaluation are not clear or endorsed by Regulatory Guide 1.182? stated by the BWROG in its comment, consistent on the expectations for a For example, an assessment program many licensees do not have a PRA level containment performance assessment could manage containment performance 2 model incorporated into the CRMP for (i.e., large early release fraction [should risk by limiting the number of affected the evaluation of LERF. The intent of be ‘‘frequency’’], or LERF) as part of the penetration flow paths depending on Condition 3 is to ensure that Tier 3 configuration risk management program factors such as the flow path size and evaluations of both CDF and LERF are (CRMP). These conditions should be not require a LERF calculation for each performed to assess PCIV CTs when clarified either in the Safety Evaluation occurrence. PCIVs are determined to be inoperable or in the CLIIP model application. or taken out of service. As stated in Response to Comment 1 Condition 3 requires licensees to Condition 3 of the NRC staff model SE, conform to the Maintenance Rule The BWROG states that many a licensee’s application must provide requirements of 10 CFR 50.65(a)(4), as it licensee’s do not have a level 2 PRA supporting information that discusses relates to Primary Containment Isolation model built into the CRMP for the plant’s conformance to the Valve (PCIV) Completion Times and the calculating LERF. The BWROG further requirements of the maintenance rule guidance of NUMARC 93–01, ‘‘Industry states that adopting a LERF model will (10 CFR 50.65(a)(4)) and the guidance Guideline for Monitoring the significantly delay implementation of contained in NUMARC 93–01, Section Effectiveness of Maintenance at Nuclear the proposed TSTF traveler. The 11, as endorsed by RG 1.182. With Power Plants,’’ Section 11, including a BWROG references Sections 11.3.4.1 respect to comment 1 in general, the LERF and incremental conditional large and 11.3.4.2 of NUMARC 93–01 for both NRC staff cannot provide a definitive early release probability (ICLERP) quantitative and qualitative risk response without reviewing a plant- assessment as part of the process. In assessment methods in the evaluation of specific approach. The assessment addition, Condition 6 requires the Tier 3. Although they are inter-related, program chosen by a licensee or the CRMP to confirm that simultaneous the following questions were identified BWROG (qualitative, quantitative, or extended Completion Time entries in in BWROG Comment 1 concerning combination) must be documented in separate penetration flow paths will not Conditions 3 and 6 of the staff model SE the licensee’s application because Tier 3 exceed the Regulatory Guide 1.174 and issued for comment on May 25, 2005 (70 aspects of the proposed PCIV CT Regulatory Guide 1.177 acceptance FR 30151). extensions were not specifically guidelines. The commitment required 1. Is it the intent of the conditions and addressed by TR NEDC–33046. by the Safety Evaluation also requires commitment to require a PRA Therefore, the NRC staff does not the licensee’s CRMP be enhanced to calculation to quantify the LERF risk believe that changes to Condition 3 are include a LERF methodology and values for the specific plant warranted. assessment. configurations each time a PCIV is Many licensees do not currently have inoperable? Comment 2 (as Stated) a probabilistic risk assessment (PRA) 2. Would this apply only when the Condition 6 of Section 3.2, Evaluation Level 2 model built into the CRMP for extended CT is used or only when of Proposed Changes, requires the calculating a LERF risk value. Adding multiple penetration flow paths are licensee’s application to provide the LERF model will significantly delay effected as discussed in Condition 6? supporting information that verifies that adoption of the proposed Traveler 3. Would it be acceptable to assess the potential for any cumulative risk [TSTF–454]. The containment risk and manage the containment impact of failed PCIVs and multiple management assessment is routinely performance impacts by qualitative PCIV extended Completion Time entries addressed through qualitative methods methods and administrative controls as has been evaluated and is acceptable. and administrative controls. Section 11 currently allowed by NUMARC 93–01, The verb tense ‘‘has been evaluated’’ is of NUMARC 93–01 allows for endorsed by RG 1.182? confusing. Is [it] the intent to require an qualitative assessment methods. Section Condition 3 of the model SE is assessment of the plant’s design and 11.3.4, Assessment Methods for Power intended to ensure that a licensee’s historical experience to verify that the Operating Conditions, states, CRMP includes a LERF and an ICLERP potential for multiple extended ‘‘Simultaneous removal from service of assessment for PCIVs as part of the Completion Time entries is low? Please multiple SSCs [structures, systems, and CRMP and maintenance rule process. clarify either in the Safety Evaluation or components] requires that an The intent of the conditions and in the CLIIP model application what the assessment be performed using commitment is to ensure an assessment evaluation involves. quantitative, qualitative, or blended of risk for the actual resulting plant (quantitative and qualitative) methods.’’ configuration when a PCIV is Response to Comment 2 Sections 11.3.4.1 and 11.3.4.2 provide inoperable. The concerns of the NRC The following question was identified guidance regarding quantitative and staff are that PCIVs affect risk mainly in BWROG Comment 2 concerning qualitative considerations, respectively. through LERF, and that CRMP Condition 6 of the staff model SE issued Is it the intent of the conditions and evaluations performed as part of Tier 3 for comment on May 25, 2005 (70 FR commitment to require a PRA may not address LERF in the risk 30151).
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The verb tense ‘‘has been evaluated’’ is plant risk value, as determined by the 2.0 Regulatory Evaluation confusing. Is [it] the intent of condition 6 to analysis presented in TR NEDC–33046. require an assessment of the plant’s design The existing Limiting Condition for and historical experience to verify that the Comment 3 (as stated) Operation (LCO) 3.6.1.3, requires that potential for multiple concurrent use of Condition 1 of Section 3.2, Evaluation each PCIV be operable. The operability extended Completion Times is low? Please of Proposed Changes, uses the terms of PCIVs ensures that the containment is clarify in either the Safety Evaluation or the ‘‘incremental conditional core damage isolated during a design-basis accident CLIIP model application what the assessment (DBA) and is able to perform its should address. frequency (ICCDP)’’ and ‘‘incremental conditional large early release frequency function as a barrier to the release of Condition 6 is concerned with the (ICLERP).’’ The word ‘‘frequency’’ in radioactive material. For boiling water Tier 3 analysis that provides added these two terms should be changed to reactor (BWR)/4 plants, if a PCIV is assurance that the TR’s conclusion that ‘‘probability.’’ inoperable in one or more penetrations, no risk significant configurations will the current required action is to isolate result from the proposed extended PCIV Response to Comment 3 or restore the inoperable PCIV to CTs remains valid over extended The staff agrees. The editorial errors operable status within 4 hours for periods of plant operation. However, in for definitions of incremental penetrations with 2 PCIVs (except for addition to Condition 6, as stated in the conditional core damage frequency the main steam line, in which case 8 NRC staff’s TR SE, a licensee adopting (ICCDP) and incremental conditional hours is allowed), and within 4 hours TR NEDC–33046 must confirm that the large early release frequency (ICLERP) for penetrations with a single PCIV conclusions of the generic Tier 2 will be corrected in the model SE. (except for excess flow check valves analysis are applicable to its facility. (EFCVs) and penetrations with a closed As already stated, TR NEDC–33046 Other Changes to the Notice of system, and for other cases if justified does not limit the number of PCIVs that Opportunity To Comment, Published in with a plant-specific evaluation, in can concurrently but separately be in an the Federal Register Dated May 25, which case 72 hours is allowed). actions condition with an extended CT 2005 (70 FR 30151) Regarding the leakage rate of EFCVs, 72 because the PCIV TS actions allow In addition to the changes mentioned hours is also currently allowed to separate condition entry for each in the above discussion of comments, restore EFCV leakage to within limit. penetration flow path. The intent of editorial changes, such as consistent use For BWR/6 plants, the current required Condition 6 is to ensure that, for of ‘‘TR’’ in place of ‘‘LTR,’’ use of ‘‘CT’’ actions are the same as those for the multiple concurrently inoperable PCIVs, in place of ‘‘AOT,’’ etc., have been made BWR/4 plants, with the exception that including those utilizing extended CTs, without altering the original intent to there are no TSs for EFCVs. The times the licensee will evaluate the impact on the Notice of Opportunity for Comments specified for performing these actions risk to verify that the conditions of TR published in the Federal Register dated were considered reasonable, given the NEDC–33046 remain satisfied. As stated May 25, 2005 (70 FR 30151). time required to isolate the penetration in Condition 3 of the NRC staff’s model As described in the model application and the relative importance of ensuring SE, a licensee’s application to adopt prepared by the NRC staff, licensees containment integrity during plant TSTF–454, Revision 1, must provide may reference in their plant-specific operation. In the case of a single EFCV supporting information that discusses applications for adopting this change to PCIV or a single PCIV and a closed the plant’s CRMP and inoperable PCIV STSs, the model SE, model NSHC system, the specified CT takes into assessment program, the plant’s determination, and the environmental consideration the ability of the conformance to the requirements of the consideration in this ‘‘Notice of instrument and the small pipe diameter maintenance rule (10 CFR 50.65(a)(4)), Availability’’ published in the Federal (associated with the EFCV) or the closed and the guidance contained in Register. system to act as a penetration boundary. NUMARC 93–01, Section 11, as On May 3, 2002, as supplemented by endorsed by RG 1.182 for the Model Safety Evaluation letter dated July 30, 2003, the BWR assessment of risk, including LERF and U.S. Nuclear Regulatory Commission; Owners Group (BWROG) submitted the ICLERP resulting from PCIV Office of Nuclear Reactor Regulation generic Topical Report (TR) NEDC– maintenance. 33046, ‘‘Technical Justification to Based on the above, the staff will Consolidated Line Item Improvement Support Risk-Informed Primary revise Condition 6 of the model SE to Technical Specification Task Force Containment Isolation Valve AOT clarify the applicability to Tier 3 CRMP (TSTF) Change; Traveler No. TSTF–454, [Allowed Outage Time] Extensions for as follows: Revision 1, ‘‘Extend PCIV Completion BWR Plants,’’ which provided a risk- (6) Simultaneously utilizing the proposed Times (NEDC–33046)’’ informed justification for extending the extended CT for multiple inoperable PCIVs TS AOT (also referred to as CT), for a and the resulting impact on risk were not 1.0 Introduction specific set of inoperable PCIVs from the specifically evaluated by the BWROG. By application dated [ ], [Licensee] current 4 hours or 72 hours to 7 days. However, TR NEDC–33046 does state that (the licensee) requested changes to the Specifically, for BWR/4 plants, if a PCIV multiple PCIVs can be out of service Technical Specifications (TSs) for is inoperable in one or more simultaneously during extended CTs and does not preclude the practice. Therefore, the [facility]. The proposed changes would penetrations, the proposed action is to licensee’s application must provide revise TS 3.6.1.3, ‘‘Primary Containment isolate or restore the inoperable PCIV to supporting information that confirms that its Isolation Valves (PCIVs),’’ by extending operable status within 7 days for Tier 3 configuration risk management to 7 days the completion time (CT) to penetrations with 2 PCIVs (except for program (10 CFR 50.65(a)(4)) requires that restore an inoperable PCIV to operable the feedwater isolation valves (FWIVs) simultaneous application of an extended CT status or to isolate the affected and the residual heat removal (RHR) to more than one inoperable PCIV in separate penetration flow path for selected shutdown cooling suction line PCIVs, in penetration flow paths is evaluated. The purpose of this evaluation is to ensure that primary containment penetrations with which case the 4 hours is kept, and the cumulative risk of continued plant two (or more) PCIVs and for selected except for the main steam line isolation operation with multiple inoperable PCIVs primary containment penetrations with valves (MSIVs), in which case the 8 utilizing extended CTs does not exceed the only one PCIV. hours is kept) and within 4 hours for
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penetrations with a single PCIV, except approved in TSTF–454, Revision 1, leakage rate,] [hydrostatically tested line for EFCVs and penetrations with a include: leakage rate,] [or] [EFCV leakage rate] closed system, in which case 7 days is 1. For the Condition of one or more not within limit, for NUREG–1433, the allowed (and except for other cases if penetration flow paths with one PCIV Completion Time for restoring leakage justified with a plant-specific inoperable in a penetration flow path rate to within limit, when the leakage evaluation, in which case the 72 hours with two [or more] PCIVs, the rate exceeded is the EFCV leakage rate is kept). Regarding the leakage rate of Completion Times for isolating the (in STS 3.6.1.3 Required Action D.1), is EFCVs, 7 days is also proposed to affected penetration (in Standard revised from ‘‘[72 hours for restore EFCV leakage to within the limit. Technical Specification (STS) 3.6.1.3 hydrostatically tested line leakage [on a For BWR/6 plants, the proposed actions Required Action A.1) are revised from closed system] [and EFCV leakage]]’’ to are the same as those for the BWR/4 ‘‘4 hours except for main steam line ‘‘[72 hours for hydrostatically tested line plants with the exception that for AND 8 hours for main steam line,’’ to ‘‘4 leakage [on a closed system] [AND 7 penetrations with 2 PCIVs, there is an hours [for feedwater isolation valves days for EFCV leakage].’’ (The EFCV additional exception to the 7-day CT (FWIVs), residual heat removal (RHR) leakage rate Completion Time change is (for the low pressure core spray system shutdown cooling suction line PCIVs, not applicable to NUREG–1434.) and Low Pressure Core Spray (LPCS) PCIVs, in which case the 4 hours is 3.2 Evaluation of Proposed Changes kept); and with the exception that there System PCIVs (NUREG–1434 only)] are no TSs for EFCVs. AND 8 hours for main steam line The NRC staff’s SE on TR NEDC– isolation valves (MSIVs) [AND 7 days 33046, dated October 8, 2004, found The NRC staff used the guidance of except for FWIVs, RHR shutdown that, based on the use of bounding risk Regulatory Guide (RG) 1.174, ‘‘An cooling suction line PCIVs, LPCS parameters for General Electric (GE)- Approach for Using Probabilistic Risk System PCIVs (NUREG–1434 only), and designed plants, for the proposed Assessment in Risk-Informed Decisions MSIVs.]’’ For PCIVs not analyzed in increase in the PCIV CT from 4 hours on Plant-Specific Changes to the Current NEDC–33046–A (i.e., FWIVs and (for penetrations with 2 or more PCIVs) Licensing Basis, November 2002’’ and MSIVs), the current Completion Times or 72 hours (for penetrations with a RG 1.177, ‘‘An Approach for Plant- of 4 hours and 8 hours of STS 3.6.1.3 single EFCV PCIV, and penetrations Specific, Risk-Informed Decision Required Action A.1 are maintained; 4 with a single PCIV and a closed system) Making: Technical Specifications, hours for FWIVs and 8 hours for main or 72 hours (for EFCV leakage) to 7 days, August 1998,’’ in performing its review steam lines (i.e., MSIVs as described in the risk impact of the proposed 7-day of this TR. RG 1.174 provides the the current Bases for STS 3.6.1.3 CT for the PCIVs, as estimated by core guidelines to determine the risk Required Action A.1). For PCIVs damage frequency (CDF), large early associated with the proposed change. analyzed in NEDC–33046–A that did release frequency (LERF), incremental RG 1.177 provides a three-tiered not meet the criterion for extension (i.e., conditional core damage probability approach to evaluate the risks RHR shutdown cooling suction line (ICCDP), and incremental conditional associated with proposed license PCIVs (for all BWRs) and LPCS System large early release probability (ICLERP), amendments. The first tier evaluates the PCIVs (for BWR/5 and BWR/6 designs is consistent with the acceptance probabilistic risk assessment (PRA) only)), the current Completion Time of guidelines specified in RG 1.174, RG model and the impacts of the changes 4 hours of STS 3.6.1.3 Required Action 1.177, and NRC staff guidance outlined on plant operational risk. The second A.1 is maintained. The Completion in Chapter 16.1 of NUREG–0800, tier addresses the need to preclude Time for other PCIVs, associated with ‘‘Standard Review Plan.’’ The NRC staff potentially high risk configurations, penetrations with two [or more] PCIVs, found that the risk analysis should additional equipment outages is extended to 7 days. methodology and approach used by the occur during the CT. The third tier 2. For the Condition of one or more BWROG to estimate the risk impacts evaluates the licensee’s configuration penetration flow paths with one PCIV were reasonable and of sufficient risk management program (CRMP) to inoperable in a penetration flow path quality. The NRC staff’s October 8, 2004, ensure that the removal of equipment with only one PCIV, the Completion SE also found the following: from service immediately prior to or Times for isolating the affected The Tier 2 evaluation did not identify any during the proposed CT will be penetrations (STS 3.6.1.3, Required risk-significant plant equipment appropriately assessed from a risk Action C.1) are revised from ‘‘[4] hours configurations requiring TSs, procedure, or perspective. The NRC staff’s safety except for excess flow check valves compensatory measures. TR NEDC–33046 evaluation (SE) dated October 8, 2004, (EFCVs) and penetrations with a closed implements a CRMP (Tier 3) using 10 CFR also discusses the applicable regulations system AND [72] hours for EFCVs and 50.65(a)(4) to manage plant risk when PCIVs and additional applicable regulatory penetrations with a closed system,’’ to are taken out-of-service. PCIV reliability and criteria and guidelines that were ‘‘[4] hours except for excess flow check availability will also be monitored and considered in its review of TR NEDC– valves (EFCVs) and penetrations with a assessed under the maintenance rule (10 CFR 50.65) to confirm that performance continues 33046. By letter dated January 20, 2005, closed system AND [7days] for EFCVs to be consistent with the analysis BWROG transmitted TR NEDC–33046– and penetrations with a closed system.’’ assumptions used to justify extended PCIVs A to NRC, which incorporated the TR (For NUREG–1434, the Completion CTs. NEDC–33046, submitted on May 3, Times for STS 3.6.1.3, Required Action 2002, as supplemented by letter dated C.1 are revised from ‘‘[4] hours except 3.2.1 Conditions and Commitment July 30, 2003, and as approved by the for penetrations with a closed system The NRC staff’s October 8, 2004, SE NRC in a letter and SE dated October 8, AND [72] hours for penetrations with a also found that certain conditions and a 2004. closed system,’’ to ‘‘[4] hours except for commitment must be addressed by penetrations with a closed system AND licensees adopting TR NEDC–33046 (or 3.0 Technical Evaluation [7days] for penetrations with a closed TR NEDC–33046–A transmitted to NRC 3.1 Statement of Proposed Changes system.’’) by letter dated January 20, 2005) in 3. For the Condition of one or more plant-specific applications. These The proposed changes to STS 3.6.1.3 [secondary containment bypass leakage conditions and the commitment, as for BWR/4 and BWR/6 plants, as rate,] [MSIV leakage rate,] [purge valves clarified herein, that must be addressed
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by licensees adopting TR NEDC–33046– 5. The licensee’s application must performed that could further degrade A in plant-specific applications that provide supporting information that it the capabilities of the plant to respond seek approval of TSTF–454, Revision 1, will verify the operability of the to a condition the inoperable PCIV or for their plants, are as follows: remaining PCIVs in the associated associated system is designed to penetration flow path before applying mitigate and, as a result, increase plant 3.2.1.1 Conditions an extended CT for an inoperable PCIV. risk beyond that determined by the TR 1. Because not all penetrations have 6. Simultaneously utilizing the analysis. A licensee’s implementation of the same impact on CDF, LERF, ICCDP, proposed extended CT for multiple RG 1.177 Tier 3 guidelines generally or ICLERP, a licensee’s application must inoperable PCIVs and the resulting implies the assessment of risk with provide supporting information that impact on risk were not specifically respect to CDF. However, the proposed verifies the applicability of TR NEDC– evaluated by the BWROG. However, TR PCIV extended CT impacts containment 33046, including verification that the NEDC–33046 does state that multiple isolation and, consequently, LERF as PCIV configurations for the specific PCIVs can be out of service well as CDF. Therefore, each licensee plant match the TR and that the risk simultaneously during extended CTs requesting extended CTs for PCIVs parameter values used in the TR are and does not preclude the practice. under TSTF–454, Revision 1, must bounding for the specific plant. Any Therefore, the licensee’s application commit to enhancing its CRMP, additional PCIV configurations or non- must provide supporting information including those implemented under 10 bounding risk parameter values not that confirms that its Tier 3 CRMP (10 CFR 50.65(a)(4), the maintenance rule, evaluated by the TR should be included CFR 50.65(a)(4)) requires that to include a LERF methodology and in the licensee’s plant-specific analysis. simultaneous application of an assessment. This commitment and the [Note that PCIV configurations or non- extended CT to more than one CRMP enhancements must be bounding risk parameter values outside inoperable PCIV in separate penetration documented in the licensee’s plant- the scope of the TR will require NRC flow paths is evaluated. The purpose of specific application. staff review of the specific penetrations this evaluation is to ensure that the 3.3 Staff Findings and related justifications for the cumulative risk of continued plant proposed CTs.] operation with multiple inoperable The NRC staff has reviewed the 2. The licensee’s application must PCIVs utilizing extended CTs does not proposed TS changes and finds that provide supporting information that exceed the plant risk value, as they are consistent with previous staff verifies that external event risk, either determined by the analysis presented in reviews of TR NEDC–33046, submitted through quantitative or qualitative TR NEDC–33046. by letter dated May 3, 2002, as evaluation, will not have an adverse 7. The licensee must provide supplemented by letter dated July 30, impact on the conclusions of the plant- supporting information that verifies that 2003, and as approved by the NRC by specific analysis for extending the PCIV the plant-specific probabilistic risk letter and SE dated October 8, 2004, CTs. assessment (PRA) quality is acceptable which are incorporated in TR NEDC– 3. Because TR NEDC–33046 was for this application in accordance with 33046–A, transmitted to NRC by letter based on generic plant characteristics, the guidelines given in RG 1.174, ‘‘An dated January 20, 2005, and TSTF–454, each licensee adopting the TR must Approach for using Probabilistic Risk Revision 1, and are acceptable. The NRC provide supporting information that Assessment in Risk-Informed Decisions staff has also reviewed the licensee’s confirms plant-specific Tier 3 on Plant-specific Changes to the supporting information and the information in their individual Licensing Basis.’’ To ensure the statements regarding the above submittals. The licensee’s application applicability of TR NEDC–33046 to a conditions and commitment and finds must provide supporting information licensee’s plant, each licensee them acceptable. Therefore, the NRC that discusses conformance to the requesting an amendment must provide staff finds that the increase in the CTs requirements of the maintenance rule additional information on PRA quality from 4 hours (for penetrations with 2 or (10 CFR 50.65(a)(4)), as they relate to the in the following areas: more PCIVs) or 72 hours (for proposed PCIV CTs and the guidance a. Justification that the plant-specific penetrations with a single EFCV PCIV, contained in NUMARC 93–01, Section PRA reflects the as-built, as-operated and penetrations with a single PCIV and 11, as endorsed by RG 1.182, ‘‘Assessing plant. a closed system) or 72 hours (for EFCV and Managing Risk Before Maintenance b. Applicable PRA updates including leakage) to 7 days is justified. Activities at Nuclear Power Plants.’’ individual plant examinations (IPE) and 4.0 Regulatory Commitment This should include verification that the individual plant examinations of licensee’s maintenance rule program, external events (IPEEE) findings. The licensee’s letter dated [ ], with respect to PCIVs, includes a LERF c. Conclusions of the peer review contained the following regulatory and ICLERP assessment as part of the including any A or B facts and commitment: [state the licensee’s maintenance rule process. observations (F and Os) applicable to commitment and ensure that it satisfies 4. The licensee’s application must the proposed PCIV extended CTs. the commitment in this SE, in section provide supporting information that d. The PRA quality assurance program 3.2 above.] verifies that a penetration remains intact and associated procedures. The NRC staff finds that reasonable during maintenance activities, including e. PRA adequacy, completeness, and controls for the implementation and for corrective maintenance activities. applicability with respect to evaluating subsequent evaluation of proposed Regarding maintenance activities where the plant specific impact of the changes pertaining to the above the pressure boundary would be broken, proposed PCIV extended CT. regulatory commitment are best the licensee must provide supporting provided by the licensee’s information that confirms that the 3.2.1.2 Commitment administrative processes, including its assumptions and results of the TR The RG 1.177 Tier 3 program ensures commitment management program. The remain valid. This includes the that, while the plant is in a LCO actions above regulatory commitment does not assumption that maintenance on a PCIV condition with an extended CT for warrant the creation of a license will not break the pressure boundary for restoring an inoperable PCIV to operable condition (item requiring prior NRC more than the currently allowed CT. status, additional activities will not be approval of subsequent changes).
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5.0 State Consultation the main steam isolation valves the primary containment isolation In accordance with the Commission’s (MSIVs), and [list of plant-specific function by the PCIVs for a limited regulations, the [State] State official was valves]. period of time, but do not alter the notified of the proposed issuance of the Basis for proposed no significant ability of the plant to meet the overall amendments. The State official had hazards consideration determination: primary containment leakage [Choose one: (1) No comments, OR (2) As required by 10 CFR 50.91(a), an requirements. The proposed change The following comments—with analysis of the issue of no significant does not alter the design, configuration, subsequent disposition by the staff]. hazards consideration is presented or method of operation of the plant. The below: proposed change does not involve a 6.0 Environmental Consideration 1. Does the proposed change involve physical alteration of the plant and no The amendment changes a a significant increase in the probability new or different type of equipment will requirement with respect to the or consequences of an accident be installed. Therefore, the proposed installation or use of a facility previously evaluated? change does not create the possibility of component located within the restricted Response: No. a new or different kind of accident from area as defined in 10 CFR part 20. The The proposed change revises the any previously evaluated. completion times (CTs) for restoring an NRC staff has determined that the 3. Does the proposed change involve amendment involves no significant inoperable primary containment isolation valve (PCIV) (or isolating the a significant reduction in a margin of increase in the amounts and no safety? significant change in the types of any affected penetration) within the scope of Response: No. effluents that may be released offsite, the Boiling Water Reactor (BWR) and that there is no significant increase Owners Group (BWROG) Topical Report The proposed change does not in individual or cumulative (TR) NEDC–33046–A, ‘‘Technical involve a significant reduction in a occupational radiation exposure. The Justification to Support Risk-Informed margin of safety. The proposed change Commission has previously issued a Primary Containment Isolation Valve revises the CTs for restoring an proposed finding that the amendment AOT [Allowed Outage Time] Extensions inoperable PCIV or isolating the affected involves no significant hazards for BWR Plants,’’ transmitted to NRC by penetration within the scope of the consideration, and there has been no letter dated January 20, 2005, from 4 NEDC–33046–A, transmitted to NRC by public comment on such finding ([XX hours and 72 hours to 7 days. PCIVs are letter dated January 20, 2005, from 4 FR XXXXX, dated Month DD, YYYY]). not accident initiators in any accident hours and 72 hours to 7 days. PCIVs, Accordingly, the amendment meets the previously evaluated. Consequently, the individually and in combination, eligibility criteria for categorical probability of an accident previously control the extent of leakage from the exclusion set forth in 10 CFR evaluated is not significantly increased. primary containment following an 51.22(c)(9). Pursuant to 10 CFR 51.22(b) PCIVs, individually and in accident. The proposed CT extensions no environmental impact statement or combination, control the extent of apply to the reduction in redundancy in environmental assessment need be leakage from the primary containment the primary containment isolation prepared in connection with the following an accident. As such, PCIVs function provided by the PCIVs for a issuance of the amendment. are instrumental in controlling the limited period of time, but do not alter consequences of an accident. However, the ability of the plant to meet the 7.0 Conclusion the consequences of any accident overall primary containment leakage The Commission has concluded, previously evaluated are no different requirements. In order to evaluate the based on the considerations discussed during the proposed extended CTs than proposed CT extensions, a PRA above, that: (1) There is reasonable during the existing CTs. As a result, evaluation was performed in TR NEDC– assurance that the health and safety of there would be no significant increase 33046 submitted on May 3, 2002, as the public will not be endangered by the in the consequences of an accident supplemented by letter dated July 30, operation in the proposed manner, (2) previously evaluated. Therefore, the 2003, and as approved by the NRC by such activities will be conducted in proposed change does not involve a letter and SE dated October 8, 2004. The compliance with the Commission’s significant increase in the probability or PRA evaluation concluded that, based regulations, and (3) the issuance of the consequences of an accident previously on the use of bounding risk parameters amendment will not be inimical to the evaluated. for GE-designed plants, the proposed common defense and security or to the 2. Does the change create the increase in the PCIV CTs from 4 hours health and safety of the public. possibility of a new or different kind of or 72 hours to 7 days does not alter the accident from any accident previously Model No Significant Hazards ability of the plant to meet the overall evaluated? primary containment leakage Consideration Determination Response: No. requirements. It also concluded that the Description of Amendment Request: The proposed change does not create proposed changes do not result in an The proposed amendment extends the the possibility of a new or different kind unacceptable ICCDP or ICLERP completion time (CT) for penetration of accident from any accident according to the guidelines of RG 1.177. flow paths with one valve inoperable previously evaluated. The proposed Therefore, the proposed change does not from 4 hours or 72 hours to 7 days. The changes revise the CTs for restoring an involve a significant reduction in a change is applicable to both primary inoperable PCIV or isolating the affected margin of safety. containment penetrations with two (or penetration within the scope of NEDC– more) primary containment isolation 33046–A, transmitted to NRC by letter Based on the above, the proposed valves (PCIVs) and with one PCIV. This dated January 20, 2005, from 4 hours change presents no significant hazards change is not applicable to the and 72 hours to 7 days. PCIVs, consideration under the standards set feedwater isolation valves (FWIVs), the individually and in combination, forth in 10 CFR 50.92(c), and residual heat removal (RHR) shutdown control the extent of leakage from the accordingly, a finding of ‘‘no significant cooling suction line PCIVs, the low primary containment following an hazards consideration’’ is justified. pressure core spray (LPCS) PCIVs accident. The proposed CT extensions Dated at Rockville, Maryland, this 4th day (boiling water reactor (BWR)/6 only), apply to the reduction in redundancy in of December, 2005.
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For the Nuclear Regulatory Commission. Any interested person may, on or extending its Order, originally issued on David Terao, before January 3, 2006, comment on the August 4, 2003,1 and extended on July Chief, Plant Licensing Branch G, Division of facts bearing upon whether the 14, 2004 (the ‘‘2004 Order’’),2 under Operating Reactor Licensing, Office of application has been made in section 17(e) of the Securities Exchange Nuclear Reactor Regulation. accordance with the rules of PCX, and Act of 1934 (‘‘Exchange Act’’), regarding [FR Doc. E5–7272 Filed 12–12–05; 8:45 am] what terms, if any, should be imposed audits of financial statements of broker- BILLING CODE 7590–01–P by the Commission for the protection of dealers that are not issuers (‘‘non-public investors. All comment letters may be broker-dealers’’). The 2004 Order submitted by either of the following provided that non-public broker-dealers SECURITIES AND EXCHANGE methods: may file with the Commission and may send to their customers documents and COMMISSION Electronic Comments information required by section 17(e) [File No. 1–06439] • Send an e-mail to rule- certified by an independent public [email protected]. Please include the accountant, instead of by a registered Issuer Delisting; Notice of Application File Number 1–06439 or; of Sony Corporation To Withdraw Its public accounting firm, for fiscal years American Depositary Shares, Each Paper Comments ending before January 1, 2006. Section 17(e)(1)(A) of the Exchange Presenting One Share of Common • Send paper comments in triplicate Act requires that every registered Stock, No Par Value, From Listing and to Jonathan G. Katz, Secretary, broker-dealer annually file with the Registration on the Pacific Exchange, Securities and Exchange Commission, Commission a certified balance sheet Inc. 100 F Street, NE.,Washington, DC and income statement, and section December 7, 2005. 20549–9303. 17(e)(1)(B) requires that the broker- All submissions should refer to File On December 1, 2005, Sony dealer annually send to its customers its Number 1–06439. This file number Corporation, a company incorporated in ‘‘certified balance sheet.’’ 3 The should be included on the subject line Japan (‘‘Issuer’’), filed an application Sarbanes-Oxley Act of 2002 (‘‘Act’’) 4 if e-mail is used. To help us process and with the Securities and Exchange established the Public Company review your comments more efficiently, Commission (‘‘Commission’’), pursuant Accounting Oversight Board (‘‘Board’’) 5 please use only one method. The to Section 12(d) of the Securities and amended Section 17(e) to replace Commission will post all comments on Exchange Act of 1934 (‘‘Act’’) 1 and Rule the words ‘‘an independent public the Commission’s Internet Web site 12d2–2(d) thereunder,2 to withdraw its accountant’’ with ‘‘a registered public American Depositary Shares, each (http://www.sec.gov/rules/delist.shtml). accounting firm.’’ 6 representing one share of common Comments are also available for public The Act establishes a deadline for stock, no par value (‘‘Security’’), from inspection and copying in the registration with the Board of auditors listing and registration on the Pacific Commission’s Public Reference Room. of financial statements of ‘‘issuers,’’ as Exchange, Inc. (‘‘PCX’’). All comments received will be posted that term is defined in the Act.7 The Act The Board of Directors (‘‘Board’’) of without change; we do not edit personal does not provide a deadline for the Issuer approved a resolution on identifying information from registration of auditors of non-public October 26, 2005 to withdraw the submissions. You should submit only broker-dealers. Security from PCX. The Issuer stated information that you wish to make The 2004 Order expires January 1, that the primary factor considered by available publicly. 2006. Application of registration the Board was that most of the trading The Commission, based on the requirements and procedures to auditors volume in the Security occurs on the information submitted to it, will issue of non-public broker-dealers is still New York Stock Exchange (‘‘NYSE’’), an order granting the application after being considered. The Commission is with very little trading volume the date mentioned above, unless the also considering whether to issue a occurring on PCX. The Security will Commission determines to order a concept release on the subject. The continue to trade on NYSE. The Issuer hearing on the matter. Commission has therefore determined believes that delisting the Security from For the Commission, by the Division of that extending the Order is consistent PCX will cause no substantial Market Regulation, pursuant to delegated with the public interest and the inconvenience to the Issuer’s authority.4 protection of investors. shareholders and investors. Jonathan G. Katz, Accordingly, The Issuer stated in its application Secretary. It Is Ordered, pursuant to section that it has complied with the rules of [FR Doc. E5–7265 Filed 12–12–05; 8:45 am] 17(e) of the Exchange Act, that non- PCX by complying with all applicable BILLING CODE 8010–01–P laws in effect in Japan, the jurisdiction 1 Exchange Act Release No. 48281, 68 FR 47375 (August 8, 2003). in which the Issuer is incorporated and 2 Exchange Act Release No. 50020, 69 FR 43482 by providing PCX with the required SECURITIES AND EXCHANGE (July 20, 2004). documents governing the withdrawal of COMMISSION 3 Exchange Act Rule 17a–5 requires registered broker-dealers to provide to the Commission and to securities from listing and registration [Release No. 34–52909] on PCX. customers of the broker-dealer other specified The Issuer’s application relates solely financial information. Extension of Order Regarding Broker- 4 Public Law 107–204. to the withdrawal of the Security from Dealer Financial Statement 5 Section 101 of the Act. listing on PCX and shall not affect its Requirements Under Section 17 of the 6 Section 205(c)(2) of the Act. continued listing on NYSE or its Exchange Act 7 Section 2 of the Act defines ‘‘issuer.’’ Section obligation to be registered under Section 102 of the Act establishes a specific deadline by 12(b) of the Act.3 December 7, 2005. which auditors of issuers must register with the The Securities and Exchange Board. Based on the statutory deadline of 180 days after the Commission determined the Board was 1 15 U.S.C. 78l(d). Commission (‘‘Commission’’) is ready to carry out the requirements of the Act, that 2 17 CFR 240.12d2–2(d). date was October 22, 2003. See Exchange Act 3 15 U.S.C. 781(b). 4 17 CFR 200.30–3(a)(1). Release No. 48180 (July 16, 2003).
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public broker-dealers may file with the and operator of the INET System. Once platforms.10 Ultimately, Nasdaq intends Commission a balance sheet and income acquired by Nasdaq, the INET System to integrate all of its systems into a statement and may send to their would immediately become a ‘‘facility’’ single technology platform and also customers a balance sheet certified by of a national securities association combine all three of its system books an independent public accountant, subject to the standards set forth in into a single integrated book. In the instead of by a registered public Sections 15A 5 and 19(b)(1) 6 of the Act INET Notice, Nasdaq stated that it accounting firm, for fiscal years ending and would be required to operate expects to accomplish this process before January 1, 2007. pursuant to formal system rules before the end of the third quarter of By the Commission. approved by the Commission.7 2006. Jonathan G. Katz, Accordingly, in order to ensure that Nasdaq proposes that these rules Secretary. such rules are in place at the time of would be implemented immediately closing, Nasdaq proposes to establish upon formal closing of the Nasdaq/INET [FR Doc. E5–7264 Filed 12–12–05; 8:45 am] rules governing the operation of its transaction, and in no event more than BILLING CODE 8010–01–P INET System. Proposed NASD Rule two weeks after Commission approval. 4950 Series addresses, among other In the INET Notice, Nasdaq stated that SECURITIES AND EXCHANGE things, the INET System’s order display it will provide to the Commission COMMISSION and matching function, access formal written notice of the closing date standards, order types, time-in-force of the transaction. Such closing date, [Release No. 34–52902; File No. SR–NASD– designations, out-bound order routing, which must take place within two 2005–128] order execution algorithm, clearly weeks of Commission approval, shall be the start date for the calculation of any Self-Regulatory Organizations; erroneous trade procedures, and other 8 temporary time period referred to in this National Association of Securities system features and standards. filing. Nasdaq also stated that it would Dealers, Inc.; Order Approving a Proposed NASD Rule 701(w) sets forth thereafter submit rule filings to include Proposed Rule Change To Establish the fees applicable to participants, such closing date in its rules. Rules Governing the Operation of the which currently include both NASD INET System members and non-NASD members, in III. Discussion the INET System for order execution December 7, 2005. services. According to Nasdaq, such fees After careful review, the Commission reflect those currently charged by INET finds that the proposed rule change is I. Introduction to its participants. This fee schedule consistent with the requirements of the On November 1, 2004, the National would apply for a temporary period of Act and the rules and regulations Association of Securities Dealers, Inc. time, not to exceed 60 days after INET thereunder applicable to a self- (‘‘NASD’’), through its subsidiary, The becomes a facility of Nasdaq. regulatory organization 11 and, in Nasdaq Stock Market, Inc. (‘‘Nasdaq’’), particular, the requirements of Section Under the proposal, Nasdaq would filed with the Securities and Exchange 15A of the Act 12 and the rules and initially operate INET on a platform Commission (‘‘Commission’’), pursuant regulations thereunder. Specifically, the to Section 19(b)(1) of the Securities separate from its Nasdaq Market Center Commission finds that the proposed Exchange Act of 1934 (‘‘Act’’) 1 and Rule and Brut platforms. For a temporary rule change is consistent with 15A(b)(6) 19b–4 thereunder,2 a proposed rule period of time ending no later than of the Act,13 in that it is designed to change to establish rules governing the September 30, 2006, the INET System prevent fraudulent and manipulative operation of the INET ECN (‘‘INET would continue to post its top-of-file acts and practices, to promote just and System’’ or ‘‘System’’) and fees for quotes through the facilities of the equitable principles of trade, remove System services. National Stock Exchange (‘‘NSX’’), as it impediments to a free and open market The proposed rule change was does today, and would remain subject to and a national market system, and, in published for comment in the Federal applicable rules and regulations of the general, to protect investors and the 9 Register on November 7, 2005.3 The NSX. In the INET Notice, Nasdaq also public interest. Commission received no comments on stated that it anticipates that, soon after The Commission notes that the INET the proposal. This order approves the the formal close of the Nasdaq/INET System would become a facility of a proposed rule change. transaction, it would merge the INET national securities association subject to broker-dealer into Nasdaq’s Brut broker- II. Description the standards set forth in Sections dealer and that Brut, as a single broker- 15A 14 and 19(b)(1) 15 of the Act when On April 22, 2005, Nasdaq entered dealer, would operate both trading Nasdaq completes its purchase of INET. into definitive agreements to purchase platforms as separate systems with As such, NASD and, pursuant to INET ATS, Inc. (‘‘INET’’), a registered separate order processing and 4 NASD’s plan of allocation and broker-dealer and member of NASD, execution. As such, the New York Stock delegation of function to its Exchange, Inc. (‘‘NYSE’’) would subsidiaries, Nasdaq are obligated to file 1 15 U.S.C. 78s(b)(1). continue to serve as the designated rules governing the operation of the 2 17 CFR 240.19b–4. examining authority for financial 3 INET System with the Commission. In See Securities Exchange Act Release No. 52723 responsibility purposes for Nasdaq’s (November 2, 2005), 70 FR 67513 (‘‘INET Notice’’). addition, the Commission notes that, as 4 In the INET Notice, Nasdaq stated that, as a broker-dealer, which would operate both the Brut and INET trading member of NASD, INET is, and remains, subject to 10 See INET Notice at 67522. all NASD Rules applicable to its activities as a 11 In approving this proposed rule change the broker-dealer. In addition, INET would continue to market centers for its subscribers. See INET Notice Commission has considered the proposed rule’s participate in market surveillance and audit trail at 67518. impact on efficiency, competition, and capital programs conducted by Nasdaq, NASD, and other 5 15 U.S.C. 78o–3. formation. 15 U.S.C. 78c(f). self-regulatory organizations. INET would continue 6 12 to act as a counter-party to all trades taking place 15 U.S.C. 78s(b)91). 15 U.S.C. 78o–3. in its system, for anonymity as well as a clearance 7 See INET Notice at 67518. 13 15 U.S.C. 78o–3(b)(6). and settlement purposes. INET would also continue 8 See INET Notice. 14 15 U.S.C. 78o–3. to provide outbound order routing services to other 9 See INET Notice at 67518. 15 15 U.S.C. 78s(b)(1).
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a broker-dealer, INET remains subject to Nasdaq facility should be seamless from IV. Conclusion the applicable NASD rules. a market structure perspective for It is therefore ordered, pursuant to The Commission notes that the market participants, in general, and Section 19(b)(2) of the Act,23 that the proposed rule change articulates INET subscribers, in particular. The proposed rule change (File No. SR– Nasdaq’s operation of INET and INET’s Commission also emphasizes that INET, NASD–2005–128) be, and hereby is, integration with the Nasdaq Market as a Nasdaq facility, will now be subject approved. Center and Brut. The rules that are the 17 to Section 19 of the Act and, to the For the Commission, by the Division of subject of this filing encompass a wide extent that proposed rule changes are range of areas, including the INET Market Regulation, pursuant to delegated required to effectuate the Nasdaq/INET 24 System’s order display and matching authority. integration as described above, such function, access standards, order types, Jonathan G. Katz, time-in-force designations, out-bound proposed rule changes must be Secretary. order routing, order execution submitted to, and reviewed by, the [FR Doc. 05–23946 Filed 12–12–05; 8:45 am] algorithm, clearly erroneous trade Commission. BILLING CODE 8010–01–M procedures, other system features and In addition, the Commission notes standards, and fees. The Commission that several of Nasdaq’s proposed rules believes that the proposed rules are would apply for a temporary period, SECURITIES AND EXCHANGE reasonably designed to provide order allowing INET to continue certain of its COMMISSION interaction and price competition. current practices during a limited [Release No. 34–52898; File No. SR–PCX– Under the proposed rule change, INET transition period immediately following 2005–87] will continue to participate in market the closing of the Nasdaq/INET surveillance and audit trail programs transaction. For example, INET’s Self-Regulatory Organizations; The Pacific Exchange, Inc.; Notice of Filing conducted by Nasdaq and NASD, and, proposed rules relating to the for the temporary period during which of Proposed Rule Change, and registration of all INET system it posts its top-of-file quotes through the Amendment No. 1 Thereto, Relating to participants as members of NASD,18 facilities of the NSX, would also remain 19 the Tracking Order Process subject to all applicable rules and clearly erroneous transactions, 20 regulations of the NSX. In addition, the limitation of liability, and system December 6, 2005. 21 Commission notes that many of the service charges only apply for a Pursuant to section 19(b)(1) of the proposed trading rules for the INET period of time not to exceed 60 days Securities Exchange Act of 1934 1 2 System are modeled on existing rules after INET becomes a facility of Nasdaq. (‘‘Act’’) and Rule 19b–4 thereunder, that apply to Nasdaq’s Brut facility and Likewise, INET’s display of its best notice is hereby given that on July 26, the Nasdaq Market Center.16 priced orders through the facilities of 2005, the Pacific Exchange, Inc. (‘‘PCX’’ Accordingly, the Commission believes the NSX may continue on a temporary or ‘‘Exchange’’) filed with the Securities that granting approval to substantially basis until September 30, 2006.22 The and Exchange Commission similar rules for Nasdaq’s INET facility Commission notes that this proposal (‘‘Commission’’) the proposed rule is appropriate because such rules do not represents an interim step toward change as described in Items I, II, and raise any novel or significant regulatory Nasdaq’s ultimate plan to unify INET, III below, which Items have been issues. the Nasdaq Market Center, and Brut into prepared by the PCX. On November 22, The Commission notes that, under a single technology platform, which 2005, the Exchange submitted Amendment No. 1 to the proposed rule this proposal, there is a temporary Nasdaq has committee to complete change.3 The Commission is publishing transition period during which INET before the end of the third quarter of this notice to solicit comments on the would continue to operate in 2006. Finally, the Commission expects functionally the same manner in which proposed rule change, as amended, from that, as Nasdaq has stated, soon after the it operates today; thus, the immediate interested persons. formal close of the Nasdaq/INET transition to INET’s operation as a transaction, Nasdaq will merge the INET I. Self-Regulatory Organization’s Statement of the Terms of Substance of 16 See Securities Exchange Act Release No. 51326 broker-dealer into Nasdaq’s Brut broker- (March 7, 2005), 70 FR 12521 (March 14, 2005) dealer and that Brut as a single broker- the Proposed Rule Change (‘‘Brut Approval Order’’). On September 7, 2004, dealer would operate both ECNs as The PCX, through its wholly-owned Nasdaq acquired Brut LLC, a registered broker- separate systems, with separate order subsidiary PCX Equities, Inc. (‘‘PCXE’’), dealer and member of NASD, and operator of the Brut ECN (‘‘Brut’’). Once purchased by Nasdaq, Brut processing and execution, which would proposes to amend its rules governing became a facility of a national securities permit the NYSE to continue to serve as the Archipelago Exchange (‘‘ArcaEx’’), association. Nasdaq initially operated Brut pursuant the designated examining authority for the equities trading facility of PCXE. to a Temporary Conditional Exemption under With this filing, the Exchange proposes Section 36 of the Act, which the Commission financial responsibility purposes for granted for a period of six months following Nasdaq’s wholly-owned broker-dealer. to replace the existing PCXE rules Nasdaq’s acquisition of Brut. See Exchange Act The Commission believes that this describing the current ArcaEx Tracking Release No. 50311 (September 3, 2004), 69 FR arrangement should held to eliminate Order Process 4 with new provisions 54818 (September 10, 2004). On November 3, 2004, setting forth a simplified price/time NASD, through Nasdaq, filed with the Commission actual, or the appearance of any, a proposed rule change to establish rules governing conflicts of interest between NASD and execution priority for the Tracking the operation of its Brut trading facility. The INET’s broker-dealer operation. Order Process. Further, the PCX proposed rule change, as amended by Amendment No. 1 thereto, was published for comment in the 23 15 U.S.C. 78s(b)(2). Federal Register on January 31, 2005. See Securities 24 17 CFR 200.30–3(a)(12). Exchange Act Release No. 51078 (January 25, 2005), 17 15 U.S.C. 78s(b). 1 15 U.S.C. 78s(b)(1). 70 FR 4902 (January 31, 2005) (SR–NASD–2004– 18 Proposed NASD Rule 4952. 2 17 CFR 240.19b–4. 173) (‘‘Brut Notice’’). The Commission received no 19 Proposed NASD Rule 4961. comments on the Brut Notice, as amended by 3 Amendment No.1, which replaced the original 20 Proposed NASD Rule 4964. Amendment Nos. 1 and 2 thereto, and approved the filing in its entirety, made technical and clarifying proposed rule change, as amended, on March 7, 21 Proposed NASD Rule 7010(w). changes to the proposed rule change. 2005. See Brut Approval Order. 22 Proposed NASD Rule 4954(b)(2). 4 See PCXE Rule 7.37(c).
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proposes to modify the Tracking Order 5 Tracking Order Process will rotate once (C) The price is set at the NBBO; and for use in the revised Tracking Order through the Users in the rotation (D) The relevant security [is one] in Process. pattern. In each rotation, the User will which the Odd Lot Dealer is registered The text of the proposed rule change, be responsible for one trade up to the as such; and as amended, appears below. Additions User’s maximum tradeable size.] (E) The instruction must be in effect are italicized; deletions are [bracketed]. [(4) The order described in the User’s for the duration of Core Trading Hours; * * * * * Tracking Order instruction will only be provided, however, the order described generated if:] in the OLTO instruction will only be Rules of PCX Equities, Inc. [(A) an unfilled round or mixed lot generated if: Rule 7 order enters the Tracking Order Process (1) An unfilled odd lot market order and] enters the Odd Lot Tracking Order Equities Trading; Section 3 [(B) it is such User’s turn as Process pursuant to Rule 7.37(c); or Archipelago Exchange–Orders and determined by the Tracking Order (2) An odd lot limit order causes a Modifiers Process rotation pattern.] locked market as described in Rule 7.56. Rule 7.31(a)–(e)—No Change. [(5) Each partial order generated in a (3) Each order generated in a rotation (f) Tracking Order. rotation is a limit order in which:] is a limit order in which: An undisplayed, priced round lot [(A) The price is set at or better than (A) The price is set at the NBBO at the order that is eligible for execution in the the NBBO at the time the unfilled order time the unfilled order enters the Odd Tracking Order Process against orders enters the Tracking Order Process, based Lot Tracking Order Process, based on equal to or less than the aggregate size on the User’s parameters; and] the Odd Lot Dealer’s parameters; and of Tracking Order interest available at [(B) The size is (i) equal to the User’s (B) The size is (i) equal to the Odd Lot that price. If a Tracking Order is maximum tradeable size if the unfilled Dealer’s maximum tradeable size; or (ii) executed but not exhausted, the order is equal to or larger than the equal to the size of the unfilled order if remaining portion of the order shall be maximum tradeable size; or (ii) equal to the unfilled order is smaller than the cancelled, without routing the order to the size of the unfilled order if the maximum tradeable size. another market center or market unfilled order is smaller than the (4) An Odd Lot Dealer may modify the participant. maximum tradeable size.] parameters of the instruction for the [(1) Any User may submit an [(6) A User may modify the Odd Lot Tracking Order from time to instruction to the Archipelago Exchange parameters of the instruction for the time, as the Corporation permits. for the parameters of a Tracking Order Tracking Order from time to time, as the (5) The Corporation shall suspend the at any time during the day. The Corporation permits.] Odd Lot Tracking Order Process for a parameters shall include:] [(7) The Corporation shall suspend security when a locked or crossed [(A) the maximum aggregate size, the Tracking Order Process for a market exists in that security. The Odd which is the aggregate size of all partial security when a locked or crossed Lot Tracking Order Process for that orders generated in the Tracking Order market exists in that security. The security shall resume when the locked Process for a particular security that the Tracking Order Process for that security or crossed market in that security no User is willing to trade on that day;] shall resume when the locked or crossed longer exists. [(B) the maximum tradeable size, market in that security no longer exists.] (6) Whenever in the judgment of the which is the maximum size of any [(8) Whenever in the judgment of the Corporation, because of an influx of partial order generated in response to an Corporation, because of an influx of orders, a system malfunction or other order entering the Tracking Order orders, a system malfunction or other unusual conditions or circumstances, Process that the User is willing to trade unusual conditions or circumstances, the interests of a fair and orderly market on that day;] the interests of a fair and orderly market so require, the Corporation may [(C) the price in relation to the NBBO; so require, the Corporation may suspend suspend the Odd Lot Tracking Order and] the Tracking Order Process. The Process. The Odd Lot Tracking Order [(D) the relevant security.] Tracking Order Process shall resume Process shall resume when the [(2) Once a User has submitted an when the Corporation determines that Corporation determines that the instruction for the parameters of the the conditions supporting the conditions supporting the suspension Tracking Order, the instruction will suspension no longer exist.] no longer exist. remain in effect until closing or until (g) Odd Lot Tracking Order. (h)–(hh)—No Change. the User has traded its maximum (1)—No Change. aggregate size for that day, whichever (2) An Odd Lot Dealer may submit an * * * * * comes first.] instruction to the Archipelago Exchange Order Execution [(3) The Tracking Order Process for the parameters of an OLTO at any Rule 7.37 rotation is as follows: Users who have time during the day. The parameters submitted an instruction for the shall include: [is a Tracking Order, as * * * * * parameters of a Tracking Order will be described in paragraph (f), in which:] (a)–(b)—No Change. assigned trades on a price/time rotating (A) The maximum aggregate size [is (c) Step 4: Tracking Order Process. basis, such that within each price level, unlimited;], which is the unlimited During Core Trading Hours only, orders trades shall be assigned by the time the aggregate size of all orders generated in may be matched and executed in the Users’ instructions are received by the the Odd Lot Tracking Order Process for Tracking Order Process as follows: If an Archipelago Exchange. Within each a particular security that the Odd Lot order has not been executed in its price level, the first User to send an Dealer is willing to trade on that day; entirety pursuant to paragraphs (a) and instruction for a Tracking Order will be (B) The maximum tradeable size [is] (b) of this Rule, the Archipelago the first User to be assigned a trade in up to 99 shares, which is the maximum Exchange shall match and execute any the rotation process. For each order that size of any order generated in response remaining part of the order in the enters the Tracking Order Process, the to an order entering the Odd Lot Tracking Order Process in price/time Tracking Order Process that the Odd Lot priority [the following manner]; 5 See PCXE Rule 7.31(f). Dealer is willing to trade on that day; provided, however, any portion of an
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order received from another market A. Self-Regulatory Organization’s Process, the modified Tracking Order center or market participant shall be Statement of the Purpose of, and would execute based on its price and cancelled immediately[:]. Statutory Basis for, the Proposed Rule time received as opposed to the price [(1) If the unfilled order is a mixed lot Change and time the instruction was received. or round lot order, the order shall be This filing also proposes changes to matched against any Tracking Orders 1. Purpose the existing Odd Lot Tracking Order pursuant to the rotation pattern To enhance participation on the Process.8 The Odd Lot Tracking Order described in Rule 7.31(f)(3) for ArcaEx facility, the Exchange proposes Process that is currently available for immediate execution thereafter. After to restructure its Tracking Order Process incoming odd lot orders would continue the order has been matched against any by modifying the current rule text to exist and would be distinct from the Tracking Orders, if the order has not governing the Tracking Order Process to Tracking Order Process which would be been executed in its entirety and the implement a simplified price/time available for incoming mixed lot and remaining part of the order is an odd lot, priority execution process. In addition, round lot orders. Accordingly, the the odd lot order shall be executed in the Exchange proposes to modify the existing Tracking Order Process and the Odd Lot Tracking Order Process, as existing Tracking Order for use in the associated assignment of trades on a described in paragraph (2).] revised and simplified Tracking Order price/time rotating basis would Process. continue to apply to the Odd Lot Odd Lot Tracking Order Process Current ArcaEx Tracking Order Process Tracking Order Process. The rule text [(2)](1) If the unfilled order is an odd that previously resided in PCXE Rule lot, and there is an Odd Lot Dealer Current PCXE Rules 7.31(f) and 7.31(f)(3) would be inserted into PCXE registered in that security, the order 7.37(c) describe the Tracking Order Rule 7.37(c)(1) to describe the Odd Lot shall be matched in the Odd Lot Process. The purpose of the Tracking Tracking Order Process and revised to Tracking Order Process against any Order Process is to provide a final clarify that only Odd Lot Dealers 9 may OLTOs pursuant to the following opportunity for execution against any be assigned trades under the Odd Lot rotation pattern: remaining liquidity on the ArcaEx Tracking Order Process.10 Also, under Odd Lot Dealers who have submitted system before routing to an away market the proposal, orders would only an instruction for the parameters of an center. As currently written, Users 6 of participate in the Odd Lot Tracking Odd Lot Tracking Order will be assigned the Tracking Order Process submit a Order Process if there is an Odd Lot trades on a price/time rotating basis, Tracking Order instruction to ArcaEx Dealer registered in that security. If no such that within each price level, trades based on certain parameters. ArcaEx such dealer exists, the odd lot order shall be assigned by the time the Odd generates orders based on these User would be routed away pursuant to PCXE Lot Dealers’ instructions are received by instructions. Executions occur in a Rule 7.37(d). Further, the proposal the Archipelago Exchange. Within each rotating manner pursuant to PCXE Rule includes clarifying changes that the Odd price level, the first Odd Lot Dealer to 7.37(c). In general, the first User to send Lot Tracking Order Process does not send an instruction for an Odd Lot an instruction for a Tracking Order for generate partial fills. Tracking Order will be the first Odd Lot each price level is the first User to be Dealer to be assigned a trade in the assigned a trade in the rotation process. The Tracking Order rotation process. For each order that With each rotation, a User who has The rule proposal modifies an enters the Odd Lot Tracking Order entered a Tracking Order is responsible existing order type, the Tracking Order, Process, the Odd Lot Tracking Order for one trade up to the User’s maximum for use in the revised Tracking Order Process will rotate once through the tradable size. Process. Currently, a User submits a Odd Lot Dealers in the rotation pattern. Proposed Changes to the Tracking Order Tracking Order instruction that includes In each rotation, the Odd Lot Dealer will Process specific parameters that must be entered be responsible for one trade up to the including maximum aggregate size and Odd Lot Dealer’s maximum tradeable As proposed, the rule change would maximum tradeable size. The revised size. [described in Rule 7.31(f)(3) for modify the current Tracking Order Tracking Order is an undisplayed, immediate execution thereafter.] Process described above and replace it priced order with a specified size that (2) If there is no Odd Lot Dealer with a new process based on the would be eligible for execution against registered in that security, the odd lot submission of orders, rather than other ArcaEx orders that have already will be routed away pursuant to PCXE instructions, to be executed in price/ been exposed to other ArcaEx execution Rule 7.37(d). time priority. Users would no longer be processes and have not been executed in (d)—No Change. required to submit and maintain full. The Tracking Order would execute * * * * * Tracking Order instructions to in the revised Tracking Order Process participate in the Tracking Order against an incoming order only if the II. Self-Regulatory Organization’s Process. Instead, Users would simply Statement of the Purpose of, and size of the incoming order is less than submit a Tracking Order (as described or equal to the aggregate Tracking Order Statutory Basis for, the Proposed Rule below) designed specifically to reside in Change interest available at the price of the the modified Tracking Order Process. incoming order and the incoming order In its filing with the Commission, the ArcaEx would continue to process all is not an odd lot order. If the size of any PCX included statements concerning the orders residing in the modified Tracking contra order exposed to the revised purpose of and basis for the proposed Order Process after it processes orders Tracking Order Process is greater than rule change and discussed any entered into the other ArcaEx execution 7 comments it received on the proposed processes. Within the Tracking Order 8 See PCXE Rule 7.37(c). rule change. The text of these statements 9 See PCXE Rule 1.1(gg). may be examined at the places specified 6 See PCXE Rule 1.1(yy). 10 Similarly, the rule text that describes the in Item IV below. The Exchange has 7 See PCXE Rule 7.37 for a description of the generation of Tracking Orders in PCXE Rule 7.31(f) ArcaEx execution processes that precede the and that also applies to Odd Lot Tracking Orders prepared summaries, set forth in Tracking Order Process. These include the Directed would be inserted in PCXE Rule 7.31(g). PCXE Rule sections A, B, and C below, of the most Process, Display Process and Working Order 7.31(g) would also be further modified, as significant aspects of such statements. Process. necessary, to accommodate such insertion.
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the size of the aggregate Tracking Order 7.31(f)(7) would not be incorporated (B) Institute proceedings to determine interest residing in the Tracking Order into the modified Tracking Order whether the proposed rule change, as Process at the executable price, such Process. Tracking Orders would not amended, should be disapproved. Tracking Orders would not execute route to other market centers, would not against the contra order. For example, if be eligible for execution against other IV. Solicitation of Comments a Tracking Order was entered for 300 Tracking Orders, and would not execute Interested persons are invited to shares and a contra order with a size of against incoming ITS orders. submit written data, views, and 301 shares was exposed to the Tracking The Exchange believes that the arguments concerning the foregoing, Order Process (after being exposed to all implementation of the aforementioned other ArcaEx execution processes), the including whether the proposed rule rule changes relating to ArcaEx order change, as amended, is consistent with contra order would not execute against processing would enhance order the Act. Comments may be submitted by the Tracking Order and would route out execution opportunities on ArcaEx. In any of the following methods: of ArcaEx. particular, the Exchange believes the Tracking Orders would execute only revisions to the Tracking Order Process Electronic Comments if the price of the Tracking Order is and Tracking Order would simplify the equal to or better than prices found at Tracking Order Process and encourage • Use the Commission’s Internet away markets (and would therefore order interaction on ArcaEx. comment form at (http://www.sec.gov/ execute at the price of the NBBO at the rules/sro.shtml); or time of execution or better).11 If a 2. Statutory Basis • Send an e-mail to rule- Tracking Order is executed but not The Exchange believes that the exhausted, the remaining portion of the [email protected]. Please include File proposed rule change, as amended, is Number SR-PCX–2005–87 on the Tracking Order shall be cancelled, 13 consistent with section 6(b) of the Act, subject line. without routing to another market in general, and furthers the objectives of center or market participant. Tracking section 6(b)(5) of the Act 14 in particular Paper Comments Orders residing in the Tracking Order because it is designed to prevent • Process would be sorted and executed fraudulent and manipulative acts and Send paper comments in triplicate against in price/time priority. Tracking practices, to promote just and equitable to Jonathan G. Katz, Secretary, Orders may only be entered as round principles of trade, to foster cooperation Securities and Exchange Commission, lots and are not displayed to any Users. and coordination with persons engaged 100 F Street, NE., Washington, DC However, mixed lot contra orders in facilitating transactions in securities, 20549–9303. exposed to a Tracking Order would be and to remove impediments to and eligible for execution against such All submissions should refer to File perfect the mechanism of a free and Tracking Order (assuming the size of the Number SR–PCX–2005–87. This file open market and a national market contra order is equal to or less than the number should be included on the system. size of the Tracking Order).12 An odd lot subject line if e-mail is used. To help the contra order would be exposed to an B. Self-Regulatory Organization’s Commission process and review your Odd Lot Tracking Order and eligible for Statement on Burden on Competition comments more efficiently, please use execution against such Odd Lot only one method. The Commission will The PCX does not believe that the Tracking Order as described above. In post all comments on the Commission’s the circumstance when a Tracking proposed rule change will impose any Internet Web site (http://www.sec.gov/ burden on competition that is not Order receives a partial fill, the rules/sro.shtml). Copies of the necessary or appropriate in furtherance unexecuted portion of the Tracking submission, all subsequent of the purposes of the Act. Order would be cancelled. Because amendments, all written statements Tracking Orders may be cancelled and C. Self-Regulatory Organization’s with respect to the proposed rule are only executed against once, the Statement on Comments on the change that are filed with the current provision in PCXE Rule Proposed Rule Change Received From Commission, and all written 7.31(f)(8) that enables ArcaEx to Members, Participants or Others communications relating to the suspend the Tracking Order Process proposed rule change between the because of an influx of orders, a system Written comments on the proposed Commission and any person, other than malfunction, or other unusual rule change were neither solicited nor those that may be withheld from the circumstances is no longer relevant and received. would be removed. In addition, the public in accordance with the III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be current provision in PCXE Rule Proposed Rule Change and Timing for available for inspection and copying in 7.31(f)(7) is no longer relevant because Commission Action the new Tracking Order Process would the Commission’s Public Reference be integrated into existing order book Within 35 days of the date of Room. Copies of such filing also will be processing, which is not suspended in publication of this notice in the Federal available for inspection and copying at the instance of a locked or crossed Register or within such longer period (i) the principal office of the PCX. All market. Accordingly, PCXE Rule as the Commission may designate up to comments received will be posted 90 days of such date if it finds such without change; the Commission does 11 See PCXE Rule 7.37 which states that ‘‘for an longer period to be appropriate and not edit personal identifying execution to occur in any Order Process, the price publishes its reasons for so finding or information from submissions. You must be equal to or better than the NBBO.’’ (ii) as to which the Exchange consents, should submit only information that 12 PCX clarified that a contra order would be the Commission will: eligible for execution against such Tracking Order you wish to make available publicly. if the size of the contra order is equal to or less than (A) By order approve such proposed the size of the Tracking Order. Telephone rule change, as amended, or All submissions should refer to File conversation between Bridget M. Farrell, Director, Number SR-PCX–2005–87 and should Strategy PCX/ArcaEx and Johnna B. Dumler, be submitted on or before January 3, Attorney, Division of Market Regulation, 13 15 U.S.C. 78f(b). Commission, on December 1, 2005. 14 15 U.S.C. 78f(b)(5). 2006.
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For the Commission, by the Division of 1. 20 Day Letter to Representative- Frequency of Response: 1. Market Regulation, pursuant to delegated Claimant’s Benefits Withheld—20 CFR Average Burden Per Response: 35 authority.15 404.1720, 404.1725, 404.1730(b), minutes. Jonathan G. Katz, 404.1730(c)(2)(i) and (ii), 416.1520, Estimated Annual Burden: 59,500 Secretary. 416.1525, 416.1530(b)—0960–NEW. In a hours. [FR Doc. E5–7263 Filed 12–12–05; 8:45 am] favorable decision where there are past- 4. Request for Evidence from Doctor due benefits, SSA withholds a portion BILLING CODE 8010–01–P or Hospital—20 CFR 404.1512, of those benefits for potential direct 404.1513(a), (b), and (e), 404.1514, payment to a representative. 20 CFR 416.912, 416.913(a), (b) and (e), 404.1730(c)(2)(i) requires a 416.914—0960–NEW. Claimants are SOCIAL SECURITY ADMINISTRATION representative to make a timely request required to provide medical evidence of for fee approval if the representative Agency Information Collection their impairment(s) in pursuing a wishes to receive direct payment. As a disability claim. SSA uses these forms Activities: Proposed Request and courtesy, SSA sends this letter to a Comment Request to request medical evidence from representative before releasing withheld sources (doctors and hospitals) where The Social Security Administration funds to the claimant. Respondents are the claimant has been treated, seen or (SSA) publishes a list of information representatives who wish to receive otherwise evaluated. Respondents are collection packages that will require direct payment. doctors and hospitals where the clearance by the Office of Management Type of Request: Collection in Use claimant has been evaluated. and Budget (OMB) in compliance with Without OMB Number. Type of Request: Collection in Use Public Law 104–13, the Paperwork Number of Respondents: 1,000. Without OMB Number. Reduction Act of 1995, effective October Frequency of Response: 1. Number of Respondents: 20,000. 1, 1995. The information collection Average Burden Per Response: 5 Frequency of Response: 20. packages that may be included in this minutes. Average Burden Per Response: 15 notice are for new information Estimated Annual Burden: 83 hours. minutes. collections, approval of existing 2. Recommendation for Fee Greater Estimated Annual Burden: 100,000 information collections, revisions to Than $7000—Referral to Regional Chief hours. OMB-approved information collections, Administrative Law Judge—20 CFR 5. Request for School Records—20 and extensions (no change) of OMB- 404.1720, 404.1725, 404.1730(b), CFR part 416, subpart I, 416.906, approved information collections. 404.1730(c)(2)(i) and (ii), 416.1520, 416.913, 416.946, 404, subpart P, SSA is soliciting comments on the 416.1525, 416.1530(b)—0960–NEW. Appendix 1—0960–NEW. School accuracy of the agency’s burden This letter refers an ALJ’s records are pertinent evidence in a estimate; the need for the information; recommendation on a fee petition to a childhood claim for disability benefits. its practical utility; ways to enhance its Regional Chief Administrative Law ALJs use this for to request that quality, utility, and clarity; and on ways Judge (RCALJ) with a courtesy copy to evidence. This letter will be used to to minimize burden on respondents, the representative. The RCALJ, who is request school records from the including the use of automated an SSA employee, will subsequently school(s) which the claimant has collection techniques or other forms of inform the representative of the attended for evidence relative to the information technology. Written approved fee. Respondents are claimant’s impairments or ability to do comments and recommendations representatives with fee petitions greater age-appropriate activities. Respondents regarding the information collection(s) than $7000. are the school(s) which the claimant has should be submitted to the OMB Desk Type of Request: Collection in Use attended. Officer and the SSA Reports Clearance Without OMB Number. Type of Request: Collection in Use Officer. The information can be mailed Number of Respondents: 1,000. Without OMB Number. and/or faxed to the individuals at the Frequency of Response: 1. Number of Respondents: 10,000. addresses and fax numbers listed below: Average Burden Per Response: 1 Frequency of Response: 6. (OMB), Office of Management and minute. Average Burden Per Response: 30 Budget, Attn: Desk Officer for SSA. Fax: Estimated Annual Burden: 17 hours. minutes. 202–395–6974. 3. Request for DDS Assistance in Estimated Annual Burden: 30,000 (SSA), Social Security Obtaining Consultative Examination— hours. Administration, DCFAM, Attn: Reports 20 CFR 404.1512, 404.1513(a), (b) and 6. 20 CFR part 429, subpart 100, Clearance Officer, 1333 Annex Building, (e), 404.1514, 404.1517, 404.1546, Filing Claims Under the Federal Tort 6401 Security Blvd., Baltimore, MD 416.912, 416.913(a), (b) and (e), Claims Act—20 CFR 429.101–429.110— 21235. Fax: 410–965–6400. 416.917, 416.946—0960–NEW. SSA 0960–0667. SSA uses the information I. The information collections listed requires that consultative examinations provided to investigate and determine below are pending at SSA and will be be scheduled through the state DDSs. whether to make an award, compromise, submitted to OMB within 60 days from When an ALJ believes a CE is required, or settlement under the Federal Tort the date of this notice. Therefore, your this form is used to transmit the request, Claims Act (FTCA). The information is comments should be submitted to SSA and a courtesy status letter is sent to the only used by those Agency employees within 60 days from the date of this claimant. Respondents are claimants who need the information in the scope publication. You can obtain copies of requesting DDS assistance in obtaining of their official duties. The respondents the collection instruments by calling the consultative examinations. are individuals/entities making a claim SSA Reports Clearance Officer at 410– Type of Request: Collection in Use under the FTCA. 965–0454 or by writing to the address Without OMB Number. Type of Request: Extension of an listed above. Number of Respondents: 102,000. OMB-approved information collection.
15 17 CFR 200.30–3(a)(12).
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Average Annual Frequency of burden per Estimated Section number of response response annual burden responses (minutes) hours
429.102; 429.103 ...... 1 1 1 1 429.104(a) ...... 30 1 5 2.5 429.104(b) ...... 25 1 5 2 429.104(c) ...... 2 1 5 .16 429.106(b) ...... 10 1 10 1.6
Total Estimated Annual Burden: 7 purposes, and, separately, to SSA for Type of Request: Extension of an hours retirement and disability coverage OMB-approved information collection. II. The information collections listed purposes. These amounts should be the Number of Respondents: 5,100. below have been submitted to OMB for same; however, each year many Frequency of Response: 1. clearance. Your comments on the employer wage reports received by SSA information collections would be most are less than those reported to IRS. Average Burden Per Response: 5 useful if received by OMB and SSA Through Forms SSA–L93, 95, and 97, minutes. within 30 days from the date of this SSA attempts to reconcile the amounts Estimated Annual Burden: 425 hours. publication. You can obtain a copy of to ensure employees receive full credit. 4. Information Collection the OMB clearance packages by calling The respondents are employers who Requirements for Title VIII of the Social the SSA Reports Clearance Officer at reported less wage amounts to SSA than Security Act—20 CFR 408.202(d), 410–965–0454, or by writing to the they did to IRS. 408.210, 408.230(a), 408.232(a), address listed above. Type of Request: Extension of an 408.320, 408.305, 408.310, 408.315, 1. Application for Mother’s or Father’s OMB-approved information collection. 408.340, 408.345, 408.351(d) and (f), Insurance Benefits—20 CFR 404.339– Number of Respondents: 359,999. 408.355(a), 408.360(a), 408.404(c), 404.342, 20 CFR 404.601–404.603— Frequency of Response: 1. 408.410, 408.412, 408.420(a) and (b), 0960–0003. SSA collects the Average Burden Per Response: 30 408.430, 408.432, 408.435(a) and (b), information on the SSA–5-F6 to entitle minutes. 408.437(b), (c) and (d)—0960–0658. an individual to his/her mother’s and Estimated Annual Burden: 180,000 Section 251 of the ‘‘Foster Care father’s insurance benefits. The hours. Independence Act of 1999’’ added Title respondents are individuals applying 3. Marital Relationship VIII to the Social Security Act (Special for entitlement to their mothers’ or Questionnaire—20 CFR 416.1826— Benefits for Certain World War II fathers’ benefits. Type of Request: Revision of an OMB- 0960–0460. Form SSA–4178 provides a Veterans). Title VIII allows, under approved information collection. nationally uniform vehicle for collection certain circumstances, the payment of a Number of Respondents: 50,000. of information to determine for monthly benefit by the Commissioner of Frequency of Response: 1. Supplemental Security Income (SSI) Social Security to a qualified World War Average Burden Per Response: 15 purposes whether unrelated individuals II veteran who resides outside the minutes. of the opposite sex who live together are United States. The accompanying Estimated Annual Burden: 12,500 holding themselves out to the public as regulations set out the requirements an hours. husband and wife. The information is individual must meet in order to qualify 2. Missing and Discrepant Wage necessary to determine whether correct for and become entitled to Special Reports Letter and Questionnaire—26 payment is being made to SSI couples Veterans Benefits (SVB). The CFR 31.6051–2—0960–0432. Each year and individuals. The respondents are respondents are individuals who are employers report the wage amounts they applicants for, and recipients of, SSI applying for benefits under Title VIII of paid their employees to IRS for tax benefits. the Social Security Act.
Average Number of Frequency of burden per Estimated Section number respondents response response annual hour (hrs.) burden
§ 408.202(d); § 408.210; § 408.230(a); § 408.305; §§ 408.310–.315 ...... 1 1 1 1 § 408.232(a) ...... 5 1 .25 1.25 § 408.320 ...... 5 1 .25 1.25 § 408.340 ...... 5 1 .25 1.25 § 408.345 ...... 2 1 .25 .50 § 408.351(d) & (f) ...... 2 1 .50 1 § 408.355(a) ...... 5 1 .25 1.25 § 408.360(a) ...... 2 1 .25 .50 § 408.404(c) ...... 20 1 .25 5 §§ 408.410–412 ...... 20 1 .25 5 § 408.420(a), (b) ...... 230 1 .25 58 §§ 408.430 & .432 ...... 215 1 .50 108 § 408.435(a), (b),(c) ...... 230 1 .25 58 § 408.437(b), (c),(d) ...... 20 1 .50 10
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Total Estimated Annual Burden: 252 Background County, MN.1 This line traverses United 2 hours. Cargo restraint strap assemblies are States Postal Service Zip Code 55082. MNNR has certified that: (1) No local Dated: December 7, 2005. generally used to restrain cargo loaded traffic has been handled to or from any Elizabeth A. Davidson, onto pallets for transport in the cargo customer for at least 2 years; (2) no hold of aircraft. Cargo restrain strap Reports Clearance Officer, Social Security overhead traffic has been handled on assemblies are available from Administration. the line for at least 2 years and, the line commercial sources but generally do not [FR Doc. E5–7242 Filed 12–12–05; 8:45 am] is not capable of handling overhead carry an FAA design or production BILLING CODE 4191–02–P traffic as it is stub-ended; (3) no formal approval. This proposed TSO tells complaint filed by a user of rail service persons seeking a TSO authorization or on the line (or by a state or local letter of design approval what minimum DEPARTMENT OF TRANSPORTATION government entity acting on behalf of performance standards their cargo such user) regarding cessation of service Federal Aviation Administration restraint strap assemblies must first over the line either is pending with the meet in order to obtain approval and be Surface Transportation Board or with Cargo Restraint Strap Assemblies identified with the applicable TSO any U.S. District Court or has been marking. The TSO marking provides AGENCY: Federal Aviation decided in favor of complainant within evidence of an FAA design and Administration (FAA), DOT. the 2-year period; and (4) the production approval to the minimum requirements at 49 CFR 1105.7 ACTION: Notice of availability and performance standard identified in the request for public comment. (environmental reports), 49 CFR 1105.8 proposed TSO. (historic reports), 49 CFR 1105.12 SUMMARY: This notice announces the How To Obtain Copies (newspaper publication), and 49 CFR availability of, and requests comment on 1152.50(d)(1) (notice to governmental You can view or download the draft draft Technical Standard Order (TSO) agencies) have been met. TSO from its online location at: http:// C–172, Cargo Restraint Strap As a condition to this exemption, any www.faa.gov/aircraft/draftldocs/. At Assemblies. This draft TSO tells persons employee adversely affected by the this Web page, select ‘‘Technical seeking a TSO authorization or letter of discontinuance shall be protected under Standard Orders.’’ At the TSO page, design approval what minimum Oregon Short Line R. Co.— select ‘‘Proposed TSOs.’’ For a paper performance standards (MPS) their Abandonment—Goshen, 360 I.C.C. 91 copy, contact the person listed in FOR Cargo Restraint Strap Assemblies must (1979). To address whether this meet to be identified with the FURTHER INFORMATION CONTACT. Note, condition adequately protects affected appropriate TSO marking. SAE International documents are employees, a petition for partial copyrighted and may not be reproduced revocation under 49 U.S.C. 10502(d) DATES: Comments must be received on without the written consent of SAE or before January 27, 2006. must be filed. International. You may purchase copies Provided no formal expression of ADDRESSES: Send all comments on this of SAE International documents from: intent to file an offer of financial proposed TSO to: Federal Aviation SAE International, 400 Commonwealth assistance (OFA) has been received, this Administration (FAA), Aircraft Drive, Warrendale, PA 15096–0001, or exemption will be effective on January Certification Service, Aircraft directly from their Web site: http:// 12, 2006, unless stayed pending Engineering Division, Technical www.sae.org/. reconsideration. Petitions to stay that do Programs and Continued Airworthiness not involve environmental issues,3 and Branch (AIR–120), 800 Independence Issued in Washington, DC, on December 5, 2005. Avenue, SW., Washington, DC 20591. Susan J.M. Cabler, 1 MNNR’s trackage rights were the subject of an ATTN: Mr. Jan Risheim. Or, you may exemption in Minnesota Commercial Railway, Assistant Manager, Aircraft Engineering deliver comments to: Federal Aviation Inc.—Trackage Rights Exemption—Burlington Administration, Room 815, 800 Division, Aircraft Certification Service. Northern Railroad Company, Finance Docket No. [FR Doc. 05–23934 Filed 12–12–05; 8:45 am] 31603 ICC served Feb. 26, 1990). Independence Avenue, SW., 2 BILLING CODE 4910–13–M BNSF received abandonment authority for the Washington, DC 20591. 0.99-mile line segment in The Burlington Northern FOR FURTHER INFORMATION CONTACT: Mr. and Santa Fe Railway Company—Abandonment Jan Risheim, AIR–120, Room 815, Exemption—in Washington County, MN, STB DEPARTMENT OF TRANSPORTATION Docket No. AB–6 (Sub-No. 413X) (STB served May Federal Aviation Administration, 800 28, 2004). The May 28 notice stated that, if Independence Avenue, SW., Surface Transportation Board consummation has not been effected by BNSF’s Washington, DC 20591. Telephone (425) filing of a notice of consummation by May 28, 2005, 227–2209, fax (425) 227–1181. [STB Docket No. AB–882 (Sub–No. 2X)] and there are no legal or regulatory barriers to consummation, the authority to abandon will SUPPLEMENTARY INFORMATION: Minnesota Commercial Railway automatically expire. Also, on April 22, 2005, BNSF filed a request to extend the consummation Comments Invited Company—Discontinuance of Trackage Rights Exemption—in deadline until December 31, 2005, and by decision You are invited to comment on the served May 10, 2005, that deadline was extended Washington County, MN until December 31, 2005. In any event, BNSF may proposed TSO by submitting written not consummate abandonment until MNNR data, views, or arguments to the above The Minnesota Commercial Railway receives authority to discontinue its trackage rights address. Comments received may be Company (MNNR) has filed a verified over the line. examined, both before and after the notice of exemption under 49 CFR Part 3 The Board will grant a stay if an informed decision on environmental issues (whether raised closing date, in room 815 at the above 1152 Subpart F—Exempt by a party or by the Board’s Section of address, weekdays except federal Abandonments and Discontinuances of Environmental Analysis (SEA) in its independent holidays, between 8:30 a.m. and 4:30 Services to discontinue trackage rights investigation) cannot be made before the p.m. The Director, Aircraft Certification over a 0.99-mile line of railroad owned exemption’s effective date. See Exemption of Out- of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any Service, will consider all comments by BNSF Railway Company (BNSF) request for a stay should be filed as soon as possible received on or before the closing date between milepost 11.81 and milepost so that the Board may take appropriate action before before issuing the final TSO. 12.80, in Stillwater, Washington the exemption’s effective date.
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formal expressions of intent to file an BNSF previously filed an preservation matters must be filed OFA under 49 CFR 1152.27(c)(2),4 must environmental and historic report within 15 days after the EA becomes be filed by December 23, 2005. Petitions which addressed the effects, if any, of available to the public. to reopen must be filed by January 3, the abandonment and discontinuance Environmental, and historic 2006, with: Surface Transportation on the environment and historic preservation conditions will be Board, 1925 K Street, NW., Washington, resources. SEA will issue an imposed, where appropriate, in a DC 20423–0001. environmental assessment (EA) based subsequent decision. A copy of any petition filed with the on the information in that report by Board decisions and notices are Board should be sent to applicants’ December 16, 2005. Interested persons representative: Karl Morell, Ball Janik available on our Web site at http:// may obtain a copy of the EA by writing www.stb.dot.gov. LLP, 1455 F St., NW., Suite 225, to SEA (Room 500, Surface Washington, DC 20005. Transportation Board, Washington, DC Decided: December 6, 2005. If the verified notice contains false or 20423–0001) or by calling SEA, at (202) By the Board, David M. Konschnik, misleading information, the exemption 565–1539. [Assistance for the hearing Director, Office of Proceedings. is void ab initio. impaired is available through the Vernon A. Williams, Federal Information Relay Service Secretary. 4 Each OFA must be accompanied by the filing fee, which currently is set at $1,200. See 49 CFR (FIRS) at 1–800–877–8339.] Comments [FR Doc. 05–23931 Filed 12–12–05; 8:45 am] 1002.2(f)(25). on environmental and historic BILLING CODE 4915–01–P
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Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Brodiaea filifolia (thread-leaved brodiaea); Final Rule
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DEPARTMENT OF THE INTERIOR (telephone 760–431–9440; facsimile the Service based on the statutory 760–431–9624). language. In this rule, our analysis of the Fish and Wildlife Service SUPPLEMENTARY INFORMATION: consequences and relative costs and benefits of the critical habitat 50 CFR Part 17 Designation of Critical Habitat Provides designation is based on application of Little Additional Protection to Species RIN 1018–AT75 the statute consistent with the Ninth In 30 years of implementing the Act, Circuit’s ruling and the Director’s Endangered and Threatened Wildlife the Service has found that the guidance. designation of statutory critical habitat and Plants; Designation of Critical Procedural and Resource Difficulties in provides little additional protection to Habitat for Brodiaea filifolia (thread- Designating Critical Habitat leaved brodiaea) most listed species, while consuming significant amounts of available We have been inundated with AGENCY: Fish and Wildlife Service, conservation resources. The Service’s lawsuits for our failure to designate Interior. present system for designating critical critical habitat, and we face a growing ACTION: Final rule. habitat has evolved since its original number of lawsuits challenging critical statutory prescription into a process that habitat determinations once they are SUMMARY: We, the Fish and Wildlife provides little real conservation benefit, made. These lawsuits have subjected the Service (Service), are designating is driven by litigation and the courts Service to an ever-increasing series of critical habitat for the federally rather than biology, limits our ability to court orders and court-approved threatened Brodiaea filifolia (thread- fully evaluate the science involved, settlement agreements, compliance with leaved brodiaea) pursuant to the consumes enormous agency resources, which now consumes nearly the entire Endangered Species Act of 1973, as and imposes huge social and economic listing program budget. This leaves the amended (Act). In total, approximately costs. The Service believes that Service with little ability to prioritize its 597 acres (ac) (242 hectares (ha)) fall additional agency discretion would activities to direct scarce listing within the boundaries of the critical allow our focus to return to those resources to the listing program actions habitat designation. The critical habitat actions that provide the greatest benefit with the most biologically urgent is located in Los Angeles and San Diego to the species most in need of species conservation needs. counties, California. Lands in Orange, protection. The consequence of the critical Riverside, and San Diego counties that habitat litigation activity is that the are covered by approved and draft Role of Critical Habitat in Actual limited listing funds are used to defend habitat conservation plans are excluded Practice of Administering and active lawsuits, to respond to Notices of under section 4(b)(2). Lands owned or Implementing the Act Intent (NOIs) to sue relative to critical controlled by the Department of Defense While attention to and protection of habitat, and to comply with the growing that are covered by an Integrated habitat is paramount to successful number of adverse court orders. As a Natural Resource Management Plan conservation actions, we have result, listing petition responses, the (INRMP) that provides a benefit to the consistently found that, in most Service’s own proposals to list critically species are exempt from critical habitat circumstances, the designation of imperiled species and final listing under section 4(a)(3) of the Act. As a critical habitat is of little additional determinations on existing proposals are result of revisions based on peer and value for most listed species, yet it all significantly delayed. public comments and a re-evaluation of consumes large amounts of conservation The accelerated schedules of court methodology and mapping, resources. Sidle (1987) stated, ‘‘Because ordered designations have left the approximately 4,093 ac (1,656 ha) in Los the Act can protect species with and Service with almost no ability to Angeles, San Bernardino, Orange, and without critical habitat designation, provide for adequate public San Diego counties proposed as critical critical habitat designation may be participation or to ensure a defect-free habitat were removed or excluded from redundant to the other consultation rulemaking process before making this final designation. Lands designated requirements of section 7.’’ Currently, decisions on listing and critical habitat as critical habitat are under Federal and only 470 species or 37.5 percent of the proposals due to the risks associated private ownership. No Tribal lands are 1,253 listed species in the U.S. under with noncompliance with judicially included in this critical habitat the jurisdiction of the Service have imposed deadlines. This in turn fosters designation. designated critical habitat. a second round of litigation in which We address the habitat needs of all those who fear adverse impacts from DATES: This rule becomes effective on 1,253 listed species through critical habitat designations challenge January 12, 2006. conservation mechanisms such as those designations. The cycle of ADDRESSES: Comments and materials listing, section 7 consultations, the litigation appears endless, is very received, as well as supporting Section 4 recovery planning process, the expensive, and in the final analysis documentation used in the preparation Section 9 protective prohibitions of provides relatively little additional of this final rule, are available for public unauthorized take, Section 6 funding to protection to listed species. inspection, by appointment, during the States, and the Section 10 incidental The costs resulting from the normal business hours, at the Carlsbad take permit process. The Service designation include legal costs, the cost Fish and Wildlife Office, 6010 Hidden believes that it is these measures that of preparation and publication of the Valley Road, Carlsbad, CA 92011 may make the difference for the designation, the analysis of the (telephone 760–431–9440). The final conservation of many species. economic effects and the cost of rule, a list of references cited, the We note, however, that the August 6, requesting and responding to public economic analysis, and maps will also 2004, Ninth Circuit judicial opinion, comment and, in some cases, the costs be available on the Internet at http:// Gifford Pinchot Task Force v. United of compliance with the National carlsbad.fws.gov. States Fish and Wildlife Service, found Environmental Policy Act (NEPA). None FOR FURTHER INFORMATION CONTACT: our definition of adverse modification of these costs result in any benefit to the Field Supervisor, Carlsbad Fish and was invalid. In response to the decision, species that is not already afforded by Wildlife Office, at the above address the Director has provided guidance to the protections of the Act enumerated
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earlier, and they directly reduce the additional consideration. On July 1, received no response; therefore, we funds available for direct and tangible 2002, the U.S. District Court for the could not consider the information. conservation actions. Southern District of California directed Thirteen commenters supported the us to publish a new prudency designation of critical habitat for Background determination and, if prudent, propose Brodiaea filifolia, and three opposed the By 1998, when the species was listed, critical habitat for B. filifolia on or designation. Three letters included at least 25 percent of the known before November 30, 2004, and to comments or information, but did not Brodiaea filifolia populations or publish a final rule on or before express support or opposition to the occurrences had been eliminated by November 30, 2005. proposed designation. urbanization and agricultural In the final listing rule, we A second comment period to consider conversion (63 FR 54975, October 13, determined that critical habitat was not the draft economic analysis of proposed 1998). Urban development continues to prudent for Brodiaea filifolia because critical habitat for Brodiaea filifolia be a threat to this species. Habitat for such designation would provide no opened on October 6, 2005, and closed the species is also threatened by off-road benefit over that provided by listing on on October 20, 2005. During the vehicle use; non-agricultural grading private property where the species comment period we received 6 letters: 5 and disking for weed control; clearing occurs (63 FR 54975). The courts have from organizations or individuals and 1 for firebreaks; alteration of existing ruled that, in the absence of a finding from a local government agency. In hydrologic conditions resulting from that the designation of critical habitat opening the comment period on the construction and operation of flood would increase threats to a species, the draft economic analysis, we also control structures; over-grazing; and existence of another type of protection, reopened the comment period on our competition from non-native plant even if it offers potentially greater critical habitat proposal. Comments species (USFWS 1998, RECON 1999, protection to the species, does not received during both comment periods CNDDB 2005). Occurrences of B. filifolia justify a ‘‘’not prudent’’’ finding were grouped into general issue in Orange County and some in San (Conservation Council for Hawaii v. categories relating to the proposed Diego County are threatened by the Babbitt 2 F. Supp. 2d 1280). designation or the draft economic perennial Cynara cardunculus Accordingly, we withdrew our previous analysis. (artichoke thistle or cardoon) (CNDDB determination that the designation of Peer Review 2005). B. filifolia and its habitat are also critical habitat was not prudent for B. threatened by dumping of manure and filifolia and determined that critical In accordance with our joint policy sewage sludge on occupied habitat habitat designation for this species is published on July 1, 1994 (59 FR along the San Jacinto River in western prudent. We had sufficient information 34270), we solicited review of our Riverside County (Roberts in litt. 2005). necessary to identify specific features proposed rule from at least three This material can alter the soil essential to the conservation of B. appropriate independent specialists/ chemistry and lead to changes in the filifolia and proposed critical habitat for experts. The purpose of such review is vegetation sustainable on the sites. this species on December 8, 2004 (69 FR to ensure our final designation is based on scientifically sound data, Previous Federal Actions 71284). With the publication of this rule, we are designating final critical assumptions, and analyses. We solicited For more information on previous habitat for B. filifolia in compliance peer review from four knowledgeable Federal actions concerning Brodiaea with the court’s order. individuals with scientific expertise that filifolia, refer to the final rule listing the included familiarity with the species, species as threatened, published in the Summary of Comments and the geographic region in which the Recommendations Federal Register on October 13, 1998 species occurs, and conservation (63 FR 54975), and the proposed critical We contacted appropriate Federal, biology principles. We received habitat designation published in the State, and local agencies, scientific responses from three of the peer Federal Register on December 8, 2004 organizations, and other interested reviewers. The peer reviewers (69 FR 71284). A recovery plan for B. parties and invited them to comment on supported the designation; however, filifolia has not yet been completed. The the proposed critical habitat they expressed concern about errors and following text discusses Federal actions designation. We also invited public omissions in the proposal, including the that occurred subsequent to the listing. comment through the publication of exclusion of critical habitat on lands On November 15, 2001, a lawsuit was notices on December 17, 2004, in The covered by Habitat Conservation Plans filed against the Department of the Press-Enterprise, Riverside, CA; San (HCP). Comments from peer reviewers Interior (DOI) and the Service by the Diego Union-Tribune, San Diego, CA; and other commenters are addressed in Center for Biological Diversity and Orange County Register, Santa Ana, CA; the following summary, and corrections California Native Plant Society, and the Los Angeles Times, Los Angeles, and information are incorporated into challenging our ‘‘not prudent’’ CA. The initial comment period ended the final rule as appropriate. determinations for eight plants, February 7, 2005. There were no including Brodiaea filifolia (Center for requests for public hearings. Peer Reviewer Comments Related to Biological Diversity et al. v. Department During the comment period that Previous Federal Actions, the Act, and of the Interior et al., CV 01–2101). A opened on December 8, 2004, and Implementing Regulations second lawsuit asserting the same closed on February 7, 2005, we received Similar comments that were received challenge was filed by the Building 19 comment letters directly addressing from other commenters are addressed in Industry Legal Defense Foundation the proposed critical habitat this section to avoid redundancy. (BILD) on November 21, 2001 (Building designation: 4 comment letters were (1) Comment: Two peer reviewers Industry Legal Defense Foundation v. received from 3 peer reviewers, 2 from requested that we provide a review of Department of the Interior et al., CV 01– Federal agencies, and 13 from the unique status of plants under the 2145). Both cases were consolidated on organizations or individuals. We Act, including the limited protection March 19, 2002, and all parties agreed received 2 additional comment letters plants are provided under section 9 of to remand the critical habitat that were illegible. We attempted to the Act and the pros and cons of critical determinations to the Service for contact the authors of the letters but habitat designation for plants. Another
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commenter indicated that Brodiaea identified in the 2004 update of the rule, suggesting that it be rewritten and filifolia receives substantial protection CNDDB that we overlooked. This re-released. Several questions, under the California Endangered occurrence is located in an additions, and corrections to statements Species Act (CESA) and the California unincorporated area of central San and information relating to proposed Environmental Quality Act (CEQA) and Diego County near Lake Hodges. critical habitat units were provided by does not require special management Fortunately, this occurrence of about peer reviewers and other commenters. considerations or protection. 688 plants is being conserved under a Our Response: Because of a court Our Response: Brodiaea filifolia is Minor Amendment to the San Diego deadline to complete this final rule, we listed as an endangered species under County MSCP. could not publish a revised proposed the CESA. This allows the species to Another occurrence in the same area rule for public review and comment in receive greater attention during the land was not entered into the CNDDB until time to comply with the court’s use planning process by local April 6, 2005 (CNDDB 2005); therefore, deadline. One of the purposes of governments, public agencies, and we were not able to consider it in the releasing the proposed rule and draft landowners. State listed plants are proposed rule. It is not possible to economic analysis for public review and protected from removal, except by include an area in this final critical comment is to obtain substantive permit or agreement from the California habitat designation that was not information and materials related to the Department of Fish and Game (CDFG). identified in the proposed rule. Because proposed critical habitat designation. However, listing under the CESA we are under a court deadline to We appreciate receiving additional doesn’t remove all conservation threats complete this final rule, the publication information, corrections, and to the species. Areas that contain of a revised proposed rule to include clarifications that were useful in our re- features essential to the conservation of this area for public review and comment evaluation of the proposed units and B. filifolia and that may require special could not have been completed in time unit descriptions. Where appropriate, management considerations or to comply with the court’s deadline. we have included this information and protection would still warrant critical (4) Comment: One peer reviewer cites answers to specific questions in the habitat designation under the Act. The the dumping of sewage sludge as the final rule. See the ‘‘Summary of Changes benefits and limitations of critical most serious threat to Brodiaea filifolia from Proposed Rule’’ section for a habitat designation for B. filifolia are along the San Jacinto River habitat in review of changes in the final addressed in several different sections Riverside County. The peer reviewer designation. throughout this document, including also stated that these deposits alter the (7) Comment: One peer reviewer the ‘‘Effects of Critical Habitat soil chemistry. stated that we did not provide Designation,’’ and ‘‘Application of Our Response: This comment is information on our reasoning for Section 3(5)(A), Exemption Under appreciated and a discussion of this proposing critical habitat in a number of Section 4(a)(3), and Exclusions Under threat has been incorporated into the locations in Riverside and San Diego Section 4(b)(2) of the Act.’’ ‘‘Background’’ section of this final rule. counties. (5) Comment: A peer reviewer and Our Response: We have re-evaluated Peer Reviewer Comments Related to Life two individuals provided differing areas included in proposed critical History, Habitat Characteristics, and views on the issue of translocation. One habitat. This final designation reflects Ecological Considerations view asserted that translocation may not mapping refinements, our re-evaluation (2) Comment: Three peer reviewers have a high chance for success. The of proposed areas under section 3(5)(A), and five other commenters provided other perspective considers it premature and exclusions under sections 4(a)(3) additional information, clarifications, to state that translocation is a threat to and 4(b)(2) of the Act. Please refer to the and references for aspects of the biology, the species. One peer reviewer ‘‘Criteria Used to Identify Critical associated vegetation, and soil requested that we discuss all of the Habitat,’’ and the ‘‘Application of preferences of Brodiaea filifolia. One translocated populations. Section 3(5)(A), Exemption Under peer reviewer considered ours an Our Response: We are uncertain about Section 4(a)(3) and Exclusions Under excellent overview of the biology of the the long-term viability of translocated Section 4(b)(2) of the Act’’ for more species but lacking two references they populations and their contribution to information. cited. the species as a whole, therefore, we did (8) Comment: Two peer reviewers Our Response: We appreciate not specifically include them in this suggested literature citations, with one additional information and clarification designation. However, translocated requesting that we cite final versions and, where appropriate, we have populations may contribute to the long- rather than draft documents, and the incorporated this into the final rule. term survival and recovery of the other requesting that the references (3) Comment: One peer reviewer and species. Additional long-term cited list be published with the text of one individual stated that we should monitoring for genetic diversity and the the rule and posted on the Internet. have cited more recent information, reproductive impact of these Our Response: Where appropriate, we including the California Natural populations is warranted. Only issues have incorporated these suggestions in Diversity Database (CNDDB), regarding specifically related to the critical habitat this rule. We cite the most current the historical range of Brodiaea filifolia, designation are discussed in this final version of documents available. As pointing out that some new occurrences rule, therefore, we have not included a stated in the ‘‘References Cited’’ section have been discovered. broad overview of translocated of the rule, a list of references cited is Our Response: In developing the populations in this document. available upon request from the proposed rule we used data compiled Carlsbad Fish and Wildlife Office. We from the CNDDB database in 2003 as Peer Reviewer Comments Related to will also make this list available on the well as an update in 2004 (CNDDB Critical Habitat, Primary Constituent Internet at http://carlsbad.fws.gov. 2003; 2004). This is a running database Elements, and Methodology (9) Comment: One peer reviewer and that includes periodic updates of (6) Comment: Two peer reviewers and a public commenter questioned our use existing occurrence information and two other commenters expressed of a draft version of Bramlet and White new occurrence records. There was one concern about errors and lack of 2004 (erroneously cited as White and occurrence of Brodiaea filifolia attribution to citations in the proposed Bramlet 2004 in the proposed rule).
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Our Response: We referred to a some degree. The areas included in site-specific data for us to adequately working table of occurrences (Table 3) proposed critical habitat and areas evaluate their recommendations. We during the preparation of the proposed excluded from proposed designation reviewed the proposed Santalina/Loma rule. The information in this table was under section 4(b)(2) of the Act were Alta subunit and determined it does not considered to be one of the best identified as being occupied and meet the definition of critical habitat available on the occurrences of Brodiaea containing the physical or biological under section 3(5)(A) of the Act. Please filifolia. Only occurrences corroborated features essential to the conservation of refer to the section ‘‘Application of from other sources are considered in the species. Lands included in this final Section 3(5)(A), Exemption Under this final rule. designation are occupied and contain Section 4(a)(3), and Exclusions Under (10) Comment: Two peer reviewers the features essential to the conservation Section 4(b)(2) of the Act’’ for more and two public commenters variously of B. filifolia. Please refer to the information. stated that the section of the proposed ‘‘Application of Section 3(5)(A), (14) Comment: Two peer reviewers rule titled ‘‘Designation of Critical Exemption Under 4(a)(3), and and one commenter questioned our use Habitat Provides Little Additional Exclusions Under Section 4(b)(2) of the of occurrences with 1,000 or more Benefit to Species’’ is generic, Act’’ section for information about areas plants as a measure of whether an area editorializing, out of place in a proposal, removed, exempted, or excluded from contained habitat with features essential and political. One commenter wanted critical habitat. to the conservation of Brodiaea filifolia. us to point to the research that (13) Comment: Two peer reviewers One commenter questioned the science specifically justifies this claim in and three other commenters provided behind our decision not to propose all relation to Brodiaea filifolia. information and suggestions related to occurrences of B. filifolia in Orange and Our Response: The section referenced the species’ biology, habitat description, San Diego counties as critical habitat. by the commenters is intended to be a and condition, as well as boundaries of Our Response: In developing our general statement regarding our position the critical habitat subunits and areas proposal, we relied on several types of on the designation of critical habitat. As containing habitat with features information to determine whether an discussed in the preamble of this and essential to the conservation of this occurrence of Brodiaea filifolia was other critical habitat designation rules, species that were excluded from critical considered significant. As outlined in we believe that, in most cases, habitat in our proposal. One peer the ‘‘Criteria Used to Identify Critical conservation mechanisms provided reviewer also noted that some units Habitat’’ section, we evaluated through section 7, the section 4 recovery included unsuitable habitat. One population estimates, soil types, planning process, the section 9 commenter recommended we change associated vegetation, and elevation. We protective prohibitions of unauthorized the configuration of boundaries in the also evaluated the location of take, section 6 funding to the States, the Rancho Santalina/Loma Alta subunit to occurrences in relation to the range of section 10 incidental take permit better represent the areas containing the species. For example, occurrences process, and cooperative programs with features essential to the conservation of that supported less than 1,000 plants, private and public landowners and Brodiaea filifolia. but which were on alkali playas were Tribes provide greater incentives and Our Response: We appreciate the considered to be significant. For an conservation benefits than does the information and suggestions from these explanation of why more areas in designation of critical habitat. commenters and, where appropriate, we Orange and San Diego counties were not (11) Comment: One peer reviewer and have incorporated the information on included in the final designation, please one commenter requested a definition of subunit descriptions into this final rule. refer to the ‘‘Application of Section PCE. They also suggested clarifications Some of the commenters discussed 3(5)(A), Exemption Under Section for PCEs relating to habitat descriptions, making the boundaries of critical habitat 4(a)(3) and Exclusions Under Section soil types, slopes, and associated subunits and areas containing habitat 4(b)(2) of the Act’’ portion of this rule. vegetation types. with features essential to the (15) Comment: One peer reviewer and Our Response: As stated in the conservation of this species more one individual questioned the value of ‘‘Primary Constituent Elements’’ (PCE) precise. We made such changes where including small units (e.g., 6b (Mesa section of the proposed rule (69 FR appropriate. We have attempted to map Drive)), or those with few plants (e.g., 71284), PCEs are those physical or the boundaries to exclude developed subunits 4d (Prima Deschecha), 4f biological features essential to the land; however, we may not have been (Talega/Segunda Deschecha), and 6a conservation of a species, and that may able to exclude all developed land or (Alta Creek)) as critical habitat. require special management land that does not contain the PCEs. Our Response: We considered considerations or protection. The PCEs Any such structures and the land under occurrence information, soil types, for Brodiaea filifolia were based on the them inadvertently left inside the vegetation association and other factors best available information relating to the mapped critical habitat boundaries have in our re-evaluation of proposed species’ occurrences and its soil and been excluded in the text portion of the subunits. As a result of our re- vegetation associations. Please refer to rule, and are not designated as critical evaluation, several proposed subunits, the ‘‘Methods’’ section of this final rule habitat. Federal actions limited to these including 4d, 4f, and 6a, were removed for a discussion of all information areas would not trigger section 7 from final designation. Subunit 6b sources used to define the PCEs for B. consultations, unless they affect the (Mesa Drive) is relatively small, filifolia. species and/or primary constituent covering about 5 ac (2 ha), but it (12) Comment: Two peer reviewers elements in adjacent critical habitat. supports a significant occurrence of noted the ability of Brodiaea filifolia to Some commenters suggested Brodiaea filifolia and contains features persist on disturbed, degraded, or including additional areas in the essential to the conservation of the disked sites and the suitability of these proposed subunits or making boundary species; therefore, it was included in sites if allowed to recover, especially by adjustments in areas containing features proposed critical habitat. However, natural flooding processes. essential to the conservation of the subunit 6b was excluded from final Our Response: It is likely that some species that were excluded from designation under section 4(b)(2) of the areas supporting occurrences of proposed designation. However, these Act. Please see the ‘‘Summary of Brodiaea filifolia have been degraded to commenters did not provide sufficient Changes from Proposed Rule,’’ and
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‘‘Application of Section 3(5)(A), Brodiaea filifolia and B. jolonensis. This floodplain could adversely modify a Exemption Under Section 4(a)(3), and area was identified as subunit 8d significant portion of the Riverside Exclusions Under Section 4(b)(2) of the (Upham) in our proposed rule. It has County occurrences of the plant and Act’’ sections for more information. been reported that putative hybrid eliminate a unique element of the (16) Comment: One peer reviewer individuals of B. filifolia and another species’ habitat associations (i.e., plants recommended that we add Domino or species that has been erroneously adapted to alkali soils). The reviewer Chino alkali soils to the description of referred to B. jolonensis occur on the stated that designation of critical habitat PCEs because Brodiaea filifolia occurs site (Armstrong 2005). Though these in the San Jacinto River floodplain area on these soil types in Riverside County. hybrid plants exhibit intermediate would strengthen the regulatory Our Response: We have reviewed this characteristics between the two effectiveness of section 7 by adding information and have included these theorized parental species, a third ‘‘adverse modification’’ to the jeopardy soil types in our definition of the PCEs species, B. orcuttii, also grows nearby standard available to the Service and for Brodiaea filifolia. within the unit. According to Armstrong ensure that activities of the U.S. Army (17) Comment: Two peer reviewers (2005), the hybrid plants appeared to be Corps of Engineers (ACOE) do not and one Federal agency commenter a ‘‘clonal population’’ restricted to ‘‘a adversely modify the habitat. The questioned our inclusion of subunits 5a one acre area at the southwest end of the reviewer also indicated that thousands (Miller Mountain) and 5b (Devil property’’ and that these individuals of acres are undergoing alteration by Canyon) in proposed critical habitat ‘‘probably reproduced asexually through sewage sludge and manure dumping. because most plants in subunit 5a and cormlets.’’ Although Armstrong (2005) Our Response: We agree that areas some in subunit 5b are hybrids between found ‘‘numerous B. filifolia, B. orcuttii, supporting Brodiaea filifolia in the San Brodiaea filifolia and Brodiaea orcuttii. and (the material referred to as B. Jacinto River floodplain are important One peer reviewer noted that hybrids jolonensis)’’ growing within the unit in because they contain features essential occur in the City of San Marcos and on May 2005, he failed to observe any of to the conservation of the species. Marine Corps Base, Camp Pendleton the hybrid plants. As a result, although However, these areas have been (Camp Pendleton), although specific putative hybridization has been excluded from critical habitat because numbers and locations were not reported for this unit, hybrid plants are the Western Riverside County MSHCP provided. One peer reviewer stated that either no longer present or they addresses the conservation needs of the plants in areas containing features represent an undetectable, small species, including the maintenance of essential to the conservation of the fraction of the overall population of B. floodplain processes along the San species in Riverside County are prone to filifolia. The occurrence of B. filifolia in Jacinto River. The Secretary has hybridization. Another commenter, this subunit is estimated to support determined the benefits of excluding knowledgeable about the genetics of about 1,000 plants and contains features lands covered by the Western Riverside Brodiaea, stated that B. filifolia and B. essential to the conservation of the County MSHCP outweigh the benefits of orcuttii form a unique line and could species. including them in critical habitat (see hybridize only with each other. We were not able to confirm the the ‘‘Application of Section 3(5)(A), Our Response: We acknowledge that commenter’s reference to hybrids on Exemption Under Section 4(a)(3), and within subunits 5a and 5b, there are Camp Pendleton. Exclusions Under Section 4(b)(2) of the substantial numbers of plants that are (18) Comment: One peer reviewer Act’’ section of this rule.) hybrids of Brodiaea filifolia and considered the mapping of lands in (20) Comment: Two peer reviewers Brodiaea orcuttii (Boyd et al. 1992). The Riverside County that were excluded and one individual commenter stated population in subunit 5a is considered from proposed critical habitat to be that areas we identified as having to be largely hybridized and we cannot inadequate. One individual requested features essential to the conservation of determine that they can be considered UTMs for these same areas. Brodiaea filifolia near the City of Corona as contributors to the long-term Our Response: As stated in the and in Moreno Valley in Riverside conservation of the species; therefore, proposed rule, maps of the areas in County are erroneous and based on an we removed this subunit from Riverside County containing features early draft of the Western Riverside consideration. Although plants in essential to the conservation of Brodiaea County MSHCP. The commenter subunit 5b also show some filifolia that were excluded under suggested they might be derived from hybridization, the extent of the section 4(b)(2) of the Act, based on questionable biological surveys. hybridization is less. The occurrence of conservation measures outlined in the Our Response: We appreciate the B. filifolia in subunit 5b is significant Western Riverside County Multiple correction. After further evaluation, we and is found at one of the highest Species Habitat Conservation Plan did not find reliable data validating the elevations within the range of the (MSHCP), were available on our Web occurrences of Brodiaea filifolia at these species. We have included the portion site. We believe that the general public locations, and we removed them from of land in subunit 5b that is occupied finds these maps more useful than the consideration. For more information, by B. filifolia and contains features UTM coordinates. Also, GIS layers of please refer to the ‘‘Summary of essential to the conservation of the the areas proposed for critical habitat Changes from Proposed Rule.’’ species in this final designation. Please designation as well as areas excluded (21) Comment: One peer reviewer see the ‘‘Summary of Changes from from proposed critical habitat are suggested that we designate habitat Proposed Rule’’ and ‘‘Application of available upon request from our office. blocks that contain the entire San Section 3(5)(A), Exemption Under We will clarify the availability of this Jacinto River floodplain to capture the Section 4(a)(3), and Exclusions Under information in future critical habitat historical habitat of the species. Section 4(b)(2) of the Act,’’ and ‘‘Unit rules. Our Response: When designating Descriptions’’ sections for more (19) Comment: One peer reviewer critical habitat for Brodiaea filifolia we information. expressed the importance of designating identified land containing physical or We are aware of a CNDDB (Element critical habitat for Brodiaea filifolia in biological features essential to the Occurrence 10) report in the City of San irregularly flooded bottomland areas of conservation of the species and which Marcos that included a reference to the the San Jacinto River floodplain because may require special management possible presence of hybrids between of concerns that alteration of the considerations or protection. Physical or
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biological features include areas needed Integrated Natural Resource occurrences in the two Core Areas in for pollen dispersal and pollination; Management Plan (INRMP) and other western Riverside County where this seed dispersal and germination, and measures Camp Pendleton is species is found. maintenance of seed banks; and areas undertaking to address B. filifolia on Please refer to the ‘‘Application of that provide the basic requirements for their lands. Section 3(5)(A), Exemption Under growth. These features, referred to as Section 4(a)(3), and Exclusions Under Peer Review Comments Related to the PCEs, are discussed in the ‘‘Primary Section 4(b)(2) of the Act’’ section for NCCP/HCP Program, Section 7, and Constituent Elements’’ section of this more discussion of the Western Section 404 rule. Areas in western Riverside County, Riverside County MSHCP and other including lands within the San Jacinto (24) Comment: Two peer reviewers NCCP/HCP efforts. River floodplain that are occupied by B. and one commenter disagreed with our (25) Comment: Two peer reviewers filifolia and contain features essential to determination to exclude critical habitat state that the Lakeview/Nuevo Area the conservation of the species have based on approved HCPs. One peer Plan (Dudek and Associates 2003) is been excluded from critical habitat reviewer expressed further concern that inconsistent with provisions of the pursuant to section 4(b)(2) of the Act it is uncertain whether HCPs will Western Riverside County MSHCP (see ‘‘Application of Section 3(5)(A), protect these areas because no specific because it has nearly the entire Criteria Exemption Under Section 4(a)(3), and preserve boundaries have been Area zoned for residential development. Exclusions Under Section 4(b)(2) of the proposed, relying instead on goals and Our Response: Under the Western Act.’’) potential conservation. The reviewers Riverside County MSHCP, permittees (22) Comment: One peer reviewer stated that we did not provide a clear are obligated to adopt and maintain questioned how land management of biological reason for excluding lands ordinances or resolutions as necessary, reserves helps recovery of the species covered by HCPs and questioned why and amend their general plans as with and without critical habitat. more areas were not determined to be appropriate, to implement the Our Response: We are assuming the critical habitat. requirements and fulfill the purposes of peer reviewer is referring specifically to Our Response: Under section 4(b)(2) the MSHCP and its associated reserves that are established in of the Act, the Secretary may exclude Implementing Agreement (IA) and conjunction with HCPs. Approved HCPs any particular area from critical habitat Permit (Dudek and Associates 2003). include measures to monitor, minimize, designation if the benefits of excluding (26) Comment: Two peer reviewers and mitigate impacts; and must provide such area outweigh the benefits of requested that we discuss specific adequate funding. Management of including it in critical habitat, unless it conservation actions under the Western reserves in accordance with an HCP’s is determined, based on the best Riverside County MSHCP that will issuance criteria would be carried our scientific and commercial data result in conservation of Brodiaea regardless of a critical habitat available, that the failure to designate filifolia. One reviewer specifically asked designation on identified reserve lands. such area as critical habitat will result what assurances are in place that Only actions authorized, funded, or in the extinction of the species. We conservation benefits will occur before carried out by a Federal agency that may evaluated the benefits of excluding Highway 79 is built through habitat for affect critical habitat would require critical habitat on lands covered by the species. consultation with us and would not HCPs, including the Western Riverside Our Response: The Western Riverside affect actions undertaken on reserve County MSHCP, the San Diego County County MSHCP identifies specific goals areas that do not have a Federal nexus. Multiple Habitat Conservation Plan to be implemented for long-term Reserves established as part of an HCP (MHCP) and its approved subarea plans, conservation of Brodiaea filifolia, include monitoring and management to the Orange County Central and Coastal including conservation of at least 6,900 ensure the areas retain their biological NCCP/HCP, and the Settlement ac (2,760 ha) of habitat, containing 11 value for the species. Agreement for Rancho Mission Viejo’s major locations supporting the species, Ranch Plan, a component of the draft conducting surveys for B. filifolia in Peer Review Comments Related to Orange County Southern Subregion certain areas, and maintaining Department of Defense (DoD) Lands NCCP/HCP, against the benefits of floodplain processes along the San (23) Comment: One peer reviewer including such lands in critical habitat. Jacinto River. requested a discussion of the A major benefit of excluding these lands The assembly of the MSHCP importance of populations of Brodiaea from critical habitat is the facilitation of Conservation Area is anticipated to filifolia on Camp Pendleton. continued partnerships with the various occur over a period of time during the Our Response: Populations of signatory agencies, cities and life of the Permit. To ensure that the Brodiaea filifolia on Camp Pendleton landowners involved with these NCCP/ resources ultimately conveyed to the are of considerable importance not only HCP efforts. Although a possible benefit MSHCP Conservation Area are because of the numbers of plants of including these lands in critical maintained in their existing condition reported (over 4,000) from several habitat would be to enhance education prior to reserve assembly, the MSHCP different occurrences, but also because about the species and its habitat needs, permittees are obligated to adopt and they are found in more than one we consider this benefit to have largely maintain ordinances or resolutions and vegetation or soil association, including been met through the public to amend their general plans such that grasslands and vernal pools; the participation process that occurred, and they will be able to meet their occurrences are distributed in a manner continues to occur, during the obligations under the MSHCP (Dudek that likely facilitates pollen transfer development and implementation of and Associates, Inc. 2003; 2003b). among them and also with occurrences these conservation planning efforts. We Several covered activities discussed to the north and south of Camp acknowledge that the Western Riverside under the MSHCP have the potential to Pendleton. Please see the ‘‘Application County MSHCP does not describe a impact populations of Brodiaea filifolia of Section 3(5)(A), Exemption Under hard-lined reserve, but it does identify within the proposed MSHCP Section 4(a)(3), and Exclusions Under specific conservation goals and Conservation Area, including the San Section 4(b)(2) of the Act’’ for more objectives for Brodiaea filifolia, Jacinto River Flood Control Project and information about Camp Pendleton’s including the conservation of 11 the State Route 79 Realignment Project.
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These projects will require additional Exclusions Under Section 4(b)(2) of the incorporated, where appropriate, in this consultation with our agency under Act’’ for more information. final rule. section 7 of the Act (Dudek and (29) Comment: One peer reviewer, Public Comments Related to Critical Associates, Inc. 2003). citing the Fieldstone/La Costa Habitat, Primary Constituent Elements, As a result of informal consultation Associates HCP/Ongoing Multi-species and Methodology conducted to date on the State Route 79 Plan (known as the Villages of La Costa Realignment Project, the City of Hemet HCP), approved about 10 years ago, (32) Comment: One commenter has adopted an Interim Urgency states that HCPs are supposed to suggested a method for designing the Ordinance that preserves two avoidance provide for monitoring of the status of size of conservation areas based on alternatives for the State Route 79 covered species to measure the success Burgman et al. (2001). Realignment Project, both of which are of conservation measures and asked us Our Response: Although the located outside of the MSHCP Criteria to document the status of the reserve. information is appreciated, it is important to clarify the differences Area, and also allows the City to ensure Our Response: Conservation between establishment of conservation that development efforts within the provisions for Brodiaea filifolia outlined areas and the designation of critical MSHCP Criteria Area are coordinated in the Villages of La Costa HCP include habitat. The designation of critical such that habitat conserved within the protection of almost 6,000 plants in an habitat does not establish reserves, Criteria Area does not become open-space preserve with long-term preserves, wilderness areas, refuges or fragmented, thereby allowing the City to management and monitoring, habitat other types of conservation areas. We meet their obligations under the MSHCP restoration, and control of invasive suggest readers refer to the sections on (City of Hemet 2005). plant species. Further information about ‘‘Methods,’’ ‘‘Primary Constituent (27) Comment: One peer reviewer this HCP can be found in the section Elements,’’ and ‘‘Effects of Critical stated that there was no protection of titled ‘‘Application of Section 3(5)(A), Habitat Designation’’ to more fully land for Brodiaea filifolia before the Exemption Under Section 4(a)(3), and understand how we identified areas for approval of the Western Riverside Exclusions Under Section 4(b)(2) of the critical habitat designation, the features County MSHCP, and there is no Act.’’ essential to the conservation of the protection now, as evidenced by the Public Comments Related to Life species, and the effect of critical habitat ongoing dumping of sewage sludge and History, Habitat Characteristics, and on landowners. manure on occupied habitat. The Ecological Considerations (33) Comment: One commenter reviewer cited an area along Case Road wanted to know how many occurrences where dumping has occurred. (30) Comment: One commenter in Riverside and San Diego counties are Our Response: Permittees under the criticized our use of foraging distance outside designated critical habitat and Western Riverside County MSHCP are data based on Bombus taxa how this would affect the viability of obligated to adopt and maintain (bumblebees), stating that their studies the species. ordinances or resolutions as necessary, had not recorded a single instance of Our Response: A number of and amend their general plans as bumblebees visiting Brodiaea filifolia on occurrences in Riverside and San Diego appropriate, to implement the their property. counties were not proposed for requirements and to fulfill the purposes Our Response: We believe our use of designation because they were not of the MSHCP and its associated IA and the 820 feet (ft) (250 meters (m)) considered significant occurrences, or Permit (Dudek and Associates, Inc. distance for pollinator movement and were excluded from proposed critical 2003; 2003b). The Western Riverside habitat is justified. Bell and Rey (1991) habitat under section 4(b)(2) of the Act. County MSHCP is a large, complex noted Bombus californicus as one of the Many of these areas receive habitat conservation plan, and its native bees observed pollinating conservation consideration under implementation is expected to take Brodiaea filifolia on the Santa Rosa existing INRMPs, HCPs, or other time. In its first year of implementation, Plateau in Riverside County. Please see conservation instruments. Please refer to the Western Riverside County MSHCP the ‘‘Criteria Used to Identify Critical the ‘‘Application of Section 3(5)(A), has already resulted in conservation and Habitat’’ section for a detailed Exemption Under Section 4(a)(3), and management actions that address threats discussion. Exclusions Under Section 4(b)(2) of the to Brodiaea filifolia on private lands. (31) Comment: One commenter Act’’ for more information. Please note For example, the City of Hemet has criticized our omission of a study of that, although habitat for Brodiaea adopted an ordinance that has halted pollinators conducted by Rancho filifolia may be outside the boundaries the dumping of manure within the City Mission Viejo. of designated critical habitat, it does not (City of Hemet 2002). Our Response: The omission of this mean these areas are unimportant or (28) Comment: One peer reviewer report was inadvertent. The report may not be necessary for recovery of the expressed concern that there is no summarizes field studies conducted in species. assurance that prioritization of late spring 2003 and reports insects (34) Comment: One commenter stated conservation areas following the criteria visiting flowers of Brodiaea filifolia at that the purpose of critical habitat under of the Western Riverside County two locations and two times during the section 3 of the Act is to facilitate MSHCP will select the more favorable season. Observations were made on recovery of species and that it should biological areas over less favorable three dates between April and May include the opportunity for genetic areas. For example, while the Western 2003. Burrowing bees (Anthophoridae), exchange, migration, and changes in Riverside County MSHCP proposes one Sweat bees (Halictidae), and Flower- climate. method of conservation, another, yet to loving flies (Syrphidae) were the most Our Response: The definition of be disclosed method, could prevail. common groups of insects observed, critical habitat has two prongs, that is, Our Response: We refer the reader to although it is not clear from the report one prong considers specific areas our responses to comments 24 and 26 whether pollination by the various within the geographic area occupied by above and to the section titled insects was confirmed by observations the species and the second prong ‘‘Application of Section 3(5)(A), of fruit production by the plants. considers specific areas outside the Exemption Under Section 4(a)(3), and Information from this report is geographic area occupied by the species.
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To the extent that we can relate genetic banks; and areas that provide the basic the ‘‘Background’’ section of this rule to exchange, migration, and changes in requirements for growth. Please refer to support our use of 820 ft (250 m) for a climate to physical and biological the ‘‘Summary of Changes From pollinator movement and habitat area. features essential to the conservation of Proposed Rule,’’ and ‘‘Application of Please see the ‘‘Background’’ and the species and those areas also require Section 3(5)(A), Exemption Under ‘‘Criteria Used to Identify Critical special management considerations or Section 4(a)(3), and Exclusions Under Habitat’’ sections for a detailed protection (prong one) or based upon a Section 4(b)(2) of the Act’’ sections of discussion. determination by the Secretary that an this rule for more information. Public Comments Related to unoccupied area is essential to the (37) Comment: One commenter Department of Defense Lands conservation of the species (prong two), requested that we indicate which we may and do consider those factors in parcels within critical habitat units/ (40) Comment: One Federal agency our designation of critical habitat. subunits contain the PCEs. The commenter agreed with our exclusion of Please see the ‘‘Designation of Critical commenter also stated that all lands mission-critical areas on Camp Habitat Provides Little Additional within proposed units/subunits may not Pendleton from critical habitat Protection to Species’’ section and the contain all of the PCEs. designation under section 4(b)(2) of the ‘‘Application of Section 3(5)(A), Our Response: In re-evaluating areas Act; however, they strongly disagreed Exemption Under Section 4(a)(3), and proposed as critical habitat for Brodiaea with our determination in the proposed Exclusions Under Section 4(b)(2) of the filifolia, we determined that some areas rule that Camp Pendleton’s Integrated Act’’ for more information and do not contain features essential to the Natural Resource Management Plan discussion. conservation of the plant, and therefore (INRMP) does not provide a benefit for (35) Comment: One commenter stated were removed from final designation. Brodiaea filifolia. The commenter there is a poor record of recovery for The ‘‘Summary of Changes from characterized critical habitat as species with critical habitat while Proposed Rule’’ and ‘‘Application of encroachment that would unacceptably another commenter cited a report Section 3(5)(A), Exemption Under degrade Camp Pendleton’s mission. The indicating that species with critical Section 4(a)(3), and Exclusions Under commenter also provided information habitat are less likely to be in decline Section 4(b)(2) of the Act’’ sections about programs and activities carried and twice as likely to be recovering. provide information about areas out under the INRMP for B. filifolia. Our Response: The Service has been removed from final designation. Due to Our Response: We appreciate the unable to independently verify the the scale at which we map critical information from the commenter and results of such studies. The fact that habitat boundaries, we do not include have reviewed Camp Pendleton’s there are conflicting studies shows that parcel level detail. If lands within the INRMP, completed in November 2001 the issue has not been settled. The boundaries of critical habitat units/ (U.S. Marine Corps 2001). Based on our Service believes that most of the subunits do not contain any PCEs, then review of the INRMP and information protections of the Act come with listing they have been excluded from the provided by the commenter, we the species, and by far the most designation in the text portion of the determined that the INRMP provides a successful recovery efforts come from rule. benefit for Brodiaea filifolia and have voluntary partnerships. Critical habitat (38) Comment: One commenter stated exempted Camp Pendleton from critical designation is not the sole means by that it was not good science to habitat designation pursuant to section which conservation of a species may be ‘‘extrapolate’’ genetic information from 4(a)(3) of the Act. We have also addressed. studies on a ‘‘ubiquitous genera’’ such determined that exclusion of Camp (36) Comment: One commenter as Lasthenia (lasthenia) to narrow Pendleton pursuant to section 4(b)(2) of characterized our proposed rule as a endemic species such as Brodiaea the Act is also appropriate. Please see sweeping designation that exceeds our filifolia. the ‘‘Application of Section 3(5)(A), congressional mandate. The commenter Our Response: We cited the reference Exemption Under Section 4(a)(3), and further stated that our designation to Lasthenia to highlight the Exclusions Under Section 4(b)(2) of the should be based on the estimated 825 ac significance of outlying portions of a Act’’ section for more information. (334 ha) of land occupied by Brodiaea species’ range to its genetic diversity. (41) Comment: One commenter filifolia identified in the final listing Ornduff (1966) cites several species of claimed we are inconsistent in rule (63 FR 54975). Another commenter Lasthenia with morphological or excluding Camp Pendleton from critical stated that Congress intended for critical cytological variants at the margins of habitat designation while other military habitat to be extremely narrowly their distributions. One example used installations have critical habitat on defined and limited only to areas was Lasthenia fremontii, restricted to their lands. necessary to bring the species to a point vernal pools or wet meadows in the Our Response: The commenter did where it is no longer in danger of Central Valley. This example was cited not cite which military installation(s) extinction. for the purposes of explaining how had critical habitat designation(s); Our Response: In developing the final peripheral populations of Brodiaea therefore, we cannot provide specific critical habitat designation for B. filifolia may be important to information about a particular filifolia, we reviewed all information maintaining the genetic diversity of the installation. Under section 4(b)(2) of the and data received during the two public taxa. Act, the Secretary shall designate comment periods and have removed (39) Comment: Two commenters critical habitat, and revise critical from consideration those lands that do questioned our 820 ft (250 m) pollinator habitat on the basis of the best scientific not meet the criteria for designation. movement and habitat area. One data available and after taking into Specific areas included in this final commenter thought it was too narrow, consideration the economic impact, designation contain the physical or the other thought it was too wide. One national security impact, and any other biological features essential to the cited a reference that one group of bees relevant impact of specifying a conservation of B. filifolia, including (halictids) forage no more than 328 ft particular area as critical habitat. The space for pollen dispersal and (100 m). Secretary may exclude any particular pollination; seed dispersal and Our Response: We have included area from critical habitat if the benefits germination, and maintenance of seed additional references and discussion in of such exclusion outweigh the benefits
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of specifying such area as critical from final critical habitat designation HCPs and/or NCCP/HCPs, many factors habitat, unless the failure to designate the portion of lands within the are considered, including the issues such area as critical habitat will result boundary of the draft NCCP/HCP that identified by the commenters. in the extinction of the species. These are owned by Rancho Mission Viejo and We make a determination to exclude determinations are made by the identified in the Ranch Plan under lands within the boundaries of draft Secretary on a species-by-species and section 4(b)(2) of the Act, based on a HCPs on a case-by-case basis. Generally, area-by-area basis. recent Settlement Agreement. Please we exclude critical habitat from lands Section 318 of the fiscal year 2004 refer to the section ‘‘Application of within the boundaries of draft HCPs or National Defense Authorization Act Section 3(5)(A), Exemption Under NCCP/HCPs if we can point to (Pub. L. 108–136) amended the Act by Section 4(a)(3), and Exclusions Under significant progress in the development adding a new section 4(a)(3)(B). This Section 4(b)(2) of the Act’’ for more of a draft HCP and/or NCCP/HCP, provision prohibits designation of information. including the release of an EIR/EIS for critical habitat on any lands or other (43) Comment: One commenter stated public review and comment or geographical areas owned or controlled that the City of San Marcos does not development of some other identified by the Department of Defense (DoD), or have an approved HCP and is not likely conservation commitment, and we are designated for its use, that are subject to to have one in the near future that confident the planning effort will lead an INRMP prepared under section 101 would warrant exclusion of their lands to a successful outcome. With regard to of the Sikes Act (16 U.S.C. 670a), if the from critical habitat under section automatic exemptions following Secretary determines in writing that 4(b)(2) of the Act. approval of HCPs or NCCP/HCPs, such plan provides a benefit to the Our Response: We did not exclude section 4(b)(5)(A) of the Act requires species for which critical habitat is any lands within the City of San Marcos that any proposed regulation, including proposed for designation. under section 4(b)(2) of the Act; revisions to critical habitat, be The provisions of section 3(5)(A), however, some lands in the City of San published in the Federal Register and 4(a)(3), and 4(b)(2) of the Act are fully Marcos were removed from further that the public be afforded an considered by us when designating consideration as critical habitat. Please opportunity to review and comment. critical habitat. In some cases, critical refer to the ‘‘Application of Section Revisions to critical habitat designations habitat may have been designated on 3(5)(A), Exemption Under Section without providing notice to the public lands owned or controlled by the DOD 4(a)(3), and Exclusions Under Section would violate the Act. Please refer to the prior to the 2004 amendments to the 4(b)(2) of the Act’’ for more information. section ‘‘Application of Section 3(5)(A), Act, or if otherwise determined to be (44) Comment: Three commenters Exemption Under Section 4(a)(3), and appropriate. Please see the section supported our practice of excluding Exclusions Under Section 4(b)(2) of the ‘‘Application of Section 3(5)(A), critical habitat on areas covered by Act’’ for more discussion of this topic. Exemption Under Section 4(a)(3), and HCPs. One also suggested that we (45) Comment: Two commenters Exclusions Under Section 4(b)(2) of the exclude areas covered under proposed supported the designation of critical Act’’ for more information. Any HCPs, noting that failure to do so would habitat in areas with HCPs, one noting revisions to designated critical habitat remove incentives for them to that local agencies would welcome could be considered through the formal participate in these planning efforts. assistance from the Service and the rulemaking process, subject to funding This commenter also stated that other stating that critical habitat would availability. exemptions from critical habitat should ensure that an HCP would meet its automatically follow approval of an success criteria. Public Comments Related to NCCP/HCP HCP. Another commenter further stated Our Response: Both HCPs and critical Program, Section 7, and Section 404 that designating critical habitat in areas habitat designations are designed to (42) Comment: One commenter stated covered by an HCP would impose provide conservation measures to that the Ranch Plan, a component of the economic burdens, invite legal protect species and their habitats. The draft Orange County Southern challenges, and be a disincentive to advantage of seeking new conservation Subregion NCCP/HCP is designed to developing HCPs. partnerships (through HCPs or other maximize gene flow for Brodiaea Our Response: It is our policy to means) is that they can offer active filifolia and that implementation of the exclude from critical habitat lands management and other conservation Ranch Plan would not significantly containing features essential to the measures for the habitat on a full-time reduce genetic exchange because of conservation of a federally listed species and predictable basis. Critical habitat preexisting isolation. The commenter that are covered by approved HCPs. requires Federal agencies that authorize, requested their property be excluded Pursuant to section 4(b)(2) of the Act, fund or carry out activities that may from critical habitat designation for B. critical habitat is to be designated or affect critical habitat to consult with us filifolia because of the protections revised based on the best scientific data to ensure such actions do not destroy or afforded the species under the draft available and after taking into adversely modify designated critical NCCP/HCP. consideration the economic impact, habitat. In some cases, the designation Our Response: In general, it is our national security impact, and any other of critical habitat may remove policy to consider excluding from relevant impact of specifying any incentives to participate in the HCP critical habitat designation HCPs that particular area as critical habitat. The process because of added regulatory are approved or are very close to Secretary may exclude any area from uncertainty; increased costs to plan completion as indicated by the fact that critical habitat if the benefits of development and implementation; an Environmental Impact Statement/ excluding such area outweigh the weakened stakeholder support; delayed Environmental Impact Report (EIS/EIR) benefits of including it in critical approval and development of an HCP; has already been prepared and released habitat, unless such exclusion will and greater vulnerability to legal for public review and comment. We result in the extinction of the species. challenge or other concerns. In some have not yet released a draft EIS/EIR for As part of the process of balancing the instances, we have received direct the Orange County Southern Subregion benefits of including or excluding any statements from landowners expressing NCCP/HCP for public review and particular area as critical habitat, their intent to withdraw from other comment; however, we are excluding including lands covered by approved types of cooperative efforts beneficial to
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the conservation of listed species if their economic analysis considers the the DEA, off-setting compensation for property was proposed for inclusion in potential economic impacts of efforts to impacts to B. filifolia in essential habitat critical habitat. We work with HCP protect the Brodiaea filifolia and its areas is based upon mitigation applicants to ensure that their plans habitat in critical habitat. It does so by requirements for the plant contained meet the issuance criteria and that the taking into account the cost of within HCPs prepared pursuant to the designation of critical habitat on lands conservation related measures that are NCCP Act of 2001 in California. These where an HCP is in development does likely to be associated with future plans primarily require avoidance or not delay the approval and economic activities that may adversely call for conservation of the occurrences implementation of the HCP. affect the habitat within the proposed encompassed within the essential Additionally, HCPs include boundaries. Our economic analysis fully habitat areas identified in the proposed conservation actions for covered species evaluated the economic and other rule. This is in contrast to potential whether or not the area is designated as impacts of designating critical habitat mitigation for Atriplex coronata var. critical habitat. pursuant to section 4(b)(2) of the Act. notatior and Navarretia fossalis, for (46) Comment: One commenter The economic and other impacts of which developers are able to mitigate wanted to know how we determined critical habitat are individually off-site and continue with planned that the benefits of excluding HCP areas analyzed in our economic analysis projects. from critical habitat outweigh the report, which parallels our review of a (50) Comment: One commenter states benefits of their inclusion. Federal action under section 7(a)(2) of that the DEA fails to address the greatest Our Response: We refer the reader to the Act. Our analysis of the effects of a capital expenditure in western Riverside the ‘‘Application of Section 3(5)(A), Federal action under section 7(a)(2) of County, because it does not include the Exemption Under Section 4(a)(3), and the Act would consider the effects to costs required to purchase and maintain Exclusions Under Section 4(b)(2) of the any designated critical habitat. In the reserves for the species. The comment Act’’ section for an explanation of how proposed and final rules, we describe further states that costs of restoring we have weighed the benefits of and evaluate potential activities that current habitat that could be lost to including or excluding critical habitat may adversely modify critical habitat or land-altering activities on private lands for Brodiaea filifolia on lands covered may be affected by such designation should also be included. by HCPs. pursuant to section 4(b)(8) of the Act. Our Response: The Western Riverside County MSHCP is a comprehensive, Comments Related to Economic Each critical habitat designation may be multi-jurisdiction HCP for conservation Analysis; and Other Relevant Impacts affected differently by a proposed action in a manner that reflects the specific of species and their habitats in Western (47) Comment: Two commenters physical and biological features that are Riverside County. Under the Plan, we criticized our failure to include the considered essential for the listed will grant take authorization under economic analysis with the critical species. Thus, our economic analysis Section 10(a)(1)(B) of the Act for habitat proposal and one of these would reflect the economic and other otherwise lawful activities such as commenters also noted the lack of an impacts specific to each designation. private development that may EIS and National Environmental Policy (49) Comment: One commenter states incidentally take or harm listed wildlife Act (NEPA) analysis. that the draft economic analysis (DEA) species in exchange for assembly and Our Response: We published our is inconsistent with previous economic management of an MSHCP Conservation proposed designation of critical habitat analyses for Atriplex coronata var. Area. The MSHCP Conservation Area for Brodiaea filifolia in the Federal notatior and Navarretia fossalis, which will be formed through a variety of Register on December 8, 2004 (69 FR provided little economic analysis of the methods, including inclusion of existing 71284). At that time, our Division of loss of potentially developable acreage conservation banks and/or mitigation Economics and their consultants and instead emphasized administrative areas, establishment of new initiated preparation of a draft economic costs and impacts to public works conservation banks and/or mitigation analysis of the proposed designation. projects. The commenter further states areas, incentives provided to private The draft economic analysis was that the Service should develop landowners to voluntarily convey their released for public review and comment consistent procedures for preparing property for conservation, purchase of on October 6, 2005 (70 FR 58361), and economic analyses so that results lands through the Local Development we accepted comments on both the draft between species are comparable, Mitigation Fee paid by project economic analysis and proposed rule especially for areas such as the San applicants seeking coverage, or direct until October 20, 2005. With regard to Jacinto River, where occupied habitat purchase of land by the project the preparation of an EIS and NEPA for all three of these species overlap. proponent as an in-lieu payment. As analysis, it is our position that, outside Our Response: Every economic stated in paragraph 94, based in part on the Tenth Circuit, we do not need to analysis of proposed critical habitat the requirements of the MSHCP, the prepare environmental analyses as rulemakings is undertaken following the analysis assumes that 95 percent of defined by the NEPA in connection with same framework, described in pages 1– Brodiaea filifolia habitat in areas designating critical habitat. Please see 1 through 1–11 of the DEA. The reports susceptible to development activity are the ‘‘National Environmental Policy focus on the economic activities preserved. The costs of preserving these Act’’ section of this rule for additional identified in the proposed rule as likely areas, along with the costs of relocating information. to threaten the habitat and resulting in the plant, salvaging bulbs, and (48) Comment: One public commenter the greatest impacts. These activities, maintaining and monitoring stated that we failed to assess the impact and the associated measures required to populations for the remaining five of multiple critical habitat designations minimize impacts, will vary depending percent of affected development, is on landowners. on the attributes of the habitat and the captured in the analysis. Our Response: To comply with the specific species. Urban development is (51) Comment: One commenter 10th Circuit Court of Appeal’s ruling in identified in the proposed rule as a questions the use of the IMPLAN model, the New Mexico Cattle Growers threat to Brodiaea filifolia throughout given the DEA’s caveat that the model Association case (248 F.3d at 1285) to much of the proposed critical habitat. overstates the long-term impacts of include all co-extensive effects, the As discussed in paragraphs 91 to 95 of regulatory change.
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Our Response: Input-output models currently located in a preserve. Note (57) Comment: One commenter states are discussed as an example of one tool that all of the above referenced areas, that the DEA should factor in costs of commonly used by economists to except subunit 1b, have been removed the proposed designation to estimate regional impacts. However, this or excluded from the final designation. infrastructure assessment districts in the particular tool is not used in this (54) Comment: One commenter states City of San Marcos. analysis. Instead, the DEA relies on a that the methodology should be refined Our Response: We agree that impacts partial equilibrium model to estimate so that the bias of overstatement in the associated with reduced or delayed regional effects. analysis can be eliminated. development in infrastructure (52) Comment: One commenter states Our Response: The potential impacts assessment districts within the City of that Exhibit ES–2 in the DEA should of Brodiaea filifolia conservation San Marcos are a possibility. provide administrative costs as a activities on development within Infrastructure assessment districts separate line item. essential habitat are a function of the include Community Facilities Districts Our Response: Exhibit ES–2 provides distribution of the plant within the unit, or Special Assessment Districts that levy information to the reader concerning the ability of the developer or additional taxes on properties within key impacts of the designation, landowner to modify projects to avoid the district to finance the construction including activities that may be most each locality, and the existence of of public facilities. The additional tax impacted by Brodiaea filifolia alternative uses of the property that do for each included property may be conservation efforts. Administrative not threaten the plant, all of which are based on a variety of factors such as lot costs are included in the cost estimates unknown. The DEA uses the best size and benefit received by the for each activity presented, rather than available information to quantify property. Therefore, Brodiaea filifolia reported separately, because they potential impacts in light of the conservation activities may reduce taxes represent only 2 percent of upper-bound uncertainty associated with these received by a particular district where total costs estimated for proposed factors. new property construction that would (55) Comment: Two commenters state critical habitat. In present value terms occur absent the designation does not that there should be no additional costs assuming a 7-percent discount rate, occur. However, an estimate of the these administrative costs are associated with designating critical degree of this reduction would require approximately $272,000; assuming a 3- habitat in areas covered by approved information on the type and value of percent discount rate, administrative HCPs. In particular, one comment states future development at a parcel-specific costs total $298,000. that many of the Federal Information (53) Comment: Several commenters Processing Standard (FIPS) places level. This information is currently question the DEA’s inclusion of units/ discussed in Exhibit 3–11 are included unknown. subunits 1b, 2, 4d, 4e, 8b, 8e, 10, EH– within approved HCPs and should be Because the tax is used by the City to 1, EH–2, EH–3, and EH–7 (as listed in deleted from the analysis. make payments on bonds issued to the DEA) in the development analysis. Our Response: We recognize that finance construction of public facilities, The comments state that development- many of the FIPS listed in Exhibit 3–11 Brodiaea filifolia conservation activities related impacts in these units are are located within approved or pending may also impact the City, developers, unlikely, because either these units have HCP jurisdictions and that these plans and bondholders where development already been developed or they are may require protection of Brodiaea projects associated with special permanently preserved open space. filifolia habitat. However, as stated in assessments are halted after bond Our Response: The DEA utilized the the DEA, costs incurred due to issuance, leading to property best available information locating conservation activities and other indebtedness in which the developer is developable land within areas protective measures carried out by other unable to finance its portion of the containing features essential to the Federal agencies, State and local project and/or the City is unable to conservation of Brodiaea filifolia. This governments, and other parties are make payments to bondholders. The information includes a geographic considered co-extensive with the potential for B. filifolia conservation information systems (GIS) layer from the protection offered by critical habitat. activities to render the developer and/or San Diego Association of Governments Inclusion of co-extensive impacts in the the City unable to meet its financial (SANDAG) locating developable land economic analysis complies with obligations is a function of currently within essential habitat units in San direction from the U.S. Tenth Circuit unknown variables such as the location Diego County, and a GIS layer from the Court of Appeals. of B. filifolia on the project site, project Southern California Association of (56) Comment: One commenter states specifications, and the financial status Governments (SCAG) locating vacant that the DEA should estimate costs of the developer and/or the City. land within essential habitat units in associated with the potential loss of (58) Comment: One commenter states Los Angeles, San Bernardino, Orange, redevelopment increment funds in the that the development analysis is and Riverside Counties. Because the City of San Marcos, because a majority inaccurate, because it uses residential SANDAG and SCAG data are updated of land in the proposed critical habitat land values even though a number of only every few years, it is possible that within the City occurs in an adopted the proposed critical habitat units in the information for certain parcels is no Redevelopment Project Area. City of San Marcos are zoned for non- longer current. Accordingly, the Service Our Response: Based on recent residential uses. Specifically, the appreciates the new information conversations with the City of San commenter states that the DEA does not provided during the public comment Marcos, we agree that redevelopment factor in values of parcels that are zoned period that allows for a refinement of increment funds may be impacted if for industrial use in subunits 8c, 8d, and the DEA. Based on this information, the property construction is reduced in 8e. It also questions the appropriateness calculation of development impacts was areas where funds would have been of the impact scenarios based on revised to remove all of the units listed collected by San Diego County and ‘‘supply of housing’’ and ‘‘home prices’’ above, with the exception of subunit 1b. allocated to the City. However, the city in these areas. Another comment states Subsequent research has shown that the representatives were not able to provide that the per-acre land values estimated subunit is privately owned, not information about the potential in the DEA and presented in Exhibit 3– developed, and the plants are not magnitude of the impact. 7 appear low.
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Our Response: The first scenario a soft-line area by and of itself does not (FIPS places generally follow the legal analyzed in the DEA captures potential dictate the high conservation standards boundaries of incorporated cities). The losses to owners of developable parcels of 95 percent provided in Exhibit 3–6 DEA assigned subunit 5a to the closest zoned for non-residential uses. This unless that population is also deemed to FIPS place, San Clemente and subunit scenario assumes that in areas that must be critical by the MHCP. The comment 8d to San Marcos. The disparity in be avoided, or set-aside, from future notes that Brodiaea filifolia occurrences impacts estimated in this scenario development, the market value of those in the City of Carlsbad are located in a results from difference in the median acres is lost. The market value of raw Major Amendment Area and not in a home price and projected number of land implicitly incorporates all soft- or hard-line area. Another future houses in the two cities. potential future uses of the property, be comment states that the DEA overlooks However, based on public comment and it residential, commercial, industrial, or the relative importance of each of the B. further reflection, a new assumption is otherwise. Thus, the loss in land value filifolia localities and how this could applied to this scenario. captures the lost value of future use of affect compensation within Some areas of essential habitat, such the property. The sample of property conservation plans for the species. as subunit 5a, fall outside the values used in this analysis includes a Our Response: Information on boundaries of the 10 FIPS places mix of properties zoned for residential conservation measures for Brodiaea included in the DEA. Several of these and non-residential uses and therefore filifolia contained in the MHCP relies on units fall within 3 miles of the nearest is reasonably representative of losses on personal communication with the FIPS place and thus are assigned to that average. County, as noted in Exhibit 3–6. The place. Five remaining units, including Market values used in the DEA are sample of conservation requirements subunit 5a, are 10 or more miles from drawn from a data set of raw land values reviewed in this exhibit represent the the nearest FIPS place. Zabel and obtained from the San Diego County best available information regarding Paterson’s model, described in assessor for parcels located within areas uncertain future conservation paragraph 101 and used to estimate containing features essential to the requirements in areas, both within these market impacts, represents the best conservation of Brodiaea filifolia. Based plans and outside the boundaries. As available tool for estimating impacts to on conversations with the assessor, to discussed in paragraph 94, the analysis the housing market resulting from ensure that assessed values of raw land assumes that the highest level of critical habitat designation. However, were consistent with market values, the conservation for B. filifolia provided this tool is not capable of assigning costs DEA uses a sample from this dataset across the approved plans will apply to to these five units. Considering their including only parcels sold and future development projects. Given the more remote nature, as demonstrated by assessed in 2004. This sample includes uncertainty regarding the location of their distance from densely populated parcels zoned for industrial use in plants, the significance of particular areas, designation is less likely to result subunit 8d. Considering public populations, and the configuration of in substantial impacts relevant to the comment, an adjustment is made to the specific development projects, this housing market. Because the potential final analysis. In the DEA, the per-acre assumption may overstate impacts for magnitude of market effects is unknown land value was calculated as a weighted specific projects. for these five areas, no consumer average across the sample of parcels. (60) Comment: One commenter welfare losses are reported for these This approach may understate per-acre questions the disparity between costs areas in the final economic analysis. values due to the presence of several for particular units. The commenter parcels of relatively low value and high states that subunit 8d is in the center of (61) Comment: One commenter states acreage in the sample. The economic the City of San Marcos while the Miller that the development analysis should analysis was revised, calculating a per- Mountain unit (subunit 5a) is on private evaluate a scenario of higher density acre value based on the average of the and Forest Service land within the San development along with the benefits of per-acre values implied by each parcel, Mateo Wilderness. For this reason, the adjacent open space conservation. and by eliminating an outlying parcel commenter questions why the estimated Our Response: The DEA analyzes two from the sample. This revision results in costs for subunit 8d are low, relative to scenarios, as described in paragraphs 80 a per-acre average land value for parcels the estimated costs for the Miller through 109. The first scenario assumes in San Diego County of $69,000. Mountain property. that no future housing stock is lost due We note that the second scenario Our Response: The relative costs to to Brodiaea filifolia conservation estimated in the DEA (paragraphs 100 development activities assigned to each activities, because substitute sites are through 109), which measures consumer unit are a function of the land value available. The second scenario assumes welfare losses associated with higher losses calculated in the first scenario that some future housing stock is lost home prices, does not consider the and the impacts to the housing market (e.g., not constructed at other sites). impact of shifts in prices of commercial calculated in the second scenario. In the Adding a third scenario of higher or industrial facilities. Analysis under first scenario, costs are driven by the density development, as suggested by the second scenario relies on an existing quantity of private, developable land the comment, would result in an impact economic model estimating the shift in within the unit that is projected to be estimate similar to the estimate in the quantity of housing supplied as a result developed in the next 20 years. As first scenario, and no larger than of critical habitat. No such model exists shown in Exhibit 3–8, proposed subunit estimated in the second. Higher density for non-residential development, 8d contains 18.64 acres of projected development represents a substitution therefore we are unable to estimate development on private, developable option similar to the availability of non- welfare losses in markets for acres while subunit 5a contains 21.36 critical habitat developable land. It commercial or industrial properties at acres; therefore, impacts under this assumes that the same number of homes this time. scenario are greater for subunit 5a. are built, but simply on a smaller (59) Comment: One commenter states In the second scenario, impact footprint. In addition, such a scenario that the DEA contains a misreading of estimates are driven by the overall might require the assumption that the San Diego County MHCP standards amount of new housing anticipated in existing zoning-related restrictions will as summarized in Exhibit 3–6. the FIPS place closest to the unit and be lifted to accommodate the higher According to the comment, inclusion in median home values in that FIPS place density development. We have no
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information to suggest such a change in summary of consultations for from the first development scenario existing regulation will occur. development projects that occurred in analyzed in paragraphs 84 and 87 If higher density development results areas containing features essential to the through 99 of the DEA. This scenario from Brodiaea filifolia conservation conservation of the species in the assumes that within regional housing activities, additional open space may be proposed rule, but it does not reflect markets, substitute land exists for preserved. Various studies document consultations or project modifications development that would otherwise the positive effect of environmental that have occurred for HCPs. Exhibit 3– occur within essential habitat. Projected amenities, including open space, on the 3, on the other hand, presents the past development shifts to less preferred value of nearby residential and costs of these development sites (e.g., areas that were previously commercial properties (e.g., Thibodeau consultations (administrative and farther out in time on the development and Ostro (1981), Nelson (1985), Lacy project modification costs) in addition horizon or that were not anticipated to (1990), Garrod and Willis (1992), to administrative costs of the be developed within the next 20 years). Bockstael (1996), Geoghegan (1998), development of HCPs that have This assumption may be reasonable for Acharya and Bennet (2001)). The jurisdiction over essential habitat areas. the proposed designation, because the enhancement of real estate values Footnote 45 notes that these HCPs are potentially affected acres represent a depends on, among other things, the the County of San Diego Subarea Plan small percentage of the total proximity of homes to open space and under the Multiple Species developable land in the municipalities the spatial extent of the effect (only the Conservation Program (MSCP) in March where they are located. Accordingly, homes immediately adjacent to the 1998, the Western Riverside County existing landowners whose land would space are affected, the entire MSHCP in June 2004, and the City of otherwise be higher in the hierarchy of neighborhood is affected, or the entire Carlsbad’s Habitat Management Plan potentially developable sites must town or region is affected), whether the (HMP) under the MHCP in November accept lower prices associated with effect decreases with distance from the 2004. As stated in the note (a) to Exhibit Brodiaea filifolia conservation activities open space and at what rate, whether 3.3, the analysis distributes the HCP if development is to occur. This the community already contains a costs evenly across the units covered by assumption is consistent with peer significant supply of conserved land, the plans. review by three economists of previous and the relationship between local (63) Comment: One commenter asks economic analyses of proposed critical development pressure and values for whether costs in Exhibit 3–2 are habitat in California. Note that the conserved open space (e.g., if open attributed solely to Brodiaea filifolia or second development scenario (described space is scarce, and development whether other listed species benefited in paragraphs 100 through 109) makes pressure high, the combination could from the consultations and mitigation the alternative assumption that land is affect the magnitude of the benefit). activities. scarce. Under this scenario, homebuyers To make a defensible transfer of Our Response: Exhibit 3–2 experience costs associated with B. ‘‘open space value’’ as identified in the summarizes four consultations for filifolia conservation activities. literature to a community or development projects that have (65) Comment: One commenter states neighborhood impacted by Brodiaea occurred in areas containing features that Exhibit 5–3 is flawed because not filifolia conservation activities, essential to the conservation of Brodiaea every unit contains a transportation additional data are required. For filifolia in the proposed rule. These issue. The commenter requests that a example, information on the extent of consultations covered other species in more realistic transportation scenario be existing open space in the affected addition to B. filifolia. The consultations evaluated based on specific subunits. communities and the additional amount covering subunits 6c and 8b also Another commenter states that the likely to be conserved as a result of B. considered the coastal California transportation impacts analysis is filifolia conservation activities must be gnatcatcher, as noted in Exhibit 3–2. incomplete, because the Service did not compared to similar statistics for the The consultations covering subunit 7a contact the Riverside County communities assessed in the economics note that other federally threatened and Transportation Commission or the local literature. In addition, the transfer State species of special concern occur cities to identify transportation projects requires an assessment of the onsite, such as the coastal California in areas containing features essential to similarities in the quality and attributes gnatcatcher, northern harrier, Cooper’s the conservation of Brodiaea filifolia. of the land to be conserved with the hawk, white-tailed kite, and California Our Response: We acknowledge that qualities and attributes of the land adolphia; however, the consultations simplifying assumptions were made in studied in the literature. The models were primarily focused on impacts to B. the DEA to bound the potential and data required to complete this filifolia. For all of the consultations, magnitude of transportation-related transfer are not readily available for B. project modification costs described in impacts. During development of the filifolia habitat. As a result, the DEA is the table were driven by efforts to DEA, the relevant district offices of unable to estimate the potential benefits protect B. filifolia and, therefore, are California Department of Transportation of open space conservation. attributed to this species. (CALTRANS), which has responsibility (62) Comment: One commenter (64) Comment: One commenter states for transportation-related projects in questions the cost allocation across that, typically, the developer will pass California, were contacted (see units in Exhibit 3–3. The comment any increase in project cost to the paragraphs 126 through 130). states that, given that the preceding ultimate consumer of the development CALTRANS represents the best publicly exhibit (Exhibit 3–2) contains only four (homeowner, business owner, building available source of State transportation subunits that have had a formal or owner), not to the raw landowner. It is projects. The offices were unable to informal consultation, it is questionable the experience of the commenter that provide site-specific information about as to why the rest of the subunits are developers simply recognize the cost of the potential location of future Brodiaea included if they have never been building constraints, work with them filifolia conservation activities. consulted on. and build them into the ultimate cost of Therefore, the DEA used a historical rate Our Response: Exhibit 3–3 does not the product. of consultation, plus information about include units where no consultation has Our Response: The assumption the project modifications associated taken place. Exhibit 3–2 presents a referred to in this comment is derived with those consultations, to predict
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future transportation costs. These potential delay costs. These costs were unlikely that more burdensome actions impacts were assumed to be equally incorporated in the final economic will be required by the ACOE as a result likely to occur in any unit (excluding analysis. The three units where B. of the SAMP. Therefore, the cost lands on Camp Pendleton), resulting in filifolia populations are anticipated to estimates calculated in the DEA are an even distribution of costs shown in be affected by the Foothills-South unlikely to be affected by the SAMP. Exhibit 5–3. Note that, based on new project are subunits 4c, 4f, and 4h. All (69) Comment: One commenter states information received during the public three of these units are excluded from that the DEA should offer some cost comment period, transportation-related the final designation. estimates of the proposed flood control impacts are removed from units where (67) Comment: One commenter states project discussed at paragraph 139. B. filifolia is not present, the land is that Exhibit 5–4 of the DEA may be Our Response: Section 5.3 of the DEA already preserved, the land is already flawed, because not every unit contains considers impacts to flood control developed, or a plan is already in place a utility corridor. The commenter activities in areas containing habitat for to move the plants to another location. requests that a more comprehensive Brodiaea filifolia proposed for critical These units include units/subunits subunit evaluation of potential impacts habitat designation. The best available described in the DEA as 2, 4a, 4d, 4e, to utility projects be conducted. data were utilized at the time to 8b, 8e, 10, EH–1, EH–2, EH–3, and EH– Our Response: We acknowledge that estimate these potential impacts. While 7. simplifying assumptions are made in we agree that B. filifolia-related Based on this comment, the Riverside Section 5.2 in order to bound the conservation costs are likely, no County Transportation Commission was analysis of impacts to utility activities. additional information has become contacted, and information about A rapid assessment of transmission available since the drafting of the DEA potential impacts associated with the lines and distribution systems operated that would allow us to quantify or Highway 79 re-alignment project and by San Diego Gas and Electric was monetize these impacts. The units the Mid-County Parkway was requested. conducted in order to extrapolate potentially affected, EH5, EH6, and EH7, At this time, due to the sensitive nature potential impacts across San Diego and are excluded from the final designation. of the projects and their early stages, a Orange counties. Therefore, actual (70) Comment: One commenter representative of the commission was future costs to utility activities may be offered the following clarification to unable to provide specific information higher or lower in certain units page 2–17, section 2.5, paragraph 71: ‘‘It about whether habitat for Brodiaea presented in Exhibit 5–4. However, the is incorrect to assume that CEQA filifolia would be impacted. However, costs presented in the final economic requires a lead agency to ‘presume that he noted that if B. filifolia habitat is analysis represent the best available a project will result in a potentially identified, project modifications would information at this time. Also note that, adverse environmental impact and to likely be similar to conservation based on new information received prepare an EIR* * *.’ Rather, CEQA requirements found in the Western during the public comment period, requires that a project’s impacts be Riverside County MSHCP. In areas utility-related impacts are removed from disclosed, and those disclosed impacts containing features essential to the units where Brodiaea filifolia is not mitigated to a point beneath a level of conservation of the plant, information present, the land is already preserved, significance. If the project is unable to from cities about potential the land is already developed, or a plan do so, then an EIR is required when transportation-related impacts is not is already in place to move the plants to determined by the lead agency. A readily available at this time. another location. These units include 2, predisposition towards EIR preparation (66) Comment: One commenter states 4a, 4d, 4e, 8b, 8e, 10, EH–1, EH–2, EH– regardless of threshold determination is that the DEA ignores the costs 3, and EH–7. counter to CEQA precedence.’’ associated with designing, refining, and (68) Comment: One commenter states Our Response: We have incorporated negotiating a preferred alternative to that the DEA should consider the this clarification into the final economic avoid Brodiaea filifolia in the Foothill- proposed Special Area Management analysis. South Corridor. The commenter also Plan (SAMP) for the San Jacinto (71) Comment: One commenter states that the DEA ignores mitigation watershed and potential economic offered the following clarification to measures specially designed to address impacts of the critical habitat page 2–17, section 2.5, paragraph 73: potential B. filifolia impacts, such as designation within the watershed. ‘‘Please note that the Service is an focused plant surveys, seed collection Our Response: The ACOE is currently integral participant in the NCCP and salvage measures, soils collection conducting a comprehensive aquatic process. Witness that all letters to and translocation, and translocation resource plan, called a SAMP, for the participating municipalities are signed monitoring. Finally the commenter San Jacinto watershed. The purpose of by both the CDFG and the Service.’’ states that the DEA also ignores delay the SAMP is to establish a watershed- Our Response: We appreciate the costs. wide aquatic resource reserve program, clarification and have incorporated it Our Response: As discussed in and to minimize individual and into the final economic analysis. paragraphs 123 through 125, the DEA cumulative impacts of future projects in (72) Comment: One commenter noted considered impacts to the Foothill- this watershed. The SAMP will result in that Exhibit 6–2 appears to project costs South project. At that time, the best the issuance of programmatic and to conservancies from 2006–2024, but it information available suggested that the individual permits issued under section is not clearly stated in the table or text. preferred alternative would completely 404 of the Clean Water Act. Because the Our Response: We have clarified this avoid Brodiaea filifolia habitat. sensitive areas identified by the SAMP in the final economic analysis. However, new information has since are likely to overlap critical habitat, the been provided by the Transportation SAMP will not provide significant new Summary of Changes From Proposed Corridor Agencies (TCA), the information about the sensitivity of Rule organization responsible for this project. these acres. In addition, because the In developing the final critical habitat Specifically, TCA stated that three DEA assumes that 95 percent of habitat designation for Brodiaea filifolia, we populations will be affected by the for Brodiaea filifolia that is likely to be reviewed peer and public comments project and provided information about developed in the next 20 years will be received on our proposed rule and draft past costs, future mitigation costs, and avoided (see paragraph 94), it is economic analysis; conducted further
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evaluation of lands included in our Units/subunits removed from proposed rule as containing features proposal; and refined our mapping consideration because we determined essential to the conservation of the boundaries. This final rule reflects they did not support significant species, but which were excluded under refinements of our mapping process, occurrences of Brodiaea filifolia section 4(b)(2) of the Act. The lands and removal of areas from critical include: Unit 3 (Aliso Canyon), 4a removed were near Corona and in habitat designation under section (Arroyo Trabuco), 4d (Prima Moreno Valley. We removed these areas 3(5)(A), exemption under section Deschecha), 4e (Forster Ranch), 4f because they are not known to be 4(a)(3), and exclusions under section (Talega/Segunda Deschecha), 4h occupied by Brodiaea filifolia. 4(b)(2) of the Act. (Christianitos Canyon South), 4i (Blind Approximately 3,062 ac (1,234 ha) of We refined our mapping to better Canyon), 6a (Alta Creek), 6c (Oceanside/ land in Riverside County containing delineate habitat containing features Mission Avenue), 7b (Rancho Carrillo), features essential to the conservation of essential to the conservation of the 8a (Rancho Santa Fe Road North), and B. filifolia are excluded under section species. For example, we found that 8c (Grand Avenue). 4(b)(2) of the Act. Unit 2 (Arrowhead Hot Springs Unit) there were areas within the boundaries Six units/subunits are being excluded was removed from the final designation of proposed critical habitat that did not under section 4(b)(2) of the Act. Three because it was incorrectly mapped. contain the physical or biological subunits, including 4b (Casper’s Park), Although the proposed rule correctly features essential to the conservation of 4c (Canada/Gobernadora), and 4g describes the Arrowhead Hot Springs Brodiaea filifolia such as roads and (Christianitos Canyon) are within the unit in the text, the map provided in the buildings. In most cases developed areas boundaries of the pending Orange proposed rule depicted an area known were captured in the proposed critical County Southern Subregion NCCP/HCP, as Waterman Canyon. habitat boundaries because we used a which includes the participation of the 328 ft (110 m) minimum grid cell size. Subunits 8e (Linda Vista), 9 (Double LL Ranch), and 10 (Highland Valley) County of Orange and Rancho Mission When preparing this final designation, Viejo, both of which are parties to a we identified areas where the majority were removed from consideration because we could not verify reported Settlement Agreement for the Ranch of a grid cell included developed areas, Plan. Subunits 6b (Mesa Drive) and 6d then removed these particular cells from occurrences of Brodiaea filifolia. We removed subunit 5a (Miller (Taylor/Darwin) are within the the boundaries of critical habitat. These Mountain) from consideration because boundaries of the pending City of refinements reduced the amount of land the plants in this area are mostly Oceanside Subarea Plan of the in subunit 6d (Taylor/Darwin) and hybrids between Brodiaea filifolia and Northwestern San Diego County MHCP. subunit 8d (Upham) (Table 1) that Brodiaea orcuttii (Boyd et al. 1992). No Subunit 7a (Fox-Miller) is covered contain features essential to the information is available regarding the under the City of Carlsbad’s approved conservation of the species. number of pure B. filifolia within this HMP. Along with refining our mapping, we occurrence and whether they can be In this final rule, lands on Camp re-evaluated the occurrences of considered as contributors to the long- Pendleton that were excluded from Brodiaea filifolia included in proposed term conservation of the species. proposed critical habitat under section critical habitat. Criteria used to We removed a portion of lands in 4(b)(2) of the Act are now exempt determine if an occurrence is significant subunit 5b (Devil Canyon) from pursuant to section 4(a)(3) of the Act. included: occupied habitat supporting a consideration because the area is not For more discussion about the areas minimum of 850 naturally occurring known to be occupied by Brodiaea exempted or excluded from this final individuals of B. filifolia and/or filifolia. populations associated with unique We removed subunit 8b (Rancho designation, please refer to the section habitats (e.g. soils, vegetation, or Santalina/Loma Alta) from ‘‘Application of Section 3(5)(A), elevation) or peripheral populations consideration under section 3(5)(A) of Exemption Under Section 4(a)(3), and important for protecting genetic the Act because it is already receiving Exclusions Under Section 4(b)(2) of the variability across the species’ range. special management considerations (see Act.’’ Based on our review and re- the ‘‘Application of Section 3(5)(A), Overall, these refinements, removals, evaluation, a total of 12 units/subunits Exemption Under Section 4(a)(3), and exemptions and exclusions resulted in a were removed from consideration Exclusions Under Section 4(b)(2) of the reduction from 4,690 ac (1,898 ha) because we determined they were not Act’’). included in the proposed designation to significant occurrences (see ‘‘Criteria We removed 205 ac (83 ha) of land in 597 ac (242 ha) included in the final Used to Identify Critical Habitat’’). Riverside County identified in the designation (see Table 1 below).
Proposed critical habitat Final critical habitat Critical habitat unit/subunit County (ac; ha) (ac; ha)
Unit 1: Los Angeles County ...... Los Angeles ...... Total 294; 119 ...... Total 294; 119 1a: Glendora ...... 96; 39 ...... 96; 39 1b: San Dimas ...... 198; 80 ...... 198; 80 Unit 2: Arrowhead Hot Springs ...... San Bernardino ...... 89; 36 ...... 0 Unit 3: Aliso Canyon ...... 151; 61 ...... 0 Unit 4: Orange County ...... Orange ...... Total 1,860; 753 ...... Total 0 4a: Arroyo Trabuco ...... 74; 30 ...... 0 4b: Casper’s Wilderness Park ...... 259; 105 ...... 0 4c: Can˜ada Gobernadora/Chiquita Ridgeline ...... 311; 126 ...... 0 4d: Prima Deschecha ...... 119; 48 ...... 0 4e: Forster Ranch ...... 96; 39 ...... 0 4f: Talega/Segunda Deshecha ...... 190; 77 ...... 0 4g: Cristianitos Canyon ...... 588; 238 ...... 0 4h: Cristianitos Canyon South ...... 72; 29 ...... 0 4i: Blind Canyon ...... 151; 61 ...... 0
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Proposed critical habitat Final critical habitat Critical habitat unit/subunit County (ac; ha) (ac; ha)
Unit 5: Northern San Diego County ...... San Diego ...... Total 1,527; 618 ...... Total 249; 101 5a: Miller Mountain ...... 1,263; 511 ...... 0 5b: Devil Canyon ...... 264; 107 ...... 249; 101 Unit 6: Oceanside ...... Total 198; 81 ...... Total 0 6a: Alta Creek ...... 49; 20 ...... 0 6b: Mesa Drive ...... 5; 2 ...... 0 6c: Oceanside East/Mission Avenue ...... 64; 26 ...... 0 6d: Taylor/Darwin ...... 80; 32 ...... 0 Unit 7 ...... Total 125; 50 ...... Total 0 7a: Fox-Miller ...... 93; 38 ...... 0 7b: Rancho Carrillo ...... 32; 13 ...... 0 Unit 8: San Marcos ...... Total 315; 127 ...... Total 54; 22 8a: Rancho Santa Fe Road North ...... 86; 35 ...... 0 8b: Rancho Santalina/Loma Alta ...... 82; 33 ...... 0 8c: Grand Avenue ...... 10; 4 ...... 0 8d: Upham ...... 117; 47 ...... 54; 22 8e: Linda Vista ...... 20; 8 ...... 0 Unit 9: Double LL Ranch ...... 57; 23 ...... 0 Unit 10: Highland Valley ...... 74; 30 ...... 0
Total ...... 4,690; 1,898 ...... 597; 242
Critical Habitat provide for the essential life cycle needs scientific and commercial data Critical habitat is defined in section 3 of a species (i.e., areas on which are available, to use primary and original of the Act as—(i) the specific areas found the primary constituent elements, sources of information as the basis for within the geographical area occupied as defined at 50 CFR 424.12(b)). recommendations to designate critical by a species, at the time it is listed in Habitat occupied at the time of listing habitat. When determining which areas accordance with the Act, on which are may be included in critical habitat only are critical habitat, a primary source of found those physical or biological if the essential features thereon may information is generally the listing features (I) essential to the conservation require special management or package for the species. Additional of the species and (II) that may require protection. Thus, we do not include information sources include the special management considerations or areas where existing management is recovery plan for the species, articles in protection; and (ii) specific areas sufficient to conserve the species. (As peer-reviewed journals, conservation outside the geographical area occupied discussed below, such areas may also be plans developed by States and counties, by a species at the time it is listed, upon excluded from critical habitat pursuant scientific status surveys and studies, a determination that such areas are to section 4(b)(2).) Accordingly, when biological assessments, or other essential for the conservation of the the best available scientific data do not unpublished materials and expert species. ‘‘Conservation’’ means the use demonstrate that the conservation needs opinion or personal knowledge. All of all methods and procedures that are of the species require additional areas, information is used in accordance with necessary to bring an endangered or a we will not designate critical habitat in the provisions of Section 515 of the threatened species to the point at which areas outside the geographical area Treasury and General Government listing under the Act is no longer occupied by the species at the time of Appropriations Act for Fiscal Year 2001 necessary. listing. An area currently occupied by (Pub. L. 106–554; H.R. 5658) and the Critical habitat receives protection the species but was not known to be associated Information Quality under section 7 of the Act through the occupied at the time of listing will Guidelines issued by the Service. prohibition against destruction or likely, but not always, be essential to the Habitat is often dynamic, and species adverse modification of critical habitat conservation of the species and, may move from one area to another over with regard to actions carried out, therefore, typically included in the time. Furthermore, we recognize that funded, or authorized by a Federal critical habitat designation. designation of critical habitat may not agency. Section 7 requires consultation The Service’s Policy on Information include all of the habitat areas that may on Federal actions that may result in the Standards Under the Endangered eventually be determined to be destruction or adverse modification of Species Act, published in the Federal necessary for the recovery of the critical habitat. The designation of Register on July 1, 1994 (59 FR 34271), species. For these reasons, critical critical habitat does not affect land and Section 515 of the Treasury and habitat designations do not signal that ownership or establish a refuge, General Government Appropriations habitat outside the designation is wilderness, reserve, preserve, or other Act for Fiscal Year 2001 (Pub. L. 106– unimportant or may not be required for conservation area. Such designation 554; H.R. 5658), and the associated recovery. does not allow government or public Information Quality Guidelines issued Areas that support populations, but access to private lands. by the Service, provide criteria, are outside the critical habitat To be included in a critical habitat establish procedures, and provide designation, will continue to be subject designation, the habitat must contain guidance to ensure that decisions made to conservation actions implemented the physical and biological features by the Service represent the best under section 7(a)(1) of the Act and to essential to the conservation of the scientific and commercial data the regulatory protections afforded by species. Critical habitat designations available. They require Service the section 7(a)(2) jeopardy standard, as identify, to the extent known using the biologists to the extent consistent with determined on the basis of the best best scientific data available, areas that the Act and with the use of the best available information at the time of the
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action. Federally funded or permitted species was delineated by examining (1) described below and in the final listing projects affecting listed species outside species occurrence information in Los rule (63 FR 54975, October 13, 1998). their designated critical habitat areas Angeles, San Bernardino, Orange, Brodiaea filifolia is a perennial herb may still result in jeopardy findings in Riverside, and San Diego counties from in the Liliaceae (lily family) that some cases. Similarly, critical habitat the CNDDB and from survey reports; (2) annually produces leaves and flower designations made on the basis of the vegetation data layers from Orange, stalks from underground corms best available information at the time of Riverside, and San Diego counties and (underground bulb-like storage stem). designation will not control the vegetation data layers from the U.S. Corms are dormant in the summer, but direction and substance of future Forest Service’s Cleveland National leaves begin growing after the first recovery plans, habitat conservation Forest for Los Angeles and San significant rains in the fall saturate the plans, or other species conservation Bernardino counties; (3) Natural soil. At the time of flowering, the leaves planning efforts if new information Resources Conservation Service’s Soil of B. filifolia are dead or nearly so. The available to these planning efforts calls Survey Geographic Database (SSURGO) flowering period lasts for two to three for a different outcome. soil data layers for Orange, Riverside, weeks in late spring to early summer. and San Diego counties, and State Soil Young plants produce only leaves for a Methods Geographic Database (STATSGO) soil few seasons before being capable of As required by section 4(b)(1)(A) of data layers for Los Angeles and San producing flower stalks. Even mature the Act, we used the best scientific data Bernardino counties; and (4) slope data specimens may not flower every year, available in determining areas that are derived from a 30-meter digital depending upon environmental essential to the conservation of Brodiaea elevation model (DEM). These layers conditions. It is estimated that about 10 filifolia. We used data and information were overlaid on digital ortho quarter percent of all specimens flower in an contained in, but not limited to, the quadrangle (DOQQ) satellite imagery average rainfall year (Vince Scheidt in proposed listing rule (59 FR 64812, layers, and habitat was delineated in litt. 2005). The six perianth segments are December 15, 1994); the final listing areas that had an extant species violet, with their tips spreading. The rule (63 FR 54975, October 13, 1998); occurrence within them, had not staminodia (characteristic sterile data and information from research and undergone development, had the PCEs, stamens) are narrow and pointed. survey observations in published, peer- including suitable soil and vegetation All species of Brodiaea are self- reviewed articles; data provided by the types, and had a slope of less than 20 incompatible (incapable of producing California Department of Fish and Game degrees. After creating a GIS coverage of seeds with pollen from flowers on the (CDFG); and data provided by the the essential areas, we created legal same plant or from flowers on plants California Natural Diversity Database descriptions of these areas. We used a with the same allele at the self- (CNDDB); data and information 100-meter grid to establish Universal incompatibility locus), requiring cross- included in reports submitted during Transverse Mercator (UTM), North pollination from plants of the same section 7 consultations; information American Datum (NAD) 27 coordinates species but with different alleles at this contained in species analyses for which, when connected, provided the locus. Dispersal of seeds from an individual and regional HCPs where B. boundaries of the areas containing individual is likely localized, leading to filifolia is a covered species or is being features essential to the conservation of patches of plants with the same self- proposed for coverage; data collected on the species. incompatible alleles. This means that Camp Pendleton; data collected from effective pollination for seed set reports submitted by researchers Primary Constituent Elements requires pollen dispersal over a distance holding section 10(a)(1)(A) recovery In accordance with section 3(5)(A)(i) between plants with different self- permits; and information received from of the Act and regulations at 50 CFR incompatible alleles. Likewise, this local species experts. We also used 424.12, in determining which areas to necessitates maintenance of pollinator information contained in comments propose as critical habitat, we are habitat and dispersal corridors. The received during the comment periods required to base critical habitat vegetative production of small cormlets for the proposed rule and the draft determinations on the best scientific by the corm is the principal means by economic analysis. and commercial data available and to which plants of the genus Brodiaea We are not designating areas outside consider those physical and biological perpetuate themselves (Niehaus 1971). the geographical areas known to be features, otherwise referred to as Members of the genus Brodiaea likely occupied by the species and identified primary constituent elements (PCEs), rely on Tumbling Flower Beetles in the final listing rule (63 FR 54975). essential to the conservation of the (Mordellidae, Coleoptera) and Sweat The listing rule noted that populations species, and that may require special Bees (Halictidae, Hymenoptera) for were centered in the cities of Vista, San management considerations or cross-pollination (Niehaus 1971). The Marcos, and Carlsbad in San Diego protection. These include, but are not home ranges and species fidelity of County, in the vicinity of the Santa Rosa limited to: Space for individual and these pollinators is not known. Bell and Plateau in Riverside County, with population growth and for normal Rey (1991) report that native bees additional ‘‘scattered’’ populations in behavior; food, water, air, light, observed pollinating Brodiaea filifolia Orange, Los Angeles, Riverside, San minerals, or other nutritional or on the Santa Rosa Plateau in Riverside Bernardino, and San Diego counties. physiological requirements; cover or County included Bombus californicus Critical habitat is not being designated shelter; sites for breeding, reproduction, (Apidae, Hymenoptera), Hoplitus sp. in San Bernardino, Orange and rearing of offspring, germination, seed (Megachilidae, Hymenoptera), Osmia Riverside counties. Areas in Los dispersal; and generally habitats that are sp. (Megachilidae, Hymenoptera), and Angeles and San Diego counties protected from disturbance or are an unidentified Anthophorid (digger- designated as critical habitat and listed representative of the historic bee). Anthophoridae and Halictidae are in Table 1 are within the geographical geographical and ecological reported to be important pollinators of areas known to be occupied by the distributions of a species. The specific B. filifolia at a study site in Orange species. PCEs required for Brodiaea filifolia 1⁄2 County (Glen Lukos Assoc. 2004). Habitat that contains the features are derived from the physical and Alternative pollen source plants may be essential to the conservation of the biological needs of the species as necessary for the persistence of these
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insects when B. filifolia is not in flower in association with coastal sage scrub in persistence through seedling and adult seasonally or annually because of poor some locations, including portions of phases of flowering and fruit set environmental conditions. Los Angeles and San Bernardino described earlier. Studies to quantify the distance that counties. Clay soils dry out and exhibit surface bees will fly to pollinate their host Brodiaea filifolia has also been found cracks as surface moisture is depleted plants are limited in number, but the in the San Mateo Wilderness near the prior to the next rainy season. During few that exist show that some bees will northern border of San Diego and this period the capsules of many bulb routinely fly from 328 to 984 feet (ft) Riverside counties and in the Miller and corm-forming species mature. The (100 to 500 meters (m)) to pollinate Mountain area in the Santa Ana seeds are released to fall to the ground, plants (Thorp and Leong 1995; Schulke Mountains of western Riverside County. either on the surfaces or into the cracks and Waser 2001). In a study of These occurrences appear to be mostly in the soil. In this manner some seeds experimental isolation and pollen hybrids between B. filifolia and B. are dispersed into several horizons in dispersal of Delphinium nuttallianum orcuttii, although plants of both species the soil. With the fall and winter rains, (Nuttall’s larkspur), Schulke and Waser can also be found. Plants in the San the clay matrix hydrates, softens, (2001) report that adequate pollen loads Mateo Wilderness, mostly hybrid types, expands and the cracks close up. were dispersed by bumblebees within have been observed along the banks of, Seedlings at first only produce leaves control populations and in isolated and within, intermittent stream and a specialized root. Seedlings of experimental ‘‘populations’’ from 328 to channels. Plants in the Miller Mountain Brodiaea filifolia are equipped with a 1,312 ft (100 m to 400 m) distant from area have been observed on clay soils in specialized succulent contractile root. the control populations. One of the southern needlegrass grassland (Boyd et This organ, lost by mature corms, several pollinator taxa effective at 1,312 al. 1992). In Miller Canyon, a tributary facilitates the seasonal downward ft (400 m) was Bombus californicus, one that drains the southern flank of Miller movement of the young plant (Niehaus of four bee species observed pollinating Mountain, B. filifolia and some hybrids 1971). The contractile root swells with Brodiaea filifolia by Bell and Rey are found on deposits of gravel, cobble, moisture in the wet season, creating (1991). Studies by Steffan-Dewenter and and small boulders along the stream space below the developing cormlet. As Tscharntke (2000) have demonstrated channel in association with tussocks of the soil dries the contractile root dries that it is possible for bees to fly as far Juncus macrophyllus (long-leaved rush) and shrinks longitudinally, drawing the as 3,280 ft (1,000 m) to pollinate and Muhlenbergia rigens (deer grass) young cormlet downward in the soil. flowers, and at least one study suggests and in vernal seeps and on open, clay This process continues to a point at that bumblebees may forage many benches (Boyd et al. 1992). which the soil moisture is adequate to kilometers from a colony (Sudgen 1985). All members of the genus Brodiaea keep the contractile root from shrinking, The historical range of Brodiaea appear to require full sun, and many resulting in the location of the corm in filifolia extends from the foothills of the tend to occur on only one or a few soil the appropriate soil horizon for survival. San Gabriel Mountains in Los Angeles series (Niehaus 1971). In San Diego, Cormlets produced annually from County, east to the western foothills of Orange, and Los Angeles counties, existing older corms, also produce the San Bernardino Mountains in San occurrences of Brodiaea filifolia are contractile roots which draw them Bernardino County, south through highly correlated with specific clay soil laterally away from the parent corm eastern Orange and western Riverside series such as, but not limited to, Alo, (Niehaus 1971). counties to central (Vince Scheidt in litt. Altamont, Auld, and Diablo or clay lens The size of a particular population of 2005) San Diego County. This species is inclusions in a matrix of loamy soils Brodiaea filifolia and other members of usually found in herbaceous plant such as Fallbrook, Huerhuero, and Las the species, as well as other corm and communities that occur in open areas Flores series (63 FR 54975, CNDDB bulb forming species, is often measured on clay soils, soils with a clay 2003, Service GIS data 2004). In San by counting numbers of standing flower subsurface, or clay lenses within loamy, Bernardino County, the species is stalks. However, because more plants silty loam, loamy sand, silty deposits associated with Etsel family-Rock flower in wet years than dry years, with cobbles or alkaline soils, ranging in outcrop-Springdale and Tujunga-Urban flowering plants likely represent only a elevation from 100 ft (30 m) to 2,500 ft land-Hanford soils (Service GIS data portion of the total population of plants (765 m), depending on soil series. These 2004). In western Riverside County, the present at any given site. In addition to herbaceous communities are generally species is often found on alkaline silty- the annual fluctuation in numbers of classified as annual grassland, valley clay soil series such as, but not limited flowering plants, seedlings and young needlegrass grassland, valley sacaton to, Domino, Grangeville, Waukena, and plants likely only produce leaves for a grassland, alkali playa, southern interior Willows or on clay loam soils underlain few years before they are able to basalt vernal pools, San Diego mesa by heavy clays derived from basalt lava produce flower stalks. These vegetative hardpan vernal pools, and San Diego flows (i.e., Murrieta series on the Santa plants may go undetected in surveys. mesa claypan vernal pools (Holland Rosa Plateau) (U.S. Department of 1986). Based upon dominant species, Agriculture 1971, Bramlet 1993, CNDDB Space for Growth of Individuals and these communities have been further 2003). On these soils, B. filifolia is Populations and for Normal Behavior divided into series which include, but typically found as a component of Habitats with combinations of are not limited to, California annual native perennial and annual grasslands. appropriate elevation and clay or clay grassland, nodding needlegrass, purple In the City of San Marcos in San Diego associated soils, on mesas or low to needlegrass, foothill needlegrass, County, and near Hemet and on the moderate slopes that support open saltgrass, alkali grassland, alkali playa, Santa Rosa Plateau in Riverside County, native or annual grasslands within open and bush seepweed and habitats such as these grasslands are often part of the coastal sage scrub or coastal sage scrub- San Diego mesa vernal pools, San watersheds for vernal pool and playa chaparral communities (PCE 1A), or in Jacinto Valley vernal pools, and Santa complexes (Bramlet 1993; Service 1998; floodplains or in association with vernal Rosa Plateau vernal pools (Sawyer and CNDDB 2005). These soils facilitate the pool or playa complexes that support Keeler-Wolf 1994). B. filifolia grows in natural process of seed dispersal and various grassland or scrub communities interstitial areas (often narrow bands of germination, cormlet disposition to an (PCE 1B), or soils derived from olivine habitat surrounded by other vegetation) appropriate soil depth, and corm basalt lava flows on mesas and slopes
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that supports vernal pools with underlain by a clay subsoil (e.g., under sections 4(a)(3) or 4(b)(2) of the grassland, oak woodland, or savannah Fallbrook, Huerhuero, Las Flores) that Act. communities (PCE 1C), or sandy loam generally occur on mesas and gentle to We defined habitat containing soils derived from basalt and moderate slopes, or in association with features essential to the conservation of granodiorite parent material with vernal pools, between the elevations of the species as areas of intact, occupied deposits of cobbles and boulders 100 ft (30 m) and 2,500 ft (765 m) and habitat and/or areas necessary to supporting intermittent seeps, and open support open native or annual grassland maintain gene flow, and/or areas marsh communities (PCE 1D), provide communities, within open coastal sage containing significant populations. space for the growth and persistence of scrub or coastal sage scrub-chaparral In our proposed rule we defined Brodiaea filifolia. These habitats also communities; or significant populations supporting 1,000 sustain the pollinators needed for cross- (B) Silty loam soil series underlain by or more naturally occurring individuals pollination. a clay subsoil or caliche that are of Brodiaea filifolia and/or those found generally poorly drained, moderately to in unique habitat; for example, Food, Water, Air, Light, Minerals, or strongly alkaline, granitic in origin (e.g., populations found within an atypical Other Nutritional or Physiological Domino, Grangeville, Waukena, vegetative community, on atypical soils, Requirements Willows), that generally occur in low- and/or at an atypical elevation. A natural generally intact surface and lying areas and floodplains, often in Populations found within unique subsurface structure, not permanently association with vernal pool or playa habitat types may harbor genetic altered by anthropogenic land use complexes, between the elevations of diversity that facilitates their activities, and associated physical 600 ft (180 m) and 1,800 ft (550 m) and persistence in these areas. This overall processes such as a hydrological regime support native, annual, or alkali diversity may be important to the (PCE 2) is necessary to provide water, grassland or scrub communities; or conservation of the species. minerals, and other physiological needs (C) Clay loam soil series (e.g., In this final designation, we defined for Brodiaea filifolia. A natural Murrieta) underlain by heavy clay loams significant occurrences as those hydrological regime includes seasonal or clays derived from olivine basalt lava containing 850 plants or more. This hydration followed by drying out of the flows that generally occur on mesas and threshold of significance was derived substrate to promote growth of active gentle to moderate slopes between the from a review of all known population plants and new corms for the following elevations of 1,700 ft (520 m) and 2,500 estimates in areas proposed for critical season. These conditions are also ft (765 m) and support native or annual habitat designation. A review of the necessary for the normal development grassland or oak woodland savannah population estimates in the proposed of seedlings and young vegetative communities associated with basalt units revealed a significant step between cormlets. vernal pools; or populations containing 250 or fewer The conservation of Brodiaea filifolia (D) Sandy loam soils derived from plants and those supporting 850 or is dependent on several factors that basalt and granodiorite parent materials, more. Barrett and Kohn (1991) have include, but are not limited to, deposits of gravel, cobble, and boulders, discussed the consequences of small maintenance of areas of sufficient size or hydrologically fractured weathered population size in plants. They stress and configuration to sustain natural granite in intermittent streams and the need for maintaining genetic ecosystem components, functions, and seeps that support open riparian and variability, especially for rare alleles. processes (e.g., full sun exposure, freshwater marsh communities Maintaining diversity of self- natural fire and hydrologic regimes, associated with intermittent drainages, incompatible alleles is important to adequate biotic balance to prevent floodplains, and seeps generally ensure production of fertile seeds and excessive herbivory); protection of between 1,800 ft (550 m) and 2,500 ft thus is important for the survival of existing substrate continuity and (765 m). smaller populations. The likelihood of structure, connectivity among groups of (2) Areas with an intact surface and maintaining this diversity is increased plants within geographic proximity to subsurface structure not permanently with more individuals. We believe that facilitate gene flow among the sites altered by anthropogenic land use occurrences supporting at least 850 through pollinator activity and seed activities (e.g., deep, repetitive disking; plants have the most potential to dispersal; and sufficient adjacent grading). These features as well as contribute to the long-term conservation suitable habitat for vegetative associated physical processes (e.g., full of the species. reproduction and population expansion. sunlight exposure) are essential to Often significant populations are also The areas being designated as critical maintain those substrate and vegetation peripheral populations. Peripheral habitat provide one or more of the types where Brodiaea filifolia is found populations of a species are separable physical or biological features essential and to support pollinator assemblages by geographical and/or ecological to the conservation of this species. necessary to facilitate gene flow within differences from central populations Lands designated as critical habitat and among populations of B. filifolia. (Lesica and Allendorf 1995). for Brodiaea filifolia occur within the Conservation of species may depend Criteria Used To Identify Critical historical range of the species. Based on upon protection of the genetic Habitat the best available scientific information variability present across the range of a available regarding the life history, We delineated critical habitat using species. Reduced gene flow and limited ecology, and distribution of this species, the following criteria: (1) Essential seed dispersal may contribute to the we believe that the primary constituent occurrences; (2) presence of suitable genetic diversity of peripheral elements for B. filifolia are: vegetation; (3) presence of suitable soil populations attributable to genetic drift (1) Appropriate soil series and types; and (4) an area about 820 ft (250 from central populations. Population associated vegetation at suitable m) of vegetation surrounding each divergence may also be attributed to elevations of either: occurrence to provide for pollinator differences in habitat such as soil types, (A) Clay soil series of various origins movement and habitat. We then fire frequency, and climate (Lesica and (e.g., Alo, Altamont, Auld, Diablo), clay evaluated the critical habitat areas to Allendorf 1995). Ornduff (1966) found lenses found as unmapped inclusions in determine if any areas should be the highest concentration of other soils series, or within loamy soils exempted or excluded from designation morphological and cytological variants
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at the margin of the geographic range of behavior of the pollinator species species may compete for space and species of Lasthenia. For these reasons, identified on B. filifolia, we based the resources. conservation of geographically (e.g., Los 820 ft (250 m) distance on a Authorized and unauthorized Angeles County) and ecologically (e.g., conservative estimate for mean routine recreation activities may impact the Devil Canyon) peripheral populations flight distance for bees. These 820 ft vegetation composition and soil may be essential for the conservation of (250 m) areas contain suitable soils and structure to an extent that the area will B. filifolia. vegetation required by all stages of the no longer have intact soil surfaces or Currently, the exact number of extant species’ lifecycle and provide for gene support associated vegetation as populations or occurrences of Brodiaea flow, pollen dispersal, seed dispersal, identified in the primary constituent filifolia is unknown. Reasons for this and germination. elements. Public hiking trails and/or off- include the lack of surveys in all areas When determining critical habitat road vehicle activity are examples of of suitable habitat, false negative survey boundaries, we made every effort to this type of activity. results yielded during inappropriate avoid the designation of developed land Some methods of mowing and disking seasons, and variation in how survey such as buildings, paved areas, and for agricultural or fire management may data is recorded. For example, some other structures that lack PCEs for preclude the full and natural surveyors may record populations Brodiaea filifolia. Any such structures, development of Brodiaea filifolia by within close proximity as a single and the land under them, inadvertently adversely affecting the primary occurrence while others may record left inside the mapped critical habitat constituent elements. Mowing may each population as an individual boundaries due to scale have been reduce the production and dispersal of occurrence. Table 3 of Bramlet and excluded by text in the rule and are not seeds, alter the associated vegetation White (2004) contains a working list of designated as critical habitat. Therefore, needed for pollinator activity, or reduce approximately 83 sites where B. filifolia Federal actions limited to these areas the number and vigor of plants present has been reported. However, some of would not trigger section 7 by cutting off the leaves (PCE# 2). Dumping of sewage sludge can cover these sites are included with others as consultations, unless they affect the plants as well as the soils they need. In single occurrences by the CNDDB, species and/or primary constituent addition this practice can alter the others have no locator, no population elements in adjacent critical habitat. description, are translocated chemistry of the substrate and lead to populations, or were considered Special Management Considerations or alterations in the vegetation supported extirpated. These sites were not Protection at the site (PCE# 1). considered further. Occurrences Several management actions can When designating critical habitat, we preserve the PCEs for Brodiaea filifolia. comprised solely of translocated plants assess whether the identified primary were not considered to contain the Foremost among these is avoidance of constituent elements (PCEs) may require habitat known to be occupied. However, features essential to the conservation of special management considerations or the species because their potential for set-aside areas must usually include protection. Threats to the PCEs for long-term survival and contribution to some form of management to address Brodiaea filifolia include the direct and the species’ gene pool is currently other threats to the PCEs (e.g., non- indirect effects of habitat loss and unknown. native plant invasion). Loss of habitat or Where possible, we delineated a degradation from urban development; degradation of soils can be avoided with vegetative area of 820 ft (250 m) around invasive plant species; recreational appropriate grading and soil each occurrence included in this activities; agricultural practices; management as part of development. designation to provide for pollinator mowing; and dumping of manure and Slope grading so as to avoid inflow or movement and habitat. One study found sewage sludge on suitable habitat. outflow of sediments may protect the a 50 percent reduction in seed set when Loss and degradation of habitat from integrity of the onsite soils that support pollinator habitat was 3,280 ft (1,000 m) development was cited in the final B. filifolia and associated vegetation. from a target plant species and at 820 ft listing rule as a primary cause for the Dumping of sewage sludge should be (250 m) for another target plant species decline of Brodiaea filifolia. Most of the avoided in all areas containing B. (Steffan-Dewenter and Tscharntke populations of this species are located filifolia. The components in sludge can 1999). Studies also suggest that the in San Diego, Orange, and Riverside permanently alter the soil chemistry as degradation of pollinator habitat is counties. These counties have had and well as the vegetation it supports. likely to adversely affect the abundance continue to have increasing populations Invasive plant species may be of pollinator species (Jennersten 1988; and attendant housing pressure. Natural managed by reducing the overgrowth of Rathcke and Jules 1993; Steffan- areas in these counties are frequently these plants through a combination of Dewenter and Tscharntke 1999). The near or bounded by urbanized areas. clearing, mowing, and/or thatch various pollinator species associated Urban development removes the plant removal. Any temporary impacts from with Brodiaea filifolia as well as studies community components and associated recreational activities could be timed to quantifying insect pollinating flight clay soils identified in the primary avoid the most sensitive time of year distances are discussed in the constituent elements. This eliminates or and hydrological conditions for ‘‘Background’’ section of this rule. fragments the populations of B. filifolia. Brodiaea filifolia. Mowing and disking Studies to quantify the distance that Urbanization may also indirectly alter for agricultural or fire suppression bees will fly to pollinate their host surface as well as subsurface layers to purposes could be located in such a plants are limited in number, but the the degree that they will no longer manner so as to avoid known few that exist indicate that some bees support plant community types known populations of the species. Habitat will routinely fly from 328 to 984 ft (100 to be associated with B. filifolia. enhancement can allow for additional to 500 m) to pollinate plants with some Invasive plant species may alter the habitat for pollinators as well as for B. flying at least 3,280 ft (1,000 m) to vegetation composition or physical filifolia. pollinate flowers (Schulke and Waser structure identified in the primary 2001; Steffan-Dewenter and Tscharntke constituent elements to an extent that Critical Habitat Designation 2000). Because we do not currently have the area does not support B. filifolia or We are designating 597 ac (242 ha) of much information on specific visitation its associated vegetation and invasive critical habitat within 4 units/subunits
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in Los Angeles and San Diego counties. under section 4(a)(3) of the Act (see are included in this designation. Table Habitat containing features essential to ‘‘Application of Section 3(5)(A), 2 provides the approximate area of the conservation of Brodiaea filifolia in Exemption Under Section 4(a)(3), and critical habitat by county and land Riverside, Orange, and San Diego Exclusions Under Section 4(b)(2) of the ownership. Table 3 provides the counties covered by approved and/or Act’’ for a detailed discussion). Areas approximate area of areas containing pending HCPs, or a Settlement designated as critical habitat are under features essential to the conservation of Agreement has been excluded from this Federal and private ownership. The the species, areas excluded from the final designation. Habitat containing species is not currently known to occur final designation, and total critical features essential to the conservation of on any Tribal-owned lands within its habitat designated for B. filifolia. B. filifolia on Camp Pendleton is exempt range; therefore, no Tribal-owned lands
TABLE 2.—LAND OWNERSHIP ACREAGE (ACRES (AC); HECTARES (HA)) AND COUNTY OF UNITS AND SUBUNITS DESIGNATED AS FINAL CRITICAL HABITAT FOR BRODIAEA FILIFOLIA.
Private *Federal Total Critical habitat unit & subunit County (ac; ha) (ac; ha) (ac; ha)
Unit 1: Los Angeles County ...... Los Angeles ...... 1a: Glendora ...... 96; 39 0 96;39 1b: San Dimas ...... 178; 72 20; 8 198; 80 Unit 5: Northern San Diego County ...... San Diego ...... 5b: Devil Canyon ...... 0 249; 101 249; 101 Unit 8: San Marcos ...... 8d: Upham ...... 54; 22 0 54; 22
Total ...... 328; 133 269; 109 597; 242 *Federal lands included in this designation are managed by the Angeles National Forest and the Cleveland National Forest.
TABLE 3.—AREAS CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SPECIES, AREAS EXEMPTED OR EX- CLUDED FROM THE DESIGNATION, AND TOTAL CRITICAL HABITAT DESIGNATED FOR Brodiaea filifolia IN ACRES (AC) AND HECTARES (HA) Please note that discrepancies in totals are due to rounding.
Total habitat with features Habitat ex- essential to empted/ex- Designated County the conserva- cluded from critical habitat tion of the the final des- species ignation
Los Angeles ...... 294 ac ...... 0 ac ...... 294 ac. 119 ha ...... 0 ha ...... 119 ha. San Bernardino ...... 0 ac ...... 0 ac ...... 0 ac. 0 ha ...... 0 ha ...... 0 ha. Orange ...... 1,158 ac ...... 1,158 ac ...... 0 ac. 469 ha ...... 469 ha ...... 0 ha. Riverside ...... 3,062 ac ...... 3,062 ac ...... 0 ac. 1,239 ha ...... 1,239 ha ...... 0 ha. San Diego ...... 1884 ac ...... 1580 ac ...... 303 ac. 762 ha ...... 639 ha ...... 123 ha. Total ...... 6,397 ac ...... 5800 ac ...... 597 ac. 2589 ha ...... 2,347 ha ...... 242 ha.
The units described below constitute are included in the designation are subunit identifiers allows for easier our best assessment at this time of those listed below. Unit descriptions also comparison between the proposed areas containing features essential to the include the size of the unit, the general critical habitat and final critical habitat conservation of Brodiaea filifolia. Each vegetation and soil types present in the maps. unit or subunit contains the PCEs unit, any known threats specific to the Unit Descriptions related to an intact surface and unit, and numbers of individual plants, subsurface structure essential to if known. Because the species may be Unit 1: Los Angeles County Unit— maintain the identified soil and present as mature but non-flowering This unit consists of 294 ac (119 ha) vegetation types where the species is corms or immature corms rather than divided into 2 subunits. found, and support for pollinator flowering plants, the number of Subunit 1a: Glendora. This subunit, assemblages necessary to facilitate gene individuals given should be considered known to be occupied at the time of flow within and among populations of an estimate of the minimum number of listing, consists of 96 ac (39 ha) of B. filifolia. Lands within each unit or plants present. In this final rule we have private lands in the City of Glendora, in subunit are also currently occupied and retained the same unit/subunit the foothills of the San Gabriel within the historical range of B. filifolia. identifiers that we used in the proposed Mountains, eastern Los Angeles County. Descriptions of each final critical designation for this species. We believe Lands within this subunit contain habitat unit and the reasons why they the consistent use of one set of unit/ Cieneba-Exchequer-Sobrant soils, a type
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of silty loam, and consist primarily of property has been taken (D. Walter, development, and special management southern mixed chaparral and coastal Senior Planner City of Glendora pers. may be required to minimize sage scrub. This population represents comm. to G. Wallace USFWS 2005). disturbance to the surface and only one of two occurrences located in This site is threatened by urban subsurface structure within this subunit the foothills of the San Gabriel development. The City of Glendora has and to maintain the identified soil and Mountains part of the Transverse Range, reviewed several proposals for vegetation types. where the species was historically development of this area (D. Walter, Effects of Critical Habitat Designation found, and represents the nearest Senior Planner City of Glendora pers. genetic connection to the San Dimas comm. to G. Wallace USFWS 2005). In Section 7 Consultation subunit. This unit supports a significant addition, the City of Glendora has Section 7 of the Act requires Federal occurrence of about 2,000 Brodiaea halted illegal grading on a property in agencies, including the Service, to the northern portion of the subunit. filifolia associated with annual ensure that actions they fund, authorize, Therefore, special management may be grassland interstices in mixed chaparral. or carry out are not likely to destroy or required to minimize disturbance to the This occurrence is also significant adversely modify critical habitat. Such surface and subsurface structure within because it is the northernmost known alterations include, but are not limited this subunit and to maintain the occurrence of the species. Populations to: Alterations adversely modifying any identified soil and vegetation types as reported at this site in 1991 represent of those physical or biological features well as pollinator habitat essential to the the rediscovery of a population last that were the basis for determining the conservation of the species. documented in 1921 (CNDDB 2005). habitat to be critical. We are currently The site is owned and managed by the Subunit 5b: Devil Canyon. This subunit consists of 249 ac (101 ha) of reviewing the regulatory definition of Glendora Community Conservancy adverse modification in relation to the (GCC). Currently, no management plan federally managed land (Cleveland National Forest) in northeastern San conservation of the species. has been developed for these lands, Section 7(a) of the Act requires although the GCC has indicated that Diego County. Lands within this subunit support an occurrence of Brodiaea Federal agencies, including the Service, they are willing to develop a to evaluate their actions with respect to management plan for this species on filifolia estimated in the thousands (CNDDB 2005). Although there are some any species that is proposed or listed as their property (Ann Croissant, GCC pers. endangered or threatened and with comm. to G. Wallace USFWS 2005). hybrids of B. filifolia and B. orcuttii in this subunit, the level of hybridization respect to its critical habitat, if any is Special management considerations proposed or designated. Regulations may be required to control invasive is less extensive than in the Miller Mountain area; therefore, it is likely that implementing this interagency plant species; to maintain the identified cooperation provision of the Act are vegetation types as well as pollinator a minimum of 850 plants are pure B. filifolia. This occurrence is also codified at 50 CFR part 402. habitat essential to the conservation of Section 7(a)(4) of the Act requires the species. significant in that it is found at the uppermost elevation range within the Federal agencies to confer with us on Subunit 1b: San Dimas subunit. This geographic area occupied by the species. any action that is likely to jeopardize subunit consists of 198 ac (80 ha) of This occurrence is found in an the continued existence of a proposed Federal (Angeles National Forest) and ecologically unique habitat of vernal species or result in destruction or privately owned lands on the boundary seeps and drainages on low granitic adverse modification of proposed between the City of Glendora and the outcrops in chamise chaparral (CNDDB critical habitat. Conference reports City of San Dimas in the foothills of the 2005). The Cleveland National Forest provide conservation recommendations San Gabriel Mountains of eastern Los does not currently have a management to assist the agency in eliminating Angeles County. Lands within this plan specific to Brodiaea filifolia, conflicts that may be caused by the subunit contain Cieneba-Exchequer- however, timing of cattle grazing has proposed action. We may issue a formal Sobrant soils, a type of silty loam, and been adjusted to avoid the flowering conference report if requested by a consist primarily of coastal sage scrub period for the species (Kirsten Winter, Federal agency. Formal conference and southern mixed chaparral. Lands in Forest Botanist, pers. comm. 2004). reports on proposed critical habitat this subunit support two significant Special management may be required to contain an opinion that is prepared populations totaling about 6,000 plants minimize disturbance to the surface according to 50 CFR 402.14, as if critical associated with interstitial annual structure within this subunit, to control habitat were designated. We may adopt grassland near chaparral (CNDDB 2005). invasive species, and to maintain the the formal conference report as the The occurrences are also significant identified vegetation types as well as biological opinion when the critical because they are peripheral to the range pollinator habitat essential to the habitat is designated, if no substantial of the species. This is one of only two conservation of the species. new information or changes in the areas in the foothills of the San Gabriel Subunit 8d: Upham. This subunit action alter the content of the opinion Mountains of the Transverse Range consists of 54 ac (22 ha) of privately (see 50 CFR 402.10(d)). Until such a where Brodiaea filifolia occurred owned land in the City of San Marcos, time as a proposed designation is historically, and represents the only northern San Diego County. The subunit finalized, any reasonable and prudent likely genetic connection to plants in is immediately surrounded by urban alternatives or reasonable and prudent the Glendora subunit. While B. filifolia development. However, areas of extant measures included in a conference is not currently known to occur on the valley and foothill grasslands exist in report are advisory. Angeles National Forest, it occurs just the surrounding area. This occurrence If a species is listed or critical habitat outside the boundary. Approximately 20 contained about 1,000 plants in 1986 is designated, section 7(a)(2) requires ac (8 ha) of Angeles National Forest and again in 1995 (CNDDB 2005). In Federal agencies to ensure that activities lands are included in the designation to addition, the occurrence of Brodiaea they authorize, fund, or carry out are not provide for pollinator habitat. The City filifolia in this subunit occurs in a likely to jeopardize the continued of Glendora conducted an appraisal for unique habitat in that the plants are in existence of such species or destroy or a portion of the area for consideration of association with vernal pools. Plants in adversely modify its critical habitat. If a acquisition, but no action to acquire the this subunit are threatened by urban Federal action may affect a listed
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species or its critical habitat, the permitted do not require section 7 clearing or grubbing in the watershed responsible Federal agency (action consultation. upslope from B. filifolia); agency) must enter into consultation Each of the areas designated in this (5) Road construction and with us. Through this consultation, the rule has been determined to contain maintenance, right-of-way designation, action agency ensures that their actions sufficient PCEs to provide for one or and regulation of agricultural activities, do not destroy or adversely modify more of the life history requirements of or any activity funded or carried out by critical habitat. B. filifolia. In some cases, the PCEs are the Department of Transportation or When we issue a biological opinion being taken into consideration in Department of Agriculture that could concluding that a project is likely to ongoing Federal actions. As a result, result in excavation, or mechanized result in the destruction or adverse ongoing Federal actions at the time of land clearing of Brodiaea filifolia modification of critical habitat, we also designation will be included in the habitat; and provide reasonable and prudent baseline in any consultation conducted (6) Licensing of construction of alternatives to the project, if any are subsequent to this designation. communication sites by the Federal identifiable. ‘‘Reasonable and prudent Section 4(b)(8) of the Act requires us Communications Commission or alternatives’’ are defined at 50 CFR to briefly evaluate and describe in any funding of construction or development 402.02 as alternative actions identified proposed or final regulation that activities by the U.S. Department of during consultation that can be designates critical habitat those Housing and Urban Development that implemented in a manner consistent activities involving a Federal action that could result in excavation, or with the intended purpose of the action, may destroy or adversely modify such mechanized land clearing of Brodiaea that are consistent with the scope of the habitat, or that may be affected by such filifolia habitat. The 4 critical habitat units are within Federal agency’s legal authority and designation. Activities that may destroy the geographical area occupied by the jurisdiction, that are economically and or adversely modify critical habitat may species and contain the features technologically feasible, and that the also jeopardize the continued existence essential to the conservation of Brodiaea Director believes would avoid of Brodiaea filifolia. Federal activities filifolia. Additionally, all habitats destruction or adverse modification of that, when carried out, may adversely within this designation are likely to be critical habitat. Reasonable and prudent affect critical habitat for B. filifolia used by the pollinators for the species. alternatives can vary from slight project include, but are not limited to: modifications to extensive redesign or (1) Removing, thinning, or destroying Application of Section 3(5)(A), relocation of the project. Costs Brodiaea filifolia habitat (as defined in Exemption Under Section 4(a)(3), and associated with implementing a the ‘‘Primary Constituent Elements’’ Exclusions Under Section 4(b)(2) of the reasonable and prudent alternative are discussion), whether by burning, Act similarly variable. mechanical, chemical, or other means In our critical habitat designations, we Regulations at 50 CFR 402.16 require (e.g., plowing, grubbing, grading, use the provisions outlined in sections Federal agencies to reinitiate grazing, woodcutting, construction, road 3(5)(A), 4(a)(3), and 4(b)(2) of the Act to consultation on previously reviewed building, mining, mechanical weed evaluate those specific areas that we are actions in instances where critical control, herbicide application, etc.); considering for critical habitat habitat is subsequently designated and (2) Activities that degrade or destroy designation. Lands that we determined the Federal agency has retained Brodiaea filifolia habitat (and its PCEs) do not meet the definition of critical discretionary involvement or control including, but not limited to, livestock habitat under section 3(5)(A), lands that over the action or such discretionary grazing, clearing, disking, farming, have been exempted under section involvement or control is authorized by residential or commercial development, 4(a)(3), and areas excluded under law. Consequently, some Federal introducing or encouraging the spread section 4(b)(2) include those already agencies may request reinitiation of of nonnative species, off-road vehicle receiving special management consultation or conference with us on use, and heavy recreational use; considerations or protection, are actions for which formal consultation (3) Activities that diminish habitat covered by legally operative HCPs that has been completed, if those actions value or quality through indirect effects include Brodiaea filifolia as a covered may affect designated critical habitat or (e.g., edge effects, invasion of exotic species, are covered by a INRMP that adversely modify or destroy proposed plants or animals, or fragmentation); was determined to provide a benefit to critical habitat. (4) Any activity, including the the species, or are proposed for coverage Federal activities that may affect regulation of activities by the Corps of in a draft HCP or other identified Brodiaea filifolia or its critical habitat Engineers under section 404 of the conservation effort for which we have a will require section 7 consultation. Clean Water Act or activities carried out reasonable expectation will reach a Activities on non-Federal lands by or licensed by the Environmental successful outcome. requiring a permit from a Federal Protection Agency (EPA), that could agency, such as a permit from the U.S. alter watershed or soil characteristics in Application of Section 3(5)(A) of the Act Army Corps of Engineers under section ways that would alter or reduce the Section 3(5)(A) of the Act defines 404 of the Clean Water Act, a section quality or quantity of surface and critical habitat as the specific areas 10(a)(1)(B) permit from the Service, or subsurface flow of water needed to within the geographical area occupied some other Federal action, including maintain Brodiaea filifolia habitat (these by the species at the time of listing on funding (e.g., Federal Highway activities include, but are not limited to, which are found those physical or Administration or Federal Emergency altering the natural fire regime either biological features (I) essential to the Management Agency) will also continue through fire suppression or by using conservation of the species and (II) to be subject to the section 7 prescribed fires that are too frequent or which may require special management consultation requirement. Federal poorly timed; development, including considerations or protection. Therefore, actions not affecting listed species or road building and other direct or areas within the geographical area critical habitat and actions on non- indirect activities; and agricultural occupied by the species at the time of Federal and private lands that are not activities, livestock grazing, and listing that do not contain the features federally funded, authorized, or vegetation manipulation such as essential for the conservation of the
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species are not, by definition, critical Posas Road/State Route 78 Interchange of the Sikes Act (16 U.S.C. 670a), if the habitat. Similarly, areas within the Project. The total acreage of the Preserve Secretary determines in writing that geographical area occupied by the Site is 6.8 acres. The site will be such plan provides a benefit to the species at the time of listing containing preserved and managed in perpetuity species for which critical habitat is essential physical or biological features with funding provided through a non- proposed for designation. that do not require special management wasting endowment of $103,888 (Office We received comments from the U.S. considerations or protection also are of Administrative Law 2003). The site Marine Corps regarding the proposed not, by definition, critical habitat. To will be protected from human and critical habitat designation, and determine whether an area requires vehicular access by perimeter fencing economic impact and national security special management, we first determine and signage and will be part of the impact on Department of Defense lands. if the features essential to the Northwestern San Diego County We specifically requested information conservation of the species located there Multiple Habitat Conservation Program from the Department of Defense generally require special management to preserve area. regarding the benefits of any INRMP to address applicable threats. If those The goals of the management plan are Brodiaea filifolia in the proposed rule features do not require special to preserve the natural population and (69 FR 71284). translocated plants of Brodiaea filifolia, management, or if they do in general but Application of Section 4(a)(3) to Camp and to sustain the coastal sage scrub and not for the particular area in question Pendleton because of the existence of an adequate grassland vegetation to support and management plan or for some other buffer the population on site. The site In the proposed rule, we excluded reason, then the area does not require will be monitored for translocation habitat containing features essential to special management. success for seven years. the conservation of Brodiaea filifolia We consider a current plan to provide The Loma Alta project has completed within mission-critical training areas on adequate management or protection if it a Perpetual Land Management Plan that Camp Pendleton (Camp Pendleton) meets two criteria: (1) The plan provides provides a conservation benefit for under section 4(b)(2) of the Act. In this management, protection or Brodiaea filifolia. An area of 0.74 ac (0.3 final rule, Camp Pendleton is exempt enhancement to the PCEs at least ha) that has been known to support from critical habitat pursuant to section equivalent to that provided by a critical approximately 4,000 plants will be 4(a)(3) of the Act. Thus, no lands owned habitat designation; and (2) the Service included in the 4.86 acre Loma Alta or controlled by Camp Pendleton are has a reasonable expectation that the Environmental Preserve. A conservation being designated as critical habitat for B. management, protection or easement was placed over the Preserve filifolia. enhancement actions will continue for area in December 2003 (City of San In November 2001, Camp Pendleton the foreseeable future. Marcos 2003). Management provisions completed their INRMP (U.S. Marine We are not including habitat for the site include 12 visits per year to Corps 2001), which includes the containing features essential to the the site: 9 visits to check for fence following conservation measures for conservation of Brodiaea filifolia in breaks and unauthorized activities, 1 Brodiaea filifolia: (1) Surveys and subunit 8b (Rancho Santalina/Loma visit to complete vegetation assessments monitoring, studies, impact avoidance Alta) in the City of San Marcos, San including the current year’s population and minimization, and habitat Diego County, California, under section of B. filifolia, 1 visit to remove trash and restoration and enhancement; (2) 3(5)(A) of the Act. This subunit is exotic species, and 1 visit for a spring species survey information stored in composed of two properties, Rancho point avian survey. Camp Pendleton’s GIS database and Santalina and Loma Alta. Rancho We found that most of the recorded in a resource atlas which is Santalina has completed a long-term management actions proposed in the published and updated on a semi- management plan that specifically two management plans outlined above annual basis; (3) use of the resource addresses B. filifolia. Likewise, the would be effective and provide a atlas to plan operations and projects to Loma Alta development has submitted a conservation benefit for B. filifolia. avoid impacts to B. filifolia and to Perpetual Habitat Management Plan that Therefore, all of these areas containing trigger section 7 consultations if an addresses B. filifolia. In determining features essential to the conservation of action may affect the species; and (4) whether an area is adequately managed B. filifolia within the Rancho Santalina/ transplantation when avoidance is not and does not require special Loma Alta subunit (8b) are being possible. These measures are management, the Service generally removed from consideration in this final established, ongoing aspects of existing evaluates existing management to critical habitat designation because programs that provide a benefit to B. determine whether it provides (1) a these lands are deemed to be adequately filifolia. Camp Pendleton also has Base conservation benefit to the species; (2) managed pursuant to section 3(5)(A) of directives and Range and Training reasonable assurances for the Act. Regulations that are integral to their implementation; and (3) reasonable INRMP, and that provide benefits to B. assurances that conservation efforts will Relationship of Critical Habitat to filifolia. Camp Pendleton implements be effective. Department of Defense Lands Base directives to avoid and minimize The Rancho Santalina project Section 318 of the fiscal year 2004 adverse effects to B. filifolia, such as: (1) includes a completed a long-term National Defense Authorization Act Bivouac, command post, and field management plan in November 2003, (Pub. L. 108–136) amended the Act by support activities should be no closer specifically for the long-term protection adding a new section 4(a)(3)(B) to than 164 ft (50 m) to occupied habitat and enhancement of Brodiaea filifolia address the relationship of INRMPs to year round; (2) limiting vehicle and (Dudek and Associates 2003). critical habitat. This provision prohibits equipment operations to existing road Approximately 1,500 plants on 5.8 acres the Service from designating as critical and trail networks year round; and (3) will be included in a Preserve Site. habitat any lands or other geographical requiring environmental clearance prior Impacted plants (about 430) from the areas owned or controlled by the to any soil excavation, filling, or site will be translocated to the Department of Defense (DoD), or grading. Camp Pendleton has also contiguous 1 ac (.4 ha) area. Additional designated for its use, that are subject to contracted for and funded surveys for B. plants will be translocated from the Las an INRMP prepared under section 101 filifolia in summer 2005 and a GIS-
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based monitoring system which will provides a benefit for B. filifolia and is partnerships, if we determine the allow them to better manage listed exempting all lands on Camp Pendleton benefits of excluding an area from species on Camp Pendleton, including from critical habitat pursuant to section critical habitat outweigh the benefits of B. filifolia. 4(a)(3) of the Act. including the area in critical habitat, Camp Pendleton has also Currently, we are in the process of provided the action of excluding the demonstrated ongoing funding of their completing a programmatic section 7 area will not result in the extinction of INRMP and management of endangered consultation for upland species on the species. and threatened species. In Fiscal Year Camp Pendleton. Brodiaea filifolia is Under section 4(b)(2) of the Act, we 2002, Camp Pendleton spent addressed in this uplands species are excluding critical habitat from approximately $1.5 million on the consultation. When this consultation is approximately 4,883 ac (1,976 ha) of management of federally listed species. completed, we anticipate that Camp non-Federal lands within approved or In Fiscal Year 2003, they expended over Pendleton will incorporate the $5 million to fund and implement their conservation measures from the pending HCPs. We are excluding non- INRMP, including management actions Biological Opinion into their INRMP. At Federal lands from critical habitat that provided a benefit for Brodiaea that time, Camp Pendleton’s INRMP within the approved (1) Western filifolia. Moreover, in partnership with will provide further benefits to B. Riverside County Multiple Species the Service, Camp Pendleton is funding filifolia. Habitat Conservation Plan (MSHCP) two Service biologists to assist in (3062 ac, 1239 ha); (2) Villages of La implementing their Sikes Act program Relationship of Critical Habitat to Costa Habitat Conservation Plan (HCP) and buffer lands acquisition initiative. Approved and Pending Habitat (208 ac, 84 ha); and (3) Northwestern Based on Camp Pendleton’s past Conservation Plans (HCPs)—Exclusions San Diego County Multiple Habitat funding history for listed species and Under Section 4(b)(2) of the Act Conservation Program (MHCP): City of their Sikes Act program (including the Section 4(b)(2) of the Act states that Carlsbad Subarea Plan/Habitat management of Brodiaea filifolia), there critical habitat shall be designated, and Management Plan (City of Carlsbad is a high degree of certainty that Camp revised, on the basis of the best HMP) (414 ac, 168 ha). We are also Pendleton will implement their INRMP available scientific data after taking into excluding non-Federal lands from in coordination with the Service and the consideration the economic impact, critical habitat within two pending CDFG in a manner that provides a national security impact, and any other HCPs, the (4) City of Oceanside HMP, benefit to B. filifolia, coupled with a relevant impact of specifying any also a Subarea Plan under the high degree of certainty that the particular area as critical habitat. An Northwestern San Diego County MHCP conservation efforts of their INRMP will area may be excluded from critical (41 ac, 17 ha) and (5) Orange County be effective. Service biologists work habitat if it is determined that the Southern Subregion Natural closely with Camp Pendleton on a benefits of exclusion outweigh the Communities Conservation Plan variety of endangered and threatened benefits of specifying a particular area (NCCP)/HCP) (1,158 ac, 468 ha). Table species issues, including B. filifolia. The as critical habitat, unless the failure to 4 below provides a list of the management programs, Base directives, designate such area as critical habitat exemptions and exclusions in this rule. and Range and Training Regulations to will result in the extinction of the We have determined that the benefits of avoid and minimize impacts to B. species. Consequently, we may exclude excluding areas within these legally filifolia are consistent with section 7 an area from critical habitat based on operative and pending HCPs from final consultations with Camp Pendleton. economic impacts, impacts on national critical habitat designation outweigh the Therefore, the Secretary has found that security, or other relevant impacts, such benefits of including them in critical the INRMP for Camp Pendleton as preservation of conservation habitat.
TABLE 4.—ACREAGE OF HABITAT CONTAINING FEATURES ESSENTIAL TO THE CONSERVATION OF THE SPECIES, AREAS EX- CLUDED OR EXEMPTED FROM CRITICAL HABITAT, AND DESIGNATED CRITICAL HABITAT (ACRES (AC); HECTARES (HA)) FOR BRODIAEA FILIFOLIA
Total habitat containing features essential to the conservation of Brodiaea filifolia ...... 6,397 ac. 2,589 ha. Habitat excluded from the final critical habitat designation under section 4(b)(2) of the Act: Western Riverside County Multiple Species Habitat Conservation Plan (Riverside County) ...... 3,062 ac. 1,239 ha. Villages of La Costa Habitat Conservation Plan (San Diego County) ...... 208 ac. 84 ha. City of Carlsbad Habitat Management Plan (San Diego County) ...... 414 ac. 368 ha. Pending City of Oceanside Subarea Plan (San Diego County) ...... 41 ac. 17 ha. Pending Orange County Southern Subregion Natural Community Conservation Plan/Habitat Conservation Plan (Orange 1,158 ac. County). 469 ha. Habitat exempted from critical habitat designation under section 4(a)(3) of the Act: Marine Corps Base, Camp Pendleton 917 ac. (San Diego County). 371 ha. Total habitat containing features essential to the conservation of Brodiaea filifolia excluded or exempted from final crit- 5,800 ac. ical habitat. 2,347 ha. Total habitat containing features essential to the conservation of Brodiaea filifolia designated as final critical habitat ...... 597 ac. 242 ha.
Brodiaea filifolia is a covered species County MSHCP, the Villages of La Costa as such, receives protection and under the approved Western Riverside HCP, and the City of Carlsbad HMP and, management of features essential for the
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species’ conservation. We issued the Transportation Commission, Riverside every 8 years to verify occupancy at a section 10(a)(1)(B) permit for the County Parks and Open Space District, minimum 75 percent of the known Western Riverside County MSHCP on and Riverside County Waste locations. Management measures will be June 22, 2005; the Villages of La Costa Department; the California Department triggered, as appropriate, if a decline in HCP on June 7, 1995; and the City of of Parks and Recreation; and species distribution is documented Carlsbad HMP on November 9, 2004. CALTRANS (Riverside County et al.). below this threshold. Other Significant conservation of B. filifolia is The Western Riverside County MSHCP management actions will help maintain also identified and committed to under is a subregional plan under the State’s habitat and populations of B. filifolia by a pending HMP for the City of NCCP Act of 2001 and was developed preventing alteration of hydrology and Oceanside and for the Orange County in cooperation with the California floodplain dynamics, off-road vehicle Southern Subregion NCCP/HCP through Department of Fish and Game (CDFG). use, grazing, and competition from non- a signed Settlement Agreement for the The Western Riverside County native plants. Ranch Plan, a comprehensive land use MSHCP establishes a multiple species Occurrences of Brodiaea filifolia are and open space plan that is a conservation program to minimize and frequently associated with or near component of the draft Orange County mitigate the expected loss of habitat vernal pool complexes. The Western Southern Subregion NCCP/HCP, values and, with regard to ‘‘covered’’ Riverside County MSHCP provides for addressing lands owned by the County animal species, the incidental take of special protection of vernal pool of Orange and lands owned by Rancho such species. Within the 1.26-million ac complexes and associated species Mission Viejo. The Settlement (510,000 ha) planning area of the through its Protection of Species Agreement was signed on August 16, MSHCP, approximately 153,000 ac Associated with Riparian/Riverine areas 2005. These approved and legally (62,000 ha) of diverse habitats are being and Vernal Pools policy. operative HCPs, the pending City of conserved. The conservation of 153,000 Implementation of this policy will assist Oceanside HMP, and the pending ac (62,000 ha) complements in providing protection to this species’ Orange County Southern Subregion approximately 347,000 ac (140,431 ha) essential habitat by avoiding and NCCP/HCP and associated Settlement of other existing natural and open space minimizing direct impacts to vernal Agreement provide special management areas that are already conserved through pools and associated habitats. In and protection for the physical and other means (e.g., State parks, USFS, addition, B. filifolia is considered an biological features essential for the and County park lands). These lands Additional Survey Needs and conservation of B. filifolia that exceed together will form an overall 500,000-ac Procedures species under the MSHCP. the level of regulatory control that MSHCP Conservation Area. Under this policy, surveys for B. filifolia would be afforded this species by the The MSHCP Plan Area includes a will be conducted where suitable designation of critical habitat. We have portion of the range of Brodiaea filifolia, habitat is present in identified species determined that the benefits of which is a covered species under this survey areas until such time as the excluding critical habitat within these NCCP/HCP. The Service concluded that conservation objectives for this species areas from the critical habitat the MSHCP would not jeopardize the are met. Finally, the MSHCP’s designation will outweigh the benefits continued existence of B. filifolia in its Guidelines Pertaining to the Urban/ of including them as critical habitat and Biological and Conference Opinion Wildlands Interface provides some this exclusion will not result in the (Service 2004). assurance that future urbanization will extinction of B. filifolia. The MSHCP identifies the following maintain the existing water quality and Below we first provide general specific conservation goals that will be quantity needed to maintain floodplain background information on each implemented for the long-term areas and vernal pools supporting B. approved or pending HCP, followed by conservation of Brodiaea filifolia: (1) To filifolia along the San Jacinto River and an analysis pursuant to section 4(b)(2) of include within the MSHCP at upper Salt Creek west of Hemet. the Act of the benefits of including Conservation Area at least 6,900 ac Thus, the Western Riverside County lands in all five areas within the critical (2,792 ha) of grassland and playa/vernal MSHCP provides significant habitat designation, an analysis of the pool habitat within the San Jacinto conservation benefits to B. filifolia, benefits of excluding these lands from River, Mystic Lake and Salt Creek areas including an MSHCP Conservation Area the designation, and an analysis of why that include the 3,062 ac of land that that protects core habitat areas and we believe the benefits of exclusion are containing features essential to the known occurrences, long-term greater than the benefits of inclusion. conservation of the species, including management and monitoring of the Finally, we provide a determination that occurrences of B. filifolia identified in preserve area, and special guidelines, exclusion of lands within these the proposed rule; (2) to include within policies, and survey requirements to approved and pending HCPs will not the MSHCP Conservation Area at least ensure that significant occurrences of B. result in the extinction of Brodiaea 11 major locations supporting B. filifolia filifolia and its essential habitat are filifolia. in two core areas along the San Jacinto protected under the plan. River and on the Santa Rosa Plateau, Western Riverside County Multiple including occurrences identified in the The Villages of La Costa Habitat Species Habitat Conservation Plan proposed rule as significant; (3) to Conservation Plan—San Diego County We excluded 3,062 ac (1,239 ha) of conduct surveys for the species in We excluded 208 ac (84 ha) of non- non-Federal lands within the Western certain areas of suitable habitat until the Federal lands within the Villages of La Riverside County MSHCP under section conservation goals are met; and (4) to Costa HCP under section 4(b)(2) of the 4(b)(2) of the Act. The Western include within the MSHCP Act. Under this HCP, Fieldstone/La Riverside County MSHCP was finalized Conservation Area the floodplain along Costa Associates proposed to construct and approved on June 22, 2004. the San Jacinto River consistent with housing, limited commercial Participants in this HCP include 14 objective 1 and to maintain floodplain development, a school, a park, and cities; the County of Riverside, processes along the San Jacinto River. In various roadways on 1,252 ac (507 ha) including the Riverside County Flood addition, the MSHCP requires surveys of the 1,955 ac (791ha) property at two Control and Water Conservation to be conducted for B. filifolia within locations within the City of Carlsbad. Agency, Riverside County the MSHCP Conservation Area at least All Brodiaea filifolia on the site
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occurred in the northwest parcel and within the cities of Carlsbad, Encinitas, and associated restoration and was estimated to consist of 7,000 Escondido, San Marcos, Oceanside, management actions, the City of individuals. The project was permitted Vista, and Solana Beach (USFWS and Carlsbad will receive full coverage for B. to directly impact 1,190 individuals (17 SANDAG 2003). filifolia. In our biological opinion for the percent). As part of the HCP and section The 10(a)(1)(B) permit for the City of issuance of the section 10(a)(1)(B) 10(a)(1)(B) permit, the following Carlsbad HMP was issued on November permit to the City of Carlsbad, we conservation measures were required 9, 2004, and the City was the first of the determined that the proposed action and have been implemented for the seven participating cities to receive a would not jeopardize the continued long-term conservation of B. filifolia: (1) permit on their subarea plan. Brodiaea existence of B. filifolia. The preserve Permanent protection of approximately filifolia is a conditionally covered area includes the significant occurrence 5,800 individuals (83 percent) in a species under the HMP. Occurrences of of B. filifolia identified in the proposed 702.5–ac (284 ha) natural open space B. filifolia exist within the boundaries of rule. Thus, we are excluding the Fox- preserve configured to provide the HMP in the following identified Miller property (subunit 7a) in this final connectivity to other significant areas of areas: Calavera Heights, Lake Calavera, rule. natural habitat; (2) long-term Fox-Miller, Carlsbad Oaks North, and City of Oceanside HMP—San Diego management of conserved habitat; (3) Poinsettia. Under the HMP, all known County monitoring; (4) habitat restoration and populations of B. filifolia within enhancement; (5) control of invasive existing preserve areas will be We excluded approximately 41 ac (17 plant species; (6) implementation of a conserved at 100 percent. All B. filifolia ha) of non-Federal lands in two subunits fire management program; (7) access outside of already preserved areas are within the City of Oceanside under control measures; and (8) public required to be consistent with the section 4(b)(2) of the Act. The City of education. The 702.5 ac preserve area MHCP’s narrow endemic policy which Oceanside has accepted and committed contains the significant occurrence of B. requires mitigation for unavoidable to the conservation standards for filifolia identified in the proposed rule. impacts and management practices Brodiaea filifolia established under the Open space areas on Fieldstone/La designed to achieve no net loss of Northwestern San Diego MHCP. These Costa Associates lands are actively narrow endemic populations, occupied conservation standards will be included managed to maintain and enhance acreage, or population viability within in the City of Oceanside’s HMP, biological values by the Center for Focused Planning Areas. In addition, currently in development. Natural Lands Management (Don cities cannot permit more than 5 percent Subunit 6b (Mesa Drive) consists of 5 Rideout, City of Carlsbad, pers. comm. gross cumulative loss of narrow ac (2 ha) of primarily grasslands 2004). In the Service’s 1995 Biological endemic populations or occupied supporting an occurrence of Brodiaea and Conference opinion for this HCP, acreage within the Focused Planning filifolia estimated to contain 2,800 we found that the issuance of the Areas, and no more than 20 percent plants (Roberts in litt. 2004). The site is incidental take permit and execution of cumulative loss of narrow endemic under the control of a home owner’s the Implementing Agreement were not locations, population numbers or association and includes a San Diego likely to jeopardize the continued occupied acreage outside of Focused Gas & Electric utility easement. There existence of B. filifolia (Service 1995). Planning Areas (AMEC Earth and are currently no development plans for We determined that impacts to this Environmental, Inc. 2003). All the site, but under the conservation species and its habitat, when viewed in conserved populations of B. filifolia will standards of the overarching, conjunction with the conservation be incorporated into the preserve areas Northwestern San Diego County MHCP measures required under the HCP and of the HMP. Additionally, the HMP and agreed to by the City, no more than Implementing Agreement that will includes provisions to manage the 20 percent of this population may be provide long-term benefits to B. filifolia, populations within the preserve areas in impacted. were not anticipated to result in an order to provide for the long-term Subunit 6d (Taylor/Darwin) contains appreciable reduction in the numbers, conservation of the species. several properties under different reproduction, or distribution of this Occurrences of Brodiaea filifolia at ownership. The Taylor Estates property species throughout its range. Calavera Heights, Lake Calavera, had 1,268 flowering Brodiaea filifolia Carlsbad Oaks North, and Poinsettia plants identified in 2001. Seventy-one City of Carlsbad Habitat Management covered under the HMP were excluded of these plants in the direct Plan—San Diego County from proposed critical habitat. However, development footprint of the project We excluded approximately 414 ac occurrences on the Fox-Miller property were translocated elsewhere on the (168 ha) of non-Federal lands within the were not excluded from the proposed Taylor Estates property. These City of Carlsbad HMP under section designation because initially, the translocated individuals and the 4(b)(2) of the Act. The City of Carlsbad proposed hard-lined reserve on Fox- remaining plants will be managed and HMP is a subarea plan under the Miller did not meet the conditions for monitored in perpetuity. The Darwin Northwestern San Diego County MHCP. coverage of the species under the HMP. portion of the subunit has also been The MHCP is a comprehensive, multi- The property owners worked with the partially developed. Approximately 6 ac jurisdictional planning program Service, CDFG, and the City of Carlsbad (2 ha) of open space, which includes an designed to create, manage, and monitor to develop a project that meets the occurrence of B. filifolia, has been an ecosystem preserve in northwestern HMP’s standards for B. filifolia preserved and will be managed in San Diego County. The MHCP preserve conservation. Ninety-five percent of the perpetuity. Thirty-six ac (15 ha) of system is intended to protect viable 19,100 plants on the property will be extant valley and foothills grassland populations of native plant and animal conserved. The site’s preserve will be supporting a major population of B. species and their habitats in perpetuity, incorporated into the HMP’s preserve filifolia, as defined by the MHCP, while accommodating continued system, partially restored to native remain within the subunit. Under the economic development and quality of grassland, and managed to sustain both conservation standards of the MHCP life for residents of North County. The the native grassland community and the and agreed to by the City, 95 percent of MHCP includes an approximately population of B. filifolia. With this population will be preserved and 112,000–ac (45,324 ha) study area modification of this hard-lined reserve managed within the preserve system.
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The preserve area includes the 850 plants. The occurrence is protected as opposed to a requirement to provide significant occurrence of B. filifolia from urban development and managed a conservation benefit. identified in the proposed rule. by the County of Orange’s Division of The inclusion of these 4,883 ac (1,976 Harbors, Beaches and Parks. The County ha) of non-Federal lands as critical Orange County Southern Subregion of Orange is a landowner within and a habitat may provide some additional NCCP/HCP major sponsor of the Southern Federal regulatory benefits for the We excluded approximately 1,158 ac Subregion NCCP/HCP. Thus, the major species consistent with the conservation (469 ha) of non-Federal lands in three occurrences of B. filifolia (i.e., those standard based on the Ninth Circuit subunits within the Southern Subregion with greater than 850 plants) Court’s decision in Gifford Pinchot. A of Orange County under section 4(b)(2) encompassed within the 1158 acres of benefit of inclusion would be the of the Act. essential habitat identified in the requirement of a Federal agency to Rancho Mission Viejo, the County of proposed rule are protected and ensure that their actions on these non- Orange, the Endangered Habitats included within the planning area Federal lands do not likely result in the League, the Natural Resources Defense boundary of the draft HCP or committed destruction or adverse modification of Council, Inc., Sea and Sage Audubon for conservation under the Settlement critical habitat. This additional analysis Society, Laguna Greenbelt, Inc., and the Agreement. to determine destruction or adverse Sierra Club reached an agreement on The following analysis considers all modification of critical habitat is likely August 16, 2005, to settle a lawsuit five plans discussed above: (1) The to be small because the lands are not challenging the November 2004, Western Riverside County MSHCP; (2) under Federal ownership and any approval for a General Plan the Villages of La Costa HCP; (3) the Federal agency proposing a Federal Amendment, Zone Change and City of Carlsbad HMP; (4) the City of action on these 4,883 ac (1,976 ha) of Development Agreement issued by the Oceanside HMP (pending); and (5) the non-Federal lands would likely consider County of Orange for Rancho Mission Orange County Southern Subregion the conservation value of these lands as Viejo’s Ranch Plan, a comprehensive NCCP/HCP (pending). identified in the approved and pending land use and open space plan for the HCPs and the Settlement Agreement (1) Benefits of Inclusion remaining 22,815 acres of undeveloped and take the necessary steps to avoid land owned by Rancho Mission Viejo, in Overall, we believe that there is jeopardy or the destruction or adverse Orange County. Rancho Mission Viejo’s minimal benefit from designating modification of critical habitat. Ranch Plan is integral to the pending critical habitat for Brodiaea filifolia The areas excluded as critical habitat Orange County Southern Subregion within the Western Riverside County include vegetation communities NCCP/HCP, currently in development. MSHCP, the Villages of La Costa HCP, supporting Brodiaea filifolia and an area We are excluding from critical habitat the City of Carlsbad NCCP/HCP, the City 820 ft (250 m) around each occurrence designation a total of approximately 899 of Oceanside HMP (pending), and the to provide for pollinator movement and ac (364 ha) of land owned by Rancho Orange County Southern Subregion habitat. If these areas were designated as Mission Viejo in subunits 4c (Can˜ ada NCCP/HCP (pending) because, as critical habitat, any actions with a Gobernadora/Chiquita Ridgeline) and 4g explained above, almost all of the Federal nexus, such as the issuance of (Cristianitos Canyon). Conservation significant occurrences of B. filifolia are a permit under section 404 of the Clean identified in the Settlement Agreement already protected and managed or will Water Act, which might adversely affect assures that significant occurrences of be protected and managed for the long- the critical habitat would require a Brodiaea filifolia will be preserved, term conservation of the species. Below consultation with us, as explained including a major occurrence of over we discuss benefits of inclusion of these previously, in the ‘‘Effects of Critical 4,000 plants in subunit 4c. Within lands. Habitat Designation’’ section. However, subunit 4c, only small occurrences A benefit of including an area within inasmuch as portions of these areas (generally less than 100 plants) are a critical habitat designation is the currently support B. filifolia, slated for development. Subunit 4g protection provided by section 7(a)(2) of consultation for Federal activities which (Cristianitos Canyon) is primarily the Act that directs Federal agencies to might adversely impact the species conserved as open space under the ensure that their actions do not result in would be required even without the Settlement Agreement. Rancho Mission the destruction or adverse modification critical habitat designation. For the Viejo is allowed to establish and of critical habitat. The designation of surrounding areas that may lack maintain 50 ac (20 ha) of orchards in critical habitat and the analysis to individual plants (i.e., areas not this subunit in areas that may impact determine if the proposed Federal occupied by B. filifolia), the Federal some small occurrences of Brodiaea action may result in the destruction or action agency would need to determine filifolia. The orchards will be consistent adverse modification of critical habitat if the proposed action would affect the with the location of, or criteria for for Brodiaea filifolia may provide a species rather than determining whether location of, the orchards established by different level of protection under the proposed action would cause an approved NCCP or, in the absence of section 7(a)(2) of the Act that is separate destruction or adverse modification of an approved NCCP, located to avoid from the obligation of a Federal agency critical habitat. A potential benefit of sensitive species and habitats. The to ensure that their actions are not likely critical habitat would be to signal the Settlement Agreement also calls for the to jeopardize the continued existence of importance of the surrounding areas not establishment of a long-term funding B. filifolia. Under the Gifford Pinchot occupied by B. filifolia to Federal program for management and oversight decision, critical habitat designations agencies and to ensure their actions do of all defined open space areas placed may provide greater benefits to the not result in the destruction or adverse under conservation easements. recovery of a species than was modification of critical habitat pursuant We are also excluding approximately previously believed, but it is not to section 7(a)(2) of the Act. However, 259 ac (105 ha) within subunit 4b possible to quantify this benefit at approved and pending HCPs because (Casper’s Wilderness Park) in the City of present. However, the protection almost all of the significant occurrences San Juan Capistrano under 4(b)(2) of the provided under section 7(a)(2) of the of B. filifolia are protected and managed Act. Lands within this unit support an Act is still a limitation on the harm that or will be protected and managed for the occurrence of Brodiaea filifolia of about occurs to the species or critical habitat long-term benefit of the species. Thus,
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the approved and draft HCPs provide or Impact Report under CEQA. A major regulation. The court, relying on the will provide a greater level of protection commitment to the conservation CFR definition of adverse modification, and management for B. filifolia than the presented in the Settlement Agreement required the Service to determine simple avoidance of adverse effects to has been made public through media whether recovery was adversely critical habitat. outreach. In addition, the Settlement affected. The Gifford Pinchot decision If these areas were included as critical Agreement and revisions made to the arguably made it easier to reach an habitat, primary constituent elements Ranch Plan Development Agreement are ‘‘adverse modification’’ finding by would be protected from destruction or now being incorporated into the draft reducing the harm, affecting recovery, adverse modification by Federal actions documents for the Orange County rather than the survival of the species. using a conservation standard based on Southern Subregion NCCP/HCP. The However, there is an important the Ninth Circuit Court’s decision in planning process for this regional distinction: Section 7(a)(2) limits harm Gifford Pinchot. This requirement NCCP/HCP has been ongoing for several to the species either through jeopardy or would be in addition to the requirement years and has included significant destruction or adverse modification that proposed Federal actions avoid scoping and planning workshops with analyses. It does not require positive likely jeopardy to the species’ continued opportunity for public comment. The improvements or enhancement of the existence. However, for those areas Settlement Agreement has now species status. Thus, any management supporting Brodiaea filifolia, provided the impetus for the County of plan which considers enhancement or consultation for activities which may Orange, local jurisdictions, and Rancho recovery as the management standard adversely affect the species would be Mission Viejo to complete the Southern will almost always provide more benefit required, even without the critical Subregion NCCP/HCP. While the Draft than the critical habitat designation. habitat designation. HCP/EIS has not yet been released for (2) Benefits of Exclusion In Sierra Club v. Fish and Wildlife public review, major portions of the Service, 245 F.3d 434 (5th Cir. 2001), document, including the conservation As mentioned above, the Western the Fifth Circuit Court of Appeals stated analysis sections are complete, and the Riverside County MSHCP, the Villages that the identification of habitat Service and the CDFG are coordinating of La Costa HCP, the City of Carlsbad essential to the conservation of the efforts to review the document. Thus, HMP, the pending City of Oceanside species can provide informational the Settlement Agreement and status of HMP, and the pending Orange County benefits to the public, State and local the preliminary Draft HCP/EIS provide Southern Subregion NCCP/HCP and governments, scientific organizations, us with reasonable assurance that this associated Settlement Agreement and Federal agencies. The court also significant regional plan will be provide for the conservation of Brodiaea noted that heightened public awareness completed. filifolia through avoidance, of the plight of listed species and their The pending City of Oceanside HMP minimization, and/or mitigation of habitats may facilitate conservation has a similar status to the Orange impacts, management of habitat, and efforts. The inclusion of an area as County Southern Subregion NCCP/HCP, maintenance of watershed. These HCPs critical habitat may focus and contribute in that a conservation strategy for and the Settlement Agreement provide to conservation efforts by other parties Brodiaea filifolia has been agreed to and or will provide for protection of the by clearly delineating areas of high the planning documents, while not yet PCEs for B. filifolia and address special conservation values for certain species. released for public review, are well management needs such as maintenance However, we believe that this underway. In addition, the Oceanside of clay soils and hydrology. Designation educational benefit has largely been HMP is a Subarea Plan under the of critical habitat would therefore not achieved for Brodiaea filifolia by the MHCP, which underwent public review provide as great a benefit to the species public outreach and environmental through a joint CEQA/NEPA process; as the positive management measures in impact reviews required under the based on this, and the cooperation and these HCPs and the Settlement National Environmental Policy Act efforts of the City of Oceanside to Agreement. (NEPA) for the Western Riverside support the goals of the overarching The benefits of excluding lands County MSHCP, the Villages of La Costa MHCP, we have reasonable assurance within HCPs from critical habitat HCP, the Northwestern San Diego that the City of Oceanside HMP will be designation include relieving County MHCP, and the City of Carlsbad completed. landowners, communities, and counties HMP and the recognition by the County In addition there has been public of any additional regulatory burden that of Riverside et al., Fieldstone/La Costa notice and opportunity for comment on might be imposed by a critical habitat Associates, the City of Carlsbad, the City this proposal, which identified lands designation consistent with the of Oceanside, the County of Orange, and eligible for designation as critical conservation standard based on the Rancho Mission Viejo of the presence of habitat, and the economic analysis for Ninth Circuit Court’s decision in Gifford B. filifolia and the value of their lands the proposal, which also identified Pinchot. Many HCPs, particularly large for the conservation and recovery of the those lands. Consequently, we believe regional HCPs, such as the Orange species. There would be little additional that the informational benefits are County Southern Subregion NCCP/HCP, informational benefit gained from already provided even though these take many years to develop and, upon including these lands as critical habitat areas are not designated as critical completion, become regional because of the level of information that habitat. conservation plans that are consistent has been made available to the public as For 30 years prior to the Ninth Circuit with the recovery objectives for listed part of these regional planning efforts. Court’s decision in Gifford Pinchot, the species that are covered within the plan Similarly, while the Settlement Fish and Wildlife Service equated the area. Additionally, many of these HCPs Agreement was not open to public jeopardy standard with the standard for provide conservation benefits to comment, it results from an application destruction or adverse modification of unlisted, sensitive species. Imposing an requesting a General Plan Amendment, critical habitat. However, in Gifford additional regulatory review after an Zone Change and Approval of a Pinchot the court noted the government, HCP is completed solely as a result of Development Agreement that was by simply considering the action’s the designation of critical habitat may subject to extensive public review survival consequences, was reading the undermine conservation efforts and through circulation of an Environmental concept of recovery out of the partnerships in many areas. In fact, it
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could result in the loss of species’ critical habitat has already been of conservation provided to B. filifolia benefits if participants abandon the designated within the proposed plan under the approved Western Riverside voluntary HCP process because the area, it will determine if the HCP County MSHCP, the Villages of La Costa critical habitat designation may result in jeopardizes the species in the plan area. HCP, and the City of Carlsbad HMP; the additional regulatory requirements than In addition, Federal actions within the pending City of Oceanside HMP; and are faced by other parties who have not HCP plan areas that may affect listed the pending Orange County Southern voluntarily participated in species species would still require consultation Subregion NCCP/HCP and associated conservation. Designation of critical under section 7 of the Act. HCPs Settlement Agreement (conservation of habitat within the boundaries of typically provide for greater occupied and potential habitat, approved HCPs could be viewed as a conservation benefits to a covered monitoring, and maintenance of soils disincentive to those entities currently species than section 7 consultations and hydrology). In contrast, the benefits developing HCPs or contemplating them because HCPs assure the long-term of excluding these 4,883 ac (1,976 ha) of in the future. protection and management of a covered non-Federal lands as critical habitat are The signed Settlement Agreement species and its habitat, and funding for increased because of the high level of represents a similar commitment to the such management through the standards cooperation by the County of Riverside conservation of Brodiaea filifolia as found in the 5 Point Policy for HCPs (64 et al., Fieldstone/La Costa Associates, would be found in Draft NCCP/HCP FR 35242) and the HCP ‘‘’No Surprises’’’ the City of Carlsbad, the City of documents. The Settlement Agreement regulation (63 FR 8859). Such Oceanside, the County of Orange, is integral to completion of the Orange assurances are typically not provided by Rancho Mission Viejo, the State of County Southern Subregion NCCP/HCP. section 7 consultations that, in contrast California, and the Service to conserve We believe designating critical habitat to HCPs, often do not commit the this species, and these partnerships within the area covered by the signed project proponent to long-term special exceed any conservation value provided Settlement Agreement would be viewed management or protections. Thus, a by a critical habitat designation. as a disincentive. Similarly, designating consultation typically does not accord (4) Exclusion Will Not Result in critical habitat within park lands the lands it covers the extensive benefits Extinction of the Species designated as wilderness and owned an HCP provides. The development and and managed by the County of Orange, implementation of HCPs provide other We believe that exclusion of these a major sponsor of the Orange County important conservation benefits, 4,883 ac (1,976 ha) of non-Federal lands Southern Subregion NCCP/HCP, would including the development of biological will not result in extinction of Brodiaea be viewed as a disincentive to information to guide the conservation filifolia since most of these lands are completing their regional plan. efforts and assist in species conservation protected and managed or will be Another benefit from excluding these and the creation of innovative solutions protected and managed for the benefit of lands is to maintain the partnerships to conserve species while allowing for this species pursuant to the approved developed during the planning phase development. Western Riverside County MSHCP, the through the implementing phases of the Villages of La Costa HCP, and the City HCPs. Instead of using limited funds to (3) Benefits of Exclusion Outweigh the of Carlsbad HMP; the pending City of comply with administrative Benefits of Inclusion Oceanside HMP; and the pending consultation and designation We have reviewed and evaluated the Orange County Southern Subregion requirements which cannot provide exclusion of critical habitat for Brodiaea NCCP/HCP and the associated protection beyond what is currently in filifolia from approximately 4,883 ac Settlement Agreement. These approved place, the partners could instead use (1,976 ha) of non-Federal lands within and pending HCPs and the Settlement their limited funds for the conservation the approved Western Riverside County Agreement include specific of this species. A related benefit of MSHCP, the Villages of La Costa HCP, conservation objectives, avoidance and excluding lands within HCPs from and the City of Carlsbad HMP, and the minimization measures, and critical habitat designation is the pending City of Oceanside HMP and management that exceed any unhindered, continued ability to seek pending Orange County Southern conservation value provided as a result new partnerships with future HCP Subregion NCCP/HCP with its of a critical habitat designation. participants including States, Counties, associated Settlement Agreement. Based Some small occurrences of Brodiaea local jurisdictions, conservation on this evaluation, we find that the filifolia within approximately 311 ac organizations, and private landowners, benefits of exclusion (avoid increased (ha) of privately owned lands in subunit which together can implement regulatory costs which could result from 4c (Gobernadora/Chiquita Ridgeline) are conservation actions that we would be including those lands in this proposed for development as part of unable to accomplish otherwise. If lands designation of critical habitat, ensure Rancho Mission Viejo’s development within HCP plan areas are designated as the willingness of existing partners to plan. These lands are covered by the critical habitat, it would likely have a continue active conservation measures, signed Settlement Agreement. Any negative effect on our ability to establish maintain the ability to attract new Federal Agency authorizing an action to new partnerships to develop HCPs, partners, and direct limited funding to develop these lands (e.g., USCOE) particularly large, regional HCPs that conservation actions with partners) of would likely consider the conservation involve numerous participants and the lands containing features essential actions in the Settlement Agreement as address landscape-level conservation of to the conservation of the Brodiaea appropriate mitigation for loss of B. species and habitats. By excluding these filifolia within these lands outweigh the filifolia habitat. We believe the loss of lands, we preserve our current benefits of inclusion (limited these small occurrences of this species partnerships and encourage additional educational and regulatory benefits, is not likely to result in extinction of the conservation actions in the future. which are largely otherwise provided species). Likewise, the approximately Furthermore, an HCP or NCCP/HCP for under the HCPs) of these lands as 588 acres (238 ha) of privately owned application must itself be consulted critical habitat. The benefits of lands containing features essential to upon. While this consultation will not including these 4,883 ac (1,976 ha) of the conservation of B. filifolia in subunit look specifically at the issue of adverse non-Federal lands as critical habitat are 4g (Cristianitos Canyon) will be modification to critical habitat, unless lessened because of the significant level protected and managed by Rancho
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Mission Viejo as stipulated in the to consider the economic and other since the time that Brodiaea filifolia was Settlement Agreement. This level of relevant impacts of designating a listed as threatened (63 FR 54975; protection will occur as a result of the particular area as critical habitat. We October 13, 1998), but prior to the Settlement Agreement and thus may exclude areas from critical habitat designation of critical habitat. Total pre- regardless of whether these lands are upon a determination that the benefits designation costs associated with lands excluded as critical habitat. The of such exclusions outweigh the benefits proposed as critical habitat are occurrence of B. filifolia in subunit 4b of specifying such areas as critical estimated to be $2.9 million to $3.0 (Casper’s Wilderness Park) is protected habitat. We cannot exclude such areas million on a present value basis and and is within the pending Orange from critical habitat when such $2.4 million to $2.5 million expressed County Southern Subregion NCCP/HCP exclusion will result in the extinction of in undiscounted dollars. Pre- plan boundary. Thus, we believe that the species concerned. designation costs associated with areas exclusion of this occurrence as critical Following publication of the proposed excluded from the proposed designation habitat will not result in extinction of critical habitat rule, an analysis of the are estimated to be $110,000 to $180,000 the species. economic impacts of proposed critical on a present value basis and $100,000 In our Biological and Conference habitat for Brodiaea filifolia was to $150,000 expressed in undiscounted Opinions for the issuance of a section prepared. The notice of availability dollars. 10(a)(1)(B) permit for the Western (NOA) of a draft economic analysis Post-designation effects would Riverside County MSHCP, the Villages (DEA) was announced in the Federal include likely future costs associated of La Costa HCP, and the City of Register on October 6, 2005 (70 FR with Brodiaea filifolia conservation Carlsbad HMP, the Service concluded 58361). Copies of the draft economic efforts in the 20-year period following that the proposed permit issuances analysis were available for downloading the final designation of critical habitat would not appreciably reduce the from the Internet at http:// (effectively 2005 through 2024). If likelihood of the survival and recovery carlsbad.fws.gov, or by contacting the critical habitat were designated as of Brodiaea filifolia because of the Carlsbad Fish and Wildlife Office proposed, total costs were estimated to avoidance and minimization measures, directly. In the NOA, we announced the be $12.2 million to $14.7 million on a long-term management, and reopening of the comment period on present value basis and $12.2 million to commitment to a preserve system. The proposed critical habitat and solicited $16.9 million expressed in jeopardy standard of section 7 and public review and comment. We undiscounted dollars (an annualized routine implementation of habitat accepted comments until October 20, cost of $0.6 to $0.8 million annually). If conservation through the section 7 2005. all habitat with features essential to the process also provide assurances that the The primary purpose of the economic conservation of the species were species will not go extinct. The analysis is to estimate the potential designated critical habitat in this final exclusion leaves these protections economic impacts associated with the rule, total costs would be expected to unchanged from those that would exist designation of critical habitat for range between $24.5 and $43.6 million if the excluded areas were designated as Brodiaea filifolia. This information is over the next 20 years (an annualized critical habitat. Critical habitat is being intended to assist the Secretary in cost of $1.2 to $2.2 million). However, designated for B. filifolia in other areas making decisions about whether the due to significant reductions made to that will be accorded the protection benefits of excluding particular areas critical habitat in this final rule (see from adverse modification by Federal from the designation outweigh the ‘‘Summary of Changes from Proposed benefits of including those areas in the actions using the conservation standard Rule’’), the estimated costs for the units designation. The economic analysis based on the Ninth Circuit Court’s actually designated are estimated to considers the economic efficiency decision in Gifford Pinchot. range between $1.0 and $3.3 million Additionally, the major occurrences effects that may result from the over the next 20 years expressed in of Brodiaea filifolia within the Western designation, including habitat undiscounted dollars. Riverside County MSHCP, the Villages protections that may be coextensive The final economic analysis and of La Costa HCP, the City of Carlsbad with the listing of the species. It also supporting documents are included in HMP, and the pending Oceanside HMP addresses distribution of impacts, our administrative record and may be and within lands covered by the including an assessment of the potential obtained by contacting U.S. Fish and Settlement Agreement and within effects on small entities and the energy Wildlife Service, Branch of Endangered Casper’s Wilderness Park are or will be industry. This information can be used Species (see ADDRESSES section) or for protected and managed either explicitly by the Secretary to assess whether the downloading from the Internet at for the species or indirectly through effects of the designation might unduly http://carlsbad.fws.gov. more general objectives to protect burden a particular group or economic natural values. These factors, acting in sector. Required Determinations concert with the other protections This analysis determined that costs Regulatory Planning and Review provided under the Act, lead us to find involving conservation measures for that exclusion of these 4,883 ac (1,976 Brodiaea filifolia would be incurred for In accordance with Executive Order ha) within lands owned by the County activities involving residential, 12866, this document is a significant of Orange and Rancho Mission Viejo industrial, and commercial rule in that it may raise novel legal and and within the Western Riverside development; water supply; flood policy issues. However, because the County MSHCP, the Villages of La Costa control; transportation; agriculture; the draft economic analysis indicates the HCP, the City of Carlsbad HMP, and the development of HCPs; and the potential economic impact associated pending City of Oceanside HMP will not management of military bases, other with a designation of all habitat with result in extinction of B. filifolia. Federal lands, and other public or features essential to the conservation of conservation lands. this species would total no more than Economic Analysis Pre-designation costs include those $24.5 million to $43.6 million over the Section 4(b)(2) of the Act requires us Brodiaea filifolia-related conservation nest 20 years (an annualized cost of $1.2 to designate critical habitat on the basis activities associated with sections 4, 7, million to $2.2 million), we do not of the best scientific data available and and 10 of the Act that have accrued anticipate that this final rule will have
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an annual effect on the economy of $100 particular types of economic activities these five entities are small businesses million or more or affect the economy (e.g., residential, industrial, and or governments as defined by SBA and, in a material way. Due to the time line commercial development). We therefore, are not considered further in for publication in the Federal Register, considered each industry or category this screening analysis. 3. Public and the Office of Management and Budget individually to determine if certification conservancy lands management: The (OMB) did not formally review the is appropriate. In estimating the United States Forest Service manages proposed rule. numbers of small entities potentially Cleveland National Forest; Orange The availability of the draft economic affected, we also considered whether County’s Department of Harbors, analysis was announced in the Federal their activities have any Federal Beaches and Parks manages Aliso-Wood Register on October 6, 2005 (70 FR involvement; some kinds of activities Canyon Regional Park and Casper’s 58361), and was made available for are unlikely to have any Federal Regional Park; and the Glendora public review and comment. involvement and so will not be affected Community Conservancy manages the Regulatory Flexibility Act (5 U.S.C. 601 by the designation of critical habitat. Conservancy of the same name. With et. seq.) Designation of critical habitat only the exception of the Glendora affects activities conducted, funded, Community Conservancy, these entities Under the Regulatory Flexibility Act permitted, or authorized by Federal exceed the threshold established for (5 U.S.C. 601 et seq., as amended by the agencies; non-Federal activities are not small governments (service population Small Business Regulatory Enforcement affected by the designation. of 50,000 or less). Accordingly, this Fairness Act (SBREFA) of 1996), The designation of critical habitat screening analysis focuses on economic whenever an agency is required to requires Federal agencies to consult impacts related to residential publish a notice of rulemaking for any with us if activities they authorize, development and the management of proposed or final rule, it must prepare fund, or carry out may affect designated Glendora Community Conservancy. and make available for public comment critical habitat. Consultations to avoid The final critical habitat designation a regulatory flexibility analysis that the destruction or adverse modification is expected to result in additional costs describes the effects of the rule on small of critical habitat would be incorporated to real estate development projects due entities (i.e., small businesses, small into the existing consultation process. to mitigation and other conservation organizations, and small government Our analysis determined that costs costs that may be required. The affected jurisdictions). However, no regulatory involving conservation measures for land is located within Los Angeles, flexibility analysis is required if the Brodiaea filifolia would be incurred for Orange, and San Diego counties and head of the agency certifies the rule will activities involving residential, under private ownership by individuals not have a significant economic impact industrial, and commercial who will either undertake a on a substantial number of small development; water supply; flood development project on their own or entities. control; transportation; agriculture; the sell the land to developers for According to the Small Business development of HCPs; and the development. For businesses involved Administration (SBA), small entities management of military bases, other with land development, the relevant include small organizations, such as Federal lands, and other public or threshold for ‘‘small’’ is annual independent nonprofit organizations, conservation lands. revenues of $6 million or less. The and small governmental jurisdictions, In our draft economic analysis of this North American Industry Classification including school boards and city and designation, we evaluated the potential System (NAICS) code 237210 is town governments that serve fewer than economic effects on small business comprised of establishments primarily 50,000 residents, as well as small entities resulting from conservation engaged in servicing land (e.g., businesses (13 CFR 121.201). Small actions related to the listing of this excavation, installing roads and businesses include manufacturing and species and proposed designation of its utilities) and subdividing real property mining concerns with fewer than 500 critical habitat. Of these potentially into lots for subsequent sale to builders. employees, wholesale trade entities affected activities, impacts to small Land subdivision precedes actual with fewer than 100 employees, retail entities are not anticipated for the construction, and typically includes and service businesses with less than $5 following reasons: 1. Military lands residential properties, but may also million in annual sales, general and management: The analysis predicts that include industrial and commercial heavy construction businesses with less the Department of Defense (DoD), which properties. than $27.5 million in annual business, manages Marine Corps Base Camp The DEA (See Section 3.2.1) estimates special trade contractors doing less than Pendleton (EH units 15 to 19), will that 390 acres within areas originally $11.5 million in annual business, and experience administrative and project proposed for critical habitat designation agricultural businesses with annual modification costs associated with are projected to be developed over the sales less than $750,000. To determine Brodiaea filifolia conservation activities. next 20 years. The analysis assumes that if potential economic impacts to these DoD does not meet SBA’s definition of as a result of Brodiaea filifolia small entities are significant, we a small government. 2. Transportation, conservation activities, 95 percent of the considered the types of activities that utilities, and flood control: The analysis acres are conserved, and the plant is might trigger regulatory impacts under estimates that additional project salvaged from the remaining five this designation as well as types of modification costs associated with B. percent. As a result, landowners of 100 project modifications that may result. In filifolia conservation activities are likely percent of these acres bear costs of B. general, the term significant economic for transportation project undertaken by filifolia conservation activities. impact is meant to apply to a typical CALTRANS, the Transportation To estimate the number of small business firm’s business Corridor Agencies (TCA), and the landowners potentially impacted by B. operations. Riverside County Transportation filifolia conservation activities, the To determine if this rule to designate Commission, utility projects undertaken analysis estimates the average parcel critical habitat for Brodiaea filifolia by San Diego Gas & Electric, and the San size within proposed units/subunits in would affect a substantial number of Jacinto River Flood Control Project of each county that contains habitat with small entities, we considered the the Riverside County Flood Control and features essential to the conservation of number of small entities affected within Water Conservation District. None of the species and compares it to the
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estimate of affected acres in these areas. proposed for designation (summarized Diego counties. Please refer to Appendix At the aggregate county level, in units in Exhibit A–2 of the DEA). In an A of our draft economic analysis of this proposed for inclusion, one individual analysis of building permits in designation for a more detailed may be impacted in Los Angeles Sacramento County conducted by CRA, discussion of potential economic County, one individual may be researchers determined that 22 percent impacts to small business entities. impacted in San Bernardino County, 22 of permits for single family dwellings Executive Order 13211 individuals may be impacted in Orange were requested by small businesses. County, and 27 individuals may be This analysis assumes that a similar On May 18, 2001, the President issued impacted in San Diego County. Note proportion of new home construction Executive Order (E.O.) 13211 on that this estimate may be understated if activity is conducted by small regulations that significantly affect habitat partially overlaps several parcels construction firms in the five Southern energy supply, distribution, and use. or overstated if one person owns more California counties included in this E.O. 13211 requires agencies to prepare than one parcel with B. filifolia. analysis. As shown in Exhibit A–2 of Statements of Energy Effects when The loss in land value experienced by the DEA, multiplying 22 percent by the undertaking certain actions. This rule is an individual landowner will depend number of homes not built in each considered a significant regulatory on how much of a parcel is inhabited by county provides an estimate of lost action under E.O. 12866 because it Brodiaea filifolia, the extent to which home construction for small firms. raises novel legal and policy issues, but development activities can be planned (3) Next, using the number of homes it is not expected to significantly affect around sensitive areas, and the not built by small firms, the analysis energy supplies, distribution, or use. existence of alternative uses of the estimates the number of small Therefore, this action is not a significant property that do not threaten the plant businesses affected. Results of this action, and no Statement of Energy or its habitat. For example, if B. filifolia calculation are presented in Exhibit Effects is required. Please refer to exist on only a small portion of the A–2. At the high-end, assuming that Appendix A of our draft economic parcel that can be incorporated into each lost house would have been built analysis of the proposed designation for existing open space requirements, then by a separate firm, the number of firms a more detailed discussion of potential a small percentage of the land value is potentially affected is equal to the effects on energy supply. lost. However, if B. filifolia are found number of lost homes. For a low-end Unfunded Mandates Reform Act (2 throughout the parcel, most or all of estimate, the number of houses not built U.S.C. 1501 et seq.) development value of that parcel may be is divided by the average number of lost. In such a circumstance, the parcel houses built per year by small firms In accordance with the Unfunded may continue to derive value from (three houses). In summary, in a given Mandates Reform Act (2 U.S.C. 1501), other, nondevelopment-oriented uses. municipality containing critical habitat, the Service makes the following between one and 18 small construction findings: Effects on Homebuyers and Small firms may be affected annually by (a) This rule will not produce a Construction Firms Brodiaea filifolia conservation activities. Federal mandate. In general, a Federal The DEA (See Section 3.2.2) estimates In Hemet, Moreno Valley, and Perris, mandate is a provision in legislation, a potential shift in the supply of where habitat is excluded from critical statute, or regulation that would impose housing resulting from increased land habitat, approximately nine to 82 small an enforceable duty upon State, local, scarcity. Scenario Two assumes that as firms could be affected if habitat were tribal governments, or the private sector a result of on-site conservation designated. The impact to affected small and includes both ‘‘Federal requirements, less land is available for businesses is estimated to be between intergovernmental mandates’’ and development, and therefore fewer new one-third and all of their revenues for ‘‘Federal private sector mandates.’’ homes are built. Under this scenario, the year, depending on the estimate of These terms are defined in 2 U.S.C. small construction firms may be the number of businesses affected. Note 658(5)–(7). ‘‘Federal intergovernmental indirectly affected. This analysis uses a that the impact to small construction mandate’’ includes a regulation that methodology used by Charles River firms may be overstated. As discussed ‘‘would impose an enforceable duty Associates (CRA) to estimate the in Section 3 of the DEA, the analysis of upon State, local, or tribal governments’’ potential impact to small construction lost housing units is partial equilibrium with two exceptions. It excludes ‘‘a firms. The analysis uses the following in nature (e.g., does not consider condition of federal assistance.’’ It also steps to estimate the number of firms substitution of displaced development excludes ‘‘a duty arising from potentially affected: to other nearby areas), which is participation in a voluntary Federal (1) The analysis estimates the number consistent with the best currently program,’’ unless the regulation ‘‘relates of new homes typically built by a small available empirical information. If, to a then-existing Federal program construction firm in one year. Average instead, homes not built in these under which $500,000,000 or more is annual revenues for a small municipalities are constructed in provided annually to State, local, and construction firms are $694,000. Using neighboring communities unaffected by tribal governments under entitlement the average construction costs for a B. filifolia conservation activities, the authority,’’ if the provision would single family home of $236,000 obtained impact to small construction firms is ‘‘increase the stringency of conditions of from CRA’s vernal pool analysis, a small likely to be less than presented in assistance’’ or ‘‘place caps upon, or firm is assumed to build on average Exhibit A–2. As a result, impacts to otherwise decrease, the Federal three houses a year ($694,000/$236,000 these firms are more likely overstated Government’s responsibility to provide = 2.9). than understated in this analysis. funding’’ and the State, local, or tribal (2) Next, the analysis estimates the Based on these data, we have governments ‘‘lack authority’’ to adjust number of homes that would have been determined that this designation will accordingly. At the time of enactment, built by small businesses in the absence not result in a significant economic these entitlement programs were: of Brodiaea filifolia conservation efforts. impact on a substantial number of small Medicaid; AFDC work programs; Child As described in Section 3.2.2 of the entities, in particular to land developers Nutrition; Food Stamps; Social Services DEA, the analysis predicts 316 homes or farmers in Los Angeles, San Block Grants; Vocational Rehabilitation will not be built in cities with habitat Bernardino, Orange, Riverside, and San State Grants; Foster Care, Adoption
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Assistance, and Independent Living; costs associated with Brodiaea filifolia the Endangered Species Act. The rule Family Support Welfare Services; and conservation activities at the uses standard property descriptions and Child Support Enforcement. ‘‘Federal Conservancy may range from $1,600 to identifies the primary constituent private sector mandate’’ includes a $2,600 on an annualized basis elements within the designated areas to regulation that ‘‘would impose an (assuming a seven percent discount assist the public in understanding the enforceable duty upon the private rate). These costs represent habitat needs of Brodiaea filifolia. sector, except (i) a condition of Federal approximately 11 percent to 17 percent assistance; or (ii) a duty arising from of annual expenditures assuming the Paperwork Reduction Act of 1995 (44 participation in a voluntary Federal low-end estimate of the annual budget U.S.C. 3501 et seq.) program.’’ ($15,000) and 5 percent to 9 percent This rule does not contain new or The designation of critical habitat assuming the high-end estimate revised information collections for does not impose a legally binding duty ($30,000). Considering that the Glendora which OMB approval is required under on non-Federal government entities or Community Conservancy is in the the Paperwork Reduction Act. private parties. Under the Act, the only business of conservation this is not an Information collections associated with regulatory effect is that Federal agencies unexpected expenditure for the certain Act permits are covered by an must ensure that their actions do not Conservancy. Consequently, we do not existing OMB approval and are assigned destroy or adversely modify critical believe that the designation of critical OMB Control No. 1018–0094, which habitat under section 7. Non-Federal habitat for B. filifolia will significantly expires September 30, 2007. This entities that receive Federal funding, or uniquely affect any small includes FWS Forms 3–200–55 and 3– assistance, permits, or otherwise require governmental entity addressed in the 200–56. This rule will not impose approval or authorization from a Federal DEA. As such, a Small Government recordkeeping or reporting requirements agency for an action, may be indirectly Agency Plan is not required. on State or local governments, impacted by the designation of critical Federalism individuals, businesses, or habitat. However, the legally binding organizations. An agency may not In accordance with Executive Order duty to avoid destruction or adverse conduct or sponsor, and a person is not 13132, this rule does not have modification of critical habitat rests required to respond to, a collection of significant Federalism effects and, squarely on the Federal agency. information unless it displays a therefore, a Federalism assessment is Furthermore, to the extent that non- currently valid OMB control number. Federal entities are indirectly impacted not required. In keeping with because they receive Federal assistance Department of the Interior policies, we National Environmental Policy Act or participate in a voluntary Federal aid requested information from, and It is our position that, outside the program, the Unfunded Mandates coordinated the development of the Tenth Circuit, we do not need to Reform Act would not apply; nor would proposed critical habitat designation prepare environmental analyses as critical habitat shift the costs of the large with appropriate State resource agencies defined by the NEPA in connection with entitlement programs listed above on to in California. We anticipate that the designating critical habitat under the State governments. designation of critical habitat in the (b) The U.S. Forest Service manages areas currently occupied by Brodiaea Endangered Species Act of 1973, as Angeles National Forest and Cleveland filifolia will impose no additional amended. We published a notice National Forest (subunits 1b, 5a and 5b); significant restrictions beyond those outlining our reasons for this Orange County’s Department of Harbors, currently in place and, therefore, should determination in the Federal Register Beaches and Parks manages Aliso and have little incremental impact on State on October 25, 1983 (48 FR 49244). This Woods Canyon Regional Park (unit 3) and local governments and their assertion was upheld in the courts of the and Casper Wilderness Park (unit 4); activities. Ninth Circuit (Douglas County v. and the Glendora Community The designation of critical habitat Babbitt, 48 F.3d 1495 (9th Cir. Ore. Conservancy manages the Conservancy may have some benefit to the State and 1995), cert. denied 116 S. Ct. 698 (subunit 1a) of the same name. With the local resource agencies in that the areas (1996)). exception of the Glendora Community and features essential to the Government-to-Government Conservancy, these entities exceed the conservation of this species are more Relationship With Tribes threshold established for small clearly defined, and the primary governments (service population of constituent elements of the habitat In accordance with the President’s 50,000 or less). Therefore, the Glendora necessary to the conservation of this memorandum of April 29, 1994, Community Conservancy is the only species are specifically identified. While ‘‘Government-to-Government Relations land manager considered in this this definition and identification does with Native American Tribal screening analysis. not alter where and what federally Governments’’ (59 FR 22951), Executive The DEA (See Section 6) estimates sponsored activities may occur, it may Order 13175, and the Department of the potential costs to public and private assist local governments in long-range Interior’s manual at 512 DM 2, we land management entities. Of the planning (rather than waiting for case- readily acknowledge our responsibility entities analyzed, the Glendora by-case section 7 consultations to to communicate meaningfully with Community Conservancy is the only occur). recognized Federal Tribes on a small entity. This section estimates government-to-government basis. We potential impacts of Brodiaea filifolia Civil Justice Reform have determined that there are no tribal conservation activities to the In accordance with Executive Order lands essential for the conservation of Conservancy. 12988, the Department of the Interior=s Brodiaea filifolia. Therefore, critical The Conservancy’s overall annual Office of the Solicitor has determined habitat has not been designated on budget ranges from $15,000 to $30,000 that this rule does not unduly burden Tribal lands. and includes such elements as the judicial system and does meet the References Cited insurance, discounted land taxes, weed requirements of sections 3(a) and 3(b)(2) abatement, and trail maintenance. The of the Order. We are designating critical A complete list of all references cited analysis estimates that potential future habitat in accordance with provisions of herein is available, upon request, from
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the Field Supervisor, Carlsbad Fish and recordkeeping requirements, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Wildlife Office (see ADDRESSES section). Transportation. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. Author Regulation Promulgation I 2. In § 17.12(h), revise the entry in the I This rule was prepared by staff at the Accordingly, the Service hereby table for ‘‘Brodiaea filifolia’’ under amends part 17, subchapter B of chapter Carlsbad Fish and Wildlife Office (see ‘‘FLOWERING PLANTS,’’ to read as I, title 50 of the Code of Federal ADDRESSES section). follows: Regulations, as set forth below: List of Subjects in 50 CFR part 17 § 17.12 Endangered and threatened plants. PART 17—[AMENDED] Endangered and threatened species, * * * * * I 1. The authority citation for part 17 Exports, Imports, Reporting and (h) * * * continues to read as follows:
Species Historic range Family Status When listed Critical Special Scientific name Common names habitat rules
FLOWERING PLANTS
******* Brodiaea filifolia ...... Thread-leaved U.S.A. (CA) ...... Liliaceae—Lily ...... T 650 17.96(a) NA. brodiaea.
*******
I 3. In § 17.96(a), add critical habitat for coastal sage scrub-chaparral freshwater marsh communities Brodiaea filifolia, in alphabetical order communities; or associated with intermittent drainages, under Family Liliaceae to read as (B) Silty loam soil series underlain by floodplains, and seeps generally follows: a clay subsoil or caliche that are between 1,800 ft (550 m) and 2,500 ft generally poorly drained, moderately to (765 m). § 17.96 Critical habitat—plants. strongly alkaline, granitic in origin (e.g., (ii) Areas with an intact surface and (a) Flowering plants. Domino, Grangeville, Waukena, subsurface structure not permanently * * * * * Willows), that generally occur in low- altered by anthropogenic land use Family Liliaceae: Brodiaea filifolia lying areas and floodplains, often in activities (e.g., deep, repetitive disking; (Thread-leaved brodiaea) association with vernal pool or playa grading). These features as well as (1) Critical habitat units are depicted complexes, between the elevations of associated physical processes (e.g., full for Brodiaea filifolia on the maps below. 600 ft (180 m) and 1,800 ft (550 m) and sunlight exposure) are essential to (2) The primary constituent elements support native, annual, or alkali maintain those substrate and vegetation of critical habitat for Brodiaea filifolia grassland or scrub communities; or types where Brodiaea filifolia is found consist of the following: (C) Clay loam soil series (e.g., and to support pollinator assemblages (i) Appropriate soil series and Murrieta) underlain by heavy clay loams necessary to facilitate gene flow within associated vegetation at suitable or clays derived from olivine basalt lava and among populations of B. filifolia. elevations of either: flows, that generally occur on mesas and (iii) Critical habitat does not include (A) Clay soil series of various origins gentle to moderate slopes between the existing features and structures, and the (e.g., Alo, Altamont, Auld, Diablo), clay elevations of 1,700 ft (520 m) and 2,500 land beneath them, such as open water, lenses found as unmapped inclusions in ft (765 m) and support native or annual buildings, roads, aqueducts, railroads, other soil series, or within loamy soils grassland or oak woodland savannah airport runways and buildings, other underlain by a clay subsoil (e.g., communities associated with basalt paved areas, lawns, and other urban Fallbrook, Huerhuero, Las Flores) that vernal pools; or landscaped areas not containing one or generally occur on mesas and gentle to (D) Sandy loam soils derived from more of the primary constituent moderate slopes, or in association with basalt and granodiorite parent materials, elements. vernal pools, between the elevations of deposits of gravel, cobble, and boulders, (3) Index map of critical habitat units 100 ft (30 m) and 2,500 ft (765 m) and or hydrologically fractured weathered for Brodiaea filifolia (Thread-leaved support open native or annual grassland granite in intermittent streams and brodiaea) follows: communities, open coastal sage scrub or seeps that support open riparian and BILLING CODE 4310–55–P
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(4) All map units are in the Universal (i) Subunit 1a: Glendora, Los Angeles 422000, 3779300; 422000, 3779500; Transverse Mercator (UTM) coordinate County, California; land bounded by the 421900, 3779500; 421900, 3779800; system, North American Datum of 1927 following UTM coordinates (E, N): 422000, 3779800; 422000, 3779900; (NAD27) projection. 422400, 3779900; 422400, 3779800; returning to 422400, 3779900. (5) Map Unit 1: Los Angeles, County, 422500, 3779800; 422500, 3779700; (ii) Map of critical habitat Subunit 1a 422600, 3779700; 422600, 3779300; California, from USGS 1:24,000 for Brodiaea filifolia (Thread-leaved 422400, 3779300; 422400, 3779200; quadrangle map Glendora California. brodiaea) follows: 422100, 3779200; 422100, 3779300;
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(iii) Subunit 1b: San Dimas; land 425400, 3777800; 425300, 3777800; 424900, 3778600; returning to 425300, bounded by the following UTM 425300, 3777700; 425200, 3777700; 3778600. coordinates (E, N): 425300, 3778600; 425200, 3777500; 424700, 3777500; (iv) Map of critical habitat Subunit 1b 425300, 3778500; 425400, 3778500; 424700, 3777600; 424600, 3777600; for Brodiaea filifolia (Thread-leaved 425400, 3778400; 425500, 3778400; 424600, 3778200; 424700, 3778200; brodiaea) follows: 425500, 3777900; 425400, 3777900; 424700, 3778500; 424900, 3778500;
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(6) Map Unit 5: Northern San Diego 464800, 3702700; 464900, 3702700; 3702000; 464900, 3702100; 465000, County, California, from USGS 1:24,000 464900, 3702600; 465000, 3702600; 3702100; returning to 465000, 3702200; quadrangle maps Margarita Peak, and returning to 465000, 3702200; and land and land bounded by 465272, 3702200; Fallbrook, California. bounded by 465000, 3702200; 465166, 465400, 3702200; 465400, 3702100; (i) Subunit 5b: Devil Canyon, San 3702200; 465160, 3701865; 465246, 465500, 3702100; 465500, 3702078; Diego County; land bounded by the 3701865; 465259, 3701960; 465500, 465261, 3702085; 465264, 3702184; following UTM coordinates (E, N): 3701955; 465500, 3701500; 465400, returning to 465272, 3702200. 465000, 3702200; 464800, 3702200; 3701500; 465400, 3701300; 465300, 464800, 3702100; 464500, 3702100; 3701300; 465300, 3701200; 464800, (ii) Map of critical habitat Subunit 5b 464500, 3702200; 464300, 3702200; 3701200; 464800, 3701300; 464700, for Brodiaea filifolia (Thread-leaved 464300, 3702700; 464400, 3702700; 3701300; 464700, 3701700; 464800, brodiaea), follows: 464400, 3702800; 464800, 3702800; 3701700; 464800, 3702000; 464900,
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(7) Map Unit 8: San Marcos, San 481905, 3666339; 481800, 3666382; 3665900; 481655, 3665990; 481635, Diego County, California, from USGS 481800, 3666400; 481758, 3666400; 3666053; 481622, 3666069; 481612, 1:24,000 quadrangle map San Marcos, 481540, 3666490; returning to 481588, 3666077; 481611, 3666077; 481600, California. 3666600; and land bounded by: 481765, 3666100; 481561, 3666100; 481401, (i) Subunit 8d: Upham; land bounded 3666200; 481800, 3666200; 481800, 3666167; 481454, 3666290; 481750, by the following UTM coordinates (E, 3666266; 481893, 3666230; 481892, 3666160; returning to 481765, 3666200. N): 481588, 3666600; 481600, 3666600; 3666214; 481890, 3666191; 481866, (ii) Map of critical habitat Subunit 8d 481600, 3666627; 481672, 3666791; 3666173; 481848, 3666144; 481729, for Brodiaea filifolia (Thread-leaved 482059, 3666627; 481935, 3666339; 3665850; 481700, 3665849; 481700, brodiaea) follows:
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Dated: November 30, 2005. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 05–23693 Filed 12–12–05; 8:45 am] BILLING CODE 4310–55–C
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Part III
Department of the Treasury Community Development Financial Institutions Fund
12 CFR Part 1805 Notices of Funding Opportunities; Notices Community Development Financial Institutions Program; Interim Rule
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DEPARTMENT OF THE TREASURY to review the Interim Rule. Detailed Applicants in the form of TA grants application content requirements are only. The Fund reserves the right to Community Development Financial found in the applicable funding award in excess of $25 million in Institutions Fund application and related guidance appropriated funds to Applicants (and/ materials. Each capitalized term in this or more or less than $2 million to Notice of Funds Availability (NOFA) NOFA is more fully defined in the Category I/SECA Applicants, and/or Inviting Applications for the FY 2006 Interim Rule, the application or the more or less than $21 million to Funding Round and the FY 2007 guidance materials. Category II/Core Applicants) in the FY Funding Round of the Community C. The Fund reserves the right to 2007 Funding Round, provided that the Development Financial Institutions fund, in whole or in part, any, all, or funds are available and the Fund deems Program none of the applications submitted in it appropriate. 3. Availability of Funds for the FY Announcement Type: Initial response to this NOFA. The Fund 2007 Funding Round: Because funds for announcement of funding opportunity. reserves the right to re-allocate funds the FY 2007 Funding Round have not Catalog of Federal Domestic from the amount that is anticipated to yet been appropriated, interested parties Assistance (CFDA) Number: 21.020. be available under this NOFA to other should be aware that electing to defer Dates: Applications for the FY 2006 Fund programs, particularly if the Fund the submission of an application until Funding Round must be received by 5 determines that the number of awards the FY 2007 Funding Round, rather than p.m. ET on January 23, 2006. made under this NOFA is fewer than projected. for the FY 2006 Funding Round, entails Applications for the FY 2007 Funding some risk. If funds are not appropriated Round must be received by 5 p.m. ET II. Award Information for the FY 2007 Funding Round, there on January 9, 2007. A. Funding Availability will not be a FY 2007 Funding Round. Executive Summary: Subject to Further, it is possible that if funds are funding availability, this NOFA is 1. FY 2006 Funding Round: Through appropriated for the FY 2007 Funding issued in connection with two the FY 2006 Funding Round, and Round, the amount of such funds may consecutive funding rounds of the subject to funding availability, the Fund be less than the amounts set forth above. Community Development Financial expects that it may award Institutions (CDFI) Program: (i) the FY approximately $25 million in B. Types of Awards 2006 Funding Round and (ii) the FY appropriated funds, of which (i) An Applicant may submit an 2007 Funding Round. approximately $2 million in application either for: (i) a FA award appropriated funds may be awarded to I. Funding Opportunity Description only; (ii) a FA award and a TA grant; or Category I/SECA (defined in Section (iii) a TA grant. A. Through the CDFI Program, the III.A.1, below) Applicants in the form of 1. FA Awards: The Fund may provide Community Development Financial FA awards that may be coupled with TA FA awards in the form of equity Institutions Fund (the Fund) provides: grants; (ii) approximately $21 million in investments (including, in the case of (i) Financial Assistance (FA) awards to appropriated funds may be awarded to certain Insured Credit Unions, CDFIs that have Comprehensive Category II/Core (defined in Section secondary capital accounts), grants, Business Plans for creating III.A.1, below) Applicants in the form of loans, deposits, credit union shares, or demonstrable community development FA awards that may be coupled with TA any combination thereof. The Fund impact through the deployment of grants; and (iii) approximately $2 reserves the right, in its sole discretion, credit, capital, and financial services million in appropriated funds may be to provide a FA award in a form and within their respective Target Markets awarded to Applicants in the form of amount other than that which is or the expansion into new Investment TA grants only. The Fund reserves the requested by an Applicant; however, the Areas, Low-Income Targeted right to award in excess of $25 million award amount will not exceed the Populations, or Other Targeted in appropriated funds to Applicants Applicant’s award request as stated in Populations, and (ii) Technical (and/or more or less than $2 million to its application. The Fund reserves the Assistance (TA) grants to CDFIs and Category I/SECA Applicants, and/or right, in its sole discretion, to provide a entities proposing to become CDFIs in more or less than $21 million to FA award on the condition that the order to build their capacity to better Category II/Core Applicants) in the FY Applicant agrees to use a TA grant for address the community development 2006 Funding Round, provided that the specified capacity building purposes, and capital access needs of their funds are available and the Fund deems even if the Applicant has not requested particular Target Markets, to expand it appropriate. a TA grant. into new Investment Areas, Low-Income 2. FY 2007 Funding Round: Through 2. TA Grants: (a) The Fund may Targeted Populations, or Other Targeted the FY 2007 Funding Round, and provide TA awards in the form of Populations, and/or to become certified subject to funding availability, the Fund grants. The Fund reserves the right, in CDFIs. expects that it may award its sole discretion, to provide a TA grant B. The regulations governing the CDFI approximately $25 million in for uses and amounts other than that Program are found at 12 CFR Part 1805 appropriated funds, of which (i) which are requested by an Applicant; (the Interim Rule) and provide guidance approximately $2 million in however, the award amount will not on evaluation criteria and other appropriated funds may be awarded to exceed the Applicant’s award request as requirements of the CDFI Program. The Category I/SECA Applicants in the form stated in its application. Fund is publishing the revised Interim of FA awards that may be coupled with (b) TA grants may be used to address Rule in this issue of the Federal TA grants; (ii) approximately $21 a variety of needs including, but not Register. The Interim Rule published in million in appropriated funds may be limited to, development of strategic this issue of the Federal Register awarded to Category II/Core Applicants planning documents (such as business, contains revisions concerning how in the form of FA awards that may be strategic or capitalization plans), market certain Applicants may use retained coupled with TA grants; and (iii) analyses or product feasibility analyses, earnings as matching funds for a FA approximately $2 million in operational policies and procedures, award. The Fund encourages Applicants appropriated funds may be awarded to curricula for Development Services
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(such as entrepreneurial training, home (c) Eligible TA grant uses include, but proceeds by the Fund. The Notice of buyer education, financial education or are not limited to: (i) Acquiring Award and the Assistance Agreement training, borrower credit repair consulting services; (ii) acquiring/ contain the terms and conditions of the training), improvement of underwriting enhancing technology items, including award. For further information, see and portfolio management, development computer hardware, software and Sections VI.A and VI.B of this NOFA. of outreach and training strategies to Internet connectivity; (iii) acquiring enhance product delivery, operating training for staff, management and/or III. Eligibility Information support to expand into a new Target board members; and (iv) paying A. Eligible Applicants: The Interim Market, and tools that allow the recurring expenses, including staff Rule specifies the eligibility Applicant to assess the impact of its salary and other key operating expenses, requirements that each Applicant must activities in its community. Each that will enhance the capacity of the meet in order to be eligible to apply for Applicant for a TA grant through this Applicant to serve its Target Market assistance under this NOFA. The NOFA is required to provide and/or to become certified as a CDFI. information in the application regarding following sets forth additional detail the expected cost, timing and provider C. Notice of Award; Assistance and dates that relate to the submission of the TA, and a narrative description of Agreement of applications under this NOFA: how the TA grant will enhance its Each Awardee under this NOFA must 1. FA Applicant Categories: All capacity to provide greater community sign a Notice of Award and an Applicants for FA awards through this development impact and/or to become Assistance Agreement in order to NOFA must meet the criteria for one of certified as a CDFI, if applicable. receive a disbursement of award the following two categories of CDFIs:
FA applicant category Criteria What can it apply for?
FY 2006 Funding Round: Category I/Small and/or Emerging CDFI A Category I/SECA Applicant is a Certified A Category I/SECA Applicant may request up Assistance (SECA). CDFI or a Certifiable CDFI that: to and including $500,000 in FA funds, and Has total assets as of December 31, 2005 as up to and including $100,000 in TA funds. follows: • Insured Depository Institutions and Deposi- tory Institution Holding Companies: up to $250 million. • Insured Credit Unions: up to $10 million • Venture capital funds: up to $10 million • Other CDFIs: up to $5 million or Began op- erations on or after January 1, 2002 and Prior to the FY 2006 Funding Round appli- cation deadline, has not been selected to receive in excess of $500,000 in FA award(s) in the aggregate from the CDFI Program or Native Initiatives Funding Pro- grams. FY 2007 Funding Rounds: Category I/Small and/or Emerging CDFI A Category I/SECA Applicant is a Certified A Category I/SECA Applicant may request up Assistance (SECA). CDFI or Certifiable CDFI that: to and including $500,000 in FA funds, and Has total assets as of December 31, 2006 as up to and including $100,000 in TA funds. follows:. • Insured Depository Institutions and Deposi- tory Institution Holding Companies: up to $250 million. • Insured Credit Unions: up to $10 million • Venture capital funds: up to $10 million • Other CDFIs: up to $5 million or Began operations on or after January 1, 2003 and Prior to the FY 2007 Funding Round applica- tion deadline, has not been selected to re- ceive in excess of $500,000 in FA award(s) in the aggregate from the CDFI Program or Native Initiatives Funding Programs. FY 2006 and FY 2007 Funding Rounds: Category II/Core ...... A Category II/Core Applicant is a Certified A Category II/Core Applicant may request up CDFI or a Certifiable CDFI that meets all to and including $2 million in FA funds, and other eligibility requirements described in up to and including $100,000 in TA funds. this NOFA
Please note: Any Applicant, regardless of For the purposes of this NOFA, the Initiatives Funding Programs’’ refers to total assets, years in operation, or prior Fund term ‘‘began operations’’ is defined as the following programs administered by awards, that requests FA funding in excess of the month and year in which the the Fund: The Native American CDFI $500,000 is classified as a Category II/Core Applicant first incurred operating Technical Assistance (NACTA) Applicant. expenses of any type. Also, for purposes Component of the CDFI Program, the of this NOFA, the term ‘‘Native Native American CDFI Development
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(NACD) Program, the Native American The Fund will evaluate, rank and amounts in excess of or less than the Technical Assistance (NATA) make awards to Category I/SECA anticipated maximum award amounts Component of the CDFI Program, and Applicants separately from Category II/ permitted in this NOFA, if the Fund the Native American CDFI Assistance Core Applicants. The Fund, in its sole deems it appropriate. (NACA) Program. discretion, reserves the right to award 2. TA Applicants:
TA applicants Criteria What can it apply for?
All TA Applicants ...... A TA Applicant must be a Certified CDFI, a Certifiable The Fund anticipates making TA grants up to $100,000 CDFI, or an Emerging CDFI each.
The Fund, in its sole discretion, the Fund has certified your organization Please note that the Fund only reserves the right to award amounts less as a CDFI. If the Fund is unable to acknowledges the receipt of reports that than the anticipated maximum award certify your organization as a CDFI are complete. As such, incomplete amounts permitted in this NOFA, if the based on the CDFI certification reports or reports that are deficient of Fund deems it appropriate. application that your organization required elements will not be 3. CDFI Certification Requirements: submits to the Fund, the Notice of recognized as having been received. For purposes of this NOFA, eligible FA Award may be terminated and the 3. Pending resolution of Applicants include Certified CDFIs and award commitment may be cancelled, in noncompliance: If an Applicant is a Certifiable CDFIs; eligible TA the sole discretion of the Fund. prior Awardee or allocatee under any Applicants include Certified CDFIs, (c) Emerging CDFIs: For purposes of Fund program and if: (i) It has Certifiable CDFIs and Emerging CDFIs, this NOFA, an Emerging CDFI is an submitted complete and timely reports defined as follows: entity that demonstrates to the to the Fund that demonstrate (a) Certified CDFIs: A certified CDFI satisfaction of the Fund that it has a noncompliance with a previous whose certification has not expired and reasonable plan to be certified as a CDFI assistance, allocation or award that has not been notified by the Fund by December 31, 2008 or such other date agreement; and (ii) the Fund has yet to that its certification has been selected by the Fund (for the FY 2006 make a final determination as to terminated. Each such Applicant must Funding Round) or December 31, 2009 whether the entity is in default of its submit a ‘‘Certification of Material Event or such other date selected by the Fund previous assistance, allocation or award Form’’ to the Fund not later than (for the FY 2007 Funding Round). agreement, the Fund will consider the January 13, 2006 (for the FY 2006 Emerging CDFIs may only apply for TA Applicant’s application under this Funding Round) or not later than grants; they are not eligible to apply for NOFA pending full resolution, in the December 4, 2006 (for the FY 2007 FA awards. Each Emerging CDFI that is sole determination of the Fund, of the Funding Round), or such other dates as selected to receive a TA grant will be noncompliance. Further, if another the Fund may proscribe, in accordance required, pursuant to its Assistance entity that Controls the Applicant, is with the instructions on the Fund’s Web Agreement with the Fund, to become Controlled by the Applicant or shares site at www.cdfifund.gov. Please note: certified as a CDFI by a date certain. common management officials with the the Fund provided a number of CDFIs D. Prior Awardees: Applicants must Applicant (as determined by the Fund), with certifications expiring in 2003 be aware that success in a prior round is a prior Fund Awardee or allocatee through 2005 written notification that of any of the Fund’s programs is not and if such entity: (i) Has submitted their certifications had been extended. indicative of success under this NOFA. complete and timely reports to the Fund The Fund will consider the extended Prior awardees are eligible to apply that demonstrate noncompliance with a certification date (the later date) to under this NOFA, except as follows: previous assistance, allocation or award determine whether those CDFIs meet 1. $5 Million Funding Cap. The Fund agreement; and (ii) the Fund has yet to this eligibility requirement. is generally prohibited from obligating make a final determination as to (b) Certifiable CDFIs: For purposes of more than $5 million in assistance, in whether the entity is in default of its this NOFA, a Certifiable CDFI is an the aggregate, to any one organization previous assistance, allocation, or award entity from which the Fund receives a and its Subsidiaries and Affiliates agreement, the Fund will consider the complete CDFI Certification Application during any three-year period. For the Applicant’s application under this no later than January 13, 2006 (for the purposes of this NOFA, the period NOFA pending full resolution, in the FY 2006 Funding Round) or December extends back three years from the date sole determination of the Fund, of the 4, 2006 (for the FY 2007 Funding that the Fund signs a Notice of Award noncompliance. Round), or such other dates as the Fund issued to an Awardee under this NOFA. 4. Default status: The Fund will not may proscribe, evidencing that the 2. Failure to meet reporting consider an application submitted by an Applicant meets the requirements to be requirements: The Fund will not Applicant that is a prior Fund Awardee certified as a CDFI. Applicants may consider an application submitted by an or allocatee under any Fund program if, obtain the CDFI Certification Applicant if the Applicant, or an entity as of the applicable application deadline Application through the Fund’s Web that Controls the Applicant, is of this NOFA, the Fund has made a final site at www.cdfifund.gov. Applications Controlled by the Applicant or shares determination that such Applicant is in for certification must be submitted as common management officials with the default of a previously executed instructed in the application form. FA Applicant (as determined by the Fund) assistance, allocation or award Applicants that are Certifiable CDFIs is a prior Fund Awardee or allocatee agreement(s). Further, an entity is not please note: while your organization under any Fund program and is not eligible to apply for an award pursuant may be conditionally selected for current on the reporting requirements to this NOFA if, as of the applicable funding (as evidenced through the set forth in a previously executed application deadline of this NOFA, the Notice of Award), the Fund will not assistance, allocation or award Fund has made a final determination enter into an Assistance Agreement or agreement(s), as of the applicable that another entity that Controls the disburse award funds unless and until application deadline of this NOFA. Applicant, is Controlled by the
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Applicant or shares common Fund program, and has a balance of allocation and/or award agreement(s), management officials with the undisbursed funds under said prior and (ii) contact the Fund to ensure that Applicant (as determined by the Fund) award(s), as of the applicable all necessary actions are underway for is a prior Fund Awardee or allocatee application deadline of this NOFA, the the disbursement or deobligation of any under any Fund program and has been Fund will include the combined awards outstanding balance of said prior determined by the Fund to be in default of the Applicant and such Affiliated award(s). All outstanding reports, of a previously executed assistance, entities when calculating the amount of disbursement or compliance questions allocation or award agreement(s). undisbursed funds. For purposes of this should be directed to the Grants 5. Termination in default: The Fund section, ‘‘undisbursed funds’’ is defined Manager by e-mail at will not consider an application as: (i) In the case of a prior Bank [email protected]; by submitted by an Applicant that is a Enterprise Award (BEA) Program telephone at (202) 622–8226; by prior Fund Awardee or allocatee under award(s), any balance of award funds facsimile at (202) 622–6453; or by mail any Fund program if: (i) The Fund has equal to or greater than five (5) percent to CDFI Fund, 601 13th Street, NW., made a final determination that such of the total prior BEA Program award(s) Suite 200 South, Washington, DC 20005. Applicant’s prior award or allocation that remains undisbursed more than The Fund will respond to Applicants’ terminated in default of a previously three (3) years after the end of the reporting, disbursement or compliance executed assistance, allocation or award calendar year in which the Fund signed questions between the hours of 9 a.m. agreement(s); and (ii) the final reporting an award agreement with the Awardee; and 5 p.m. ET, starting the date of the period end date for the applicable and (ii) in the case of a prior CDFI publication of this NOFA through terminated assistance, allocation or Program or other Fund program January 19, 2006 (for the FY 2006 award agreement(s) falls in Calendar award(s), any balance of award funds Funding Round) and January 5, 2007 Year 2005 (for the FY 2006 Funding equal to or greater than five (5) percent (for the FY 2007 Funding Round) (two Round) and Calendar Year 2006 (for the of the total prior award(s) that remains business days before the respective FY 2007 Funding Round). Further, an undisbursed more than two (2) years application deadlines). The Fund will entity is not eligible to apply for an after the end of the calendar year in not respond to Applicants’ reporting, award pursuant to this NOFA if: (i) The which the Fund signed an assistance disbursement or compliance phone calls Fund has made a final determination agreement with the Awardee. or e-mail inquiries that are received that another entity that Controls the ‘‘Undisbursed funds’’ does not include: after 5 p.m. on said dates, until after the Applicant, is Controlled by the (i) Tax credit allocation authority made respective funding application Applicant or shares common available through the New Market Tax deadlines. management officials with the Credit (NMTC) Program; (ii) any award 9. Limitation on Awards: An Applicant (as determined by the Fund), funds for which the Fund received a full Applicant may receive only one award is a prior Fund Awardee or allocatee and complete disbursement request through either the CDFI Program or the under any Fund program whose award from the Awardee by the applicable Native American CDFI Assistance or allocation terminated in default of a application deadline of this NOFA; (iii) (NACA) Program in the same funding previously executed assistance, any award funds for an award that has year. An Applicant may apply under allocation or award agreement(s); and been terminated, expired, rescinded or both the CDFI Program and the NACA (ii) the final reporting period end date deobligated by the Fund; or (iv) any Program, but will not be selected for for the applicable terminated assistance, award funds for an award that does not funding under both. A CDFI Program allocation or award agreement(s) falls in have a fully executed assistance or Applicant, its Subsidiaries or Affiliates the Calendar Year 2005 (for the FY 2006 award agreement. The Fund strongly also may apply for and receive: (i) A tax Funding Round) and Calendar Year encourages Applicants requesting credit allocation through the NMTC 2006 (for the FY 2007 Funding Round). disbursements of ‘‘undisbursed funds’’ Program, but only to the extent that the 6. Undisbursed balances: The Fund from prior awards to provide the Fund activities approved for CDFI Program will not consider an application with a complete disbursement request at awards are different from those submitted by an Applicant that is a least 10 business days prior to the activities for which the Applicant prior Fund Awardee under any Fund applicable application deadline of this receives a NMTC Program allocation; program if the Applicant has a balance NOFA. and (ii) an award through the BEA of undisbursed funds (defined below) 7. Exception for Applicants impacted Program (subject to certain limitations; under said prior award(s), as of the by Hurricanes Katrina and/or Rita: refer to the Interim Rule at 12 CFR applicable application deadline of this Please note that the provisions of 1805.102). NOFA. Further, an entity is not eligible paragraphs 2 (Failure to meet reporting 10. Other Targeted Populations as to apply for an award pursuant to this requirements) and 6 (Undisbursed Target Markets: Other Targeted NOFA if another entity that Controls the balances) of this section do not apply to Populations are defined as identifiable Applicant, is Controlled by the any Applicant that has an office located groups of individuals in the Applicant’s Applicant or shares common in, or that provides a significant volume service area for which there exists a management officials with the of services or financing to residents of strong basis in evidence that they lack Applicant (as determined by the Fund), or businesses located in, a county that access to loans, Equity Investments and/ is a prior Fund Awardee under any is within a ‘‘major disaster area’’ as or Financial Services. The Fund has Fund program, and has a balance of declared by the Federal Emergency determined that there is strong basis in undisbursed funds under said prior Management Agency (FEMA) as a result evidence that the following groups of award(s), as of the applicable of Hurricanes Katrina and/or Rita. Said individuals lack access to loans, Equity application deadline of this NOFA. In a requirements are waived for those Investments and/or Financial Services case where another entity that Controls Applicants for the FY 2006 Funding on a national level: Blacks or African the Applicant, is Controlled by the Round and the FY 2007 Funding Round. Americans, Native Americans or Applicant or shares common 8. Contact the Fund. Accordingly, American Indians, and Hispanics or management officials with the Applicants that are prior Awardees are Latinos. In addition, for purposes of this Applicant (as determined by the Fund), advised to: (i) comply with NOFA, the Fund has determined that is a prior Fund Awardee under any requirements specified in assistance, there is a strong basis in evidence that
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Alaska Natives residing in Alaska, funds requirement of this NOFA. If an fails to obtain in-hand 100 percent of Native Hawaiians residing in Hawaii, Applicant seeks to use as matching the required matching funds by March and Other Pacific Islanders residing in funds monies received from an 14, 2008 (with required documentation other Pacific Islands, lack adequate organization that was a prior Awardee of such receipt received by the Fund not access to loans, Equity Investments or under the CDFI Program, the Fund will later than March 31, 2008), or to grant Financial Services. An Applicant deem such funds to be Federal funds, an extension of such matching funds designating any of the above-cited Other unless the funding entity establishes to deadline for specific Applicants Targeted Populations is not required to the reasonable satisfaction of the Fund selected to receive FA, if the Fund provide additional narrative explaining that such funds do not consist, in whole deems it appropriate. For any Applicant the Other Targeted Population’s lack of or in part, of CDFI Program funds or that demonstrates that it has less than adequate access to loans, Equity other Federal funds. For the purposes of 100 percent of matching funds in-hand Investments or Financial Services. this NOFA, BEA Program awards are not or firmly committed as of the For purposes of this NOFA, the Fund deemed to be Federal funds and are application deadline, the Fund will will use the following definitions, set eligible as matching funds. The Fund evaluate the Applicant’s ability to raise forth in the Office of Management and encourages Applicants to review the the remaining matching funds by March Budget (OMB) Notice, Revisions to the Interim Rule at 12 CFR 1805.500 et seq. 14, 2008. Standards for the Classification of and matching funds guidance materials (b) Category II/Core Applicants: (i) FY Federal Data on Race and Ethnicity on the Fund’s Web site for further 2006 Funding Round: A Category II/ (October 30, 1997), as amended and information. Core Applicant must demonstrate that it supplemented: 2. Matching Funds Requirements Per has eligible matching funds equal to no (a) American Indian, Native American Applicant Category: Due to funding less than 100 percent of the amount of or Alaska Native: a person having constraints and the desire to quickly the FA award requested in-hand or origins in any of the original peoples of deploy Fund dollars, the Fund will not firmly committed, on or after January 1, North and South America (including consider for a FA award any Applicant 2004 and on or before the application Central America) and who maintains that has no matching funds in-hand or deadline. The Fund reserves the right to tribal affiliation or community firmly committed as of the application rescind all or a portion of a FA award attachment; deadline under this NOFA. Specifically, and re-allocate the rescinded award (b) Black or African American: a FA Applicants must meet the following amount to other qualified Applicant(s), person having origins in any of the matching funds requirements: if an Applicant fails to obtain in-hand black racial groups of Africa (terms such (a) Category I/SECA Applicants: (i) FY 100 percent of the required matching as ‘‘Haitian’’ or ‘‘Negro’’ can be used in 2006 Funding Round: A Category I/ funds by March 15, 2007 (with required addition to ‘‘Black or African SECA Applicant must demonstrate that documentation of such receipt received American’’); it has eligible matching funds equal to by the Fund not later than March 30, (c) Hispanic or Latino: a person of no less than 25 percent of the amount 2007), or to grant an extension of such Cuban, Mexican, or Puerto Rican, South of the FA award requested in-hand or matching funds deadline for specific or Central American or other Spanish firmly committed, on or after January 1, Applicants selected to receive FA, if the culture or origin, regardless of race (the 2004 and on or before the application Fund deems it appropriate. term ‘‘Spanish origin’’ can be used in deadline. The Fund reserves the right to (ii) FY 2007 Funding Round: A addition to ‘‘Hispanic or Latino’’); and rescind all or a portion of a FA award Category II/Core Applicant must (d) Native Hawaiian: a person having and re-allocate the rescinded award demonstrate that it has eligible origins in any of the original peoples of amount to other qualified Applicant(s), matching funds equal to no less than Hawaii; and if an Applicant fails to obtain in-hand 100 percent of the amount of the FA (e) Other Pacific Islander: a person 100 percent of the required matching award requested in-hand or firmly having origins in any of the original funds by March 15, 2007 (with required committed, on or after January 1, 2005 peoples of Guam, Samoa or other Pacific documentation of such receipt received and on or before the application Islands. by the Fund not later than March 30, deadline. The Fund reserves the right to E. Matching Funds: 1. Matching 2007), or to grant an extension of such rescind all or a portion of a FA award Funds Requirements in General: matching funds deadline for specific and re-allocate the rescinded award Applicants responding to this NOFA Applicants selected to receive FA, if the amount to other qualified Applicant(s), must obtain non-Federal matching Fund deems it appropriate. For any if an Applicant fails to obtain in-hand funds from sources other than the Applicant that has less than 100 percent 100 percent of the required matching Federal government on the basis of not of matching funds in-hand or firmly funds by March 14, 2008 (with required less than one dollar for each dollar of committed as of the application documentation of such receipt received FA funds provided by the Fund deadline, the Fund will evaluate the by the Fund not later than March 31, (matching funds are not required for TA Applicant’s ability to raise the 2008), or to grant an extension of such grants). Matching funds must be at least remaining matching funds by March 15, matching funds deadline for specific comparable in form and value to the FA 2007. Applicants selected to receive FA, if the award provided by the Fund (for (ii) FY 2007 Funding Round: A Fund deems it appropriate. example, if an Applicant is requesting a Category I/SECA Applicant must 3. Matching Funds Terms Defined; FA grant from the Fund, the Applicant demonstrate that it has eligible Required Documentation. (a) ‘‘Matching must have evidence that it has obtained matching funds equal to no less than 25 funds in-hand’’ means that the matching funds through grant(s) from percent of the amount of the FA award Applicant has actually received the non-Federal sources that are at least requested in-hand or firmly committed, matching funds. If the matching funds equal to the amount requested from the on or after January 1, 2005 and on or are ‘‘in-hand,’’ the Applicant must Fund). Funds used by an Applicant as before the application deadline. The provide the Fund with acceptable matching funds for a prior FA award Fund reserves the right to rescind all or written documentation of the source, under the CDFI Program or under a portion of a FA award and re-allocate form and amount of the Matching Funds another Federal grant or award program the rescinded award amount to other (i.e., grant, loan, and equity investment). cannot be used to satisfy the matching qualified Applicant(s), if an Applicant For a loan, the Applicant must provide
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the Fund with a copy of the loan that is committed as matching funds. application deadline. The Fund reserves agreement and promissory note. For a This amount must be raised by the end the right to rescind all or a portion of grant, the Applicant must provide the of the Awardee’s second performance a FA award and re-allocate the Fund with a copy of the grant letter or period, as set forth in its Assistance rescinded award amount to other agreement. For an equity investment, Agreement, and will be based on qualified Applicant(s), if an Applicant the Applicant must provide the Fund amounts reported in the Applicant’s fails to obtain in-hand 50 percent of the with a copy of the stock certificate and Audited or Reviewed Financial required matching funds by March 15, any related shareholder agreement. Statements or NCUA Form 5300 Call 2007 (for the FY 2006 Funding Round) Further, if the matching funds are ‘‘in- Report. and March 14, 2008 (for the FY 2007 hand,’’ the Applicant must provide the 5. Severe Constraints Exception to Funding Round) (with required Fund with acceptable documentation Matching Funds Requirement; documentation of such receipt received that evidences its receipt of the Applicability to Applicants Located in by the Fund not later than March 31, matching funds proceeds, such as a FEMA-Designated Major Disaster Areas 2007 (for the FY 2006 Funding Round) copy of a check or a wire transfer Created by Hurricanes Katrina and/or and March 30, 2008 (for the FY 2007 statement. Rita: In the case of any Applicant that Funding Round)), or to grant an (b) ‘‘Firmly committed matching has an office that is located in, or that extension of such matching funds funds’’ means that the Applicant has provides a significant volume of deadline for specific Applicants entered into or received a legally services or financing to residents of or selected to receive FA, if the Fund binding commitment from the matching businesses located in, any county that is deems it appropriate. For any such funds source that the matching funds within a ‘‘major disaster area’’ as Applicant that demonstrates that it has will be disbursed to the Applicant. If the declared by the Federal Emergency less than 50 percent of matching funds matching funds are ‘‘firmly committed,’’ Management Agency (FEMA) as a result in-hand or firmly committed as of the the Applicant must provide the Fund of Hurricanes Katrina and/or Rita, and application deadline, the Fund will with acceptable written documentation that has severe constraints on available evaluate the Applicant’s ability to raise to evidence the source, form, and sources of matching funds, such the remaining matching funds by March amount of the firm commitment (and, in 15, 2007 (for the FY 2006 Funding Applicant may be eligible for a ‘‘severe the case of a loan, the terms thereof), as Round) and March 14, 2008 (for the FY constraints waiver’’ (see section well as the anticipated date of 2007 Funding Round). In the case of 1805.203 of the Interim Rule) if (i) it can disbursement of the committed funds. item (ii) of this paragraph, the CDFI demonstrate to the satisfaction of the (c) The Fund may contact the Program funding application contains Fund that an Investment Area(s) or matching funds source to discuss the further instructions on the type of Targeted Population(s) would not be matching funds and the documentation documentation that the Applicant must adequately served without such a provided by the Awardee. If the Fund provide as evidence that such match waiver and (ii) it projects to use the determines that any portion of the was received and its valuation. The assistance to address issues resulting Applicant’s matching funds is ineligible Fund reserves the right, in its sole under this NOFA, the Fund, in its sole from Hurricanes Katrina and/or Rita discretion, to disallow any such match discretion, may permit the Applicant to (such as a significant volume of loan for which adequate documentation or offer alternative matching funds as defaults) or to provide financial valuation is not provided. substitute for the ineligible matching products, financial services, or funds; provided, however, that (i) the Development Services to residents of or IV. Application and Submission Applicant must provide acceptable businesses located in any county that is Information alternative matching funds within a ‘‘major disaster area’’ as A. Form of Application Submission: documentation within 2 business days declared by FEMA as a result of Applicants may submit applications of the Fund’s request and (ii) the Hurricanes Katrina and/or Rita. If under this NOFA either (i) through alternative matching funds eligible for such a waiver, the Applicant Grants.gov or (ii) in paper form. documentation cannot increase the total may comply with the matching funds Applications sent by facsimile or other amount of Financial Assistance requirements of this NOFA as follows: form will not be accepted. requested by the Applicant. (i) The matching funds requirement for B. Grants.gov: For the FY 2006 4. Special Rule for Insured Credit such Applicant would be reduced to 50 Funding Round, in compliance with Unions. Please note that the Interim percent (meaning, the Applicant must Public Law 106–107 and Section 5(a) of Rule allows an Insured Credit Union to match 50 percent of the Fund’s FA the Federal Financial Assistance use retained earnings to serve as award rather than 100 percent), or (ii) Management Improvement Act, the matching funds for a FA grant in an such an Applicant may provide Fund is required to accept applications amount equal to: (i) The increase in matching funds in alternative (meaning, submitted through the Grants.gov retained earnings that have occurred non-monetary) forms if the Applicant electronic system. The Fund will post to over the Applicant’s most recent fiscal has total assets of less than $100,000 at its Web site at www.cdfifund.gov year; (ii) the annual average of such the time of the application deadline, instructions for accessing and increases that have occurred over the serves non-metropolitan or rural areas, submitting an application through Applicant’s three most recent fiscal and is not requesting more than $25,000 Grants.gov. The application instructions years; or (iii) the entire retained in financial assistance from the Fund. In will be posted as soon as they are earnings that have been accumulated the case of item (i) of this paragraph, the available and once the application since the inception of the Applicant or Applicant must demonstrate that it has materials are accessible through such other financial measure as may be eligible matching funds equal to no less Grants.gov. The anticipated release date specified by the Fund. For purposes of than 25 percent of the amount of the FA for the application instructions is this NOFA, if option (iii) is used, the award requested in-hand or firmly January 6, 2006. Applicants are Applicant must increase its member committed, on or after January 1, 2005 encouraged to start the registration and/ or non-member shares or total (for the FY 2006 Funding Round) or process now at www.Grants.gov as the loans outstanding by an amount that is January 1, 2006 (for the FY 2007 process may take several weeks to fully equal to the amount of retained earnings Funding Round) and on or before the complete. See the following link for
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information on getting started on Applicants and Awardees, organizations submitted via Grants.gov and all Grants.gov: http://grants.gov/assets/ must make sure that they update the required paper attachments must be GrantsgovCoBrandBrochure8X11.pdf. contact information in their received by the applicable time and date C. Paper Applications: If an applicant myCDFIFund accounts. For more set forth above. A paper application and is unable to submit an application information on myCDFIFund, please see all required paper attachments must be through Grants.gov, it must submit to the ‘‘Frequently Asked Questions’’ link received by the applicable time and date the Fund a request for a paper posted at https://www.cdfifund.gov/ set forth above. The Fund will not grant application using the CDFI Program myCDFI/Help/Help.asp. exceptions or waivers for late delivery Paper Application Submission Form, F. Application Deadlines; Address for of documents including, but not limited and the request must be received by 5 Paper Submissions; Late Delivery: to, late delivery that is caused by third p.m. ET on January 6, 2006 (for the FY Applicants must submit all materials parties such as the United States Postal 2006 Funding Round) or December 8, described in and required by the Service, couriers or overnight delivery 2006 (for the FY 2007 Funding Round). application by the applicable deadline. services. The CDFI Program Paper Application 1. Application Deadlines: (a) FY 2006 D. Intergovernmental Review: Not Submission Form may be obtained from Funding Round: Applications submitted applicable. the Fund’s Web site at http:// via Grants.gov must be received in E. Funding Restrictions: For allowable www.cdfifund.gov or the form may be accordance with the instructions uses of FA proceeds, please see the requested by e-mail to provided by the Fund, by 5 p.m. ET on Interim Rule at 12 CFR 1805.301. _ January 23, 2006. In addition, paper [email protected] or by V. Application Review Information facsimile to (202) 622–7754. The Applicants that submit applications via completed CDFI Program Paper Grants.gov and are unable to upload A. Criteria: The Fund will evaluate Application Submission Form should be electronically any required paper each application using numeric scores directed to the attention of the Fund’s attachments, must separately submit (by with respect to the following five Chief Information Officer and must be mail or other courier/delivery service) sections: sent by facsimile to (202) 622–7754. any required paper attachments at the 1. Market Analysis (TA-only These are not toll free numbers. Paper address set forth below by 5 p.m. ET on Applicants: 25 points; Category I/SECA: applications must be submitted in the January 26, 2006. Paper applications 25 points; Category II/Core: 20 points:) format and with the number of copies and all attachments must be received at The Fund will evaluate: (i) The extent specified in the application instructions. the address set forth below by 5 p.m. ET and nature of the economic distress D. Application Content Requirements: on January 23, 2006. within the designated Target Market Detailed application content (b) FY 2007 Funding Round: including the Applicant’s requirements are found in the Applications submitted via Grants.gov understanding of its current and application and guidance. Please note must be received in accordance with the prospective customers; and (ii) the that, pursuant to OMB guidance (68 FR instructions provided by the Fund, by 5 extent of demand for the Applicant’s 38402), each Applicant must provide, as p.m. ET on January 9, 2007. In addition, Financial Products, Development part of its application submission, a Dun Applicants that submit applications via Services, and Financial Services within and Bradstreet Data Universal Grants.gov and are unable to upload the designated Target Market. The Fund Numbering System (DUNS) number. In electronically any required paper will give special consideration to any addition, each application must include attachments, must separately submit (by Applicant that has an office that is a valid and current Employer mail or other courier/delivery service) located in, or that provides a significant Identification Number (EIN), with a any required paper attachments; said volume of services or financing to letter or other documentation from the documents must be received at the residents of or businesses located in, (i) Internal Revenue Service (IRS) address set forth below by 5 p.m. ET on any county that is within the area confirming the Applicant’s EIN. An January 12, 2007. Paper applications declared to be a ‘‘major disaster’’ by application submitted through must be received at the address set forth FEMA as a result of Hurricanes Katrina Grants.gov that does not include an EIN below by 5 p.m. ET on January 9, 2007. and/or Rita; and/or (ii) any state that has is incomplete and will be deemed 2. Address for Paper Submissions: A been declared a ‘‘reception state’’ by ineligible. A paper application that does complete paper application (or, in the FEMA. The form and content of such not include a valid EIN is incomplete case of an application submitted via special consideration will be further and will be rejected and returned to the Grants.gov, the required paper clarified in the CDFI Program sender. Applicants should allow submissions) must be received at the application. sufficient time for the IRS and/or Dun following address, within the applicable 2. Business Strategy (TA-only and Bradstreet to respond to inquiries deadline: CDFI Fund Grants Manager, Applicants: 25 points; Category I/SECA: and/or requests for identification CDFI Program, Bureau of Public Debt, 25 points; Category II/Core: 20 points): numbers. Once an application is 200 Third Street, Parkersburg, WV The Fund will evaluate the Applicant’s submitted, the Applicant will not be 26101. The telephone number to be business strategy for addressing market allowed to change any element of the used in conjunction with overnight demand and creating community application. The preceding sentence delivery or mailings to this address is development impact through: (i) Its does not limit the Fund’s ability to (304) 480–6088 (this is not a toll free Financial Products, Development contact an Applicant for the purpose of number). Any documents received in Services, and/or Financial Services; (ii) obtaining clarifying or confirming any other office, including the Fund’s its marketing, outreach, and delivery application information (such as a Washington, DC office, will be rejected strategy; and (iii) the extent, quality and DUNS number or EIN information). and returned to the sender. nature of coordination with other E. MyCDFIFund Accounts: All 3. Late Delivery: The Fund will similar providers of Financial Products Applicants must register User and neither accept a late application nor any and Financial Services, government Organization accounts in myCDFIFund, portion of an application that is late; an agencies, and other key community the Fund’s Internet-based interface. As application that is late, or for which any development entities within the Target myCDFIFund is the Fund’s primary portion is late, will be rejected and Market. The Fund will take into means of communication with returned to the sender. An application consideration whether the Applicant is
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proposing to expand into a new Target safety and soundness, including an for expansion of staff, market, or Market. analysis of the Applicant’s financial products) as a result of the TA award. 3. Community Development services industry ratios (capital, If the Applicant is a prior Fund Performance and Effective Use (TA-only liquidity, deployment and self- Awardee, it must describe how it has Applicants: 20 points; Category I/SECA: sufficiency) and ability to sustain used the prior assistance and explain 20 points; Category II/Core: 20 points): positive net revenue; (iii) projected the need for additional Fund dollars The Fund will evaluate (i) the financial health, including its ability to over and above such prior assistance. Applicant’s vision for its Target Market, raise operating support from sources Such an Applicant also must describe specific outcomes or impacts for other than the Fund and its the additional benefits that would measuring progress towards achieving capitalization strategy; and (iv) portfolio accrue to its capacity or to the Target this vision, and the extent to which this performance including loan Market(s) if the Applicant receives award will allow it to achieve them; (ii) delinquency, loan losses, and loan loss another award from the Fund, such as the Applicant’s track record in reserves. If an Applicant does not have plans for expansion of staff, market, or providing Financial Products, Financial 100 percent of the required matching products. The Fund will not provide Services, and Development Services to funds in-hand (versus committed), the funding for the same activities funded the Target Market; (iii) the extent to Applicant must demonstrate to the in prior awards. which proposed activities will benefit satisfaction of the Fund that it will raise B. Review and Selection Process: 1. the Target Market; (iv) the likelihood of the outstanding balance of matching Eligibility and Completeness Review: achieving the impact projections, funds within the time table set forth The Fund will review each application including the extent to which the above. to determine whether it is complete and activities proposed in the the Applicant meets the eligibility 6. Technical Assistance Proposal: Any Comprehensive Business Plan will requirements set forth above. An Applicant applying for a TA grant, expand economic opportunities or incomplete application will be rejected either alone or in conjunction with a promote community development as incomplete and returned to the request for a FA award, must complete within the designated Target Market by sender. If an Applicant does not meet a Technical Assistance Proposal (TAP) promoting homeownership, affordable eligibility requirements, its application as part of its application. The TAP housing development, job creation or will be rejected and returned to the consists of a summary of the retention, the provision of affordable sender. organizational improvements needed to financial services, and other community 2. Substantive Review: If an development objectives; and (v) the achieve the objectives of the application is determined to be extent to which the Applicant will application, a budget, and a description complete and the Applicant is maximize the effective use of the Fund’s of the requested goods and/or services determined to be eligible, the Fund will resources. If an Applicant has a prior comprising the TA award request. The conduct the substantive review of the track record of serving Investment budget and accompanying narrative will application in accordance with the Areas(s) or Targeted Population(s), it be evaluated for the eligibility and criteria and procedures described in the must demonstrate that (i) it has a record appropriateness of the proposed uses of Interim Rule, this NOFA and the of success in serving said Investment the TA award (described above). In application and guidance. Each FA Area(s) or Targeted Population(s) and addition, if the Applicant identifies a application will be reviewed and scored (ii) it will expand its operations into a capacity-building need related to any of by multiple readers. Each TA new Investment Area or to serve a new the evaluation criteria above (for application will be read and scored by Targeted Population, offer more example, if the Applicant requires a one reader. Readers may include Fund products or services, or increase the market need analysis or a community staff and other experts in community volume of its current business. development impact tracking/reporting development finance. As part of the 4. Management (TA-only Applicants: system), the Fund will assess its plan to review process, the Fund may contact 20 points; Category I/SECA: 20 points; use the TA grant to address said needs. the Applicant by telephone or through Category II/Core: 20 points): The Fund An Applicant that is not a Certified an on-site visit for the purpose of will evaluate the Applicant’s CDFI and that requests TA to address obtaining clarifying or confirming organizational capacity to achieve the certification requirements, must explain application information. The Applicant objectives set forth in its Comprehensive how the requested TA grant will assist may be required to submit additional Business Plan as well as its ability to the Applicant in meeting the information to assist the Fund in its use its award successfully and maintain certification requirement. The Fund will evaluation process. Such requests must compliance with its Assistance assess the reasonableness of the plan to be responded to within the time Agreement through an evaluation of: (i) become certified by December 31, 2008 parameters set by the Fund. The capacity, skills, size and experience (for the FY 2006 Funding Round) or 3. Application Scoring; Ranking: (a) of the Applicant’s current and proposed December 31, 2009 (for the FY 2007 Application Scoring: The Fund will Governing Board, management team, Funding Round), taking into account the evaluate each application on a 100-point and key staff; and (ii) the Applicant’s requested TA. For example, if the scale, comprising the five criteria management controls and risk Applicant does not currently make categories described above, and assign mitigation strategies including policies loans and therefore does not meet the numeric scores. An Applicant must and procedures for portfolio Financing Entity requirement, it might receive a minimum score in each underwriting and review, financial describe how the TA funds will be used evaluation criteria in order to be management, risk management, to hire a consultant to develop considered for an award. In the case of management information systems. underwriting policies and procedures to an Applicant that has previously 5. Financial Health and Viability (TA- support the Applicant’s ability to start received funding from the Fund through only Applicants: 10 points; Category I/ its lending activity. An Applicant that any Fund program, the Fund will SECA: 10 points; Category II/Core: 20 requests a TA grant for recurring consider and will deduct points for: (i) points): The Fund will evaluate the activities must clearly describe the The Applicant’s noncompliance with Applicant’s: (i) Audited or otherwise benefit that would accrue to its capacity any active award or award that prepared Financial Statements; (ii) or to its Target Market(s) (such as plans terminated in calendar year 2005 (for FY
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2006 Funding Round Applicants) and (i) TA-only Applicants and Category written declination if not selected for an calendar year 2006 (for FY 2007 I/SECA Applicants will be ranked from award. Each Applicant that is not Funding Round Applicants), in meeting highest to lowest, based on each selected for an award based on reasons its performance goals, financial Applicant’s scores for all five criteria other than completeness or eligibility soundness covenants (if applicable), categories added together. issues will be provided a written reporting deadlines and other (ii) Category II/Core Applicants must debriefing on the strengths and requirements set forth in the assistance receive scores in both the Management weaknesses of its application. This or award agreement(s) with the Fund category and the Financial Health and feedback will be provided in a format during the Applicant’s two complete Viability category that each equal at and within a timeframe to be fiscal years prior to the application least 50 percent of the available points determined by the Fund, based on deadline of this NOFA (generally FY in each of those sections. For Category available resources. The Fund will 2004 and FY 2005 for FY 2006 Funding II/Core Applicants that exceed this notify Awardees by email using the Round Applicants and FY 2005 and FY threshold, the Fund will use the addresses maintained in the Awardee’s 2006 for FY 2007 Funding Round combined scores of the Market Analysis, myCDFIFund account (postal mailings Applicants); (ii) the Applicant’s failure Product Design and Implementation will be used only in rare cases). to make timely loan payments to the Strategy, and Community Development 7. The Fund reserves the right to Fund during the Applicant’s two Performance categories to rank such reject an application if information complete fiscal years prior to the Applicants, highest to lowest. (including administrative errors) comes application deadline of this NOFA (if 4. Award Selection: The Fund will to the attention of the Fund that either applicable); (iii) performance on any make its final award selections based on adversely affects an applicant’s prior Assistance Agreement as part of the rank order of Applicants by their eligibility for an award, or adversely the overall assessment of the scores and the amount of funds affects the Fund’s evaluation or scoring Applicant’s ability to carry out its available. Subject to the availability of of an application, or indicates fraud or Comprehensive Business Plan; and (iv) funding, the Fund will award funding in mismanagement on the part of an funds deobligated from a FY 2003, FY the order of the ranking. TA-only Applicant. If the Fund determines that 2004 or FY 2005 FA award (if the Applicants, Category I/ SECA and any portion of the application is Applicant is applying for a FA award Category II/Core Applicants will be incorrect in any material respect, the under this NOFA) if (A) the amount of ranked separately. In addition, the Fund Fund reserves the right, in its sole deobligated funds is at least $200,000 may consider the institutional and discretion, to reject the application. The and (B) the deobligation occurred geographic diversity of Applicants when Fund reserves the right to change its subsequent to the expiration of the making its funding decisions. eligibility and evaluation criteria and 5. Insured CDFIs: In the case of period of award funds availability procedures, if the Fund deems it Insured Depository Institutions and (generally, any funds deobligated after appropriate; if said changes materially Insured Credit Unions, the Fund will the September 30th following the year affect the Fund’s award decisions, the take into consideration the views of the Fund will provide information in which the award was made). Any Appropriate Federal Banking Agencies; award deobligations that result in a regarding the changes through the in the case of State-Insured Credit Fund’s Web site. There is no right to point deduction under an application Unions, the Fund may consult with the submitted pursuant to either funding appeal the Fund’s award decisions. The appropriate State banking agencies (or Fund’s award decisions are final. round of this NOFA will not be counted comparable entity). The Fund will not against any future application for FA approve a FA award or a TA grant to VI. Award Administration Information through the CDFI Program. All any Insured Credit Union (other than a A. Notice of Award: The Fund will questions regarding outstanding reports State-Insured Credit Union) or Insured signify its conditional selection of an or compliance should be directed to the Depository Institution Applicant that Applicant as an Awardee by delivering Grants Manager by e-mail at has a CAMEL rating that is higher than a signed Notice of Award to the [email protected]; by a ‘‘3’’ or for which its Appropriate Applicant. The Notice of Award will telephone at (202) 622–8226; by Federal Banking Agency indicates it has contain the general terms and facsimile at (202) 622–7754; or by mail safety and soundness concerns, unless conditions underlying the Fund’s to CDFI Fund, 601 13th Street, NW., the Appropriate Federal Banking provision of assistance including, but Suite 200 South, Washington, DC 20005. Agency asserts, in writing, that: (i) An not limited to, the requirement that the These are not toll free numbers. The upgrade to a CAMEL 3 rating or better Awardee and the Fund enter into an Fund will respond to reporting or (or other improvement in status) is Assistance Agreement. The Applicant compliance questions between the imminent and such upgrade is expected must execute the Notice of Award and hours of 9 a.m. and 5 p.m. ET, starting to occur not later than September 30, return it to the Fund. By executing a the date of the publication of this NOFA 2006 (for the FY 2006 Funding Round) Notice of Award, the Awardee agrees, through January 19, 2006 (for the FY or September 30, 2007 (for the FY 2007 among other things, that, if prior to 2006 Funding Round) and January 5, Funding Round) or within such other entering into an Assistance Agreement 2007 (for the FY 2007 Funding Round). time frame deemed acceptable by the with the Fund, information (including The Fund will not respond to reporting Fund, or (ii) the safety and soundness administrative error) comes to the or compliance phone calls or e-mail condition of the Applicant is adequate attention of the Fund that either inquiries that are received after 5 p.m. to undertake the activities for which the adversely affects the Awardee’s on January 19, 2006 (for the FY 2006 Applicant has requested a FA award eligibility for an award, or adversely Funding Round) and January 5, 2007 and the obligations of an Assistance affects the Fund’s evaluation of the (for the FY 2007 Funding Round) until Agreement related to such a FA award. Awardee’s application, or indicates after the applicable funding application 6. Award Notification: Each Applicant fraud or mismanagement on the part of deadline. will be informed of the Fund’s award the Awardee, the Fund may, in its (b) Ranking: The Fund then will rank decision either through a Notice of discretion and without advance notice the applications by their scores, from Award if selected for an award (see to the Awardee, terminate the Notice of highest to lowest, as follows: Notice of Award section, below) or Award or take such other actions as it
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deems appropriate. Moreover, by the Applicant, is Controlled by the Awardee or allocatee under any Fund executing a Notice of Award, the Applicant or shares common program whose award or allocation was Awardee agrees that, if prior to entering management officials with the terminated in default of such prior into an Assistance Agreement with the Applicant (as determined by the Fund), agreement; and (ii) the final reporting Fund, the Fund determines that the is a prior Fund Awardee or allocatee period end date for the applicable Awardee is in default of any Assistance and if such entity: (i) Has submitted terminated agreement falls in Calendar Agreement previously entered into with complete and timely reports to the Fund Year 2005 (for the FY 2006 Funding the Fund, the Fund may, in its that demonstrate noncompliance with a Round) or Calendar Year 2006 (for the discretion and without advance notice previous assistance, award or allocation FY 2007 Funding Round), the Fund to the Awardee, either terminate the agreement; and (ii) the Fund has yet to reserves the right, in its sole discretion, Notice of Award or take such other make a final determination as to to delay entering into an Assistance actions as it deems appropriate. The whether the entity is in default of its Agreement. Further, if (i) the Fund has Fund reserves the right, in its sole previous assistance, award or allocation made a final determination that another discretion, to rescind its award if the agreement, the Fund reserves the right, entity that Controls the Awardee, is Awardee fails to return the Notice of in its sole discretion, to delay entering Controlled by the Awardee or shares Award, signed by the authorized into an Assistance Agreement, pending common management officials with the representative of the Awardee, along full resolution, in the sole determination Awardee (as determined by the Fund), with any other requested of the Fund, of the noncompliance. If is a prior Fund Awardee or allocatee documentation, within the deadline set the prior Awardee or allocatee in under any Fund program whose award by the Fund. question is unable to satisfactorily or allocation was terminated in default 1. Failure to meet reporting resolve the issues of noncompliance, in of such prior agreement; and (ii) the requirements: If an Awardee, or an the sole determination of the Fund, the final reporting period end date for the entity that Controls the Awardee, is Fund reserves the right, in its sole applicable terminated agreement falls in Controlled by the Awardee or shares discretion, to terminate and rescind the Calendar Year 2005 (for the FY 2006 common management officials with the Notice of Award and the award made Funding Round) or Calendar Year 2006 Awardee (as determined by the Fund) is under this NOFA. (for the FY 2007 Funding Round), the a prior Fund Awardee or allocatee 3. Default status: If, at any time prior Fund reserves the right, in its sole under any Fund program and is not to entering into an Assistance discretion, to delay entering into an current on the reporting requirements Agreement through this NOFA, the Assistance Agreement. set forth in the previously executed Fund has made a final determination 5. Deobligated awards: An Awardee assistance, allocation or award that an Awardee that is a prior Fund that receives a FA award pursuant to agreement(s), as of the date of the Notice Awardee or allocatee under any Fund this NOFA for which an amount over of Award, the Fund reserves the right, program is in default of a previously $200,000 is deobligated by the Fund in its sole discretion, to delay entering executed assistance, allocation or award subsequent to the expiration of the into an Assistance Agreement until said agreement(s), the Fund reserves the period of award funds availability prior Awardee or allocatee is current on right, in its sole discretion, to delay (generally, any funds deobligated after the reporting requirements in the entering into an Assistance Agreement, the September 30th following the year previously executed assistance, until said prior Awardee or allocatee in which the award was made) but allocation or award agreement(s). Please has submitted a complete and timely within the 12 months prior to the note that the Fund only acknowledges report demonstrating full compliance applicable application deadline, may the receipt of reports that are complete. with said agreement within a timeframe not apply for a new award through As such, incomplete reports or reports set by the Fund. Further, if at any time another NOFA for one CDFI or NACA that are deficient of required elements prior to entering into an Assistance Program funding round after the date of will not be recognized as having been Agreement through this NOFA, the said deobligation. received. If said prior Awardee or Fund has made a final determination B. Assistance Agreement: Each allocatee is unable to meet this that another entity that Controls the Applicant that is selected to receive an requirement within the timeframe set by Awardee, is Controlled by the applicant award under this NOFA must enter into the Fund, the Fund reserves the right, in or shares common management officials an Assistance Agreement with the Fund its sole discretion, to terminate and with the Awardee (as determined by the in order to receive disbursement of rescind the Notice of Award and the Fund), is a prior Fund Awardee or award proceeds. The Assistance award made under this NOFA. allocatee under any Fund program and Agreement will set forth certain 2. Pending resolution of is in default of a previously executed required terms and conditions of the noncompliance: If an Applicant is a assistance, allocation or award award, which will include, but not be prior Awardee or allocatee under any agreement(s), the Fund reserves the limited to: (i) The amount of the award; Fund program and if: (i) It has right, in its sole discretion, to delay (ii) the type of award; (iii) the approved submitted complete and timely reports entering into an Assistance Agreement, uses of the award; (iv) the approved to the Fund that demonstrate until said prior Awardee or allocatee Target Market to which the funded noncompliance with a previous has submitted a complete and timely activity must be targeted; (v) assistance, award or allocation report demonstrating full compliance performance goals and measures; and agreement; and (ii) the Fund has yet to with said agreement within a timeframe (vi) reporting requirements for all make a final determination as to set by the Fund. If said prior Awardee Awardees. FA and FA/TA Assistance whether the entity is in default of its or allocatee is unable to meet this Agreements under this NOFA generally previous assistance, award or allocation requirement, the Fund reserves the will have three-year performance agreement, the Fund reserves the right, right, in its sole discretion, to terminate periods; TA-only Assistance in its sole discretion, to delay entering and rescind the Notice of Award and the Agreements generally will have two- into an Assistance Agreement, pending award made under this NOFA. year performance periods. full resolution, in the sole determination 4. Termination in default: If (i) the The Fund reserves the right, in its sole of the Fund, of the noncompliance. Fund has made a final determination discretion, to terminate the Notice of Further, if another entity that Controls that an Awardee that is a prior Fund Award and rescind an award if the
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Awardee fails to return the Assistance requirements set forth in the Assistance that prevent them from creating an Agreement, signed by the authorized Agreement and to assess the impact of Investment Area map using the Fund’s representative of the Awardee, and/or the CDFI Program. The Institution Level Web site should call (202) 622–2455 for provide the Fund with any other Report and the Transaction Level Report assistance. These are not toll free requested documentation, within the must be submitted through the Fund’s numbers. deadlines set by the Fund. web-based data collection system, the B. Programmatic Support: If you have In addition to entering into an Community Investment Impact System any questions about the programmatic Assistance Agreement, each Awardee (CIIS). The Financial Report may be requirements of this NOFA, contact the that receives an award either (i) in the submitted through CIIS, or by fax or Fund’s Program office by e-mail at form of a loan, equity investment, credit mail to the Fund. All other components [email protected], by telephone at union shares/deposits, or secondary of the Annual Report may be submitted (202) 622–6355, by facsimile at (202) capital, in any amount, or (ii) a FA grant to the Fund in paper form or other form 622–7754, or by mail at CDFI Fund, 601 in an amount greater than $500,000, to be determined by the Fund. The Fund 13th Street, NW., Suite 200 South, must furnish to the Fund an opinion reserves the right, in its sole discretion, Washington, DC 20005. These are not from its legal counsel, the content of to modify these reporting requirements toll-free numbers. which will be specified in the if it determines it to be appropriate and C. Grants Management Support: If Assistance Agreement, to include, necessary; however, such reporting you have any questions regarding the among other matters, an opinion that requirements will be modified only after administrative requirements of this the Awardee: (A) is duly formed and in notice to Awardees. NOFA, including questions regarding good standing in the jurisdiction in 2. Accounting: The Fund will require submission requirements, contact the which it was formed and/or operates; each Awardee that receives FA and TA Fund’s Grants Manager by e-mail at (B) has the authority to enter into the awards through this NOFA to account [email protected], by Assistance Agreement and undertake for and track the use of said FA and TA telephone at (202) 622–8226, by the activities that are specified therein; awards. This means that for every dollar facsimile at (202) 622–6453, or by mail and (C) has no pending or threatened of FA and TA awards received from the at CDFI Fund, 601 13th Street, NW., litigation that would materially affect its Fund, the Awardee will be required to Suite 200 South, Washington, DC 20005. ability to enter into and carry out the inform the Fund of its uses. This will These are not toll free numbers. activities specified in the Assistance require Awardees to establish separate D. Compliance and Monitoring Agreement. Each other Awardee must administrative and accounting controls, Support: If you have any questions provide the Fund with a good standing subject to the applicable OMB Circulars. regarding the compliance requirements certificate (or equivalent The Fund will provide guidance to of this NOFA, including questions documentation) from its state (or Awardees outlining the format and regarding performance on prior awards, jurisdiction) of incorporation. content of the information to be contact the Fund’s Compliance Manager C. Reporting: 1. Reporting provided on an annual basis, outlining by e-mail at [email protected], by requirements: The Fund will collect and describing how the funds were telephone at (202) 622–8226, by information, on at least an annual basis, used. Each Awardee that receives an facsimile at (202) 622–6453, or by mail from each Awardee including, but not award must provide the Fund with the at CDFI Fund, 601 13th Street, NW., limited to, an Annual Report that required complete and accurate Suite 200 South, Washington, DC 20005. comprises the following components: (i) Automated Clearinghouse (ACH) form These are not toll free numbers. Financial Report; (ii) Institution Level for its bank account prior to award E. Legal Counsel Support: If you have Report; (iii) Transaction Level Report closing and disbursement. any questions or matters that you (for Awardees receiving FA); (iv) believe require response by the Fund’s Financial Status Report (for Awardees VII. Agency Contacts Office of Legal Counsel, please refer to receiving TA); (v) Uses of Financial The Fund will respond to questions the document titled ‘‘How to Request a Assistance and Matching Funds Report and provide support concerning this Legal Review,’’ found on the Fund’s (for Awardees receiving Financial NOFA and the funding application web site at http://www.cdfifund.gov. Assistance); (vi) Explanation of between the hours of 9 a.m. and 5 p.m. Further, if you wish to review the Noncompliance (as applicable); and (vii) ET, starting the date of the publication Assistance Agreement form document such other information as the Fund may of this NOFA through January 19, 2006 from a prior funding round, you may require. Each Awardee is responsible for (for the FY 2006 Funding Round) and find it posted on the Fund’s Web site the timely and complete submission of January 5, 2007 (for the FY 2007 (please note that there may be revisions the Annual Report, even if all or a Funding Round). The Fund will not to the Assistance Agreement that will be portion of the documents actually is respond to questions or provide support used for Awardees under this NOFA completed by another entity or signatory concerning the application that are and thus the sample document on the to the Assistance Agreement. If such received after 5 p.m. ET on said dates, Fund’s Web site should not be relied other entities or signatories are required until after the respective funding upon for purposes of this NOFA). to provide Institution Level Reports, application deadline. Applications and F. Communication with the CDFI Transaction Level Reports, Financial other information regarding the Fund Fund: The Fund will use its Reports, or other documentation that the and its programs may be obtained from myCDFIFund Internet interface to Fund may require, the Awardee is the Fund’s Web site at http:// communicate with Applicants and responsible for ensuring that the www.cdfifund.gov. The Fund will post Awardees under this NOFA. Awardees information is submitted timely and on its Web site responses to questions must use myCDFIFund to submit complete. The Fund reserves the right to of general applicability regarding the required reports. The Fund will notify contact such additional signatories to CDFI Program. Awardees by e-mail using the addresses the Assistance Agreement and require A. Information Technology Support: maintained in each Awardee’s that additional information and Technical support can be obtained by myCDFIFund account. Therefore, the documentation be provided. The Fund calling (202) 622–2455 or by e-mail at Awardee and any Subsidiaries, will use such information to monitor [email protected]. People who signatories, and Affiliates must maintain each Awardee’s compliance with the have visual or mobility impairments accurate contact information (including
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contact person and authorized Institutions Fund (the Fund) provides right to award in excess of $3.5 million representative, e-mail addresses, fax Financial Assistance (FA) awards to in appropriated funds to Applicants in numbers, phone numbers, and office Community Development Financial the FY 2006 Funding Round, provided addresses) in their myCDFIFund Institutions (CDFIs) that have at least 50 that the funds are available and the account(s). For more information about percent of their activities directed Fund deems it appropriate. myCDFIFund, please see the Help toward serving Native American, Alaska 2. FY 2007 Funding Round: Through documents posted at https:// Native and/or Native Hawaiian the FY 2007 Funding Round, and www.cdfifund.gov/myCDFI/Help/ communities (Native CDFIs) in order to subject to funding availability, the Fund Help.asp. build their capacity to better address the expects that it may award community development and capital approximately $3.5 million in VIII. Information Sessions and access needs of their Target Market(s) appropriated funds through the NACA Outreach and to expand into new Investment Program. The Fund reserves the right to In connection with the Fiscal Year Areas, Low-Income Targeted award in excess of $3.5 million in 2006 and FY 2007 Funding Round, the Populations, or Other Targeted appropriated funds to Applicants in the Fund may conduct Information Sessions Populations. Through the NACA FY 2007 Funding Round, provided that to disseminate information to Program, the Fund provides Technical the funds are available and the Fund organizations contemplating applying Assistance (TA) grants to entities that deems it appropriate. to, and other organizations interested in propose to become Native CDFIs, and to 3. Availability of Funds for the FY learning about, the Fund’s programs. Native organizations, Tribes and Tribal 2007 Funding Round: Because funds for For further information on the Fund’s organizations (Sponsoring Entities) that the FY 2007 Funding Round have not Information Sessions, dates and propose to create Native CDFIs, in order yet been appropriated, interested parties locations, or to register to attend an to build their capacity to better address should be aware that electing to defer Information Session, please visit the the community development and capital the submission of an application until Fund’s Web site at http:// access needs of their Target Market(s), to the FY 2007 Funding Round, rather than www.cdfifund.gov or call the Fund at expand into new Investment Areas, for the FY 2006 Funding Round, entails (202) 622–9046. Low-Income Targeted Populations, or some risk. If funds are not appropriated Other Targeted Populations, or to create for the FY 2007 Funding Round, there Authority: 12 U.S.C. 4703, 4703 note, 4704, will not be a FY 2007 Funding Round. 4706, 4707, 4717; 12 CFR part 1805. Native CDFIs. B. The regulations governing the CDFI Further, it is possible that if funds are Dated: December 1, 2005. Program, found at 12 CFR Part 1805 (the appropriated for the FY 2007 Funding Arthur A. Garcia, Interim Rule), provide relevant guidance Round, the amount of such funds may Director, Community Development Financial on evaluation criteria and other be less than the amounts set forth above. Institutions Fund. requirements of the NACA Program. The B. Types of Awards: A NACA Program [FR Doc. 05–23750 Filed 12–12–05; 8:45 am] Fund is publishing the revised Interim Applicant may submit an application BILLING CODE 4810–70–P Rule in this issue of the Federal for: (i) a FA award; (ii) a FA award and Register. The Interim Rule published in a TA grant; or (iii) a TA grant. this issue of the Federal Register 1. FA Awards: The Fund may provide DEPARTMENT OF THE TREASURY contains revisions concerning how FA awards in the form of equity certain Applicants may use retained investments (including, in the case of Community Development Financial earnings as matching funds for a FA certain Insured Credit Unions, Institutions Fund award. The Fund encourages Applicants secondary capital accounts), grants, to review the Interim Rule. Detailed loans, deposits, credit union shares, or Notice of Funds Availability (NOFA) application content requirements are any combination thereof. The Fund Inviting Applications for the FY 2006 found in the applicable funding reserves the right, in its sole discretion, Funding Round and the FY 2007 application and related guidance to provide a FA award in a form and Funding Round of the Native American materials. Each capitalized term in this amount other than that which is CDFI Assistance Program NOFA is more fully defined in the requested by an Applicant. The Fund Announcement Type: Initial Interim Rule, the application or the reserves the right, in its sole discretion, announcement of funding opportunity. guidance materials. to provide a FA award on the condition Catalog of Federal Domestic C. The Fund reserves the right to that the Applicant agrees to use a TA Assistance (CFDA) Number: 21.020. fund, in whole or in part, any, all, or grant for specified capacity building Dates: Applications for the FY 2006 none of the applications submitted in purposes, even if the Applicant has not Funding Round must be received by 5 response to this NOFA. The Fund requested a TA grant. p.m. ET on February 14, 2006. reserves the right to re-allocate funds 2. TA Grants: (a) The Fund may Applications for the FY 2007 Funding from the amount that is anticipated to provide TA awards in the form of Round must be received by 5 p.m. ET be available under this NOFA to other grants. The Fund reserves the right, in on February 14, 2007. Fund programs, particularly if the Fund its sole discretion, to provide a TA grant Executive Summary: Subject to determines that the number of awards for uses and amounts other than and in funding availability, this NOFA is made under this NOFA is fewer than addition to that which are requested by issued in connection with two projected. an Applicant. consecutive funding rounds of the (b) TA grants may be used to address II. Award Information Native American CDFI Assistance a variety of needs including, but not (NACA) Program: (i) The FY 2006 A. Funding Availability: 1. FY 2006 limited to, development of strategic Funding Round and (ii) the FY 2007 Funding Round: Through the FY 2006 planning documents (such as business, Funding Round. Funding Round, and subject to funding strategic or capitalization plans), market availability, the Fund expects that it analyses or product feasibility analyses, I. Funding Opportunity Description may award approximately $3.5 million operational policies and procedures, A. Through the NACA Program, the in appropriated funds through the curricula for Development Services Community Development Financial NACA Program. The Fund reserves the (such as entrepreneurial training, home
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buyer education, financial education or and that has not been notified by the entity that proposes to create a separate training, borrower credit repair Fund that its certification has been legal entity that will become certified as training), improvement of underwriting terminated. Each such Applicant must a CDFI. For purposes of this NOFA, and portfolio management, development include a ‘‘Certification of Material Sponsoring Entities include: (a) A Tribe, of outreach and training strategies to Event Form’’ with its NACA application Tribal entity, Alaska Native Village, enhance product delivery, operating by the applicable application deadline, Village Corporation, Regional support to expand into a new Target in accordance with the instructions on Corporation, Non-Profit Regional Market, and tools that allow the the Fund’s Web site at Corporation/Association, or Inter-Tribal Applicant to assess the impact of its www.cdfifund.gov. Please note: the or Inter-Village organization; (b) an activities in its community. Each Fund provided a number of CDFIs with organization whose primary mission is Applicant for a TA grant through this certifications expiring in 2003 through to serve a Native Community including, NOFA is required to provide 2005 written notification that their but not limited to an Urban Indian information in the application regarding certifications had been extended. The Center, Tribally Controlled Community the expected cost, timing and provider Fund will consider the extended College, community development of the TA, and a narrative description of certification date (the later date) to corporation (CDC), training or how the TA grant will enhance its determine whether those CDFIs meet educational organization, or Chamber of capacity to provide greater community this eligibility requirement. Commerce, and that primarily serves development impact, to become (b) Certifiable Native CDFIs: For (meaning, at least 50 percent of its certified as a Native CDFI, or to create purposes of this NOFA, a Certifiable activities are directed toward serving) a a Native CDFI, if applicable. Native CDFI is an entity that primarily Native Community. Sponsoring Entities (c) Eligible TA grant uses include, but serves (meaning, at least 50 percent of may only apply for TA grants; they are are not limited to: (i) Acquiring its activities are directed toward not eligible to apply for FA awards. consulting services; (ii) acquiring/ serving) a Native Community and from Each Sponsoring Entity that is selected enhancing technology items, including which the Fund receives a complete to receive a TA grant will be required, computer hardware, software and CDFI Certification Application by the pursuant to its Assistance Agreement Internet connectivity; (iii) acquiring applicable deadline of the NACA with the Fund, to create a legal entity by training for staff, management and/or Program application, evidencing that a date certain that will, in turn, seek board members; and (iv) paying the Applicant meets all requirements to CDFI certification. recurring expenses, including staff be certified as a CDFI. Applicants may D. Prior Awardees: Applicants must salary and other key operating expenses, obtain the CDFI Certification be aware that success in a prior round that will enhance the capacity of the Application through the Fund’s Web of any of the Fund’s programs is not Applicant to serve its Target Market, site at www.cdfifund.gov. Applications indicative of success under this NOFA. and/or to become certified as a Native for certification must be submitted as Prior awardees are eligible to apply CDFI or to create a Native CDFI. instructed in the application form. FA under this NOFA, except as follows: C. Notice of Award; Assistance Applicants that are Certifiable Native 1. $5 Million Funding Cap. The Fund Agreement: Each Awardee under this CDFIs please note: While your is generally prohibited from obligating NOFA must sign a Notice of Award and organization may be conditionally more than $5 million in assistance, in an Assistance Agreement in order to selected for funding (as evidenced the aggregate, to any one organization receive a disbursement of award through the Notice of Award), the Fund and its Subsidiaries and Affiliates proceeds by the Fund. The Notice of will not enter into an Assistance during any three-year period. For the Award and the Assistance Agreement Agreement or disburse FA award funds purposes of this NOFA, the period contain the terms and conditions of the unless and until the Fund has certified extends back three years from the date award. For further information, see your organization as a CDFI. If the Fund that the Fund signs a Notice of Award Sections VI.A and VI.B of this NOFA. is unable to certify your organization as issued to an Awardee under this NOFA. a CDFI based on the CDFI certification 2. Failure to meet reporting III. Eligibility Information application that your organization requirements: The Fund will not A. Eligible Applicants: The Interim submits to the Fund, the Notice of consider an application submitted by an Rule specifies the eligibility Award may be terminated and the Applicant if the Applicant, or an entity requirements that each Applicant must award commitment may be cancelled, in that Controls the Applicant, is meet in order to be eligible to apply for the sole discretion of the Fund. Controlled by the Applicant or shares assistance under this NOFA. The (c) Emerging Native CDFIs: For common management officials with the following sets forth additional detail purposes of this NOFA, an Emerging applicant (as determined by the Fund) and dates that relate to the submission Native CDFI is an entity that primarily is a prior Fund Awardee or allocatee of applications under this NOFA: serves (meaning, at least 50 percent of under any Fund program and is not 1. CDFI Certification Requirements: its activities are directed toward current on the reporting requirements For purposes of this NOFA, any serving) a Native Community and that set forth in a previously executed Applicant that is a Certified Native CDFI demonstrates to the satisfaction of the assistance, allocation or award or a Certifiable Native CDFI may apply Fund that it has a reasonable plan to agreement(s) as of the applicable for a FA award or a FA award and a TA achieve CDFI certification within a application deadline of this NOFA. grant. An Applicant that is an Emerging reasonable timeframe. Emerging CDFIs Please note that the Fund only Native CDFI or a Sponsoring Entity may may only apply for TA grants; they are acknowledges the receipt of reports that apply for a TA grant only. not eligible to apply for FA awards. are complete. As such, incomplete (a) Certified Native CDFIs: For Each Emerging CDFI that is selected to reports or reports that are deficient of purposes of this NOFA, a Certified receive a TA grant will be required, required elements will not be Native CDFI is a Certified CDFI that pursuant to its Assistance Agreement recognized as having been received. primarily serves (meaning, at least 50 with the Fund, to work toward CDFI 3. Pending resolution of percent of its activities are directed certification by a date certain. noncompliance: If an Applicant is a toward serving) a Native Community (d) Sponsoring Entities: For purposes prior Awardee or allocatee under any and whose certification has not expired of this NOFA, a Sponsoring Entity is an Fund program and if: (i) It has
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submitted complete and timely reports Year 2005 (for the FY 2006 Funding award(s), any balance of award funds to the Fund that demonstrate Round) or Calendar Year 2006 (for the equal to or greater than five (5) percent noncompliance with a previous FY 2007 Funding Round). Further, an of the total prior award(s) that remains assistance, allocation or award entity is not eligible to apply for an undisbursed more than two (2) years agreement; and (ii) the Fund has yet to award pursuant to this NOFA if: (i) The after the end of the calendar year in make a final determination as to Fund has made a final determination which the Fund signed an assistance whether the entity is in default of its that another entity that Controls the agreement with the Awardee. previous assistance, allocation or award Applicant, is Controlled by the ‘‘Undisbursed funds’’ does not include agreement, the Fund will consider the Applicant or shares common (i) tax credit allocation authority made Applicant’s application under this management officials with the available through the New Market Tax NOFA pending full resolution, in the Applicant (as determined by the Fund), Credit (NMTC) Program; (ii) any award sole determination of the Fund, of the is a prior Fund Awardee or allocatee funds for which the Fund received a full noncompliance. Further, if another under any Fund program whose award and complete disbursement request entity that Controls the Applicant, is or allocation terminated in default of a from the Awardee by the applicable Controlled by the Applicant or shares previously executed assistance, application deadline of this NOFA; (iii) common management officials with the allocation or award agreement(s); and any award funds for an award that has Applicant (as determined by the Fund), (ii) the final reporting period end date been terminated, expired, rescinded or is a prior Fund Awardee or allocatee for the applicable terminated assistance, deobligated by the Fund; or (iv) any and if such entity: (i) Has submitted allocation or award agreement(s) falls in award funds for an award that does not complete and timely reports to the Fund Calendar Year 2005 (for the FY 2006 have a fully executed assistance or that demonstrate noncompliance with a Funding Round) or Calendar Year 2006 award agreement. The Fund strongly previous assistance, allocation or award (for the FY 2007 Funding Round). encourages Applicants requesting agreement; and (ii) the Fund has yet to 6. Undisbursed balances: The Fund disbursements of ‘‘undisbursed funds’’ make a final determination as to will not consider an application from prior awards to provide the Fund whether the entity is in default of its submitted by an Applicant that is a with a complete disbursement request at least 10 business days prior to the previous assistance, allocation, or award prior Fund Awardee under any Fund agreement, the Fund will consider the applicable application deadline of this program if the Applicant has a balance Applicant’s application under this NOFA. of undisbursed funds (defined below) NOFA pending full resolution, in the 7. Exception for Applicants impacted under said prior award(s), as of the sole determination of the Fund, of the by Hurricanes Katrina and/or Rita: applicable application deadline of this noncompliance. Please note that the provisions of 4. Default status: The Fund will not NOFA. Further, an entity is not eligible paragraphs 2 (Failure to meet reporting consider an application submitted by an to apply for an award pursuant to this requirements) and 6 (Undisbursed Applicant that is a prior Fund Awardee NOFA if another entity that Controls the balances) of this section do not apply to or allocatee under any Fund program if, Applicant, is Controlled by the any Applicant that has an office located as of the applicable application deadline Applicant or shares common in, or that provides a significant volume of this NOFA, the Fund has made a final management officials with the of services or financing to residents of determination that such Applicant is in Applicant (as determined by the Fund), or businesses located in, a county that default of a previously executed is a prior Fund Awardee under any is within a ‘‘major disaster area’’ as assistance, allocation or award Fund program, and has a balance of declared by the Federal Emergency agreement(s). Further, an entity is not undisbursed funds under said prior Management Agency (FEMA) as a result eligible to apply for an award pursuant award(s), as of the applicable of Hurricanes Katrina and/or Rita. Said to this NOFA if, as of the applicable application deadline of this NOFA. In a requirements are waived for those application deadline of this NOFA, the case where another entity that Controls Applicants for the FY 2006 Funding Fund has made a final determination the Applicant, is Controlled by the Round and the FY 2007 Funding Round. that another entity that Controls the Applicant or shares common 8. Contact the Fund. Accordingly, Applicant, is Controlled by the management officials with the Applicants that are prior Awardees are Applicant or shares common Applicant (as determined by the Fund), advised to: (i) Comply with management officials with the is a prior Fund Awardee under any requirements specified in assistance, Applicant (as determined by the Fund): Fund program, and has a balance of allocation and/or award agreement(s), (i) Is a prior Fund Awardee or allocatee undisbursed funds under said prior and (ii) contact the Fund to ensure that under any Fund program; and (ii) has award(s), as of the applicable all necessary actions are underway for been determined by the Fund to be in application deadline of this NOFA, the the disbursement or de-obligation of any default of a previously executed Fund will include the combined awards outstanding balance of said prior assistance, allocation or award of the Applicant and such Affiliated award(s). All outstanding reports, agreement(s). entities when calculating the amount of disbursement or compliance questions 5. Termination in default: The Fund undisbursed funds. For purposes of this should be directed to the Grants will not consider an application section, ‘‘undisbursed funds’’ is defined Manager by e-mail at submitted by an Applicant that is a as: (i) In the case of a prior Bank [email protected]; by prior Fund Awardee or allocatee under Enterprise Award (BEA) Program telephone at (202) 622–8226; by any Fund program if: (i) The Fund has award(s), any balance of award funds facsimile at (202) 622–6453; or by mail made a final determination that such equal to or greater than five (5) percent to CDFI Fund, 601 13th Street, NW., Applicant’s prior award or allocation of the total prior BEA Program award(s) Suite 200 South, Washington, DC 20005. terminated in default of a previously that remains undisbursed more than The Fund will respond to Applicants’ executed assistance, allocation or award three (3) years after the end of the reporting, disbursement or compliance agreement(s); and (ii) the final reporting calendar year in which the Fund signed questions between the hours of 9 a.m. period end date for the applicable an award agreement with the Awardee; and 5 p.m. ET, starting the date of the terminated assistance, allocation or and (ii) in the case of a prior CDFI publication of this NOFA through award agreement(s) falls in Calendar Program or other Fund program February 10, 2006 (for the FY 2006
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Funding Round) and February 12, 2007 and matching funds guidance materials funds in-hand’’ means that the (for the FY 2007 Funding Round) (two on the Fund’s Web site for further Applicant has actually received the business days before the respective information. matching funds. If the matching funds application deadlines). The Fund will 2. Matching Funds Requirements Per are ‘‘in-hand,’’ the Applicant must not respond to Applicants’ reporting, Funding Round: Due to funding provide the Fund with acceptable disbursement or compliance phone calls constraints and the desire to quickly written documentation of the source, or e-mail inquiries that are received deploy Fund dollars, the Fund will not form and amount of the Matching Funds after 5 p.m. on said dates, until after the consider for a FA award any Applicant (i.e., grant, loan, and equity investment). respective funding application that has no matching funds in-hand or For a loan, the Applicant must provide deadlines. firmly committed as of the application the Fund with a copy of the loan 9. Limitation on Awards: An deadline under this NOFA. Specifically, agreement and promissory note. For a Applicant may receive only one award FA Applicants must meet the following grant, the Applicant must provide the through either the CDFI Program or the matching funds requirements: Fund with a copy of the grant letter or NACA Program in the same funding (a) FY 2006 Funding Round: A NACA agreement. For an equity investment, year. An Applicant may apply under Program Applicant must demonstrate the Applicant must provide the Fund both the CDFI Program and the NACA that it has eligible matching funds equal with a copy of the stock certificate and Program, but will not be selected for to no less than 25 percent of the amount any related shareholder agreement. funding under both. A NACA Program of the FA award requested in-hand or Further, if the matching funds are ‘‘in- Applicant, its Subsidiaries or Affiliates firmly committed, on or after January 1, hand,’’ the Applicant must provide the also may apply for and receive: (i) A tax 2004 and on or before the application Fund with acceptable documentation credit allocation through the NMTC deadline. The Fund reserves the right to that evidences its receipt of the Program, but only to the extent that the rescind all or a portion of a FA award matching funds proceeds, such as a activities approved for CDFI Program and re-allocate the rescinded award copy of a check or a wire transfer awards are different from those amount to other qualified Applicant(s), statement. activities for which the Applicant if an Applicant fails to obtain in-hand (b) ‘‘Firmly committed matching receives a NMTC Program allocation; 100 percent of the required matching funds’’ means that the Applicant has and (ii) an award through the BEA funds by March 15, 2007 (with required entered into or received a legally Program (subject to certain limitations; documentation of such receipt received binding commitment from the matching refer to the Interim Rule at 12 CFR by the Fund not later than March 30, funds source that the matching funds 1805.102). 2007), or to grant an extension of such will be disbursed to the Applicant. If the E. Matching Funds: 1. Matching matching funds deadline for specific matching funds are ‘‘firmly committed,’’ Funds Requirements in General: Applicants selected to receive FA, if the the Applicant must provide the Fund Applicants responding to this NOFA Fund deems it appropriate. For any with acceptable written documentation must obtain non-Federal matching Applicant that demonstrates that it has to evidence the source, form, and funds from sources other than the less than 100 percent of matching funds amount of the firm commitment (and, in Federal government on the basis of not in-hand or firmly committed as of the the case of a loan, the terms thereof), as less than one dollar for each dollar of application deadline, the Fund will well as the anticipated date of FA funds provided by the Fund evaluate the Applicant’s ability to raise disbursement of the committed funds. (matching funds are not required for TA the remaining matching funds by March (c) The Fund may contact the grants). Matching funds must be at least 15, 2007. matching funds source to discuss the comparable in form and value to the FA (b) FY 2007 Funding Round: A NACA matching funds and the documentation award provided by the Fund (for Program Applicant must demonstrate provided by the Awardee. If the Fund example, if an Applicant is requesting a that it has eligible matching funds equal determines that any portion of the FA grant from the Fund, the Applicant to no less than 25 percent of the amount Applicant’s matching funds is ineligible must have evidence that it has obtained of the FA award requested in-hand or under this NOFA, the Fund, in its sole matching funds through grant(s) from firmly committed, on or after January 1, discretion, may permit the Applicant to non-Federal sources that are at least 2005 and on or before the application offer alternative matching funds as equal to the amount requested from the deadline. The Fund reserves the right to substitute for the ineligible matching Fund). Funds used by an Applicant as rescind all or a portion of a FA award funds; provided, however, that (i) the matching funds for a prior FA award and re-allocate the rescinded award Applicant must provide acceptable under the CDFI Program or under amount to other qualified Applicant(s), alternative matching funds another Federal grant or award program if an Applicant fails to obtain in-hand documentation within 5 business days cannot be used to satisfy the matching 100 percent of the required matching of the Fund’s request and (ii) the funds requirement of this NOFA. If an funds by March 14, 2008 (with required alternative matching funds Applicant seeks to use as matching documentation of such receipt received documentation cannot increase the total funds monies received from an by the Fund not later than March 31, amount of Financial Assistance organization that was a prior Awardee 2008), or to grant an extension of such requested by the Applicant. under the CDFI Program, the Fund will matching funds deadline for specific 4. Special Rule for Insured Credit deem such funds to be Federal funds, Applicants selected to receive FA, if the Unions. Please note that the Interim unless the funding entity establishes to Fund deems it appropriate. For any Rule allows an Insured Credit Union to the reasonable satisfaction of the Fund Applicant that demonstrates that it has use retained earnings to serve as that such funds do not consist, in whole less than 100 percent of matching funds matching funds for a FA grant in an or in part, of CDFI Program funds or in-hand or firmly committed as of the amount equal to: (i) The increase in other Federal funds. For the purposes of application deadline, the Fund will retained earnings that have occurred this NOFA, BEA Program awards are not evaluate the Applicant’s ability to raise over the Applicant’s most recent fiscal deemed to be Federal funds and are the remaining matching funds by March year; (ii) the annual average of such eligible as matching funds. The Fund 14, 2008. increases that have occurred over the encourages Applicants to review the 3. Matching Funds Terms Defined; Applicant’s three most recent fiscal Interim Rule at 12 CFR 1805.500 et seq. Required Documentation. (a) ‘‘Matching years; or (iii) the entire retained
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earnings that have been accumulated Applicant must demonstrate that it has receipt of paper application materials in since the inception of the Applicant or eligible matching funds equal to no less the mail. such other financial measure as may be than 25 percent of the amount of the FA B. Applications must be submitted in specified by the Fund. For purposes of award requested in-hand or firmly the format specified in the application this NOFA, if option (iii) is used, the committed, on or after January 1, 2005 instructions. An Applicant requesting Applicant must increase its member (for the FY 2006 Funding Round) or only a TA grant must submit one and/or non-member shares or total loans January 1, 2006 (for the FY 2007 original application and three (3) outstanding by an amount that is equal Funding Round) and on or before the complete copies. An Applicant to the amount of retained earnings that application deadline. The Fund reserves requesting a FA award must submit one is committed as matching funds. This the right to rescind all or a portion of original application and four (4) amount must be raised by the end of the a FA award and re-allocate the complete copies. Do not bind the Awardee’s second performance period, rescinded award amount to other original application or separate the as set forth in its Assistance Agreement, qualified Applicant(s), if an Applicant sections with tabs. Each copy must be and will be based on amounts reported fails to obtain in-hand 50 percent of the placed in a three-ring binder, without in the Applicant’s Audited or Reviewed required matching funds by March 15, staples or other forms of binding, and Financial Statements or NCUA Form 2007 (for the FY 2006 Funding Round) each section must be separated by tabs. 5300 Call Report. or March 14, 2008 (for the FY 2007 C. Application Content Requirements: Detailed application content 5. Severe Constraints Exception to Funding Round) (with required requirements are found in the Matching Funds Requirement; documentation of such receipt received application and guidance. Please note Applicability to Applicants Located in by the Fund not later than March 31, that, pursuant to OMB guidance (68 FR FEMA-Designated Major Disaster Areas 2007 (for the FY 2006 Funding Round) or March 30, 2008 (for the FY 2007 38402), each Applicant must provide, as Created by Hurricanes Katrina and/or part of its application submission, a Dun Rita: In the case of any Applicant that Funding Round)), or to grant an extension of such matching funds and Bradstreet Data Universal has an office that is located in, or that Numbering System (DUNS) number. In provides a significant volume of deadline for specific Applicants selected to receive FA, if the Fund addition, each application must include services or financing to residents of or deems it appropriate. For any such a valid and current Employer businesses located in, any county that is Applicant that demonstrates that it has Identification Number (EIN), with a within a ‘‘major disaster area’’ as less than 50 percent of matching funds letter or other documentation from the declared by the Federal Emergency in-hand or firmly committed as of the Internal Revenue Service (IRS) Management Agency (FEMA) as a result application deadline, the Fund will confirming the Applicant’s EIN. An of Hurricanes Katrina and/or Rita, and evaluate the Applicant’s ability to raise application that does not include a valid that has severe constraints on available the remaining matching funds by March EIN will be deemed incomplete. sources of matching funds, such 15, 2007 (for the FY 2006 Funding Incomplete applications will be rejected Applicant may be eligible for a ‘‘severe Round) or March 14, 2008 (for the FY and returned to the sender. Applicants constraints waiver’’ (see section 2007 Funding Round). In the case of should allow sufficient time for the IRS 1805.203 of the Interim Rule) if (i) it can item (ii) of this paragraph, the NACA and/or Dun and Bradstreet to respond to demonstrate to the satisfaction of the Program funding application contains inquiries and/or requests for Fund that an Investment Area(s) or further instructions on the type of identification numbers. Once an Targeted Population(s) would not be documentation that the Applicant must application is submitted, the Applicant adequately served without such a provide as evidence that such match will not be allowed to change any waiver and (ii) it projects to use the was received and its valuation. The element of the application. The assistance to address issues resulting Fund reserves the right, in its sole preceding sentence does not limit the from Hurricanes Katrina and/or Rita discretion, to disallow any such match Fund’s ability to contact an Applicant (such as a significant volume of loan for which adequate documentation or for the purpose of obtaining clarifying or defaults) or to provide financial valuation is not provided. confirming application information products, financial services, or (such as DUNS number or EIN Development Services to residents of or IV. Application and Submission information). businesses located in any county that is Information D. MyCDFIFund Accounts: All within a ‘‘major disaster area’’ as A. Form of Application Submission: Applicants must register User and declared by FEMA as a result of Applicants must submit applications Organization accounts in myCDFIFund, Hurricanes Katrina and/or Rita. If under this NOFA in paper form. the Fund’s Internet-based interface. As eligible for such a waiver, the Applicant Applications sent by facsimile or other myCDFIFund is the Fund’s primary may comply with the matching funds form will not be accepted. The NACA means of communication with requirements of this NOFA as follows: Program application (including detailed Applicants and Awardees, organizations (i) The matching funds requirement for application content requirements and must make sure that they update the such Applicant would be reduced to 50 electronic templates for application contact information in their percent (meaning, the Applicant must forms) may be found on the Fund’s Web myCDFIFund accounts. For more match 50 percent of the Fund’s FA site: http://www.cdfifund.gov. The Fund information on myCDFIFund, please see award rather than 100 percent), or (ii) will send paper application materials to the ‘‘Frequently Asked Questions’’ link such an Applicant may provide any Applicant that is unable to posted at https://www.cdfifund.gov/ matching funds in alternative (meaning, download the form from the Web site. myCDFI/Help/Help.asp. non-monetary) forms if the Applicant To have application materials sent to E. Application Deadlines; Address for has total assets of less than $100,000 at you, please contact the Fund by Paper Submissions; Late Delivery: the time of the application deadline, telephone at (202) 622–6355, by e-mail Applicants must submit all materials serves non-metropolitan or rural areas, at [email protected]; or by described in and required by the and is not requesting more than $25,000 facsimile at (202) 622–7754. These are application by the applicable deadline. in financial assistance from the Fund. In not toll free numbers. Applicants should 1. Application Deadlines: (a) FY 2006 the case of item (i) of this paragraph, the allow at least one week for the timely Funding Round: Applications must be
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received by the Fund at the address that is within the area declared to be a Business Plan as well as its ability to cited below and in accordance with the ‘‘major disaster’’ by FEMA as a result of use its award successfully and maintain instructions provided on the Fund’s Hurricanes Katrina and/or Rita; and/or compliance with its Assistance Web site, by 5 p.m. ET on February 14, (ii) any state that has been declared a Agreement through an evaluation of: (i) 2006. ‘‘reception state’’ by FEMA. The form The capacity, skills, size and experience (b) FY 2007 Funding Round: and content of such special of the Applicant’s current and proposed Applications must be received by the consideration will be further clarified in Governing Board, management team, Fund at the address cited below and in the NACA Program application. and key staff; and (ii) the Applicant’s accordance with the instructions 2. Business Strategy (25 points): The management controls and risk provided on the Fund’s Web site, by 5 Fund will evaluate the Applicant’s mitigation strategies including policies p.m. ET on February 14, 2007. business strategy for addressing market and procedures for portfolio 2. Address for Application demand and creating community underwriting and review, financial Submission: A complete application development impact through: (i) Its management, risk management, must be received at the following Financial Products, Development management information systems. address, by the applicable deadline: Services, and/or Financial Services; (ii) 5. Financial Health and Viability (10 CDFI Fund Grants Manager, NACA its marketing, outreach, and delivery points): The Fund will evaluate the Program, Bureau of Public Debt, 200 strategy; and (iii) the extent, quality and Applicant’s: (i) Audited or otherwise Third Street, Parkersburg, WV 26101. nature of coordination with other prepared Financial Statements; (ii) The telephone number to be used in similar providers of Financial Products safety and soundness, including an conjunction with overnight delivery or and Financial Services, government analysis of the Applicant’s financial mailings to this address is (304) 480– agencies, and other key community services industry ratios (capital, 6088 (this is not a toll free number). Any development entities within the Target liquidity, deployment and self- documents received in any other office, Market. The Fund will take into sufficiency) and ability to sustain including the Fund’s Washington, DC consideration whether the Applicant is positive net revenue; (iii) projected office, will be rejected and returned to proposing to expand into a new Target financial health, including its ability to the sender. Market. raise operating support from sources 3. Late Delivery: The Fund will 3. Community Development other than the Fund and its neither accept a late application nor any Performance and Effective Use (20 capitalization strategy; and (iv) portfolio portion of an application that is late; an points): The Fund will evaluate (i) the performance including loan application that is late, or for which any Applicant’s vision for its Target Market, delinquency, loan losses, and loan loss portion is late, will be rejected and specific outcomes or impacts for reserves. If an Applicant does not have returned to the sender. An application, measuring progress towards achieving 100 percent of the required matching including the required signed signature this vision, and the extent to which this funds in-hand (versus committed), the page, and all required paper award will allow it to achieve them; (ii) Applicant must demonstrate to the attachments, must be received by the the Applicant’s track record in satisfaction of the Fund that it will raise applicable time and date set forth above. providing Financial Products, Financial the outstanding balance of matching The Fund will not grant exceptions or Services, and Development Services to funds within the time table set forth waivers for late delivery of documents the Target Market; (iii) the extent to above. including, but not limited to, late which proposed activities will benefit 6. Technical Assistance Proposal: Any delivery that is caused by third parties the Target Market; (iv) the likelihood of Applicant applying for a TA grant, such as the United States Postal Service, achieving the impact projections, either alone or in conjunction with a couriers or overnight delivery services. including the extent to which the request for a FA award, must complete D. Intergovernmental Review: Not activities proposed in the a Technical Assistance Proposal (TAP) applicable. Comprehensive Business Plan will as part of its application. The TAP E. Funding Restrictions: For allowable expand economic opportunities or consists of a summary of the uses of FA proceeds, please see the promote community development organizational improvements needed to Interim Rule at 12 CFR 1805.301. within the designated Target Market by achieve the objectives of the promoting homeownership, affordable application, a budget, and a description V. Application Review Information housing development, job creation or of the requested goods and/or services A. Criteria: The Fund will evaluate retention, the provision of affordable comprising the TA award request. The each application using numeric scores financial services, and other community budget and accompanying narrative will with respect to the following five development objectives; and (v) the be evaluated for the eligibility and sections: extent to which the Applicant will appropriateness of the proposed uses of 1. Market Analysis (25 points): The maximize the effective use of the Fund’s the TA award (described above). In Fund will evaluate: (i) The extent and resources. If an Applicant has a prior addition, if the Applicant identifies a nature of the economic distress within track record of serving Investment capacity-building need related to any of the designated Target Market including Areas(s) or Targeted Population(s), it the evaluation criteria above (for the Applicant’s understanding of its must demonstrate that (i) it has a record example, if the Applicant requires a current and prospective customers; and of success in serving said Investment market need analysis or a community (ii) the extent of demand for the Area(s) or Targeted Population(s) and development impact tracking/reporting Applicant’s Financial Products, (ii) it will expand its operations into a system), the Fund will assess its plan to Development Services, and Financial new Investment Area or to serve a new use the TA grant to address said needs. Services within the designated Target Targeted Population, offer more An Applicant that is not a Certified Market. The Fund will give special products or services, or increase the CDFI and that requests TA to address consideration to any Applicant that has volume of its current business. certification requirements, must explain an office that is located in, or that 4. Management (20 points): The Fund how the requested TA grant will assist provides a significant volume of will evaluate the Applicant’s the Applicant in meeting the services or financing to residents of or organizational capacity to achieve the certification requirement. An Applicant businesses located in, (i) any county objectives set forth in its Comprehensive that requests a TA grant for recurring
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activities must clearly describe the The Applicant’s noncompliance with (b) Ranking: The Fund then will rank benefit that would accrue to its capacity any active award or award that the applications by their scores, from or to its Target Market(s) (such as plans terminated in calendar year 2005 (for FY highest to lowest, based on each for expansion of staff, market, or 2006 Funding Round Applicants) and Applicant’s scores for all five criteria products) as a result of the TA award. calendar year 2006 (for FY 2007 categories added together. If the Applicant is a prior Fund Funding Round Applicants), in meeting 4. Award Selection: The Fund will Awardee, it must describe how it has its performance goals, financial make its final award selections based on used the prior assistance and explain soundness covenants (if applicable), the rank order of Applicants by their the need for additional Fund dollars reporting deadlines and other scores and the amount of funds over and above such prior assistance. requirements set forth in the assistance available. Subject to the availability of Such an Applicant also must describe or award agreement(s) with the Fund funding, the Fund will award funding in the additional benefits that would during the Applicant’s two complete the order of the ranking. In addition, the accrue to its capacity or to the Target fiscal years prior to the application Fund may consider the institutional and Market(s) if the Applicant receives deadline of this NOFA (generally FY geographic diversity of Applicants when another award from the Fund, such as 2004 and FY 2005 for FY 2006 Funding making its funding decisions. plans for expansion of staff, market, or Round Applicants and FY 2005 and FY 5. Insured CDFIs: In the case of products. The Fund will not provide 2006 for FY 2007 Funding Round Insured Depository Institutions and funding for the same activities funded Applicants); (ii) the Applicant’s failure Insured Credit Unions, the Fund will in prior awards. to make timely loan payments to the take into consideration the views of the B. Review and Selection Process: 1. Fund during the Applicant’s two Appropriate Federal Banking Agencies; Eligibility and Completeness Review: complete fiscal years prior to the in the case of State-Insured Credit The Fund will review each application application deadline of this NOFA (if Unions, the Fund may consult with the to determine whether it is complete and applicable); (iii) performance on any appropriate State banking agencies (or the Applicant meets the eligibility prior Assistance Agreement as part of comparable entity). The Fund will not requirements set forth above. An the overall assessment of the approve a FA award or a TA grant to incomplete application will be rejected Applicant’s ability to carry out its any Insured Credit Union (other than a as incomplete and returned to the Comprehensive Business Plan; and (iv) State-Insured Credit Union) or Insured sender. If an Applicant does not meet funds deobligated from a FY 2003, FY Depository Institution Applicant that eligibility requirements, its application has a CAMEL rating that is higher than will be rejected and returned to the 2004 or FY 2005 FA award (if the a ‘‘3’’ or for which its Appropriate sender. Applicant is applying for a FA award 2. Substantive Review: If an under this NOFA) if (A) the amount of Federal Banking Agency indicates it has application is determined to be deobligated funds is at least $200,000 safety and soundness concerns, unless complete and the Applicant is and (B) the deobligation occurred the Appropriate Federal Banking determined to be eligible, the Fund will subsequent to the expiration of the Agency asserts, in writing, that: (i) An conduct the substantive review of the period of award funds availability upgrade to a CAMEL 3 rating or better application in accordance with the (generally, any funds deobligated after (or other improvement in status) is criteria and procedures described in the the September 30th following the year imminent and such upgrade is expected Interim Rule, this NOFA and the in which the award was made). Any to occur not later than September 30, application and guidance. Each FA award deobligations that result in a 2006 (for the FY 2006 Funding Round) application will be reviewed and scored point deduction under an application or September 30, 2007 (for the FY 2007 by multiple readers. Each TA submitted pursuant to either funding Funding Round) or within such other application will be read and scored by round of this NOFA will not be counted time frame deemed acceptable by the one reader. Readers may include Fund against any future application for FA Fund, or (ii) the safety and soundness staff and other experts in community through the NACA Program. All condition of the Applicant is adequate development finance and/or Native questions regarding outstanding reports to undertake the activities for which the community development. As part of the or compliance should be directed to the Applicant has requested a FA award review process, the Fund may contact Grants Manager by e-mail at and the obligations of an Assistance the Applicant by telephone or through [email protected]; by Agreement related to such a FA award. an on-site visit for the purpose of telephone at (202) 622–8226; by 6. Award Notification: Each Applicant obtaining clarifying or confirming facsimile at (202) 622–7754; or by mail will be informed of the Fund’s award application information. The Applicant to CDFI Fund, 601 13th Street, NW., decision either through a Notice of may be required to submit additional Suite 200 South, Washington, DC 20005. Award if selected for an award (see information to assist the Fund in its These are not toll free numbers. The Notice of Award section, below) or evaluation process. Such requests must Fund will respond to reporting or written declination if not selected for an be responded to within the time compliance questions between the award. Each Applicant that is not parameters set by the Fund. hours of 9 a.m. and 5 p.m. ET, starting selected for an award based on reasons 3. Application Scoring; Ranking: (a) the date of the publication of this NOFA other than completeness or eligibility Application Scoring: The Fund will through February 10, 2006 (for the FY issues may be offered a debriefing on evaluate each application on a 100-point 2006 Funding Round) and February 12, the strengths and weaknesses of its scale, comprising the five criteria 2007 (for the FY 2007 Funding Round). application. This feedback will be categories described above, and assign The Fund will not respond to reporting provided in a format and within a numeric scores. An Applicant must or compliance phone calls or e-mail timeframe to be determined by the receive a minimum total score in order inquiries that are received after 5 p.m. Fund, based on available resources. The to be considered for an award. In the on February 10, 2006 (for the FY 2006 Fund will notify Awardees by e-mail or case of an Applicant that has previously Funding Round) and February 12, 2007 fax using the addresses maintained in received funding from the Fund through (for the FY 2007 Funding Round) until the Awardee’s myCDFIFund account any Fund program, the Fund will after the applicable funding application (postal mailings will be used only in consider and will deduct points for: (i) deadline. rare cases).
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7. The Fund reserves the right to Award, signed by the authorized into an Assistance Agreement, pending reject an application if information representative of the Awardee, along full resolution, in the sole determination (including administrative errors) comes with any other requested of the Fund, of the noncompliance. If to the attention of the Fund that either documentation, within the deadline set the prior Awardee or allocatee in adversely affects an applicant’s by the Fund. question is unable to satisfactorily eligibility for an award, or adversely 1. Failure to meet reporting resolve the issues of noncompliance, in affects the Fund’s evaluation or scoring requirements: If an Awardee, or an the sole determination of the Fund, the of an application, or indicates fraud or entity that Controls the Awardee, is Fund reserves the right, in its sole mismanagement on the part of an Controlled by the Awardee or shares discretion, to terminate and rescind the Applicant. If the Fund determines that common management officials with the Notice of Award and the award made any portion of the application is Awardee (as determined by the Fund) is under this NOFA. incorrect in any material respect, the a prior Fund Awardee or allocatee 3. Default status: If, at any time prior Fund reserves the right, in its sole under any Fund program and is not to entering into an Assistance discretion, to reject the application. The current on the reporting requirements Agreement through this NOFA, the Fund reserves the right to change its set forth in the previously executed Fund has made a final determination eligibility and evaluation criteria and assistance, allocation or award that an Awardee that is a prior Fund procedures, if the Fund deems it agreement(s), as of the date of the Notice Awardee or allocatee under any Fund appropriate; if said changes materially of Award, the Fund reserves the right, program is in default of a previously affect the Fund’s award decisions, the in its sole discretion, to delay entering executed assistance, allocation or award Fund will provide information into an Assistance Agreement until said agreement(s), the Fund reserves the regarding the changes through the prior Awardee or allocatee is current on right, in its sole discretion, to delay Fund’s Web site. There is no right to the reporting requirements in the entering into an Assistance Agreement, appeal the Fund’s award decisions. The previously executed assistance, until said prior Awardee or allocatee Fund’s award decisions are final. allocation or award agreement(s). Please has submitted a complete and timely note that the Fund only acknowledges report demonstrating full compliance VI. Award Administration Information the receipt of reports that are complete. with said agreement within a timeframe A. Notice of Award: The Fund will As such, incomplete reports or reports set by the Fund. Further, if at any time signify its conditional selection of an that are deficient of required elements prior to entering into an Assistance Applicant as an Awardee by delivering will not be recognized as having been Agreement through this NOFA, the a signed Notice of Award to the received. If said prior Awardee or Fund has made a final determination Applicant. The Notice of Award will allocatee is unable to meet this that another entity that Controls the contain the general terms and requirement within the timeframe set by Awardee, is Controlled by the applicant conditions underlying the Fund’s the Fund, the Fund reserves the right, in or shares common management officials provision of assistance including, but its sole discretion, to terminate and with the Awardee (as determined by the not limited to, the requirement that the rescind the Notice of Award and the Fund), is a prior Fund Awardee or Awardee and the Fund enter into an award made under this NOFA. allocatee under any Fund program, and Assistance Agreement. The Applicant 2. Pending resolution of is in default of a previously executed must execute the Notice of Award and noncompliance: If an Applicant is a assistance, allocation or award return it to the Fund. By executing a prior Awardee or allocatee under any agreement(s), the Fund reserves the Notice of Award, the Awardee agrees, Fund program and if: (i) It has right, in its sole discretion, to delay among other things, that, if prior to submitted complete and timely reports entering into an Assistance Agreement, entering into an Assistance Agreement to the Fund that demonstrate until said prior Awardee or allocatee with the Fund, information (including noncompliance with a previous has submitted a complete and timely administrative error) comes to the assistance, award or allocation report demonstrating full compliance attention of the Fund that either agreement; and (ii) the Fund has yet to with said agreement within a timeframe adversely affects the Awardee’s make a final determination as to set by the Fund. If said prior Awardee eligibility for an award, or adversely whether the entity is in default of its or allocatee is unable to meet this affects the Fund’s evaluation of the previous assistance, award or allocation requirement, the Fund reserves the Awardee’s application, or indicates agreement, the Fund reserves the right, right, in its sole discretion, to terminate fraud or mismanagement on the part of in its sole discretion, to delay entering and rescind the Notice of Award and the the Awardee, the Fund may, in its into an Assistance Agreement, pending award made under this NOFA. discretion and without advance notice full resolution, in the sole determination 4. Termination in default: If (i) the to the Awardee, terminate the Notice of of the Fund, of the noncompliance. Fund has made a final determination Award or take such other actions as it Further, if another entity that Controls that an Awardee that is a prior Fund deems appropriate. Moreover, by the Applicant, is Controlled by the Awardee or allocatee under any Fund executing a Notice of Award, the Applicant or shares common program whose award or allocation was Awardee agrees that, if prior to entering management officials with the terminated in default of such prior into an Assistance Agreement with the Applicant (as determined by the Fund), agreement; and (ii) the final reporting Fund, the Fund determines that the is a prior Fund Awardee or allocatee period end date for the applicable Awardee is in default of any Assistance and if such entity: (i) Has submitted terminated agreement falls in Calendar Agreement previously entered into with complete and timely reports to the Fund Year 2005 (for the FY 2006 Funding the Fund, the Fund may, in its that demonstrate noncompliance with a Round) or Calendar Year 2006 (for the discretion and without advance notice previous assistance, award or allocation FY 2007 Funding Round), the Fund to the Awardee, either terminate the agreement; and (ii) the Fund has yet to reserves the right, in its sole discretion, Notice of Award or take such other make a final determination as to to delay entering into an Assistance actions as it deems appropriate. The whether the entity is in default of its Agreement. Further, if (i) the Fund has Fund reserves the right, in its sole previous assistance, award or allocation made a final determination that another discretion, to rescind its award if the agreement, the Fund reserves the right, entity that Controls the Awardee, is Awardee fails to return the Notice of in its sole discretion, to delay entering Controlled by the Awardee or shares
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common management officials with the which will be specified in the Fund. The Fund reserves the right, in its Awardee (as determined by the Fund), Assistance Agreement, to include, sole discretion, to modify these is a prior Fund Awardee or allocatee among other matters, an opinion that reporting requirements if it determines under any Fund program whose award the Awardee: (A) is duly formed and in it to be appropriate and necessary; or allocation was terminated in default good standing in the jurisdiction in however, such reporting requirements of such prior agreement; and (ii) the which it was formed and/or operates; will be modified only after notice to final reporting period end date for the (B) has the authority to enter into the Awardees. applicable terminated agreement falls in Assistance Agreement and undertake 2. Accounting: The Fund will require Calendar Year 2005 (for the FY 2006 the activities that are specified therein; each Awardee that receives FA and TA Funding Round) or Calendar Year 2006 and (C) has no pending or threatened awards through this NOFA to account (for the FY 2007 Funding Round), the litigation that would materially affect its for and track the use of said FA and TA Fund reserves the right, in its sole ability to enter into and carry out the awards. This means that for every dollar discretion, to delay entering into an activities specified in the Assistance of FA and TA awards received from the Assistance Agreement. Agreement. Each other Awardee must Fund, the Awardee will be required to 5. Deobligated awards: An Awardee provide the Fund with a good standing inform the Fund of its uses. This will that receives a FA award pursuant to certificate (or equivalent require Awardees to establish separate this NOFA for which an amount over documentation) from its state (or administrative and accounting controls, $200,000 is deobligated by the Fund jurisdiction) of incorporation. subject to the applicable OMB Circulars. The Fund will provide guidance to subsequent to the expiration of the C. Reporting: 1. Reporting period of award funds availability Awardees outlining the format and requirements: The Fund will collect (generally, any funds deobligated after content of the information to be information, on at least an annual basis, the September 30th following the year provided on an annual basis, outlining from each Awardee including, but not in which the award was made) but and describing how the funds were limited to, an Annual Report that within the 12 months prior to the used. Each Awardee that receives a FA comprises the following components: (i) applicable application deadline, may award must establish a separate bank Financial Report (not required of not apply for a new award through account for the FA funds and provide Sponsoring Entities); (ii) Institution another NOFA for one CDFI or NACA the Fund with the required complete Level Report; (iii) Transaction Level Program funding round after the date of and accurate Automated Clearinghouse Report (for Awardees receiving FA); (iv) said deobligation. (ACH) form for that separate bank B. Assistance Agreement: Each Financial Status Report (for Awardees account prior to award closing and Applicant that is selected to receive an receiving TA); (v) Uses of Financial disbursement. award under this NOFA must enter into Assistance and Matching Funds Report an Assistance Agreement with the Fund (for Awardees receiving FA awards); (vi) VII. Agency Contacts in order to receive disbursement of Explanation of Noncompliance (as The Fund will respond to questions award proceeds. The Assistance applicable); and (vii) such other and provide support concerning this Agreement will set forth certain information as the Fund may require. NOFA and the funding application required terms and conditions of the Each Awardee is responsible for the between the hours of 9 a.m. and 5 p.m. award, which will include, but not be timely and complete submission of the ET, starting the date of the publication limited to: (i) The amount of the award; Annual Report, even if all or a portion of this NOFA through February 10, 2006 (ii) the type of award; (iii) the approved of the documents actually is completed (for the FY 2006 Funding Round) and uses of the award; (iv) the approved by another entity or signatory to the February 12, 2007 (for the FY 2007 Target Market to which the funded Assistance Agreement. If such other Funding Round). The Fund will not activity must be targeted; (v) entities or signatories are required to respond to questions or provide support performance goals and measures; and provide Institution Level Reports, concerning the application that are (vi) reporting requirements for all Transaction Level Reports, Financial received after 5 p.m. ET on said dates, Awardees. FA and FA/TA Assistance Reports, or other documentation that the until after the respective funding Agreements under this NOFA generally Fund may require, the Awardee is application deadline. Applications and will have three-year performance responsible for ensuring that the other information regarding the Fund periods; TA-only Assistance information is submitted timely and and its programs may be obtained from Agreements generally will have two- complete. The Fund reserves the right to the Fund’s Web site at http:// year performance periods. contact such additional signatories to www.cdfifund.gov. The Fund will post The Fund reserves the right, in its sole the Assistance Agreement and require on its Web site responses to questions discretion, to terminate the Notice of that additional information and of general applicability regarding the Award and rescind an award if the documentation be provided. The Fund CDFI Program. Awardee fails to return the Assistance will use such information to monitor A. Information Technology Support: Agreement, signed by the authorized each Awardee’s compliance with the Technical support can be obtained by representative of the Awardee, and/or requirements set forth in the Assistance calling (202) 622–2455 or by e-mail at provide the Fund with any other Agreement and to assess the impact of [email protected]. People who requested documentation, within the the NACA Program. The Institution have visual or mobility impairments deadlines set by the Fund. Level Report and the Transaction Level that prevent them from creating an In addition to entering into an Report must be submitted through the Investment Area map using the Fund’s Assistance Agreement, each Awardee Fund’s web-based data collection Web site should call (202) 622–2455 for that receives an award either (i) in the system, the Community Investment assistance. These are not toll free form of a loan, equity investment, credit Impact System (CIIS). The Financial numbers. union shares/deposits, or secondary Report may be submitted through CIIS, B. Programmatic Support: If you have capital, in any amount, or (ii) a FA grant or by fax or mail to the Fund. All other any questions about the programmatic in an amount greater than $500,000, components of the Annual Report may requirements of this NOFA, contact the must furnish to the Fund an opinion be submitted to the Fund in paper form Fund’s Program office by e-mail at from its legal counsel, the content of or other form to be determined by the [email protected], by telephone at
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(202) 622–6355, by facsimile at (202) Office of Legal Counsel, please refer to numbers, and office addresses) in their 622–7754, or by mail at CDFI Fund, 601 the document titled ‘‘How to Request a myCDFIFund account(s). For more 13th Street, NW., Suite 200 South, Legal Review,’’ found on the Fund’s information about myCDFIFund, please Washington, DC 20005. These are not web site at http://www.cdfifund.gov. see the Help documents posted at toll-free numbers. Further, if you wish to review the https://www.cdfifund.gov/myCDFI/ C. Grants Management Support: If Assistance Agreement form document Help/Help.asp. you have any questions regarding the from a prior funding round, you may VIII. Information Sessions and administrative requirements of this find it posted on the Fund’s Web site Outreach NOFA, including questions regarding (please note that there may be revisions submission requirements, contact the to the Assistance Agreement that will be In connection with the Fiscal Year Fund’s Grants Manager by e-mail at used for Awardees under this NOFA 2006 and FY 2007 Funding Round, the [email protected], by and thus the sample document on the Fund may conduct Information Sessions telephone at (202) 622–8226, by Fund’s Web site should not be relied to disseminate information to facsimile at (202) 622–6453, or by mail upon for purposes of this NOFA). organizations contemplating applying at CDFI Fund, 601 13th Street, NW., F. Communication with the CDFI to, and other organizations interested in Suite 200 South, Washington, DC 20005. Fund: The Fund will use its learning about, the Fund’s programs. These are not toll free numbers. myCDFIFund Internet interface to For further information on the Fund’s D. Compliance and Monitoring communicate with Applicants and Information Sessions, dates and Support: If you have any questions Awardees under this NOFA. Applicants locations, or to register to attend an regarding the compliance requirements must register through myCDFIFund in Information Session, please visit the of this NOFA, including questions order to submit a complete application Fund’s Web site at http:// regarding performance on prior awards, for funding. Awardees must use www.cdfifund.gov or call the Fund at contact the Fund’s Compliance Manager myCDFIFund to submit required (202) 622–9046. by e-mail at [email protected], by reports. The Fund will notify Awardees Authority: 12 U.S.C. 4703, 4703 note, 4704, telephone at (202) 622–8226, by by email using the addresses maintained 4706, 4707, 4717; 12 CFR part 1805. facsimile at (202) 622–6453, or by mail in each Awardee’s myCDFIFund at CDFI Fund, 601 13th Street, NW., account. Therefore, the Awardee and Dated: December 1, 2005. Suite 200 South, Washington, DC 20005. any Subsidiaries, signatories, and Arthur A. Garcia, These are not toll free numbers. Affiliates must maintain accurate Director, Community Development Financial E. Legal Counsel Support: If you have contact information (including contact Institutions Fund. any questions or matters that you person and authorized representative, [FR Doc. 05–23748 Filed 12–12–05; 8:45 am] believe require response by the Fund’s email addresses, fax numbers, phone BILLING CODE 4810–70–P
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DEPARTMENT OF THE TREASURY the following methods: (i) Via the things, investment in and assistance to Federal e-Rulemaking Portal at http:// CDFIs, which specialize in serving Community Development Financial www.regulations.gov (please follow the underserved markets and the people Institutions Fund instructions for submitting comments); who live there. CDFIs—while highly (ii) via e-mail to the Fund at effective—are typically small in scale 12 CFR Part 1805 [email protected] (please and often have difficulty raising the use an ASCII file format and provide capital needed to meet the demands for RIN 1505–AA92 your full name and mailing address); their products and services. Through the Community Development Financial (iii) via mail or hand delivery to the CDFI Program, the Fund provides CDFIs Institutions Program Office of Legal Counsel, Community with financial assistance in the form of Development Financial Institutions grants, loans, equity investments, and AGENCY: Community Development Fund, Department of the Treasury, 601 deposits in order to enhance their Financial Institutions Fund, Department 13th Street, NW., Suite 200 South, ability to make loans and investments, of the Treasury. Washington, DC 20005; or (iv) via fax to and provide services for the benefit of ACTION: Revised interim rule with 202/622–8244. All submissions received designated investment areas, targeted request for comment. must include the agency name and populations or both. Additionally, many Regulatory Information Number (RIN) CDFIs are in formation or in the early SUMMARY: The Department of the for this rulemaking. All comments stages of development in many markets Treasury is issuing a revised interim received will be posted without change underserved by traditional financial rule implementing the Community to the Fund’s Web site at http:// institutions, including rural and Native Development Financial Institutions www.cdfifund.gov, including any American communities. The CDFI Program (CDFI Program) administered personal information provided. Other Program assists such entities—as well as by the Community Development information regarding the Fund and its established CDFIs—by providing grants Financial Institutions Fund (Fund). The programs may be obtained through the through which they may acquire mission of the CDFI Fund is to increase Fund’s Web site at http:// technical assistance to build their the capacity of financial institutions to www.cdfifund.gov. capacity to serve their target markets. provide capital, credit and financial FOR FURTHER INFORMATION CONTACT: Applicants participate in the CDFI services in underserved markets. Its Jeffrey C. Berg, Legal Counsel, Program through a merit-based long-term vision is an America in which Community Development Financial qualitative application and selection all people have access to affordable Institutions Fund, at (202) 622–8662. process in which the Fund makes credit, capital and financial services. (This is not a toll free number.) funding decisions based on pre- The purpose of the CDFI Program is to established evaluation criteria. An SUPPLEMENTARY INFORMATION: promote economic revitalization and entity generally receives financial community development through I. Background assistance monies from the Fund only investment in and assistance to The Fund was established as a wholly after being certified as a CDFI and Community Development Financial owned government corporation by the entering into an assistance agreement Institutions (CDFIs). Under the CDFI Community Development Banking and with the Fund. These assistance Program, the Fund provides financial Financial Institutions Act of 1994, as agreements include performance goals, assistance in the form of grants, loans, amended (12 U.S.C. 4701 et seq.) (the matching funds requirements and equity investments and deposits to Act). Subsequent legislation placed the reporting requirements. CDFIs selected through a merit-based Fund within the Department of the On May 11, 2004, the Fund published application process. The Fund provides Treasury and gave the Secretary of the in the Federal Register a revised interim financial assistance to CDFIs to enhance Treasury all powers and rights of the rule (69 FR 26260) implementing the their ability to make loans and Administrator of the Fund as set forth CDFI Program (the current rule). The investments, and to provide related in the Act. deadline for the submission of services for the benefit of designated The mission of the Fund is to increase comments on the current rule was July investment areas, targeted populations, the capacity of financial institutions to 12, 2004. or both. In addition, through the CDFI provide capital, credit and financial Program, the Fund provides technical II. Comments on the May 11, 2004 services in underserved markets. Its assistance grants to CDFIs and entities Interim Rule long-term vision is an America in which that propose to become CDFIs, for the all people have access to affordable By the close of the July 12, 2004 purpose of increasing their capacity to credit, capital and financial services. comment period, the Fund received no serve their target markets. The Fund’s programs are designed to comments on the current rule. This revised interim rule includes one facilitate the flow of lending and III. Summary of Changes revision that the Fund believes will investment capital to distressed inure to the benefit of CDFIs, CDFI communities and to individuals who Section 1805.504 Retained Earnings Program applicants, and CDFI Program have been unable to take full advantage Section 1805.504 of the current rule awardees. This revised interim rule of the financial services industry. contains the requirements for use of includes a revised § 1805.504, Retained Access to credit, investment capital, and retained earnings as matching funds for Earnings, which clarifies the use of financial services are essential a financial assistance award. This retained earnings as matching funds for ingredients for creating and retaining interim rule revises § 1805.504 by a financial assistance award. jobs, developing affordable housing, making consistent the requirements for DATES: Revised interim rule effective revitalizing neighborhoods, unleashing a for-profit entity and a nonprofit entity December 13, 2005; comments must be the economic potential of small (not including Insured Credit Unions or received in the offices of the Fund on or businesses, and empowering people. State-Insured Credit Unions). This before February 13, 2006. The Fund was established to promote revision is made for the purpose of ADDRESSES: You may submit comments economic revitalization and community ensuring that for-profit and nonprofit concerning this interim rule by any of development through, among other entities are treated the same. In
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addition, this section is revised to Comment 1805.801 Notice of Award. clarify what the Fund means by retained 1805.802 Assistance Agreement; sanctions. Public comment is solicited on all 1805.803 Disbursement of funds. earnings: specifically, an entity’s aspects of this interim regulation. The operating income minus operating 1805.804 Data collection and reporting. Fund will consider all comments made 1805.805 Information. expenses less any dividend payments. on the substance of this interim 1805.806 Compliance with government IV. Rulemaking Analysis regulation, but does not intend to hold requirements. hearings. 1805.807 Conflict of interest requirements. Executive Order (E.O.) 12866 Catalog of Federal Domestic 1805.808 Lobbying restrictions. It has been determined that this Assistance Number: Community 1805.809 Criminal provisions. 1805.810 Fund deemed not to control. regulation is not a significant regulatory Development Financial Institutions Program—21.020. 1805.811 Limitation on liability. action as defined in Executive Order 1805.812 Fraud, waste and abuse. 12866. Therefore, a Regulatory List of Subjects in 12 CFR Part 1805 Assessment is not required. Authority: 12 U.S.C. 4703, 4703 note, 4710, Community development, Grant 4717; and 31 U.S.C. 321. Regulatory Flexibility Act programs—housing and community Subpart A—General Provisions Because no notice of proposed rule development, Loan programs—housing making is required for this revised and community development, Reporting § 1805.100 Purpose. and recordkeeping requirements, Small interim rule, the provisions of the The purpose of the Community businesses. Regulatory Flexibility Act (5 U.S.C. 601 Development Financial Institutions I et seq.) do not apply. For the reasons set forth in the Program is to promote economic preamble, 12 CFR part 1805 is revised Paperwork Reduction Act revitalization and community to read as follows: development through investment in and The collections of information PART 1805—COMMUNITY assistance to Community Development contained in this interim rule have been Financial Institutions. previously reviewed and approved by DEVELOPMENT FINANCIAL the Office of Management and Budget INSTITUTIONS PROGRAM § 1805.101 Summary. (OMB) in accordance with the Subpart A—General Provisions Under the Community Development Paperwork Reduction Act of 1995 and Sec. Financial Institutions Program, the assigned OMB Control Numbers 1559– 1805.100 Purpose. Fund will provide financial and 0006, 1559–0021, and 1559–0022. An 1805.101 Summary. technical assistance to Applicants agency may not conduct or sponsor, and 1805.102 Relationship to other Fund selected by the Fund in order to a person is not required to respond to, programs. enhance their ability to make loans and a collection of information unless it 1805.103 Awardee not instrumentality. investments and provide services. An displays a valid control number 1805.104 Definitions. Awardee must serve an Investment assigned by OMB. This document 1805.105 Waiver authority. Area(s), Targeted Population(s), or both. 1805.106 OMB control number. restates the collections of information The Fund will select Awardees to without substantive change. Subpart B—Eligibility receive financial and technical Comments concerning suggestions for 1805.200 Applicant eligibility. assistance through a merit-based reducing the burden of collections of 1805.201 Certification as a Community qualitative application process. Each information should be directed to the Development Financial Institution. Awardee will enter into an Assistance Deputy Director for Policy and Subpart C—Use of Funds/Eligible Activities Agreement which will require it to Programs, Community Development 1805.300 Purposes of financial assistance. achieve performance goals negotiated Financial Institutions Fund, 601 13th 1805.301 Eligible activities. between the Fund and the Awardee and Street, NW., Suite 200 South, 1805.302 Restrictions on use of assistance. abide by other terms and conditions Washington, DC 20005 and to the Office 1805.303 Technical assistance. pertinent to any assistance received of Management and Budget, Attention: under this part. Subpart D—Investment Instruments Desk Officer for the Department of the Treasury, Office of Information and 1805.400 Investment instruments—general. § 1805.102 Relationship to other Fund programs. Regulatory Affairs, Washington, DC 1805.401 Forms of investment instruments. 1805.402 Assistance limits. 20503. (a) Bank Enterprise Award Program. 1805.403 Authority to sell. (1) No Community Development National Environmental Policy Act Subpart E—Matching Funds Requirements Financial Institution may receive a Bank Pursuant to Treasury Directive 75–02 1805.500 Matching funds—general. Enterprise Award under the Bank (Department of the Treasury 1805.501 Comparability of form and value. Enterprise Award (BEA) Program (part Environmental Quality Program), the 1805.502 Severe constraints waiver. 1806 of this chapter) if it has: Department has determined that these 1805.503 Time frame for raising match. (i) An application pending for interim regulations are categorically 1805.504 Retained earnings. assistance under the Community excluded from the National Subpart F—Applications for Assistance Development Financial Institutions Environmental Policy Act and do not 1805.600 Notice of Funds Availability. Program; require an environmental review. (ii) Directly received assistance in the Subpart G—Evaluation and Selection of form of a disbursement under the Applications Administrative Procedure Act Community Development Financial Because the revisions to this interim 1805.700 Evaluation and selection— Institutions Program within the rule relate to loans and grants, notice general. preceding 12-month period prior to the 1805.701 Evaluation of applications. and public procedure and a delayed date the Fund selected the CDFI to effective date are not required pursuant Subpart H—Terms and Conditions of receive a Bank Enterprise Award to the Administrative Procedure Act Assistance (meaning, the date of the Fund’s BEA found at 5 U.S.C. 553(a)(2). 1805.800 Safety and soundness. Program notice of award); or
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(iii) Ever directly received assistance entity currently meeting the eligibility company; or (3) The power to exercise, under the Community Development requirements described in § 1805.200; directly or indirectly, a controlling Financial Institutions Program for the (i) Community Development Financial influence over the management, credit same activities for which it is seeking a Institution Intermediary (or CDFI or investment decisions, or policies of Bank Enterprise Award. Intermediary) means an entity that any company. (2) An equity investment (as defined meets the CDFI Program eligibility (r) Depository Institution Holding in part 1806 of this chapter) in, or a loan requirements described in § 1805.200 Company means a bank holding to, a Community Development Financial and whose primary business activity is company or a savings and loan holding Institution, or deposits in an Insured the provision of Financial Products to company as defined in section 3 of the Community Development Financial CDFIs and/or emerging CDFIs; Federal Deposit Insurance Act (12 Institution, made by a BEA Program (j) Community Development Financial U.S.C. 1813(w)(1)); Awardee may be used to meet the Institutions Program (or CDFI Program) (s) Development Services means matching funds requirements described means the program authorized by activities that promote community in subpart E of this part. Receipt of such sections 105–108 of the Act (12 U.S.C. development and are integral to the equity investment, loan, or deposit does 4704–4707) and implemented under Applicant’s provision of Financial not disqualify a Community this part; Products and Financial Services. Such Development Financial Institution from (k) Community Facility means a services shall prepare or assist current receiving assistance under this part. facility where health care, childcare, or potential borrowers or investees to (b) Liquidity enhancement program. educational, cultural, or social services utilize the Financial Products or No entity that receives assistance are provided; Financial Services of the Applicant. through the liquidity enhancement (l) Community-Governed means an Such services include, for example: program authorized under section 113 entity in which the residents of an financial or credit counseling to (12 U.S.C. 4712) of the Act may receive Investment Area(s) or members of a individuals for the purpose of assistance under the Community Targeted Population(s) represent greater facilitating home ownership, promoting Development Financial Institutions than 50 percent of the governing body; self-employment, or enhancing Program. (m) Community-Owned means an consumer financial management skills; entity in which the residents of an or technical assistance to borrowers or § 1805.103 Awardee not instrumentality. Investment Area(s) or members of a investees for the purpose of enhancing No Awardee (or its Community Targeted Population(s) have an business planning, marketing, Partner) shall be deemed to be an ownership interest of greater than 50 management, and financial management agency, department, or instrumentality percent; skills; of the United States. (n) Community Partner means a (t) Equity Investment means an person (other than an individual) that investment made by an Applicant that, § 1805.104 Definitions. provides loans, Equity Investments, or in the judgment of the Fund, supports For the purpose of this part: Development Services and enters into a or enhances activities that serve an (a) Act means the Community Community Partnership with an Investment Area(s) or a Targeted Development Banking and Financial Applicant. A Community Partner may Population(s). Such investments must Institutions Act of 1994, as amended (12 include a Depository Institution Holding be made through an arms-length U.S.C. 4701 et seq.); Company, an Insured Depository transaction with a third party that does (b) Affiliate means any company or Institution, an Insured Credit Union, a not have a relationship with the entity that Controls, is Controlled by, or State-Insured Credit Union, a not-for- Applicant as an Affiliate. Equity is under common Control with another profit or for-profit organization, a State Investments may comprise a stock company; or local government entity, a quasi- purchase, a purchase of a partnership (c) Applicant means any entity government entity, or an investment interest, a purchase of a limited liability submitting an application for CDFI company authorized pursuant to the company membership interest, a loan Program assistance or funding under Small Business Investment Act of 1958 made on such terms that it has sufficient this part; (15 U.S.C. 661 et seq.); characteristics of equity (and is (d) Appropriate Federal Banking (o) Community Partnership means an considered as such by the Fund), a Agency has the same meaning as in agreement between an Applicant and a purchase of secondary capital, or any section 3 of the Federal Deposit Community Partner to collaboratively other investment deemed to be an Insurance Act (12 U.S.C. 1813(q)), and provide Financial Products or Equity Investment by the Fund; includes, with respect to Insured Credit Development Services to an Investment (u) Financial Products means: Loans, Unions, the National Credit Union Area(s) or a Targeted Population(s); Equity Investments and similar Administration; (p) Comprehensive Business Plan financing activities (as determined by (e) Appropriate State Agency means means a document covering not less the Fund) including the purchase of an agency or instrumentality of a State than the next five years which meets the loans originated by certified CDFIs and that regulates and/or insures the requirements described in an applicable the provision of loan guarantees; in the member accounts of a State-Insured Notice of Funds Availability (NOTICE case of CDFI Intermediaries, grants to Credit Union; OF FUNDS AVAILABILITY); CDFIs and/or emerging CDFIs and (f) Assistance Agreement means a (q) Control means: (1) Ownership, deposits in Insured Credit Union CDFIs, formal agreement between the Fund and control, or power to vote 25 percent or emerging Insured Credit Union CDFIs, an Awardee which specifies the terms more of the outstanding shares of any and/or State-Insured Credit Union and conditions of assistance under this class of Voting Securities of any CDFIs. part; company, directly or indirectly or acting (v) Financial Services means (g) Awardee means an Applicant through one or more other persons; (2) checking, savings accounts, check selected by the Fund to receive Control in any manner over the election cashing, money orders, certified checks, assistance pursuant to this part; of a majority of the directors, trustees, automated teller machines, deposit (h) Community Development or general partners (or individuals taking, safe deposit box services, and Financial Institution (or CDFI) means an exercising similar functions) of any other similar services;
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(w) Fund means the Community (gg) Non-Regulated CDFI means any (iii) The shares or interest do not Development Financial Institutions entity meeting the eligibility entitle the holder, by statute, charter, or Fund established under section 104(a) requirements described in § 1805.200 in any manner, to select or to vote for (12 U.S.C. 4703(a)) of the Act; which is not a Depository Institution the selection of directors, trustees, or (x) Indian Reservation means any Holding Company, Insured Depository partners (or persons exercising similar geographic area that meets the Institution, Insured Credit Union, or functions) of the issuing company. requirements of section 4(10) of the State-Insured Credit Union; Indian Child Welfare Act of 1978 (25 (hh) State means any State of the § 1805.105 Waiver authority. U.S.C. 1903(10)), and shall include land United States, the District of Columbia The Fund may waive any requirement held by incorporated Native groups, or any territory of the United States, of this part that is not required by law regional corporations, and village Puerto Rico, Guam, American Samoa, upon a determination of good cause. corporations, as defined in and pursuant the Virgin Islands, and the Northern Each such waiver shall be in writing to the Alaska Native Claims Settlement Mariana Islands; and supported by a statement of the Act (43 U.S.C. 1602), public domain (ii) State-Insured Credit Union means facts and the grounds forming the basis Indian allotments, and former Indian any credit union that is regulated by, of the waiver. For a waiver in an reservations in the State of Oklahoma; and/or the member accounts of which individual case, the Fund must (y) Indian Tribe means any Indian are insured by, a State agency or determine that application of the Tribe, band, pueblo, nation, or other instrumentality; requirement to be waived would organized group or community, (jj) Subsidiary means any company adversely affect the achievement of the including any Alaska Native village or which is owned or Controlled directly purposes of the Act. For waivers of regional or village corporation, as or indirectly by another company and general applicability, the Fund will defined in or established pursuant to the includes any service corporation owned publish notification of granted waivers Alaska Native Claims Settlement Act (43 in whole or part by an Insured in the Federal Register. Depository Institution or any Subsidiary U.S.C. 1601 et seq.), which is recognized § 1805.106 OMB control number. as eligible for special programs and of such a service corporation, except as services provided by the United States provided in § 1805.200(b)(4); The collection of information to Indians because of their status as (kk) Targeted Population means requirements in this part have been Indians; individuals or an identifiable group of approved by the Office of Management and Budget and assigned OMB control (z) Insider means any director, officer, individuals meeting the requirements of numbers 1559–0006, 1559–0021 and employee, principal shareholder § 1805.201(b)(3); and 1559–0022. (owning, individually or in combination (ll) Target Market means an Investment Area(s) and/or a Targeted with family members, five percent or Subpart B—Eligibility more of any class of stock), or agent (or Population(s). (mm)(1) Voting Securities means any family member or business partner § 1805.200 Applicant eligibility. shares of common or preferred stock, of any of the above) of any Applicant, general or limited partnership shares or (a) General requirements. (1) An Affiliate or Community Partner; interests, or similar interests if the entity that meets the requirements (aa) Insured CDFI means a CDFI that shares or interest, by statute, charter, or described in § 1805.201(b) and is an Insured Depository Institution or in any manner, entitle the holder: paragraph (b) of this section will be an Insured Credit Union; (i) To vote for or select directors, considered a CDFI and, subject to (bb) Insured Credit Union means any trustees, or partners (or persons paragraph (a)(4) of this section, will be credit union, the member accounts of exercising similar functions of the eligible to apply for assistance under which are insured by the National issuing company); or this part. Credit Union Share Insurance Fund; (ii) To vote on or to direct the conduct (2) An entity that proposes to become (cc) Insured Depository Institution of the operations or other significant a CDFI is eligible to apply for assistance means any bank or thrift, the deposits of policies of the issuing company. under this part if the Fund: which are insured by the Federal (2) Nonvoting shares. Preferred (i) Receives a complete application for Deposit Insurance Corporation; shares, limited partnership shares or certification from the entity within the (dd) Investment Area means a interests, or similar interests are not time period set forth in an applicable geographic area meeting the Voting Securities if: Notice of Funds Availability; and requirements of § 1805.201(b)(3); (i) Any voting rights associated with (ii) Determines that such entity’s (ee) Low-Income means an income, the shares or interest are limited solely application materials provide a realistic adjusted for family size, of not more to the type customarily provided by course of action to ensure that it will than: statute with regard to matters that meet the requirements described in (1) For Metropolitan Areas, 80 percent would significantly and adversely affect § 1805.201(b) and paragraph (b) of this of the area median family income; and the rights or preference of the security section within the period set forth in an (2) For non-Metropolitan Areas, the or other interest, such as the issuance of applicable Notice of Funds Availability. greater of: additional amounts or classes of senior (3) The Fund will not, however, (i) 80 percent of the area median securities, the modification of the terms disburse any financial assistance to such family income; or of the security or interest, the an entity before it meets the (ii) 80 percent of the statewide non- dissolution of the issuing company, or requirements described in this section. Metropolitan Area median family the payment of dividends by the issuing Moreover, notwithstanding paragraphs income; company when preferred dividends are (a)(1) and (a)(2)(ii) of this section, the (ff) Metropolitan Area means an area in arrears; Fund reserves the right to require an designated as such by the Office of (ii) The shares or interest represent an entity to have been certified as Management and Budget pursuant to 44 essentially passive investment or described in § 1805.201(a) prior to its U.S.C. 3504(e) and 31 U.S.C. 1104(d) financing device and do not otherwise submission of an application for and Executive Order 10253 (3 CFR, provide the holder with control over the assistance, as set forth in an applicable 1949–1953 Comp., p. 758), as amended; issuing company; and Notice of Funds Availability.
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(4) The Fund shall require an entity for certification demonstrating that the (2) Meets at least one of the objective to meet any additional eligibility Applicant meets the eligibility criteria of economic distress as set forth requirements that the Fund deems requirements described in paragraphs in paragraph (b)(3)(ii)(D) of this section appropriate. (b)(1) through (b)(6) of this section. The and has significant unmet needs for (5) The Fund, in its sole discretion, Fund, in its sole discretion, shall loans, Equity Investments, or Financial shall determine whether an Applicant determine whether an Applicant has Services as described in paragraph fulfills the requirements set forth in this satisfied the requirements of this (b)(3)(ii)(E) of this section; or section and § 1805.201(b). paragraph (b) and § 1805.200. (3) Encompasses (i.e. wholly consists (b) Provisions applicable to (1) Primary mission. A CDFI shall of) or is wholly located within an Depository Institution Holding have a primary mission of promoting Empowerment Zone or Enterprise Companies and Insured Depository community development. In Community designated under section Institutions. (1) A Depository Institution determining whether an Applicant has 1391 of the Internal Revenue Code of Holding Company may qualify as a such a primary mission, the Fund will 1986 (26 U.S.C. 1391). CDFI only if it and its Affiliates consider whether the activities of the (B) Geographic units. Subject to the collectively satisfy the requirements Applicant are purposefully directed remainder of this paragraph (B), an described in this section. toward improving the social and/or Investment Area shall consist of a (2) No Affiliate of a Depository economic conditions of underserved geographic unit(s) that is a county (or Institution Holding Company may people (which may include Low-Income equivalent area), minor civil division qualify as a CDFI unless the holding persons and persons who lack adequate that is a unit of local government, company and all of its Affiliates access to capital and/or Financial incorporated place, census tract, block collectively meet the requirements Services) and/or residents of numbering area, block group, or described in this section. economically distressed communities American Indian or Alaska Native area (3) No Subsidiary of an Insured (which may include Investment Areas). (as such units are defined or reported by Depository Institution may qualify as a (2) Financing entity. A CDFI shall be the U.S. Bureau of the Census). CDFI if the Insured Depository an entity whose predominant business However, geographic units in Institution and its Subsidiaries do not activity is the provision, in arms-length Metropolitan Areas that are used to collectively meet the requirements transactions, of Financial Products, comprise an Investment Area shall be described in this section. Development Services, and/or other limited to census tracts, block groups (4) For the purposes of paragraphs similar financing. An Applicant may and American Indian or Alaskan Native (b)(1), (2) and (3) of this section, an demonstrate that it is such an entity if areas. An Applicant may designate one Applicant will be considered to be a it is a(n): or more Investment Areas as part of a Subsidiary of any Insured Depository (i) Depository Institution Holding single application. Institution or Depository Institution Company; (C) Designation. An Applicant may Holding Company that controls 25 (ii) Insured Depository Institution, designate an Investment Area by percent or more of any class of the Insured Credit Union, or State-Insured selecting: Applicant’s voting shares, or otherwise Credit Union; or (1) A geographic unit(s) which controls, in any manner, the election of (iii) Organization that is deemed by individually meets one of the criteria in a majority of directors of the Applicant. the Fund to have such a predominant paragraph (b)(3)(ii)(D) of this section; or business activity as a result of analysis (2) A group of contiguous geographic § 1805.201 Certification as a Community of its financial statements, organizing units which together meet one of the Development Financial Institution. documents, and any other information criteria in paragraph (b)(3)(ii)(D) of this (a) General. An entity may apply to required to be submitted as part of its section, provided that the combined the Fund for certification that it meets application. In conducting such population residing within individual the CDFI eligibility requirements analysis, the Fund may take into geographic units not meeting any such regardless of whether it is seeking consideration an Applicant’s total assets criteria does not exceed 15 percent of financial or technical assistance from and its use of personnel. the total population of the entire the Fund. Entities seeking such (3) Target Market. (i) General. An Investment Area. certification shall provide the Applicant may be found to serve a (D) Distress criteria. An Investment information set forth in the application Target Market by virtue of serving one Area (or the units that comprise an area) for certification. Certification by the or more Investment Areas and/or must meet at least one of the following Fund will verify that the entity meets Targeted Populations. An Investment objective criteria of economic distress the CDFI eligibility requirements. Area shall meet specific geographic and (as reported in the most recently However, such certification shall not other criteria described in paragraph completed decennial census published constitute an opinion by the Fund as to (b)(3)(ii) of this section, and a Targeted by the U.S. Bureau of the Census): the financial viability of the CDFI or that Population shall meet the criteria (1) The percentage of the population the CDFI will be selected to receive an described in paragraph (b)(3)(iii) in this living in poverty is at least 20 percent; award from the Fund. The Fund, in its section. (2) In the case of an Investment Area sole discretion, shall have the right to (ii) Investment Area. (A) General. A located: decertify a certified entity after a geographic area will be considered (i) Within a Metropolitan Area, the determination that the eligibility eligible for designation as an Investment median family income shall be at or requirements of paragraph (b) of this Area if it: below 80 percent of the Metropolitan section, § 1805.200(b) or (a)(4) (if (1) Is entirely located within the Area median family income or the applicable) are no longer met. geographic boundaries of the United national Metropolitan Area median (b) Eligibility verification. An States (which shall encompass any State family income, whichever is greater; or Applicant shall demonstrate whether it of the United States, the District of (ii) Outside of a Metropolitan Area, meets the eligibility requirements Columbia or any territory of the United the median family income shall be at or described in this paragraph (b) of this States, Puerto Rico, Guam, American below 80 percent of the statewide non- section and § 1805.200 by providing the Samoa, the Virgin Islands, and the Metropolitan Area median family information described in the application Northern Mariana Islands); and either income or the national non-
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Metropolitan Area median family decision-making power over its (c) Assistance provided upon income, whichever is greater; activities. approval of an application involving a (3) The unemployment rate is at least Community Partnership shall only be 1.5 times the national average; Subpart C—Use of Funds/Eligible distributed to the Awardee and shall not (4) In counties located outside of a Activities be used to fund any activities carried Metropolitan Area, the county § 1805.300 Purposes of financial out by a Community Partner or an population loss during the period assistance. Affiliate of a Community Partner. between the most recent decennial census and the previous decennial The Fund may provide financial § 1805.303 Technical assistance. census is at least 10 percent; or assistance through investment (a) The Fund may provide technical (5) In counties located outside of a instruments described under subpart D assistance to build the capacity of a Metropolitan Area, the county net of this part. Such financial assistance is CDFI or an entity that proposes to migration loss during the five-year intended to strengthen the capital become a CDFI. Such technical period preceding the most recent position and enhance the ability of an assistance may include training for decennial census is at least five percent. Awardee to provide Financial Products management and other personnel; (E) Unmet needs. An Investment Area and Financial Services. development of programs, products and will be deemed to have significant § 1805.301 Eligible activities. services; improving financial unmet needs for loans or Equity Financial assistance provided under management and internal operations; Investments if a narrative analysis this part may be used by an Awardee to enhancing a CDFI’s community impact; provided by the Applicant adequately serve Investment Area(s) or Targeted or other activities deemed appropriate demonstrate a pattern of unmet needs Population(s) by developing or by the Fund. The Fund, in its sole for Financial Products or Financial supporting, through lending, investing, discretion, may provide technical Services within such area(s). assistance in amounts, or under terms (F) Serving Investment Areas. An enhancing liquidity, or other means of finance: and conditions that are different from Applicant may serve an Investment those requested by an Applicant. The Area directly or through borrowers or (a) Commercial facilities that promote revitalization, community stability or Fund may not provide any technical investees that serve the Investment Area assistance to an Applicant for the or provide significant benefits to its job creation or retention; (b) Businesses that: purpose of assisting in the preparation residents. (1) Provide jobs for Low-Income of an application. The Fund may (iii) Targeted Population. (A) General. persons; provide technical assistance to a CDFI Targeted Population shall mean (2) Are owned by Low-Income directly, through grants, or by individuals, or an identifiable group of persons; or contracting with organizations that individuals, who are Low-Income (3) Enhance the availability of possess the appropriate expertise. persons or lack adequate access to products and services to Low-Income (b) The Fund may provide technical Financial Products or Financial Services persons; assistance regardless of whether the in the Applicant’s service area. The (c) Community Facilities; recipient also receives financial members of a Targeted Population shall (d) The provision of Financial assistance under this part. Technical reside within the boundaries of the Services; assistance provided pursuant to this United States (which shall encompass (e) Housing that is principally part is subject to the assistance limits any State of the United States, the affordable to Low-Income persons, described in § 1805.402. District of Columbia or any territory of except that assistance used to facilitate (c) An Applicant seeking technical the United States, Puerto Rico, Guam, home ownership shall only be used for assistance must meet the eligibility American Samoa, the Virgin Islands, services and lending products that serve requirements described in § 1805.200 and the Northern Mariana Islands). Low-Income persons and that: and submit an application as described (B) Serving A Targeted Population. (1) Are not provided by other lenders in § 1805.600. An Applicant may serve the members of in the area; or (d) Applicants for technical assistance a Targeted Population directly or (2) Complement the services and pursuant to this part will be evaluated indirectly or through borrowers or lending products provided by other pursuant to the merit-based qualitative investees that directly serve or provide lenders that serve the Investment review criteria in subpart G of this part, significant benefits to such members. Area(s) or Targeted Population(s); except as otherwise may be provided in (4) Development Services. A CDFI (f) The provision of consumer loans (a the applicable Notice of Funds directly, through an Affiliate, or through loan to one or more individuals for Availability. In addition, the a contract with another provider, shall household, family, or other personal requirements for matching funds are not provide Development Services in expenditures); or applicable to technical assistance conjunction with its Financial Products. (g) Other businesses or activities as requests. (5) Accountability. A CDFI must requested by the Applicant and deemed maintain accountability to residents of appropriate by the Fund. Subpart D—Investment Instruments its Investment Area(s) or Targeted Population(s) through representation on § 1805.302 Restrictions on use of § 1805.400 Investment instruments— its governing board or otherwise. assistance. general. (6) Non-government. A CDFI shall not (a) An Awardee shall use assistance The Fund will provide financial be an agency or instrumentality of the provided by the Fund and its assistance to an Awardee through one or United States, or any State or political corresponding matching funds only for more of the investment instruments subdivision thereof. An entity that is the eligible activities approved by the described in § 1805.401, and under such created by, or that receives substantial Fund and described in the Assistance terms and conditions as described in assistance from, one or more Agreement. this subpart D. The Fund, in its sole government entities may be a CDFI (b) An Awardee may not distribute discretion, may provide financial provided it is not controlled by such assistance to an Affiliate without the assistance in amounts, through entities and maintains independent Fund’s consent. investment instruments, or under rates,
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terms and conditions that are different § 1805.403 Authority to sell. committing available earnings retained from those requested by an Applicant. The Fund may, at any time, sell its from its operations. § 1805.401 Forms of investment equity investments and loans, provided § 1805.502 Severe constraints waiver. the Fund shall retain the authority to instruments. (a) In the case of an Applicant with enforce the provisions of the Assistance (a) Equity. The Fund may make severe constraints on available sources Agreement until the performance goals nonvoting equity investments in an of matching funds, the Fund, in its sole specified therein have been met. Awardee, including, without limitation, discretion, may permit such Applicant the purchase of nonvoting stock. Such Subpart E—Matching Funds to comply with the matching stock shall be transferable and, in the Requirements requirements by: discretion of the Fund, may provide for (1) Reducing such requirements by up convertibility to voting stock upon § 1805.500 Matching funds—general. to 50 percent; or transfer. The Fund shall not own more All financial assistance awarded (2) Permitting an Applicant to provide than 50 percent of the equity of an under this part shall be matched with matching funds in a form to be Awardee and shall not control its funds from sources other than the determined at the discretion of the operations. Federal government. Except as provided Fund, if such an Applicant: (b) Grants. The Fund may award in § 1805.502, such matching funds (i) Has total assets of less than grants. shall be provided on the basis of not less $100,000; (c) Loans. The Fund may make loans, than one dollar for each dollar provided (ii) Serves an area that is not a if permitted by applicable law. by the Fund. Funds that have been used Metropolitan Area; and (d) Deposits and credit union shares. to satisfy a legal requirement for (iii) Is not requesting more than The Fund may make deposits (which obtaining funds under either the CDFI $25,000 in assistance. shall include credit union shares) in Program or another Federal grant or (b) Not more than 25 percent of the Insured CDFIs and State-Insured Credit award program may not be used to total funds available for obligation Unions. Deposits in an Insured CDFI or satisfy the matching requirements under this part in any fiscal year may be a State-Insured Credit Union shall not described in this section. Community matched as described in paragraph (a) of be subject to any requirement for Development Block Grant Program and this section. Additionally, not more collateral or security. other funds provided pursuant to the than 25 percent of the total funds Housing and Community Development disbursed under this part in any fiscal § 1805.402 Assistance limits. Act of 1974, as amended (42 U.S.C. 5301 year may be matched as described in (a) Except as provided in paragraph et seq.), shall be considered Federal paragraph (a) of this section. (b) of this section, the Fund may not government funds and shall not be used (c) An Applicant may request a provide, pursuant to this part, more to meet the matching requirements. ‘‘severe constraints waiver’’ as part of its than $5 million, in the aggregate, in Matching funds shall be used as application for assistance. An Applicant financial and technical assistance to an provided in the Assistance Agreement. shall provide a narrative justification for Awardee and its Affiliates during any Funds that are used prior to the its request, indicating: three-year period. execution of the Assistance Agreement (1) The cause and extent of the (b) If an Awardee proposes to may nevertheless qualify as matching constraints on raising matching funds; establish a new Affiliate to serve an funds provided the Fund determines in (2) Efforts to date, results, and Investment Area(s) or Targeted its reasonable discretion that such use projections for raising matching funds; Population(s) outside of any State, and promoted the purpose of the (3) A description of the matching outside of any Metropolitan Area, Comprehensive Business Plan that the funds expected to be raised; and currently served by the Awardee or its Fund is supporting through its (4) Any additional information Affiliates, the Awardee may receive assistance. requested by the Fund. additional assistance pursuant to this (d) The Fund will grant a ‘‘severe part up to a maximum of $3.75 million § 1805.501 Comparability of form and constraints waiver’’ only in exceptional value. during the same three-year period. Such circumstances when it has been additional assistance: (a) Matching funds shall be at least demonstrated, to the satisfaction of the (1) Shall be used only to finance comparable in form (e.g., equity Fund, that an Investment Area(s) or activities in the new or expanded investments, deposits, credit union Targeted Population(s) would not be Investment Area(s) or Targeted shares, loans and grants) and value to adequately served without the waiver. Population(s); and financial assistance provided by the § 1805.503 Time frame for raising match. Fund (except as provided in (2) Must be distributed to a new Applicants shall satisfy matching § 1805.502). The Fund shall have the Affiliate that meets the eligibility funds requirements within the period discretion to determine whether requirements described in § 1805.200 set forth in the applicable Notice of matching funds pledged are comparable and is selected for assistance pursuant Funds Availability. to subpart G of this part. in form and value to the financial (c) An Awardee may receive the assistance requested. § 1805.504 Retained earnings. assistance described in paragraph (b) of (b) In the case of an Awardee that (a) An Applicant may use its retained this section only if no other application raises matching funds from more than earnings to match a request for a to serve substantially the same one source, through different financial assistance grant from the Investment Area(s) or Targeted investment instruments, or under Fund. An Applicant that proposes to Population(s) that meets the varying terms and conditions, the Fund meet all or a portion of its matching requirements of § 1805.701(a) was may provide financial assistance in a funds requirements by committing submitted to the Fund prior to the manner that represents the combined available earnings retained from its receipt of the application of said characteristics of such instruments. operations shall be subject to the Awardee and within the current funding (c) An Awardee may meet all or part restrictions described in this section. round. of its matching requirements by Retained earnings shall be calculated as
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directed by the Fund in the applicable paragraph (c)(1)(iii)(A) of this section is § 1805.701 Evaluation of applications. Notice of Funds Availability, the achieved. (a) Eligibility and completeness. An financial assistance application and/or (2) The Fund will allow an Applicant Applicant will not be eligible to receive related guidance materials. Retained to utilize the option described in assistance pursuant to this part if it fails earnings accumulated after the end of paragraph (c)(1)(iii) of this section for to meet the eligibility requirements the Applicant’s most recent fiscal year matching funds only if it determines, in described in § 1805.200 or if it has not ending prior to the appropriate its sole discretion, that the Applicant submitted complete application application deadline may not be used as will have a high probability of success materials. For the purposes of this matching funds. in achieving said increases to the paragraph (a), the Fund reserves the (b) In the case of an Applicant that is specified amounts. right to request additional information not an Insured Credit Union or a State- from the Applicant, if the Fund deems Insured Credit Union, retained earnings Subpart F—Applications for it appropriate. that may be used for matching funds Assistance (b) Substantive review. In evaluating purposes shall consist of: § 1805.600 Notice of Funds Availability. and selecting applications to receive (1) The increase in retained earnings assistance, the Fund will evaluate the (meaning, for purposes of § 1805.504(b), Each Applicant shall submit an Applicant’s likelihood of success in operating income minus operating application for financial or technical meeting the goals of the Comprehensive expenses less any dividend payments) assistance under this part in accordance Business Plan and achieving community that has occurred over the Applicant’s with the applicable Notice of Funds development impact, by considering most recent fiscal year (e.g., retained Availability published in the Federal factors such as: earnings at the end of fiscal year 2003 Register. The Notice of Funds (1) Community development track less retained earnings at the end of fiscal Availability will advise potential record (e.g., in the case of an Applicant year 2002); or Applicants on how to obtain an with a prior history of serving a Target (2) The annual average of such application packet and will establish Market, the extent of success in serving increases that has occurred over the deadlines and other requirements. The such Target Market); Applicant’s three most recent fiscal Notice of Funds Availability may (2) Operational capacity and risk years. specify any limitations, special rules, mitigation strategies; (c)(1) In the case of an Applicant that procedures, and restrictions for a (3) Financial track record and is an Insured Credit Union or a State- particular funding round. After receipt strength; Insured Credit Union, retained earnings of an application, the Fund may request (4) Capacity, skills and experience of that may be used for matching funds clarifying or technical information on the management team; purposes shall consist of: the materials submitted as part of such (5) Understanding of its market (i) The increase in retained earnings application. context, including its analysis of current that has occurred over the Applicant’s and prospective customers, the extent of most recent fiscal year; Subpart G—Evaluation and Selection (ii) The annual average of such of Applications economic distress within the designated increases that has occurred over the Investment Area(s) or the extent of need Applicant’s three most recent fiscal § 1805.700 Evaluation and selection— within the designated Targeted years; or general. Population(s), as those factors are (iii) The entire retained earnings that Applicants will be evaluated and measured by objective criteria, the have been accumulated since the selected, at the sole discretion of the extent of need for Equity Investments, inception of the Applicant, provided Fund, to receive assistance based on a loans, Development Services, and that the Assistance Agreement shall review process, that could include an Financial Services within the require that: interview(s) and/or site visit(s), that is designated Target Market, and the (A) The Awardee shall increase its intended to: extent of demand within the Target Market for the Applicant’s products and member shares, non-member shares, (a) Ensure that Applicants are services; outstanding loans and/or other evaluated on a merit basis and in a fair (6) Program design and measurable activity as defined in and by and consistent manner; an amount that is set forth in an implementation plan, including an (b) Take into consideration the unique assessment of its products and services, applicable Notice of Funds Availability; characteristics of Applicants that vary and marketing and outreach efforts, delivery by institution type, total asset size, stage strategy, and coordination with other (B) Such increase must be achieved by of organizational development, markets a date certain set forth in the applicable institutions and/or a Community served, products and services provided, Partner, or participation in a secondary Notice of Funds Availability; and location; (C) The Applicant’s Comprehensive market for purposes of increasing the Business Plan shall discuss its strategy (c) Ensure that each Awardee can Applicant’s resources. In the case of an for achieving the increases described in successfully meet the goals of its Applicant submitting an application (c)(1)(iii)(A) of this section and the Comprehensive Business Plan and with a Community Partner, the Fund activities associated therewith; achieve community development will evaluate the extent to which the (D) The level from which the impact; Community Partner will participate in achievement of said increases will be (d) Ensure that Awardees represent a carrying out the activities of the measured will be as of July 31 of the geographically diverse group of Community Partnership; the extent to calendar year in which the applicable Applicants serving Metropolitan Areas, which the Community Partner will application deadline falls (or such other non-Metropolitan Areas, and Indian enhance the likelihood of success of the date as set forth in the applicable Notice Reservations from different regions of Comprehensive Business Plan; and the of Funds Availability); and the United States; and extent to which service to the (E) Financial assistance shall be (e) Take into consideration other designated Target Market will be better disbursed by the Fund only as the factors as described in the applicable performed by a Community Partnership amount of increases described in Notice of Funds Availability. than by the Applicant alone;
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(7) Projections for financial by, or subject to, the reporting is not in compliance with the terms of performance, capitalization and raising requirements of an Appropriate Federal any previous Assistance Agreement needed external resources, including the Banking Agency. entered into with the Fund, the Fund amount of firm commitments and (d) Consultation with Appropriate may, in its discretion and without matching funds in hand to meet or State Agencies. Prior to providing advance notice to the Awardee, either exceed the matching funds requirements assistance to a State-Insured Credit terminate the notice of award or take and, if applicable, the likely success of Union, the Fund may consult with, and such other actions as it deems the plan for raising the balance of the consider the views of, the Appropriate appropriate. An Awardee shall notify matching funds in a timely manner, the State Agency. the Fund of information that an extent to which the matching funds are, (e) Awardee selection. The Fund will Awardee may reasonably believe may or will be, derived from private sources, select Awardees based on the criteria affect its eligibility or ability to achieve and whether an Applicant is, or will described in paragraph (b) of this the objectives of its Comprehensive become, an Insured CDFI or a State- section and any other criteria set forth Business Plan as submitted to the Fund Insured Credit Union; in this part or the applicable Notice of (such as changes in management). (8) Projections for community Funds Availability. (d) The Fund will notify an Awardee development impact, including the of either the Fund’s termination of a extent to which an Applicant will Subpart H—Terms and Conditions of notice of award or such other action(s) concentrate its activities on serving its Assistance taken by the Fund under paragraph (c) Target Market(s), the extent of support of this section. from the designated Target Market, the § 1805.800 Safety and soundness. extent to which an Applicant is, or will (a) Regulated institutions. Nothing in § 1805.802 Assistance Agreement; be, Community-Owned or Community- this part, or in an Assistance Agreement, sanctions. Governed, and the extent to which the shall affect any authority of an (a) Prior to providing any assistance, activities proposed in the Appropriate Federal Banking Agency or the Fund and an Awardee shall execute Comprehensive Business Plan will Appropriate State Agency to supervise an Assistance Agreement that requires expand economic opportunities or and regulate any institution or an Awardee to comply with promote community development company. performance goals and abide by other within the designated Target Market; (b) Non-Regulated CDFIs. The Fund terms and conditions of assistance. Such (9) The extent of need for the Fund’s will, to the maximum extent practicable, performance goals may be modified at assistance, as demonstrated by the ensure that Awardees that are Non- any time by mutual consent of the Fund extent of economic distress in the Regulated CDFIs are financially and and an Awardee or as provided in Applicant’s Target Market and the managerially sound and maintain paragraph (c) of this section. If a extent to which the Applicant needs the appropriate internal controls. Community Partner or an Affiliate is part of an application that is selected for Fund’s assistance to carry out its § 1805.801 Notice of Award. Comprehensive Business Plan; assistance, such partner must be a party (10) In the case of an Applicant that (a) The Fund will generally signify its to the Assistance Agreement, if deemed has previously received assistance selection of an Applicant as an Awardee appropriate by the Fund. under the CDFI Program, the Fund also by delivering a signed notice of award (b) An Awardee shall comply with will consider the Applicant’s level of to the Applicant. The notice of award performance goals that have been success in meeting its performance will contain the general terms and negotiated with the Fund and which are goals, financial soundness covenants (if conditions underlying the Fund’s based upon the Comprehensive applicable), and other requirements provision of assistance to an Awardee Business Plan submitted as part of the contained in the previously negotiated including, but not limited to, the Awardee’s application. Such and executed Assistance Agreement(s) requirement that an Awardee and the performance goals may include with the Fund, the undisbursed balance Fund enter into an Assistance measures that require an Awardee to: of assistance, and whether the Agreement. (1) Be financially sound; Applicant will, with additional (b) To become an Awardee under (2) Be managerially sound; assistance from the Fund, expand its paragraph (a) of this section, an (3) Maintain appropriate internal operations into a new Target Market, Applicant shall execute the notice of controls; and/or offer more products or services, and/or award and return it to the Fund. (4) Achieve specific lending, increase the volume of its activities; and (c) By executing a notice of award, an investment, and development service (11) The Fund may consider any other Awardee agrees that, if prior to entering objectives. Performance goals for factors, as it deems appropriate, in into an Assistance Agreement with the Insured CDFIs shall be determined in reviewing an application as set forth in Fund, information comes to the consultation with the Appropriate an applicable Notice of Funds attention of the Fund that either Federal Banking Agency, as applicable. Availability. adversely affects the Awardee’s Such goals shall be incorporated in, and (c) Consultation with Appropriate eligibility for funding, or adversely enforced under, the Awardee’s Federal Banking Agencies. The Fund affects the Fund’s evaluation of the Assistance Agreement. Performance will consult with, and consider the Awardee’s application, or indicates goals for State-Insured Credit Unions views of, the Appropriate Federal fraud or mismanagement on the part of may be determined in consultation with Banking Agency prior to providing the Awardee, the Fund may, in its the Appropriate State Agency, if assistance to: discretion and without advance notice deemed appropriate by the Fund. (1) An Insured CDFI; to the Awardee, terminate the notice of (c) The Assistance Agreement shall (2) A CDFI that is examined by or award or take such other actions as it provide that, in the event of fraud, subject to the reporting requirements of deems appropriate. Moreover, by mismanagement, noncompliance with an Appropriate Federal Banking executing a notice of award, an Awardee the Act and the Fund’s regulations, or Agency; or also agrees that, if prior to entering into noncompliance with the terms and (3) A CDFI that has as its Community an Assistance Agreement with the Fund, conditions of the Assistance Agreement Partner an institution that is examined the Fund determines that the Awardee on the part of the Awardee (or the
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Community Partner, if applicable), the (f) In reviewing the performance of an will be used to determine whether Fund, in its discretion, may: Awardee in which its Investment residents of Investment Area(s) or (1) Require changes in the Area(s) includes an Indian Reservation members of Targeted Population(s) are performance goals set forth in the or Targeted Population(s) includes an adequately served and to evaluate the Assistance Agreement; Indian Tribe, the Fund shall consult impact of the CDFI Program. (2) Require changes in the Awardee’s with, and seek input from, the (c) Access to records. An Awardee Comprehensive Business Plan; appropriate tribal government. (and a Community Partner, if (3) Revoke approval of the Awardee’s (g) Prior to imposing any sanctions appropriate) must submit such financial application; pursuant to this section or an Assistance and activity reports, records, statements, (4) Reduce or terminate the Awardee’s Agreement, the Fund shall, to the and documents at such times, in such assistance; maximum extent practicable, provide forms, and accompanied by such (5) Require repayment of any the Awardee (or the Community reporting data, as required by the Fund assistance that has been distributed to Partner, if applicable) with written or the U.S. Department of Treasury to the Awardee; notice of the proposed sanction and an ensure compliance with the (6) Bar the Awardee (and the opportunity to comment. Nothing in requirements of this part and to evaluate Community Partner, if applicable) from this section, however, shall provide an the impact of the CDFI Program. The reapplying for any assistance from the Awardee or Community Partner with United States Government, including Fund; or the right to any formal or informal the U.S. Department of Treasury, the (7) Take such other actions as the hearing or comparable proceeding not Comptroller General, and their duly Fund deems appropriate. otherwise required by law. authorized representatives, shall have (d) In the case of an Insured CDFI, the full and free access to the Awardee’s Assistance Agreement shall provide that § 1805.803 Disbursement of funds. offices and facilities and all books, the provisions of the Act, this part, and Assistance provided pursuant to this documents, records, and financial the Assistance Agreement shall be part may be provided in a lump sum or statements relating to use of Federal enforceable under 12 U.S.C. 1818 of the over a period of time, as determined funds and may copy such documents as Federal Deposit Insurance Act by the appropriate by the Fund. The Fund they deem appropriate. The Fund, if it Appropriate Federal Banking Agency, as shall not provide any assistance (other deems appropriate, may prescribe applicable, and that any violation of than technical assistance) under this access to record requirements for such provisions shall be treated as a part until an Awardee has satisfied any entities that are borrowers of, or that violation of the Federal Deposit conditions set forth in its Assistance receive investments from, an Awardee. Insurance Act. Nothing in this Agreement and has secured in-hand (d) Retention of records. An Awardee paragraph (d) precludes the Fund from and/or firm commitments for the shall comply with all record retention directly enforcing the Assistance matching funds required for such requirements as set forth in OMB Agreement as provided for under the assistance pursuant to the applicable Circular A–110 (as applicable). terms of the Act. Notice of Funds Availability. At a (e) Data collection and reporting. (e) The Fund shall notify the minimum, a firm commitment must Each Awardee shall submit to the Fund, Appropriate Federal Banking Agency consist of a written agreement between at least annually and within 180 days before imposing any sanctions on an an Awardee and the source of the after the end of the Awardee’s fiscal Insured CDFI or other institution that is matching funds that is conditioned only year, such information and examined by or subject to the reporting upon the availability of the Fund’s documentation that will permit the requirements of that agency. The Fund assistance and such other conditions as Fund to review the Awardee’s progress shall not impose a sanction described in the Fund, in its sole discretion, may (and the progress of its Affiliates, paragraph (c) of this section if the deem appropriate. Such agreement must Subsidiaries, and/or Community Appropriate Federal Banking Agency, in provide for disbursal of the matching Partners, if appropriate) in writing, not later than 30 calendar days funds to an Awardee prior to, or implementing its Comprehensive after receiving notice from the Fund: simultaneously with, receipt by an Business Plan and satisfying the terms (1) Objects to the proposed sanction; Awardee of the Federal funds. and conditions of its Assistance (2) Determines that the sanction Agreement. The information and would: § 1805.804 Data collection and reporting. documentation shall include, but not be (i) Have a material adverse effect on (a) Data—General. An Awardee (and limited to, an Annual Report, which the safety and soundness of the a Community Partner, if appropriate) shall comprise the following institution; or shall maintain such records as may be components: (ii) Impede or interfere with an prescribed by the Fund that are (1) Financial Report: enforcement action against that necessary to: (i) All non-profit organizations institution by that agency; (1) Disclose the manner in which (excluding Insured CDFIs and State- (3) Proposes a comparable alternative Fund assistance is used; Insured Credit Unions) must submit to action; and (2) Demonstrate compliance with the the Fund financial statements that have (4) Specifically explains: requirements of this part and an been reviewed by an independent (i) The basis for the determination Assistance Agreement; and certified public accountant in under paragraph (e)(2) of this section (3) Evaluate the impact of the CDFI accordance with Statements on and, if appropriate, provides Program. Standards for Accounting and Review documentation to support the (b) Customer profiles. An Awardee Services, issued by the American determination; and (and a Community Partner, if Institute of Certified Public (ii) How the alternative action appropriate) shall compile such data on Accountants, no later than 180 days suggested pursuant to paragraph (e)(3) the gender, race, ethnicity, national after the end of the Awardee’s fiscal of this section would be as effective as origin, or other information on year (audited financial statements can the sanction proposed by the Fund in individuals that utilize its products and be provided by the due date in lieu of securing compliance and deterring services as the Fund shall prescribe in reviewed statements, if available). Non- future noncompliance. an Assistance Agreement. Such data profit organizations (excluding Insured
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CDFIs and State-Insured Credit Unions) information through the Annual Survey provide Annual Surveys or Financial that are required to have their financial that will inform the Fund of its Reports, or other documentation that the statements audited pursuant to OMB compliance toward meeting the Fund may require, the Awardee is Circular A–133 Audits of States, Local Performance Goals set forth in the responsible for ensuring that the Governments and Non-Profit Performance Goals Report. information is submitted timely and Organizations, must also submit their (ii) Annual Survey: The Fund will use complete. The Fund reserves the right to A–133 audited financial statements to the Annual Survey to collect data by contact such additional signatories to the Fund no later than 270 days after the which to assess the Awardee’s the Assistance Agreement and require end of the Awardee’s fiscal year. Non- compliance toward meeting its that additional information and profit organizations (excluding Insured Performance Goals and the impact of the documentation be provided. CDFIs and State-Insured Credit Unions) CDFI Program and the CDFI industry. (7) The Fund’s review of the progress that are not required to have financial The Annual Survey is comprised of two of an Insured CDFI, a Depository statements audited pursuant to OMB components, the Institution-Level Institution Holding Company or a State- Circular A–133, Audits of States, Local Report and the Transaction-Level Insured Credit Union in implementing Governments and Non-Profit Report. its Comprehensive Business Plan and Organizations, must submit to the Fund (A) Institution-Level Report. The satisfying the terms and conditions of its a statement signed by the Awardee’s Institution-Level Report includes, but is Assistance Agreement may also include Authorized Representative or certified not limited to, organizational, financial, information from the Appropriate public accountant, asserting that the portfolio and community development Federal Banking Agency or Appropriate Awardee is not required to have a single impact information and any other State Agency, as the case may be. audit pursuant OMB Circular A–133. information that the Fund deems (8) The Fund shall make reports (ii) For-profit organizations (excluding appropriate. described in this section available for Insured CDFIs and State-Insured Credit (B) Transaction-Level Report. The public inspection after deleting any Unions) must submit to the Fund Transaction-Level Report includes, but materials necessary to protect privacy or financial statements audited in is not limited to, specific data elements proprietary interests. conformity with generally accepted on each of the Awardee’s loans and (f) Exchange of information with auditing standards as promulgated by investments including, but not limited Appropriate Federal Banking Agencies the American Institute of Certified to, borrower location, loan/investment and Appropriate State Agencies. (1) Public Accountants, no later than 180 type, loan/investment amount, and Except as provided in paragraph (f)(4) of days after the end of the Awardee’s terms. The Awardee must submit the this section, prior to directly requesting fiscal year. Transaction-Level Report to the Fund at information from or imposing reporting (iii) Insured CDFIs are not required to least annually but no more frequently or record keeping requirements on an submit financial statements to the Fund. than quarterly. If the Fund requires the Insured CDFI or other institution that is The Fund will obtain the necessary Awardee to submit the Transaction- examined by or subject to the reporting information from publicly available Level Report on a semi-annual or requirements of an Appropriate Federal sources. State-Insured Credit Unions quarterly basis, the Fund will notify the Banking Agency, the Fund shall consult must submit to the Fund copies of the Awardee of the due date for the with the Appropriate Federal Banking financial statements that they submit to submission of said report at least 60 Agency to determine if the information the Appropriate State Agency. days prior to the due date. Only requested is available from or may be (iv) If multiple organizations sign the Awardees that receive financial obtained by such agency in the form, Assistance Agreement: The Awardee assistance awards are required to submit format, and detail required by the Fund. may submit combined financial Transaction-Level Reports. (2) If the information, reports, or statements and footnotes for the (3) Financial Status Report: The records requested by the Fund pursuant Awardee and other entities that signed Financial Status Report is applicable to paragraph (f)(1) of this section are not the Assistance Agreement as long as the only to Awardees that receive technical provided by the Appropriate Federal financial statements of each signatory assistance awards and must be signed Banking Agency within 15 calendar are shown separately (for example, in by the Awardee’s authorized days after the date on which the combining financial statements). representative, and submitted to the material is requested, the Fund may (v) If the Assistance is in the form of Fund with the Annual Report. This form request the information from or impose a loan or a deposit: The Awardee must is only applicable to the technical the record keeping or reporting provide the Fund with financial assistance portion of the award. requirements directly on such statements annually throughout the (4) Uses of Financial Assistance and institutions with notice to the term of the loan or deposit. Matching Funds Report: This report Appropriate Federal Banking Agency. (vi) If the Assistance is in the form of describes the Awardee’s use of its (3) The Fund shall use any an equity investment (common or financial assistance award and its information provided by an Appropriate preferred stock, secondary capital, matching funds during its preceding Federal Banking Agency or Appropriate certificate of deposit, partnership fiscal year. State Agency under this section to the interest, or debentures): The Awardee (5) Explanation of Noncompliance: extent practicable to eliminate must provide the Fund with financial Any Awardee that fails to meet a duplicative requests for information and statements annually for each year in performance goal in its Performance reports from, and record keeping by, an which the Fund holds the equity Goals Report must submit to the Fund Insured CDFI, State-Insured Credit investment. a narrative explanation. Union or other institution that is (2) Performance Goals Report/Annual (6) Awardees are responsible for the examined by or subject to the reporting Survey: Performance Goals include timely and complete submission of the requirements of an Appropriate Federal performance goals and measures that are Annual Report, even if all or a portion Banking Agency or Appropriate State specific to the Awardee’s application for of the documents actually are completed Agency. funding. by another entity or signatory to the (4) Notwithstanding paragraphs (f)(1) (i) Performance Goals Report: The Assistance Agreement. If such other and (2) of this section, the Fund may Awardee will submit to the Fund entities or signatories are required to require an Insured CDFI, State-Insured
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Credit Union, or other institution that is Distribution, 700 4th Street, NW., Suite contracts using monies from the Fund. examined by or subject to the reporting 1100, Washington, DC 20548. No Insider of an Awardee shall solicit requirements of an Appropriate Federal or accept gratuities, favors or anything Banking Agency or Appropriate State § 1805.805 Information. of monetary value from any actual or Agency to provide information with The Fund and each Appropriate potential borrowers, owners or respect to the institution’s Federal Banking Agency shall cooperate contractors for such credit or contracts. implementation of its Comprehensive and respond to requests from each other Such policies shall provide for Business Plan or compliance with the and from other Appropriate Federal disciplinary actions to be applied for terms of its Assistance Agreement, after Banking Agencies in a manner that violation of the standards by the providing notice to the Appropriate ensures the safety and soundness of Awardee’s Insiders. Federal Banking Agency or Appropriate Insured CDFIs or other institution that State Agency, as the case may be. is examined by or subject to the § 1805.808 Lobbying restrictions. (5) Nothing in this part shall be reporting requirements of an No assistance made available under construed to permit the Fund to require Appropriate Federal Banking Agency. this part may be expended by an an Insured CDFI, State-Insured Credit Awardee to pay any person to influence Union, or other institution that is § 1805.806 Compliance with government requirements. or attempt to influence any agency, examined by or subject to the reporting elected official, officer or employee of a requirements of an Appropriate Federal In carrying out its responsibilities State or local government in connection Banking Agency or Appropriate State pursuant to an Assistance Agreement, with the making, award, extension, Agency to obtain, maintain, or furnish the Awardee shall comply with all continuation, renewal, amendment, or an examination report of any applicable Federal, State, and local modification of any State or local Appropriate Federal Banking Agency or laws, regulations, and ordinances, OMB government contract, grant, loan or Appropriate State Agency, or records Circulars, and Executive Orders. cooperative agreement as such terms are contained in or related to such report. § 1805.807 Conflict of interest defined in 31 U.S.C. 1352. (6) The Fund and the Appropriate requirements. Federal Banking Agency shall promptly § 1805.809 Criminal provisions. (a) Provision of credit to Insiders. (1) notify each other of material concerns An Awardee that is a Non-Regulated The criminal provisions of 18 U.S.C. about an Awardee that is an Insured 657 regarding embezzlement or CDFI or that is examined by or subject CDFI may not use any monies provided to it by the Fund to make any credit misappropriation of funds is applicable to the reporting requirements of an to all Awardees and Insiders. Appropriate Federal Banking Agency, (including loans and Equity and share appropriate information Investments) available to an Insider § 1805.810 Fund deemed not to control. unless it meets the following relating to such concerns. The Fund shall not be deemed to restrictions: (7) Neither the Fund nor the control an Awardee by reason of any Appropriate Federal Banking Agency (or (i) The credit must be provided pursuant to standard underwriting assistance provided under the Act for Appropriate State Agency, as the case the purpose of any applicable law. may be) shall disclose confidential procedures, terms and conditions; information obtained pursuant to this (ii) The Insider receiving the credit, § 1805.811 Limitation on liability. and any family member or business section from any party without the The liability of the Fund and the partner thereof, shall not participate in written consent of that party. United States Government arising out of any way in the decision making (8) The Fund, the Appropriate Federal any assistance to a CDFI in accordance regarding such credit; Banking Agency (or Appropriate State with this part shall be limited to the (iii) The board of directors or other Agency, as the case may be), and any amount of the investment in the CDFI. governing body of the Awardee shall other party providing information under The Fund shall be exempt from any approve the extension of the credit; and this paragraph (f) shall not be deemed assessments and other liabilities that (iv) The credit must be provided in to have waived any privilege applicable may be imposed on controlling or accordance with a policy regarding to the any information or data, or any principal shareholders by any Federal credit to Insiders that has been portion thereof, by providing such law or the law of any State. Nothing in approved in advance by the Fund. information or data to the other party or this section shall affect the application (2) An Awardee that is an Insured by permitting such data or information, of any Federal tax law. or any copies or portions thereof, to be CDFI, a Depository Institution Holding used by the other party. Company or a State-Insured Credit § 1805.812 Fraud, waste and abuse. (g) Availability of referenced Union shall comply with the restrictions Any person who becomes aware of publications. The publications on Insider activities and any comparable the existence or apparent existence of referenced in this section are available restrictions established by its fraud, waste or abuse of assistance as follows: Appropriate Federal Banking Agency or provided under this part should report (1) OMB Circulars may be obtained Appropriate State Agency, as such incidences to the Office of from the Office of Administration, applicable. Inspector General of the U.S. Publications Office, 725 17th Street, (b) Awardee standards of conduct. An Department of the Treasury. NW., Room 2200, New Executive Office Awardee that is a Non-Regulated CDFI Building, Washington, DC 20503 or on shall maintain a code or standards of Dated: December 1, 2005. the Internet (http:// conduct acceptable to the Fund that Arthur A. Garcia, www.whitehouse.gov/OMB/grants/ shall govern the performance of its Director, Community Development Financial index.html); and Insiders engaged in the awarding and Institutions Fund. (2) General Accounting Office administration of any credit (including [FR Doc. 05–23751 Filed 12–12–05; 8:45 am] materials may be obtained from GAO loans and Equity Investments) and BILLING CODE 4810–70–P
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DEPARTMENT OF THE TREASURY applications for the FY 2006 funding 2006 for the FY 2006 funding round (2 round is February 14, 2006. business days before the application Community Development Financial This notice is to announce that the deadline). Institutions Fund deadline for the submission of The Fund will not respond to applications via Grants.gov for the FY questions or provide support concerning Notice of Funds Availability (NOFA) 2006 funding round of the BEA Program Inviting Applications for the FY 2006 the application after 5:00 p.m. EST on has been changed to 5 p.m. EST on February 27, 2006 for the FY 2006 Funding Round of the Bank Enterprise March 1, 2006. Paper attachments to the Award (BEA) Program funding round, until after the application must be received no later application deadline of March 1, 2006. than 5 p.m. EST on March 6, 2006. ACTION: Change to NOFA inviting Other information regarding the Fund Increase of Award Amount: The applications for the FY 2006 funding and its programs may be downloaded NOFA published on September 9, 2004 round of the BEA Program: Waiver of and printed from the Fund’s Web site at for the BEA Program (69 FY 54718) also limitations on eligible Qualified http://www.cdfifund.gov. The Fund will announced that the Fund expects that it Activities provided to certain CDFI post on its Web site responses to may award approximately $6 million in Partners; Change of Application questions of general applicability appropriated funds for FY 2006 BEA Deadlines; Increase of Award Amount; regarding the BEA Program. Modification of Application and Program awards. This notice is to announce that the A. Information technology support: Submission Information. Fund now expects that it may award Technical support can be obtained by calling (202) 622–2455 or by e-mail at SUMMARY: On September 9, 2004, the approximately $12 million for FY 2006 Community Development Financial BEA Program awards. The Fund [email protected]. People who Institutions Fund (the ‘‘Fund’’) reserves the right to make awards in an have visual or mobility impairments announced in a NOFA for the BEA amount less than or in excess of this that prevent them from creating Hot Program (69 FR 54718) that BEA amount subject to funding availability. Zone or Distressed Community maps Program applicants that are also Modification of Application and using the Fund’s Web site should call Community Development Financial Submission Information: The NOFA (202) 622–2455 for assistance. These are Institutions (‘‘CDFIs’’) cannot receive published on September 9, 2004 for the not toll free numbers. credit under the BEA Program for BEA Program (69 FY 54718) provided B. Programmatic support: If you have financial assistance or Qualified information regarding submission of any questions about the programmatic Activities provided to CDFI Partners applications in response to the NOFA. requirements (such as the eligibility of that are also FDIC-insured depository This notice is to announce that for the specific transactions or CDFI Partners), institutions or depository institution FY 2006 funding round, in compliance contact a member of the BEA Program holding companies. Due to the recent with Public Law 106–107 and Section staff, who can be reached by e-mail at occurrence of certain natural disasters, 5(a) of the Federal Financial Assistance [email protected], by telephone at the Fund will waive this provision with Management Improvement Act, the (202) 622–6355, by facsimile at (202) regard to the FY 2006 funding round of Fund is required to accept applications 622–7754, or by mail at CDFI Fund, 601 the BEA Program for applicants submitted through the Grants.gov 13th Street, NW., Suite 200 South, providing financial assistance or electronic system. The Fund will post to Washington, DC 20005. These are not Qualified Activities to CDFI Partners its Web site at http://www.cdfifund.gov toll-free numbers. that are also FDIC-insured depository instructions for accessing and C. Administrative support: If you have institutions or depository institution submitting an application through any questions regarding the holding companies which have been Grants.gov. The application instructions administrative requirements of the directly affected by said disasters. will be posted as soon as they are NOFA, contact the Fund’s Grants For the FY 2006 funding round, CDFIs available and once the application Manager by e-mail at may receive BEA Program credit for materials are accessible through [email protected], by financial assistance or Qualified Grants.gov. The anticipated release date telephone at (202) 622–8226, by Activities provided to CDFI Partners for the application instructions is facsimile at (202) 622–9625, or by mail that are FDIC-insured depository January 6, 2006. Applicants are at CDFI Fund, 601 13th Street, NW., institutions or depository institution encouraged to start the registration Suite 200 South, Washington, DC 20005. holding companies whose principal process now at www.Grants.gov as the These are not toll free numbers. place of business is located in a county process may take several weeks to fully D. Legal counsel support: If you have for which the Federal Emergency complete. See the following link for any questions or matters that you Management Agency (FEMA) has issued information on getting started on believe require response by the Fund’s a ‘‘major disaster declaration’’ due to Grants.gov: http://grants.gov/assets/ Office of Legal Counsel, please refer to Hurricane Katrina on or after August 28, GrantsgovCoBrandBrochure8X11.pdf. the document titled ‘‘How to Request a 2005 or due to Hurricane Rita on or after All other information and Legal Review’’, found on the Fund’s September 24, 2005 and made a requirements set forth in the September Web site at http://www.cdfifund.gov. determination that such county is 9, 2004 NOFA for the BEA Program shall remain effective, as published. Authority: 12 U.S.C. 1834a, 4703, 4703 eligible for both ‘‘individual and public note, 4713; 12 CFR part 1806. assistance.’’ A list of the eligible FOR FURTHER INFORMATION CONTACT: The counties may be found on the FEMA Fund will respond to questions and Dated: December 2, 2005. Web site (http://www.fema.gov). provide support concerning the NOFA Arthur A. Garcia, Change of Application Deadlines: The and the funding application between the Director, Community Development Financial NOFA published on September 9, 2004 hours of 9 a.m. and 5 p.m. EST, starting Institutions Fund. for the BEA Program (69 FR 54718) also the date of the publication of the NOFA [FR Doc. 05–23749 Filed 12–12–05; 8:45 am] announced that the deadline for through close of business February 27, BILLING CODE 4810–70–P
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Part IV
The President Proclamation 7968—Human Rights Day, Bill of Rights Day, and Human Rights Week, 2005
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Federal Register Presidential Documents Vol. 70, No. 238
Tuesday, December 13, 2005
Title 3— Proclamation 7968 of December 9, 2005
The President Human Rights Day, Bill of Rights Day, and Human Rights Week, 2005
By the President of the United States of America
A Proclamation Americans believe that freedom is God’s gift to every man and woman in the world. The Founders adopted our Constitution to secure the blessings of liberty for the people of the United States, and since 1789, generations of Americans have defended and advanced freedom in our Nation. Throughout our history, the United States has also worked to extend the promise of liberty to other countries. We are continuing those efforts today. We are promoting democracies that respect freedom of speech, freedom of worship, and freedom of the press and that protect the rights of minorities and women. We are standing with dissidents and exiles against oppressive regimes and tyranny. This year has seen great advances in the spread of democracy and human rights. In January, more than eight million Iraqi men and women braved threats of violence to vote for a provisional government. In October, Iraqis voted in even greater numbers to approve a draft constitution for their country, and on December 15, they will return to the polls to elect a Council of Representatives. Millions of Afghans voted in September in the first free legislative elections in Afghanistan in decades. Countries of the former Soviet bloc are emerging as thriving democracies. A free press is gaining ground in Kyrgyzstan, and civil institutions are being strengthened in Ukraine and Georgia. We have witnessed good progress this year, and America will continue this historic work to advance the cause of freedom. We remain confident in this cause because we have seen the power of freedom to overcome the dark ideologies of tyranny and terror. Freedom enables men and women to live lives of dignity. And freedom gives the citizens of a nation confidence in a future of peace for their children and grandchildren. As we observe Human Rights Day, Bill of Rights Day, and Human Rights Week, we renew our commitment to building a world where human rights are respected and protected by the rule of law and where all people can enjoy freedom and dignity. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim December 10, 2005, as Human Rights Day; December 15, 2005, as Bill of Rights Day; and the week beginning December 10, 2005, as Human Rights Week. I call upon the people of the United States to mark these observances with appropriate ceremonies and activities.
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IN WITNESS WHEREOF, I have hereunto set my hand this ninth day of December, in the year of our Lord two thousand five, and of the Independence of the United States of America the two hundred and thirtieth. W
[FR Doc. 05–24060 Filed 12–12–05; 11:18 am] Billing code 3195–01–P
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Reader Aids Federal Register Vol. 70, No. 238 Tuesday, December 13, 2005
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER
Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 73579, 73581, 73583 3 CFR Presidential Documents 71 ...... 72371, 72905, 73129, Executive orders and proclamations 741–6000 Proclamations: 73131, 73132, 73134 The United States Government Manual 741–6000 7967...... 72575 97 ...... 72703, 72705, 73367, 7968...... 73903 Other Services 73785 Proposed Rules: 741–6020 5 CFR Electronic and on-line services (voice) 13...... 72403 Privacy Act Compilation 741–6064 300...... 72065 39 ...... 72083, 72085, 72088, Public Laws Update Service (numbers, dates, etc.) 741–6043 307...... 72065 72327, 72406, 72409, 72599, TTY for the deaf-and-hard-of-hearing 741–6086 315...... 72065 72601, 72726, 72938, 72939, 316...... 72065 72942, 72945, 72947, 73171, 330...... 72065 ELECTRONIC RESEARCH 73173, 73391, 73392, 73633, 335...... 72065 73665, 73668, 73671 World Wide Web 550...... 72065 47...... 72403 551...... 72065 Full text of the daily Federal Register, CFR and other publications 61...... 72403 720...... 72065 is located at: http://www.gpoaccess.gov/nara/index.html 71...... 72949, 72950 Proposed Rules: 91...... 72403 Federal Register information and research tools, including Public 337...... 73646 93...... 73674 Inspection List, indexes, and links to GPO Access are located at: 930...... 73646 183...... 72403 http://www.archives.gov/federallregister/ 7 CFR E-mail 15 CFR 210...... 72349 748...... 72073 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 220...... 72349 an open e-mail service that provides subscribers with a digital 226...... 72349 16 CFR form of the Federal Register Table of Contents. The digital form 272...... 72350 303...... 73369 of the Federal Register Table of Contents includes HTML and 274...... 72350 801...... 73369 PDF links to the full text of each document. 276...... 72350 803...... 73369 To join or leave, go to http://listserv.access.gpo.gov and select 278...... 72350 Online mailing list archives, FEDREGTOC-L, Join or leave the list 279...... 72350 17 CFR (or change settings); then follow the instructions. 280...... 72350 301...... 73553 200...... 72566 PENS (Public Law Electronic Notification Service) is an e-mail 305...... 72881 201...... 72566 service that notifies subscribers of recently enacted laws. 319...... 72068, 72881 229...... 72372 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 800...... 73556 231...... 73344 and select Join or leave the list (or change settings); then follow 906...... 73123 239...... 72372 the instructions. 979...... 72699 241...... 73344 984...... 72195, 72892 271...... 73344 FEDREGTOC-L and PENS are mailing lists only. We cannot 420...... 73378 respond to specific inquiries. 985...... 72355 1030...... 73126 18 CFR Reference questions. Send questions and comments about the 1902...... 73347 Federal Register system to: [email protected] Proposed Rules: Proposed Rules: The Federal Register staff cannot interpret specific documents or 927...... 73167 41...... 72730 regulations. 1220...... 72257 158...... 72730 284...... 72090 12 CFR 286...... 72730 FEDERAL REGISTER PAGES AND DATE, DECEMBER 229...... 73128 349...... 72730 72065–72194...... 1 707...... 72895 19 CFR 72195–72348...... 2 796...... 72702 360...... 72373 72349–72576...... 5 1805...... 73887 72577–72698...... 6 Proposed Rules: 20 CFR 72699–72880...... 7 Ch.III ...... 73652 423...... 73135 72881–73122...... 8 13 CFR 655...... 72556 73123–73346...... 9 121...... 72577 Proposed Rules: 73347–73552...... 12 123...... 72577 260...... 73175 73553–73904...... 13 320...... 73175 14 CFR 341...... 73176 23...... 72068, 72070 404...... 72411, 72416 25...... 73559, 73561 416...... 72411, 72416 39 ...... 72358, 72361, 72363, 72366, 72368, 72595, 72902, 21 CFR 73347, 73351, 73355, 73358, Ch. I ...... 72074 73361, 73364, 73576, 73577, 172...... 72906
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520...... 73136 346...... 72917 42 CFR 252 ...... 73148, 73150, 73152, 524...... 73137 Proposed Rules: 405...... 73623 73153 610...... 72197 635...... 73181 Proposed Rules: 9901...... 73423 Proposed Rules: 1001...... 73186 9903...... 73423 310...... 73178 33 CFR Proposed Rules: 358...... 73178 117...... 73380 44 CFR Ch. 2 ...... 73187 610...... 72257 Proposed Rules: 64...... 72078 208...... 73187 100...... 72964 65...... 73634 225...... 73189 24 CFR 117...... 72419, 72967 Proposed Rules: 252...... 73187, 73189 203...... 72696 67...... 73677 253...... 73187 941...... 72908 36 CFR 47 CFR 1011...... 73587 49 CFR 26 CFR 73...... 72723 1 ...... 72376, 72908, 72914 37 CFR Proposed Rules: 105...... 73156 106...... 73156 602...... 72908, 72914 253...... 72077 73...... 72763 Proposed Rules: 107...... 73156 1 ...... 72260, 72952, 73393 38 CFR 48 CFR 110...... 73156 54...... 72953 1...... 73415 171...... 73156 3...... 72211 172...... 73156 301...... 72954, 73393 20...... 72211 2...... 73415 4...... 73415 173...... 72930, 73156 27 CFR 39 CFR 5...... 73415 174...... 73156 6...... 73415 175...... 73156 9 ...... 72707, 72710, 72713, 111...... 72221 72717 7...... 73415 176...... 73156 232...... 72078 177...... 73156 Proposed Rules: 8...... 73415 178...... 73156 4...... 72731 40 CFR 9...... 73415 180...... 73156 5...... 72731 12...... 73415 52 ...... 72597, 72720, 73380 234...... 72382 7...... 72731 13...... 73415 60...... 73138 236...... 72382 9...... 72733 15...... 73415 61...... 73138, 73595 16...... 73415 571...... 73383 28 CFR 63...... 73138, 73595 17...... 73415 1540...... 72930 82...... 73604 19...... 73415 16...... 72199 Proposed Rules: 86...... 72917 22...... 73415 905...... 73587 229...... 73070 420...... 73618 25...... 73415 238...... 73070 29 CFR Proposed Rules: 28...... 73415 51...... 72268 30...... 73415 50 CFR 4011...... 72074 52 ...... 72740, 72741, 72744, 32...... 73415 4022...... 72074 73414 36...... 73415 17...... 73820 4044 ...... 72076, 72205, 73330 55...... 72094 42...... 73415 622...... 73383 Proposed Rules: 61...... 73183, 73675 48...... 73415 635...... 72080, 72724 1611...... 73413 63 ...... 72330, 73098, 73183, 49...... 73415 648...... 72082, 72934 73675 50...... 73415 660...... 72385 30 CFR 81...... 73183 52...... 73415 679...... 73389 204...... 72381 86...... 72970 53...... 73415 Proposed Rules: 96...... 72268 205...... 73148 17 ...... 72776, 72973, 73190, 31 CFR 112...... 73518, 73524 211...... 73150 73699 Proposed Rules: 122...... 73676 216...... 73151 216...... 73426 1...... 72739 180...... 72757 217...... 73151 223...... 72099 223...... 73150 648...... 72100 32 CFR 41 CFR 225...... 73152, 73153 660...... 72777 285...... 73378 60-250...... 72148 226...... 73148 697...... 73717
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REMINDERS Quality control system; Meat and poultry products regulated navigation area; The items in this list were comments due by 12-22- processing facilities; Open comments due by 12-21- editorially compiled as an aid 05; published 9-23-05 [FR for comments until further 05; published 11-21-05 to Federal Register users. 05-19020] notice; published 9-8-04 [FR 05-22951] Inclusion or exclusion from DEFENSE DEPARTMENT [FR 04-12017] HOMELAND SECURITY this list has no legal Federal Acquisition Regulation FEDERAL DEPARTMENT significance. (FAR): COMMUNICATIONS Federal Emergency Central contractor COMMISSION Management Agency registration; taxpayer Common carrier services: Disaster assistance: RULES GOING INTO identification number EFFECT DECEMBER 13, Wireless telecommunications Special Community Disaster validation; comments due services— 2005 by 12-19-05; published Loans Program; Wireless radio services; 10-19-05 [FR 05-20869] implementation; comments radiated power rules; due by 12-19-05; ENVIRONMENTAL ENVIRONMENTAL comments due by 12- published 10-18-05 [FR PROTECTION AGENCY PROTECTION AGENCY Air quality implementation 19-05; published 10-19- 05-20920] Air pollutants, hazardous; 05 [FR 05-20928] plans; approval and national emission standards: HOUSING AND URBAN promulgation; various GENERAL SERVICES Electric utility steam DEVELOPMENT States: ADMINISTRATION generating units and DEPARTMENT California; published 10-14- removal of coal- and oil- Federal Acquisition Regulation Manufactured Housing Dispute 05 fired electric utility steam (FAR): Resolution Program; Wisconsin; published 10-14- generating units from Central contractor comments due by 12-19-05; 05 Section 112(c) list registration; taxpayer published 10-20-05 [FR 05- TRANSPORTATION Reconsideration petitions; identification number 20953] DEPARTMENT comments due by 12- validation; comments due INTERIOR DEPARTMENT Federal Aviation by 12-19-05; published 19-05; published 10-28- Fish and Wildlife Service Administration 05 [FR 05-21456] 10-19-05 [FR 05-20869] Endangered and threatened Airworthiness directives: Air pollution control; new HEALTH AND HUMAN species: Boeing; published 11-8-05 motor vehicles and engines: SERVICES DEPARTMENT Standard instrument approach Diesel fuel sulfur transition Centers for Disease Control Critical habitat procedures; published 12- provisions; highway and and Prevention designations— 13-05 nonroad diesel and Tier 2 Possession, use and transfer Alameda whipsnake; TREASURY DEPARTMENT gasoline programs; of select agents and toxins: comments due by 12- 19-05; published 10-18- Community Development comments due by 12-22- 1918 pandemic influenza 05 [FR 05-20145] Financial Institutions Fund 05; published 11-22-05 virus; reconstructed Grants and cooperative [FR 05-22806] replication competent Findings on petitions, etc.— agreements; availability, etc.: Air pollution; standards of forms; comments due by Mexican bobcat; Community Development performance for new 12-19-05; published 10- comments due by 12- Financial Institutions stationary sources: 20-05 [FR 05-20946] 23-05; published 11-23- Electric utility steam Program; published 12-13- HEALTH AND HUMAN 05 [FR 05-23032] generating units; mercury 05 SERVICES DEPARTMENT NATIONAL AERONAUTICS performance standards AND SPACE Reconsideration petitions; Food and Drug COMMENTS DUE NEXT Administration ADMINISTRATION WEEK comments due by 12- 19-05; published 10-28- Animal drugs, feeds, and Federal Acquisition Regulation 05 [FR 05-21457] related products: (FAR): AGRICULTURE Air quality implementation Cattle brains and spinal Central contractor DEPARTMENT plans; approval and cords; prohibited use; registration; taxpayer Agricultural Marketing promulgation; various comments due by 12-19- identification number Service States; air quality planning 05; published 10-6-05 [FR validation; comments due Hass avocado promotion, purposes; designation of 05-20196] by 12-19-05; published research, and information areas: Human drugs: 10-19-05 [FR 05-20869] order; comments due by 12- Indiana; comments due by ARTS AND HUMANITIES, 20-05; published 10-21-05 Positron emission 12-23-05; published 11- NATIONAL FOUNDATION [FR 05-21081] tomography drug 23-05 [FR 05-23221] Nectarines and peaches products; current good National Foundation on the Air quality implementation grown in— manufacturing practice; Arts and the Humanities plans; approval and comments due by 12-19- California; comments due by Privacy Act; implementation; promulgation; various 05; published 9-20-05 [FR 12-19-05; published 11- comments due by 12-23-05; States: 05-18510] 29-05 [FR 05-23327] published 11-23-05 [FR 05- California; comments due by AGRICULTURE HOMELAND SECURITY 23118] 12-23-05; published 11- DEPARTMENT DEPARTMENT 23-05 [FR 05-23089] SOCIAL SECURITY Coast Guard Animal and Plant Health Hazardous waste program ADMINISTRATION Inspection Service authorizations: Drawbridge operations: Social security benefits and Plant-related quarantine, Massachusetts; comments Connecticut; comments due supplemental security domestic: due by 12-19-05; by 12-23-05; published income: Asian longhorned beetle; published 11-18-05 [FR 12-8-05 [FR 05-23752] Federal old age, survivors, comments due by 12-23- 05-22891] Ports and waterways safety; and disability insurance, 05; published 10-24-05 Michigan; comments due by regulated navigation areas, and aged, blind, and [FR 05-21169] 12-23-05; published 11- safety zones, security disabled— AGRICULTURE 23-05 [FR 05-23213] zones, etc.: Work report receipts, DEPARTMENT Water pollution; effluent Narragansett Bay, RI and benefit payments for Food and Nutrition Service guidelines for point source Mt. Hope Bay, MA; trial work period service Food stamp program: categories: Providence River months after fraud
VerDate Aug 31 2005 02:05 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\13DECU.LOC 13DECU iv Federal Register / Vol. 70, No. 238/ Tuesday, December 13, 2005 / Reader Aids
conviction, student 05; published 11-2-05 [FR available on the Internet from located at 57 West Street in earned income 05-21845] GPO Access at http:// Newville, Pennsylvania, as the exclusion, etc.; TREASURY DEPARTMENT www.gpoaccess.gov/plaws/ ‘‘Randall D. Shughart Post comments due by 12- index.html. Some laws may Office Building’’. (Dec. 1, Comptroller of the Currency 19-05; published 10-18- not yet be available. 2005; 119 Stat. 2541) Practice and procedure: 05 [FR 05-20803] H.R. 2183/P.L. 109–123 Fees assessment; H.R. 4145/P.L. 109–116 TRANSPORTATION To designate the facility of the DEPARTMENT comments due by 12-19- To direct the Joint Committee 05; published 11-17-05 on the Library to obtain a United States Postal Service Federal Aviation [FR 05-22815] statue of Rosa Parks and to located at 567 Tompkins Administration Avenue in Staten Island, New VETERANS AFFAIRS place the statue in the United Airworthiness directives: York, as the ‘‘Vincent DEPARTMENT States Capitol in National Boeing; Open for comments Palladino Post Office’’. (Dec. Compensation, pension, burial Statuary Hall, and for other until further notice; 1, 2005; 119 Stat. 2542) and related benefits: purposes. (Dec. 1, 2005; 119 published 8-16-04 [FR 04- Stat. 2524) H.R. 3853/P.L. 109–124 18641] Dependency and indemnity compensation benefits; H.R. 126/P.L. 109–117 To designate the facility of the Rolls-Royce Corp.; comments due by 12-20- To amend Public Law 89-366 United States Postal Service comments due by 12-19- 05; published 10-21-05 to allow for an adjustment in located at 208 South Main 05; published 10-18-05 [FR 05-21026] the number of free roaming Street in Parkdale, Arkansas, [FR 05-20779] horses permitted in Cape as the Willie Vaughn Post Airworthiness standards: Lookout National Seashore. Office. (Dec. 1, 2005; 119 Special conditions— LIST OF PUBLIC LAWS (Dec. 1, 2005; 119 Stat. 2526) Stat. 2543) Garmin AT, Inc. Raytheon H.R. 539/P.L. 109–118 Last List December 2, 2005 This is a continuing list of A36 airplanes; Caribbean National Forest Act public bills from the current comments due by 12- of 2005 (Dec. 1, 2005; 119 session of Congress which 19-05; published 11-18- Stat. 2527) 05 [FR 05-22917] have become Federal laws. It Public Laws Electronic may be used in conjunction H.R. 606/P.L. 109–119 Notification Service Garmin AT, Inc. Raytheon with ‘‘PLUS’’ (Public Laws B58 airplanes; Angel Island Immigration (PENS) Update Service) on 202–741– comments due by 12- Station Restoration and 6043. This list is also 19-05; published 11-18- Preservation Act (Dec. 1, available online at http:// 2005; 119 Stat. 2529) PENS is a free electronic mail 05 [FR 05-22918] notification service of newly www.archives.gov/federal- H.R. 1972/P.L. 109–120 Restricted areas; comments register/laws.html. enacted public laws. To due by 12-19-05; published Franklin National Battlefield subscribe, go to http:// 11-2-05 [FR 05-21878] The text of laws is not Study Act (Dec. 1, 2005; 119 listserv.gsa.gov/archives/ TRANSPORTATION published in the Federal Stat. 2531) publaws-l.html DEPARTMENT Register but may be ordered H.R. 1973/P.L. 109–121 in ‘‘slip law’’ (individual Note: This service is strictly Senator Paul Simon Water for Federal Railroad pamphlet) form from the for E-mail notification of new the Poor Act of 2005 (Dec. 1, Administration Superintendent of Documents, laws. The text of laws is not 2005; 119 Stat. 2533) Track safety standards: U.S. Government Printing available through this service. Continuous welded rail; Office, Washington, DC 20402 H.R. 2062/P.L. 109–122 PENS cannot respond to joints inspection; (phone, 202–512–1808). The To designate the facility of the specific inquiries sent to this comments due by 12-19- text will also be made United States Postal Service address.
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